Jim O'Callaghan (Dublin Bay South, Fianna Fail)

I thank Senators Ryan and Stephenson for tabling the amendment. I also thank Senator McDowell for his contribution in respect of it. When we are discussing the defamation Bill, as I have said before, we have to have at the centre of our focus and our discussion what are in effect two competing rights. On the one hand, we are trying, as Houses of the Oireachtas, to vindicate and protect the constitutional right that people have to their good name, as protected under Article 40 of Bunreacht na hÉireann. Separately, we are trying to protect and balance the right to freedom of expression, which is also contained within Bunreacht na hÉireann. It is important when we try to introduce legislation that seeks to balance competing rights that we recognise that what we are doing is a balancing act. We cannot simply adopt the viewpoint of people who say the right to freedom of expression is the right that should be given precedence. Similarly, we cannot just adopt the position of individuals who say the right to one's good name has to be sacrosanct and given precedence. That is why any defamation legislation will have to take into account that the persons advocating for freedom of expression will not get everything they want and, similarly, the persons advocating for the protection of the good name will not get everything they want either. It is a balancing act. It is a difficult job. It is the job I, as Minister, am seeking to do and it is the job that this House and the Lower House have to do.

The amendment we are discussing concerns the abolition of juries in High Court defamation actions. It is important before we start discussing their abolition that we are aware of the current law in respect of the presence of juries in hearings before our courts. When we talk about the constitutional right to a jury, we need to be clear about what we are talking about. We are talking about the fact that there is a constitutional right to a jury under our Constitution when it comes to criminal prosecutions. Not every criminal prosecution will result in the entitlement to a jury. If you are stopped for a driving offence and prosecuted for what is referred to as a summary offence in the District Court, you are not entitled to a jury because it would be untenable for all prosecutions in the District Court, which are criminal prosecutions, to be determined by a jury. It would just be practically impossible to achieve. What you are entitled to, however, is a trial by jury when you are being prosecuted on indictment in the Circuit Criminal Court or the Central Criminal Court. Of course, even that right to trial by jury is not absolute because, as many people in this House fully respect and honour and recognise, there is the need for the Special Criminal Court to hear certain serious criminal trials without a jury. That is perfectly constitutionally permissible because the provision in the Constitution states that one should be tried by jury except when the ordinary courts are inadequate to deal effectively with the administration of justice. We know the circumstances when we have trials before the Special Criminal Court.

That is what the law on juries is when we look at the criminal sphere, and no one is talking about interfering with that constitutional right to a trial by jury. It is worth noting, however, that most European countries do not have juries in the same way as we have them here for criminal offences. If people are prosecuted and convicted in France, they are convicted by a group of three or five judges, members of the judiciary. We have seen that with some of the famous cases that have come from France. In Ireland, there is a constitutional right to have criminal cases tried on indictment heard by a jury, save in the circumstances of the Special Criminal Court.

Civil law is different. In America, for instance, a huge number of civil trials are dealt with before juries. We see them and the juries award the very large amounts of damages. In Ireland, at present, very few civil actions are heard by juries. We spoke earlier about personal injuries. Prior to 1988, personal injuries actions were heard by juries. I was not around at that time but I suspect there was some controversy in the Oireachtas when the proposal was put forward that for personal injuries actions there would not be trial by jury. The effect of that, and part of the reason for that, however, was to make the system more efficient. When there is a jury it takes time to swear in the jury and it lengthens the time it takes for the trial to be determined. Senator McDowell is probably correct that at the time those who advocated the removal of juries from personal injuries actions probably thought it would be in their interests. Insurance companies thought, "Let us get juries out of this in order that we can have judges on their own who can determine these cases." It certainly improves the speed at which a case is heard; it has not decreased the amount of awards.I do not know if I have heard it in this House before, but when it comes to the quantification of awards, juries probably award lower amounts in general than judges. That is something that may not have been significantly taken into account, but it is another matter. In the civil sphere, at present, the vast majority of civil actions in the High Court are determined without a jury, including personal injury actions and breach of contract actions.

We spoke about tort earlier on. I think Senator Ryan referred to how it will be highly unusual that this will be the one tort that will not be heard by a jury. That is not correct; negligence actions will continue to be determined without a jury and have been heard without juries for many years. It is easier, in fact, to look to see what type of civil actions have juries in the High Court. The cases are defamation actions, assault actions, false imprisonment actions and actions that are regarded as a breach of the trespass to the person or a constitutional interference with the rights of the individual. Senator McDowell is correct. It means assault-type cases and imprisonment cases. They are the limited number of cases that are tried in the High Court by a jury in civil actions at present. It is a pretty small amount of them. Senators are correct. We are not proposing to get rid of the jury from assault cases or false imprisonment cases. As Senator McDowell said, unfortunately one of the most common types of civil cases heard by a jury in the High Court is assault cases. Many of them are assault cases against members of An Garda Síochána, which are contested. An Garda Síochána succeeds in many of them. There is a limited number of civil cases in the High Court that are heard by juries. It is the exception.

