Trying the jury

At the end of November 2002, the House of Lords overruled the Court of Appeal’s decision in the Bruce Grobbelaar case. In his libel case against the Sun newspaper, which alleged that Grobbelaar had accepted bribes to ‘throw’ matches while he was goalkeeper for Liverpool, a jury found in Grobbelaar’s favour and he was awarded £85,000 damages.

This jury decision was overturned by the Court of Appeal in January 2001, which quashed the previous verdict and stripped away Grobbelaar’s damages. Now, the House of Lords has reinstated the jury’s original verdict but has slashed Grobbelaar’s damages to just £1.

The House of Lords’ judgement overruling the Court of Appeal may provide no vindication for Grobbelaar’s ruined reputation – but it does provide some for the jury who heard his libel case.

The House of Lords accepted it was open to a jury to find that the UK Sun’s articles alleged not only that Grobbelaar had agreed to accept a bribe on the basis that he would throw matches, but that he had in fact carried out his side of the corrupt bargain.

The jury’s original finding in favour of Grobbelaar was explicable on the basis that the Sun had proven the first but not the second limb, that Grobbelaar had in fact thrown matches.

Having accepted that the jury was entitled to find that the Sun had failed to justify the substance of its allegations, the majority in the House of Lords ruled that the jury’s award of £85,000 damages was excessive, substituting in its place an award of £1 nominal damages (and a bill for costs for Grobbelaar, estimated at £1million).

Lord Bingham described the jury’s ‘generosity’ towards Grobbelaar as ‘perhaps understandable’, because of the manner in which the allegations had been published and the way the Sun had conducted its defence. But he concluded that ‘it would be an affront to justice if a court of law were to award substantial damages to a man shown to have acted in such flagrant breach of his legal and moral obligations’.

There is a danger that the highest-ranking lawyers are opting for their own opinion and moral values over those of a jury, whose function is to represent the general public. The established test is whether a reasonable jury could have thought that the award was necessary to compensate the claimant and to re-establish his reputation.

All three members of the Court of Appeal and the five law lords concluded that it would have been perverse of the jury to decide that there had been no corrupt bargain between Grobbelaar and the Sun’s ‘mole’ Christopher Vincent.

For a lawyer, there can be no question that an agreement to take a bribe is a criminal offence – whether or not the recipient has any intention of carrying out his side of the bargain. Leaving more complicated provisions of criminal law aside, the recipient is obtaining money by deception, and that is theft. But could it be possible for the jury legitimately to have taken a different view?

Let us imagine that a wealthy crook, facing criminal charges, offers his solicitor £1million to nobble the jury. The solicitor, with no intention of carrying out his client’s instructions, accepts. He convinces himself that it would be a breach of his professional duty of confidentiality to report his client to the police, and he is concerned that if he refuses the bribe the client may find another prepared to do his bidding. The solicitor takes the money but passes it all to charity.

For lawyers there is no doubt: the solicitor is guilty of a criminal offence, as he has stolen money from his client. But a jury might be reluctant to convict.

This is not to say that Grobbelaar merits the same sympathy. Even on the most generous view of his evidence, he was plainly no Robin Hood. It is, perhaps, the jury that deserves our sympathy. They had heard the Sun’s own Counsel, the late George Carman QC, describe Mr Vincent as ‘wholly unreliable’ and ‘someone whose evidence we believe may be highly suspect and whose whole character may be deeply flawed’.

There was evidence before the jury that, before they fell out, Grobbelaar had paid Vincent some £50,000 to invest in a business that had collapsed with Vincent ‘wholly unable to account for the monies Grobbelaar had invested’. ‘Quite possibly’, said Lord Justice Simon Brown in the Court of Appeal, Vincent had ‘misappropriated the larger part’ of this money.

The trial judge, Mr Justice Gray, described Vincent as a ‘thoroughly dishonest con-man’. This was the man who approached Grobbelaar offering him money to throw matches. Could it be that, whatever a lawyer might think, the jury took the view that Grobbelaar’s misconduct in cheating Vincent paled into insignificance compared with the gravity of the allegation that Grobbelaar had cheated his employers, his team mates and the hundreds of thousands of supporters of the clubs for which he had played with such apparent distinction?

Andrew Stephenson is a partner at Peter Carter-Ruck and Partners.

Read on:

Grobbelaar case: an own goal for free speech, by John Fitzpatrick