Michael McDowell (Independent)

I support the substance of Senator Ryan's amendment for a number of reasons and I echo all the arguments she made without exception.

First, the newspapers of Ireland have convinced themselves that their problem with defamation law lies with juries. They have convinced themselves of that narrative and nothing will dislodge them from that conviction. They have convinced themselves that trial by jury leads to unpredictable results, excessive awards and the like. However, there are many alternatives to, for instance, the excessive award problem, if that is a problem, by simply providing very clear power for the judge, either alone to determine the maximum that can be awarded, or alternatively, to give to the judge and advocates for either side very clear entitlements to specify exactly what kind of damages should or should not be awarded, especially by reference to judicially ordained limits for other things.

If someone breaks his or her leg, the Judiciary has collectively decided what that is worth. If a person is stopped by a store detective in a retail shop and he or she is defamed - forget about the changes we will consider later - how can that not, in most circumstances, be dealt with just as simply as giving a guideline in relation to a broken leg, ankle, hip or whatever? What is it about excessive damages that cannot be dealt with unless we get rid of juries altogether? It is illogical, it is misguide, it will not achieve what it is supposed to achieve and in the end it is a delusion that the only way to deal with excessive damages is to exclude jury trial in its entirety in defamation cases.

I am not allowed to talk about my own cases but I am aware that in cases of assault by members of An Garda Síochána, the level of damages provided for is not limited by law. Assault, including sexual assault, by a person who has reached their majority against for example a child or even another adult, is determinable by a jury and is not limited in this way. Why is it therefore that the newspapers and the rest of the media have conducted a concerted campaign to convey that the only way to limit damages and to ensure that an injustice is not done on the damages front is to abolish the concept of a jury trial? It simply does not make sense. Why is it that we entrust a jury with the right to say if somebody is badly beaten up by members of An Garda Síochána, "Here is the issue paper, you determine all the issues, including aggravated or exemplary damages", which will continue to be the law? Why is it that if a woman who is an employee of a wealthy man sues him in the High Court for sexually abusing her over, say, 15 years, her jury is entitled to determine what she receives by way of compensation? That is not going to change but one particular version of jury determination is to be abolished simply because the newspapers have falsely argued that the only way to deal with this is to get rid of juries.

The second point they raise is that jury trials are longer and more complicated because applications are made in the absence of the jury, and the jury has to have the law explained to it. Well, so what? In every criminal trial the jury has to have the law explained, where the onus of proof lies and how it should approach the evidence. We do not say that is an injustice, either to the prosecution or the accused. The same applies to every case of assault, whether a Garda assault or sexual assault, you name it. A jury has to be informed as to its function and how it approaches the evidence it is about to receive and has received. A jury has to have that explained. One of the advantages of so doing is that justice is administered in public and the parties can see precisely what instruction the jury was given in relation to the law and whether it was right or wrong or fair or unfair. Those kinds of instructions are subject to the potential to correct them on appeal, like every other judicial decision in any other case. I do not accept the proposition that jury trial is necessarily so lengthy as to make it not worthy of preservation in any aspect of law, including Garda assaults, sexual assaults, malicious falsehood, as my friend mentioned, and other things where it is going to be preserved. I do not accept that proposition, and I also make the point, which might be taken on board, that for years I participated in criminal trials in the Dublin Circuit Court and the Central Criminal Court.Thirty years ago, jury trials in the Circuit Court lasted about two days. They were serious cases such as rape cases or serious criminal cases. They only lasted about two days because the procedures were understood by both sides to be a lot quicker, and the judges got on with the case. In those days you could not spend a week or two weeks before a jury arguing all sorts of points. There was a certain momentum to a trial by jury. I must say on the part of the legal profession, and not on their behalf, that they are partly to blame for all of this. With criminal legal aid, the criminal process has now become far lengthier, even if we take account of the obligation to make greater disclosure than used to be the case on the part of the prosecution. The criminal process has become far lengthier than it used to be or than is necessary. We can have a reasonably lengthy but not excessively lengthy jury trial on defamation in the High Court, and we are dealing here with serious cases that merit a trial in the High Court.

