Michael McDowell (Independent)

I thank the Minister for his reply insofar as it goes. However, he has avoided the fundamental proposition that I asked him to give a clearer explanation for, namely why it is that if somebody alleges that he or she was beaten up by a garda, he or she is entitled to a jury trial, but if a journalist says that he or she was beaten up by a garda, no such entitlement exists? In the course of an eloquent and learned reply to my point, that has been completely avoided as an issue. The point I am making is that there will be cases - we know there are cases - where people in the public domain are accused of very serious, say, sexual assaults, and will be in future. I have no doubt it will happen in future. This is not something that happens every 20 years. It will happen quite often. If it is alleged that sports men and women, major celebrities, impresarios, pop singers and all sorts of people assaulted somebody sexually, the matter is, as a matter of right, triable by a jury. It does not have to be bishops or judges or politicians, but there are some cases where the identity of the parties or the nature of the allegations or a combination of both make the matter one of significant public interest. For instance, if a Minister or a Taoiseach was accused of something and was involved in a defamation action, whether he or she was believed and whether he or she was found to have been defamed or not would be of huge consequence.The Minister has avoided that issue and asked why we should deal with a politician differently. Why should we deal with the case of any person differently to that of any other person? Every plaintiff is to be dealt with in every circumstance on a plain and simple basis. There cannot be any public interest in giving the courts any discretion as to whether to afford the existing right to trial by jury in order that there should be a jury verdict of 12 men and women sworn in as impartial members of the community.

The Minister mentioned cases where judges have delivered decisions of considerable importance. He mentioned the Ryan case to do with fluoridation. I presume that was the Ryan case to which he referred. He mentioned the McGee case on the right to contraception. He also mentioned the Norris case about whether homosexual behaviour could be criminalised. However, the Minister knows well that each of those cases was not won in tort. They were not civil claims. Those cases involved claims that the Constitution prohibited what the State was doing, or not doing, through its laws. Senator Norris had a High Court judge determine his case, rightly or wrongly - I would say wrongly. The Senator went to the Supreme Court and a decision against him was made on a three to two majority. He eventually had to go to Strasbourg to put Ireland in the dock on that matter. However, it was not a case of a civil claim between two people. In that case, the Ryan case and Mrs. McGee's case there was a claim that the State was breaching the Constitution by its laws or actions. I am not suggesting that we should have juries decide constitutional cases. Nobody has ever suggested that and it is not implicit in this amendment.

Of course, the Minister is totally right that at one stage juries were given the right to determine breach of contract cases. They were also given the right to determine negligence cases, inquiring into which driver was responsible for a car crash on a road or dealing with a case where somebody was knocked down. There was a time when that was done. The right to a jury trial was abolished on the basis that it was unnecessary. The point I make is a different one. Whether or not an MMA fighter, a major celebrity, assaulted and raped an individual woman was an issue on which the alleged victim was entitled to a jury trial. If I were to go out onto Kildare Street and say she was raped by that man, in exactly the same circumstance, I would not be entitled to a jury trial on that issue and the individual in question would be deprived of a jury trial. The Minister has signally failed to indicate how a controversy of that kind changes the entitlement to a jury trial simply because it is the victim who brings a case rather than a newspaper, a person in the street or a broadcasting station which states that something that happened. There is a totally different way of determining that issue in those circumstances even though damages are the only remedy in both cases. I do not see the logic behind that.

The Minister said that jury trials take longer and cost more. To some extent, I fully agree. The reason may be that practice in the courts has become more and more expensive and lengthy. When I was a junior counsel prosecuting and defending criminal trials in Dublin, most cases lasted for two days at the outside. We now have a system of law whereby the same kinds of cases can take two weeks. I do not know why that has happened but cases have become much more complex and different points are made or whatever else.

The Minister also said that there is a problem here whereby if somebody applied for a jury trial in a defamation case, there would have to be what he rightly described as an interlocutory hearing, if it were contested, to determine whether the public interest did or did not require or justify such a jury trial. The Minister said that the amendment under discussion does not define what is meant by "public interest". When I look six pages ahead, I see that the Minister is proposing a new section 26 which states:

It shall be a defence (to be known as the ‘defence of publication on a matter of public interest’) to a defamation action for the defendant to prove that, in all the circumstances of the case— (a) the statement in respect of which the action was brought was on a matter of public interest,

(b) the defendant reasonably believed that publishing the statement was in the public interest.