People can bring a defamation action in the Circuit Court. The jurisdiction of the Circuit Court is up to €75,000. People can take their case there, have their rights vindicated and they do not have the right to a jury there. In accordance with how the jury system operates in those small numbers of cases where juries determine civil actions in the High Court, what they reveal is that a basis upon which to get a jury trial is at the discretion of the plaintiff. If a defamation action is brought in the High Court and the defendant newspaper does not want a jury, but the plaintiff or claimant wants a jury, the plaintiff gets his or her way. The plaintiff always can determine whether there is a jury to hear the case. If the defendant newspaper does not want a jury, the response is that it is at the prerogative and discretion of the plaintiff. That is the general view and operation of juries in civil actions in the High Court at present. It is important to emphasise that a small number of cases are dealt with by juries in civil actions. They are declining. It is different in the United States.

I will return to the specific amendment put forward by Senators Ryan and Stephenson. This is very relevant to their amendment. The advantage of the current system is that there is a clear mechanism for people to be aware as to when they get a jury or when they do not. The plaintiff, or the person taking the claim, decides it. Under this proposed amendment, a whole series of tests would be determined by the court in order to assess whether a jury shall be allowed. As has been indicated, the presumptive position in amendment No. 1 is that there shall be a jury in a defamation action, except if the court, on an application of either party, believes that such a trial "will require any protracted examination of documents or accounts or any technical, scientific or local investigation which cannot conveniently be made with a jury". If that becomes the law, we will have very lengthy interlocutory hearings in advance of the hearing of a defamation action to try to determine whether the case will involve protracted examination of documents or accounts. Affidavits will have to be sworn by solicitors and experts stating the evidence they intend to give. Then the court will have to assess whether "technical, scientific or local investigation" is required that cannot be made by a jury. We will create a whole body of complexity in trying to identify during an interlocutory hearing whether we should have a jury or not.

The second provision in the amendment provides "for any special reason" it would be "unsuitable to be tried with a jury". I welcome amendments that come forward, but I am putting myself in the position of the judge who has to decide whether to grant a jury based on this being the law. On what basis could a judge say that this is an unsuitable case to be tried with a jury? We have already ruled it out on the basis of complexity, so it has to be something else. What will happen is that a whole body of common law will be developed by the Judiciary who is looking at this and does not know what the Oireachtas means. It will have to come up with its own reasoning as to why it would be unsuitable for a jury to hear an action in a civil defamation claim in the High Court. I cannot think of a reason a High Court judge would state that a case is unsuitable to be heard by a jury. The first paragraph is too complex, lengthy and protracted. The second paragraph must mean something different. I would appreciate being told what type of unsuitability we are talking about.

The second aspect of the Senators' amendment concerns what I refer to as the "hybrid rule", that part of the issues would be dealt with by a jury, such as questions of fact, to determine whether a person had been defamed. The case would then be handed over to the judge to determine how much money should be awarded by way of damages or what remedy should be granted to the claimant. I agree with what Senator McDowell said. That would be an unnatural division. I know the jury determines the guilty or innocence of the accused in criminal cases and the judge then decides the sentence. However, this is something different. No one ever suggested that the jury should be determining the length of a sentence in the context of a criminal trial in Ireland. It would be unusual if a judge were given the function of a jury, which is to assess damages.

I cannot accept amendment No. 1. The amendment would delete the current wording of section 4 and replace it with a provision that allows a party to apply for a non-jury trial and enables a court to grant such application where the case is considered unsuitable for jury trial, either because it was protracted or because of a special reason. It is also important to point out that amendment No. 1, if accepted, would divide the roles of judge and jury in cases that may involve substantial damages. Amendment No. 1, which provides for jury by default, operates on the presumption that a defamation action would be determined by a judge, unless the public interest and interest of justice otherwise requires. Even if I were sympathetic to some level of retention of a jury in a High Court, I do not think this would be the way to do it. It would make it a much more complex process.

At present, if a person is defamed, a person could go to the Circuit Court if they want to claim less than €75,000. There is no jury in the Circuit Court, but there is in the High Court. It is up for the plaintiff to decide. There is no reason for the court to get involved in trying to navigate and assess whether a case is suitable for a jury trial. That type of legislative complexity will simply add to cost and increase delay. If people wanted juries to remain in the High Court, there needs to be a system where there is a simple, straightforward test. The current test is unfair because the plaintiff gets the option to determine whether there is a jury. If the plaintiff in the High Court action does not want a jury, I think a defendant can seek a jury. It is still at the ultimate discretion and control of the plaintiff. It is a bit of unfairness in litigation that one party can determine whether a jury is used and another has no real say in whether it goes before a jury. It is on that basis that I will not accept amendment No. 1.