Judges are not infallible. The reason we retain juries in criminal cases is that we believe that people should not be sent to jail on criminal charges unless it is established in public to 12 members of the public chosen at random that the prosecution case has been proven beyond reasonable doubt. We do not entrust that function normally to members of the Judiciary for very obvious reasons. One of them is that members of the Judiciary, where they become case-hardened by criminal law, tend to become – this is not a universal thing – somewhat more inured to the possibility of the innocence of the accused and to the possibility that Garda evidence and evidence brought forward by the prosecution are not to be believed.

I spoke to a judge recently who told me that on the day of his appointment, just as he left his chambers to go out and take the judicial declaration, a former Chief Justice told him he had one final point to make, which was that the men in Garda uniform do not always tell the truth. If we do not believe in that proposition, then we should look at what juries in Britain did to suspected IRA bombers who were entirely innocent. We must remember the evidence tendered by the West Midlands Constabulary. We cannot always simply say the Judiciary are infallible. All of those prosecutions were initially upheld on appeal, despite the pleas of the innocent men and women to the effect that they were, effectively, being framed. I am not saying juries are infallible but judges are far from infallible. I think of the Master of the Rolls, Lord Denning, dealing with the appeal in the case of the Birmingham Six. He referred to the appalling vista that the prosecution might be based on a web of police perjury, but of course it was true. That was the judicial mentality, that this simply could not be and that it was unthinkable to his judicial mind to even contemplate it as a possibility. He was by no means a reactionary judge. He was regarded by his fellow judges as a bit of a maverick on occasion. That shows the mentality that is there. We only have to look at judges determining significant evidence, like Lord Chief Justice Widgery in the Bloody Sunday inquiry, to see that there are problems with judicial adjudications. By themselves, the Judiciary are not infallible.

On one occasion the late Chief Justice Cearbhall Ó Dálaigh stated that the reason we had criminal trials by jury was not that we could not safely give the present Judiciary the right to determine criminal guilt by themselves but because some future malign Judiciary might be appointed and this was the purpose of the right to trial by jury. It was put there against the possibility that unfair judges might in the future be appointed. I had and still have the height of respect for former Chief Justice Ó Dálaigh, but that was a very naive statement. It is in the Irish Reportsif anybody wants to go and look for it.

The second point relates to the requirement that some things in society should not be determined by professional judges but by empanelled jurors who are, broadly speaking, representative of society. That proposition disregards the merits of jury trials in their entirety. I have rarely if ever heard anybody criticise a jury, civil or criminal, for its verdict. People may criticise the amount of damages, but that could easily be dealt with in various other ways. I have never ever heard anybody stand up in public and say the jury should have believed A but they believed B. The media have never said that a jury in a civil case got it radically wrong, that they disbelieved the gardaí and believed the man who said he was assaulted by the gardaí or vice versa. People accept jury verdicts. The Judiciary should be very careful. Their verdicts will not be accepted when it comes down to the evidence of witness A or B on a matter of major controversy. They will immediately ask who is this judge. Has this judge dealt with other cases before? Has this judge ever dealt with a defamation case previously? Is he or she always for the plaintiff or is he or she always for the defendant? The acceptability of jury verdicts is something which we are being asked to throw away in the case of defamation. Let us be clear about what we are asked to do today. We are being asked that a judge in future will set out in writing precisely who he believed and who he did not believe and give the reasons for disbelieving witness A and witness B.One of the most inhibiting duties that judges have cast upon them is giving the reasons why they disbelieved one person’s evidence rather than another’s when it based fundamentally on their demeanour in the witness box, and it is based on something like that. You have conflicting evidence - two parties - and one said this happened and another said that happened. If a jury takes a look at the both of them and says they do not like the look of witness A and thinks witness A is unconvincing, it does not say so in its verdict. It just simply hands down the verdict – case dismissed or whatever. The person is not defamed. It does not go into the detail. I have noted that, for instance, in the Special Criminal Court, for many years the most that the members of the Judiciary there would do was to say that they were left in a doubt in a swearing match between the accused and Garda witnesses. The most they would ever say is that they were left in a doubt. They would never, or very rarely, say, for example, "I reject the testimony of Detective Garda McDowell and I accept that the man accused of being a member of the IRA - or whatever - is telling me the truth about what happened in that prison cell". I have never seen that happen. The most one could expect from the Judiciary was – there are exceptions to this – an emollient remark saying, “I still have doubts about the testimony I have heard”. That is because if one says, “I reject witness A’s testimony” and that person happens to be a public official, such as a member of An Garda Síochána, that is hung around that Garda witness’s neck for the rest of his life. You were disbelieved. What is more, the Court of Appeal said it was right to disbelieve you. Will you continue to testify in criminal cases? Will you ever be called again? All of those consequences flow from a reasoned determination as to the credibility of witnesses. They all flow from that. That is why the Judiciary tends to be polite to gardaí they are slightly dubious about, to use a euphemism. They tend to say they are left in a reasonable doubt and, therefore, are acquitting. They do not say, “That Garda witness was telling me a series of lies and it was written all over his or her face”. They do not say things like that. That is why a jury trial is beneficial. Nobody says at the end of the case that they disbelieved that garda or they accepted the evidence of that person. They hand down a “guilty” or “not guilty” verdict, and the verdict stands. That is in criminal law, but the same applies in defamation and other areas such as malicious falsehood and assault, the other things for which jury trial will survive if this legislation is enacted.

