Michael McDowell (Independent)
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I welcome the witnesses and thank them for their statements and submissions. A number of issues need to be much more carefully examined. I was Minister for Justice when the Defamation Act was drafted as it now is. Section 26 has turned out to be a damp squib. So many safeguards were put into it from the defendant's point of view that it became almost like the Grand National - if you got around the course at all, you would be very lucky to be still in the saddle by the time you successfully met all the tests. The reason for that reform at the time was a widespread feeling that we have to bear in mind. One prominent business man, who shall be nameless, managed to extract an apology and a very substantial contribution to charity from a newspaper, although it turned out later that the allegation he claimed was defamatory was true. He had to return the money to the newspaper afterwards, as I understand it.

The first thing we wanted to do at the time was remove the presumption of defamation and of falsity. I can tell the committee without breaching Cabinet confidentiality that I ran into very heavy weather on that proposition. There was a feeling that if we provided that the plaintiff must prove he is not a murderer, child abuser or whatever else, that itself would encourage the newspapers to make allegations on a "let us see him deny it" basis. I still think it is the case that the onus of proof in every defamation case should lie on the person claiming the damage. The affidavit system, which was put there as a kind of via media, does not achieve this. If someone is saying they have been accused of child abuse, they should get up in front of a jury and say "I am not a child abuser" and not simply sit back, as can be done at the moment, while the newspaper must prove its case: "I am saying nothing, you go ahead. You have relied on the defence of truth. You prove it is true. I am not getting into the witness box."

That is one issue. The second issue is that the drive for reform at the moment is mainly driven by the print and broadcast media. They feel that the current system needs reform and perhaps it does. However, as Mr. Justice Barton mentioned, there are many cases where one is not dealing with the media at all, like the one involving the Irish Aviation Authority, IAA, the race horse trainers case that he mentioned and so on. There are parties involved in substantial defamation cases that having nothing to do with the media but they are, nonetheless, very important cases from the point of view of public acceptability of the outcome of the litigation.

That brings me to the point that I want to echo the serious doubts about the abolition of juries. Judge-only determinations are highly problematic. Mr. Justice Barton made the point that in 1988 personal injuries cases were taken away from juries but let us remember one thing. That was defensible at the time in that it was very rarely the case that the jury was actually going to make a finding that fundamentally affected the character and good name of an employer in an industrial accident, a motorist or whatever. The point he made is that jury trials still remain for all intentional physical damage done to somebody and there is a good reason for that. It is not just an arbitrary thing done to suit the insurance industry at the time. We all know what it did to lower insurance premiums. The simple fact is that judges have to give reasons, a jury has to answer questions. In a criminal case, it is a question of guilty or not guilty while in a civil case before a jury, there could be five or six questions to be answered and they are answered with "Yes" or "No". A judge has to give a reason when, let us say, a prominent politician sues RTÉ. I am not thinking of any particular case but let us say the judge comes to the conclusion that either the RTÉ journalist or the politician is lying through his or her teeth. In non-jury defamation cases involving things like that, people are branded by High Court judgments forever. In non-jury courts such as the Special Criminal Court, if a detective is disbelieved on his or her oath, it is a very serious matter. The Judiciary, I suspect, is very loathe to condemn a member of the police force in those circumstances.

Jury trial verdicts are accepted without any argument. If Mr. Justice Barton had done judge-only trials and had said that he thought that a witness was lying, the witness could go out in front of the Four Courts and say that the judge got it wrong and that he or she had "no time for that man". He or she could ask who appointed him in the first place and all of this kind of stuff would immediately break out. I am very strongly in favour of juries determining facts. I am not suggesting that we reintroduce the personal injuries juries because those are non-deliberate facts. Character, intention and assessment of witnesses is essential if it is a Garda assault case, a conspiracy case, a defamation case and the like.

When it comes to awards, I fully accept the point about recent Supreme Court decisions and introducing an element of clear guidance to juries on what they should do. Perhaps it should be a joint enterprise between a jury and a judge. Perhaps a jury should be allowed to say that it regards a case of defamation as serious, less than serious or of medium seriousness. At the moment, as we all know, a jury can actually decide to award exemplary damages because it regards the offence as being so serious, damaging and deliberate as to be put in that category. I do not really mind if jury decides the rough parameters of an award and then a judge directs the jury, bearing in mind what the Supreme Court has said, that an award of €100,000 would be sufficient in the particular case. The fundamental thing is to preserve the fact-finding function of juries.

Judges, and I hope Mr. Justice Barton will not take offence, have characters and predispositions. In my experience, there are pro-prosecution judges and more pro-defence judges. There are pro-authority judges and free spirited judges. Although they lean over backwards to be impartial, and I want to honour their commitment to their constitutional oath, their very characters largely influence the view they take of matters. Anybody who knows about judges or who socialises with them knows that they come from one stable or another in terms of whether the State, property owners, banks or others are the goodies or the baddies. Their character is important and I do not believe that if we asked a judge, without a jury, to hand down a decision in any of the cases we have mentioned, it would have the same acceptability as the decision of 12 people who sit on a jury and who will not be back again to decide another case. The jury members will never be criticised in the media for the decision they made as to who they believed or disbelieved. They are accorded this dignity of privacy. I do not believe that will happen if we bring in judge-only, reasoned, lengthy judgments. They will be lengthy as in the Vardy case and massively expensive as it was, that judgment was a very tough condemnation of one individual. There was also the case of the English politician who did or did not call the policemen at Downing Street "plebs". He was disbelieved on his oath and was almost thrown out of office for it. These consequences will flow in defamation cases. We have to hesitate before we think that giving a lone judge the obligation to write out, in extenso, the reason he or she preferred one person's evidence to another's or he or she found one witness to be dishonest, will be as acceptable as a jury dealing with the same issue. We will find that we will damage the Judiciary and call it into controversy on hugely sensitive matters.

I could go on forever on this but I do want to make this final point. We must consider carefully whether non-jury trial, as in Vardy, is where we want to go. All the submissions have rung alarm bells. It is easy to give in to the pressure from print and broadcast media but the implications for many other forms of defamation are such that more lasting damage will be done to the administration of justice if we get rid of juries without looking around a few corners and determining the implications.

My question to the witnesses is: do you agree?