London, April 12, 2000
Weigh the advantages of a jury trial
SIR -- The forthright terms of the judgment of Mr Justice Gray in the Irving case (report, April 11) emphasise a fundamental difference between trial by jury and by judge alone.
Juries give a verdict without reasons or comments. The judge sums up impartially to the jury, or he is in trouble in the Court of Appeal. Judges sitting on their own are required to explain and justify their decisions, and state their own assessment of the parties. So we know what evidence caused Mr Justice Gray to form his views of David Irving and why.
Looking back, it might well have been of public interest if I could have stated in open court my conclusions on the evidence about the protagonists in such cases as Aldington v Tolstoy and Neill v Worsthorne. More recently, Mr Justice Morland's considered opinion of Messrs Hamilton and Fayed would have been invaluable.
For other reasons, jury trial in defamation is to be preferred, except in very complex trials. However litigants are always free to agree to trial by judge alone. They should beware. They may end up by being powerfully and publicly clobbered.
Sir MICHAEL DAVIES
[Website comment: Davies was the Judge in the Tolstoy case]
SIR -- As a brown man, I must point out that we are all racists: we have a tribalistic predisposition to judge people by their race. In extremis, we protect our kith and kin before extending our helping band to others outside our group.
Mr Irving provides an extreme and rancid demonstration of an incipient prejudice that we all harbour in our hearts. But tu suppress expressions of prejudice by the might of the law may well be counter-productive.
I have experienced racial harassment both physically and verbally. Nevertheless, it is clear to me that the law is not the appropriate forum in which to change hearts and minds. Mr Irving was not convicted -- his claim that he was libelled was simply thrown out. A vital distinction.