The third thing I wish to say is this. Senator Ryan’s amendment goes further than later amendments to which we will come in due time in that it effectively reverses the onus in favour of jury trial. In other words, the circumstances in which a person can be tried without a jury are those set out in paragraphs (a) and (b). In particular, it requires the notion that protracted examination of documents, accounts or technical, scientific or local investigation, which cannot be conveniently be made with a jury. What are those? Is the Lucy Letby case one which, if it was in a civil trial, too complex for a jury to decide and one that only a judge, looking at all the medical records, would be suitable to try? The reason I mention that is amendment No. 1 effectively puts into the law a presumption of trial by jury, on which subject I am relaxed. I think it should be discretionary. The grounds for discretion should perhaps be wider than are set out in her amendment. In the amendment, subsection (2) states:

The court may, on the application of any party to a defamation action in the High Court, order that in matters which may involve substantial damages- (a) issues of fact shall be tried with a jury, and

(b) the quantum of any damages which may arise be adjudicated by the presiding judge.

That deals with the point I raised earlier, that the judge would deal with the amount of damages in such cases, but the facts would be determined by a jury. I would not go that far myself for this simple reason. If a judge totally disagrees with the verdict of the jury and the judge thinks that witness A, who the jury accepted the evidence of, was lying and exaggerating, the damages, including exemplary damages and the like, are likely to be coloured by the judge’s view of the matter rather than the jury’s view of the matter. For instance, for the quantum of any damages, with this amendment, you have to decide whether punitive damages or exemplary damages fall within the judicial remit or the jury’s remit on the particular wording. We have a Report Stage coming in this legislation and those matters could be tweaked out without rejecting this amendment.

The fundamental point is this. The newspapers and the broadcast media have convinced themselves that juries are a problem for them and that things would be very different if judges decide these matters by themselves. I do not follow that logic. I recall, although I am not trying to suggest it should be reversed, that where juries dealt with personal injuries cases, the insurance companies got a rude shock when they discovered what the average judge was capable of doing to them. We have spent 30 years trying to put down damages guidelines. There were times where insurers, rightly or wrongly, believed that some judges merged their judicial role with that of Santa Claus and gave huge damages for things that otherwise would not be recoverable. On the other hand, many judges were regraded as mean. The offer to be made by an insurance company was and still is largely determined by the claims manager’s view as to who will hear the case and who will not.The notion, therefore, that members of the Judiciary are going to be absolutely predictable arbiters in these matters is delusional.