We are not giving the court any guidance as to what that term means there. We are not stating that for the purposes of this section, "public interest" means A, B, C, D and E and does not include F, G, H, I and J. We are not determining that. We are saying that we trust judges to take up the term "public interest" and to come to a view as to whether the statement concerned was on a matter of public interest. There is already case law on what is and is not a matter of public interest. We do not need to have this new section. Judges determine the issue, as the Minister well knows. I am saying that for the purpose of determining whether a jury should or should not be empanelled, the exact same term, "public interest", would have to be considered by a judge. The extra delay involved in a short hearing as to whether a matter was or was not in the public interest, at which, I presume, there would be a written submission by both sides to the court and a quick decision, would not make the whole process unduly complex or any longer.

I agree with the Minister that there can be very important breach of contract cases. We have all recently seen one in respect of the sale of a piece of land in County Tipperary. That was very lengthy and costs of millions are reported to be at issue. Why are such cases so costly? We must sometimes ask ourselves that.

The Minister also said that the Circuit Court can determine defamation cases without a jury. That is true. However, if you do not like the decision made for or against you in a defamation case in the Circuit Court, you can appeal it to the High Court.The High Court listens to precisely the same evidence, different evidence or whatever and a different verdict is open to the plaintiff on appeal. There can be a situation with two judges, where the one in the Circuit Court says there was defamation or section 26 was a good defence. It then goes to the High Court and another judge decides to the contrary and that is the end of the matter. The Minister also said - I do not agree with him on this - that when it comes to a decision as to whether a case goes to the Special Criminal Court, there is an issue that can be examined as to whether there is a threat to a jury. No, there is not. In fact, one cannot go to Green Street or wherever the Criminal Courts of Justice sit now and request a jury trial, stating that there is no threat to the jury if one is tried. One is not allowed to do that. If the DPP orders a person's prosecution before the Special Criminal Court, the person is not entitled to have a mini-trial in the court to state that he or she is entitled to a jury and the DPP is depriving him or her of this right.

I come back to the question that was asked but was not answered. If an issue is to be determined by the courts as to whether a very serious sexual assault took place, a malicious prosecution occurred or there was a sexual assault on an innocent person by a very prominent person and these are to be the subjects of a continuing right to trial by jury, there is no logic in saying that a newspaper or a television programme that says that that happened should be treated entirely differently and 12 people's verdict on the credibility of the alleged victim, assailant or whatever should be involved in one trial but excluded in the other. I make the point to the Minister, and it is involved in a later amendment, as he probably knows, that we have tabled. There may well be a case where someone is defamed in the course of an assault. On this, there is a new rule brought in that the defamation aspect of it cannot be decided by the jury that decides whether the assault took place. In other words, if somebody says that the victim of a sexual assault is a common prostitute and makes that claim, the woman involved - let us say it was a woman - can sue for the fact that she was assaulted and have a High Court jury but cannot ask that jury to award her damages for the allegation that she is a prostitute, a sex worker or whatever, even though all of the facts are effectively before the same jury. There will be cases - it is not a matter of there could be cases - where highly controversial facts will be disputed between certain people, the resolution of which is a matter of very significant public interest and can and should be determined by a jury. All my colleagues and I have done in this amendment is to say that some discretion should be allowed to the courts to distinguish between them.

I just want to make one point in case I am misunderstood. The Minister says that judges are fair and that it does not really matter about verdicts, because judges would usually come to the same view as a jury. I do not accept that proposition for one minute. I do not think that many judges approach, for instance, issues such as whether gardaí have or have not assaulted people with the same open mind that a jury would. That is a simple, sad fact. That is why we have jury trial in those cases. I do not believe that judges in those cases can be relied upon to be as open-minded as juries. I have no shame in saying that. Otherwise, we should get rid of jury trial completely and just forget it, and in the criminal sphere as well. If judges are as good as juries in determining everything, why not have the Special Criminal Court decide every case? I do not believe that proposition. I believe that jury trial in criminal law is a hugely important constitutional right and that jury trial in certain civil proceedings such as rape, assault and all the rest of it is an important statutory right that we should not sweep away.

The final thing I want to say in relation to the point that the Minister made is I do not believe for one minute that he is right in saying that judges would award more damages than juries. Perhaps he had a different experience from mine, but I have never seen a case in any of the courts where the Judiciary, considering the outcome of a defamation case, said that the jury was very mean and decided to double the damages in all the circumstances. There may well have been cases where juries gave what were called penny or shilling awards in the past and those were overthrown on appeal. However, in the ordinary course of events, I do not think it is reasonable to say that the Judiciary is going to be more generous with damages awards than juries are. I think, on the contrary, half of the argument made by the newspapers in persuading the Government to introduce this legislation is that juries were frequently very excessive regarding the awards of damages they made.