Michael McDowell (Dublin South East, Progressive Democrats)

In such circumstances, a judge might be quite sympathetic to a newspaper. Although he or she might have disagreed with the jury's decision, as it decided there was a defamation the judge would proceed to award damages. Such a judge might believe a matter to be comparatively trivial although the jury might have decided that in the circumstances, it was not trivial. In a defamation action, it is generally preferable that whoever is responsible for the verdict on whether a person is lying or telling the truth, should also carry out the function of compensating the person whose reputation is at issue.

Consequently, one of the policy considerations in respect of this legislation was to uphold the function of juries in awarding damages because strong pressure was exerted to take away that function from them. This was my starting point. On the other hand, juries should not be told they are on their own when it comes to damages but that they should be reasonable. That adds up to nothing. As one cannot imagine a judge asking a jury to be unreasonable, in the circumstances being reasonable means nothing and such guidance is of no use to a jury. However, in this instance Members may have misunderstood the term "directions". In a criminal trial, a judge gives directions to the jury and tells jurors how to proceed with their function. Directions given by a judge to a jury are not a usurpation of its function. They constitute a legal statement to the jury of the basis on which it is to proceed and this is what is meant by the term "directions" in this section.

For example, a judge's directions to a jury will include an explanation of proof beyond reasonable doubt and the presumption of innocence. Moreover, a judge is obliged to give directions to a jury regarding the manner in which accomplice evidence is to be treated. It does not mean stating that a jury must find that Senator Norris is untruthful. It means telling the jury that before relying on his evidence, it must be satisfied beyond reasonable doubt that his statements to it are true because he is the crucial witness in the case. This would be the position in a criminal case.

Consequently, a direction is not a usurpation of the jurors' function. It is a statement to them of the legal principles on which they are to proceed.