My fundamental objection to the abolition of juries is that there are matters where it is wiser to leave the decision in defamation cases to a jury who simply come in with an issue paper answered "Yea" or "Nay" or deal with the issues that come before them. I believe in that. We have examples in the United Kingdom of politicians being disbelieved by judges. I think a Conservative chief whip got a roasting from a judge, which could have been career-ending, because of an altercation at the gates of Downing Street where he claimed he was required to dismount his bicycle by an over-officious policeman. He was disbelieved on his oath by a judge sitting alone. The result was his career being very seriously tainted by that decision. I hope we do not have as trivial a case as that, like an argument between a TD or Senator and a member of An Garda Síochána. I do not suggest that should end up in the courts at all, and it would not in Ireland given the way we see things. Consider an issue that involves the fundamental trustworthiness of a political figure or a public figure such as a bishop, president of a university, TD, Senator, a person with strong and known political opinions especially somebody who is known to have unpopular political opinions or even ones which would be rejected by the great majority of voters or jury people just looking at it that way. I do not believe those trials should be conducted by judges sitting alone for the very reason the importance of the outcome dictates a simple verdict be written on the issue paper by a jury that is impermeable, meaning you cannot go into the jury room and ask them why they did what they did and nobody attempts to do that. Nobody says they got it wrong. They say that was the jury’s decision and that is what we will have to live with.

On amendment No. 1, I feel strongly that if we take the jury out of defamation we are asking the judge to look at a test that is a test of what ordinary right-thinking people would consider as to whether something was defamatory or not or was true or not, having heard the evidence. It is a test quintessentially designed for a jury, not for a judge. Judges are not ordinary people. They simply are not. No matter who chooses them or how they are appointed, they are not ordinary people. They are people who are learned in the law, we hope. They are people who have practised as lawyers in the courts, we hope. They are people whom I do not doubt have many virtues, but are they representative of society as a whole? I say they are not individually representative of it. Their attitudes are probably different from the attitudes of society as a whole. Their approach to the credibility of witnesses is, for the reasons I mentioned earlier, probably very different from the approach of the woman and man on the street called to jury service on a random basis. If the test of what is defamatory is considered to be one which takes into account what the ordinary person would make of the alleged defamatory statement, we have a problem.

To underline this point, the meaning of the "defamatory statement" which must occur and be made public before an action can be brought is, under the 2009 Act, "a statement that tends to injure a person’s reputation in the eyes of reasonable members of society, and 'defamatory' shall be construed accordingly". It is this test. Who are "reasonable members" and are judges typical of the attitude of people in society? It is not "right-thinking members of society" nor "left-thinking members of society", but "reasonable members of society" and a jury is asked to consider what a reasonable person might make of something. Twelve jurors who sit down in a room after they have heard all the evidence are capable of arriving at, I suggest, a reliable, typical and representative determination as to what a reasonable person would regard as a defamatory statement. Let us consider assault as an example. An assault is not what a "reasonable" person would regard as an assault. When you come to something like a breach of contract, it is not what a "reasonable" person would regard as a breach of contract. It is either "Yea" or "Nay", legally; in other words, that was an assault or it was not, or that was professional negligence or that was not. It is never said to a jury that they can find this doctor guilty of professional negligence if a reasonable person thinks they are guilty of professional negligence. It can be asked whether the behaviour of the doctor, surgeon or whoever was reasonable in certain circumstances but the core of defamation law is what reasonable members of society think of a person’s reputation and of whether it is going to be injured by what was published. It is not fanciful persons, persons of a particular political outlook or a particular religious belief, but what a reasonable person would say was tending to injure reputation.

The other point is that it is for a jury to determine the reputation of the person who comes before them. Is it a good reputation or a bad reputation? There is nobody who is above the law and nobody who is beneath the law. By that I mean nobody is so devoid of reputation that they cannot be defamed further. Any old lie cannot just be flung at a person who has a poor public reputation and be published as if it is true in the hope a jury will say the person is such a chancer it does not really matter if he or she is accused or murder. Again, the function of a jury is quintessentially suitable for determining what is defamatory, what is not and also what reasonable persons would make of the plaintiff’s reputation, and asking themselves the question of whether it is further injured by what was published. In summary, what I say is simply that amendment No. 1 is a well-crafted amendment. I have minor misgivings with some of it on the basis that it takes away an unfettered discretion from the Judiciary and seeks to regulate the manner in which the discretion would be determined. It also goes on to the question of damages and allocates that to the presiding judge, which I think is unsuitable, especially in cases of exemplary or punitive damages, or where the jury comes to a strong view about the degree of injury done. That should be left with the jury, subject to correction. Having made those remarks, however, I am supporting the amendment.