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

I thank Senators McDowell and Ruane for their contributions. For anyone watching, it is important to point out that this is not just Senator McDowell's amendment. I do not want to give the impression that he is a lone voice here. This amendment has been put down by Senators McDowell, Boyhan, Clonan, Conway, McCarthy and Keogan. All those Senators want to retain juries in the High Court. It is important that this is publicised.

Senator McDowell asked why, if somebody is assaulted by the gardaí, he or she gets a trial by jury, but if a journalist writes that the person was assaulted by the gardaí there is no trial by jury. The answer to that question is that the Oireachtas has decided that the former cause of action shall be dealt with by a jury and the latter cause shall not. It would apply in the same way that a woman who took a claim against her employer because she said she was sexually assaulted in the office space and she said that was a breach of her contract of employment would not have a jury for that claim. She would have a claim for damages against her employer for breach of contract in the workplace. She would not get a jury. She could also make a decision to go for an assault claim against the individual who assaulted her. However, if she was just suing her employer, the company, she would just have a claim without a jury.

There are all sorts of examples of where we can show that for certain types of cases a judge will sit alone and others will have a jury. Ultimately, all cases will be decided upon the evidence that is presented. In jury cases, the distinction is that there is another decision-maker when it comes to decision of fact. In the judge-alone cases, there is only a judge who will decide questions of fact and questions of law. I do not think it is illogical. The answer to the question is, "We have decided it." We, as elected representatives of the people of Ireland, who make the law in the country, are entitled to determine what types of cases should have a jury in a civil action and what types of cases should not.

Back in 1988, as I said, the decision was made to get rid of juries in personal injuries actions. I have not gone back and looked at the Dáil debate, but I suspect people were saying this was grossly unfair and that an unfortunate person from a disadvantaged area who was knocked down by somebody driving a Rolls Royce would have his or her case heard by judges. We have not seen the heavens fall in and people are still getting justice. We are overstating the significance of removing juries.

Senator McDowell also spoke about how there will be actions where somebody is defamed at the same time as they were assaulted and that the action for assault will be heard by a jury but that the defamation action could not be heard by the jury. We have that already. There are many cases where people take actions for breach of privacy and defamation. The way it is dealt with is by one of two options. Either the jury hears the defamation action in the first instance, gives a judgment and then a judge deals with the privacy action. As the Senator knows, there is no right to a jury in the privacy action. The Senator will remember cases we did in terms of a right to privacy which was infringed. We did cases together where the plaintiff was vindicated. There was no jury in that case and the person who we represented got absolute legal satisfaction and justice and the breach of her privacy was recognised by the courts. The other way of dealing with it is that you just decide, as happened in other decisions that have been reported, that the defamation action is dealt with by the judge sitting alone. I do not want to mention cases, but we are allowed to refer to reported decisions. I refer the Senator to Nolan v. Sunday Newspapers Limited where there was a defamation action and a breach of privacy action. Both were heard together by a judge and the plaintiff succeeded extremely well in those proceedings. There was no suggestion that the plaintiff in that case was missing out.

I disagree with Senator McDowell when he says he does not think judges have an open mind. Maybe I am being hard on him but that is the impression I got. Cases are decided based on the evidence that is given. We are placing too much emphasis as to who is the decision-maker when it comes to questions of fact. Of course, the right to trial by jury is fundamental in our criminal legal system. It is important to point out, however, that there are lots of parts of Europe where they do not have juries in criminal trials. I am not advocating that we remove juries in criminal trials, but just because the British gave it to us does not mean it is the only example of how a case can be determined.

In respect of the point about the Special Criminal Court, the point I was making was that in recent times judicial reviews have been brought of the decisions to bring a case to the Special Criminal Court. That has been determined by the courts in reserved judgments.

Senator McDowell also mentioned that section 11 of the Bill has a new defence for publication on a matter of public interest. He said that public interest is not defined there and asked why we need a definition of public interest in the section subject to the amendment we are discussing now. As Senator McDowell knows, this is a reformulation of section 26, which I think at present is described as "Fair and reasonable publication on a matter of public interest". When a court is assessing that, it is looking at what the public interest is in the context of a publication that is regarded as being responsible journalism. There is no doubt as to what is the issue in terms of what is public interest when a court is considering a publication in a newspaper or a broadcast on television and they look to a story about alleged corruption in the property sector or alleged dishonesty in the legal sector. That is in the public interest because the public has a right to know about these issues. That is what public interest is when it comes to public interest journalism. What is the public interest when it comes to determining whether one plaintiff gets a right to a trial by jury or not? I will mention a few historic cases. I do not like mentioning cases as Minister for justice, but they do provide an important example. There is the recent example of the former prominent politician.If he was to take his case now, on what basis would it be in the public interest for his case to be determined by a jury and why would it not be in the public interest or the interests of justice for someone else's case to be heard by a jury? There were well-known defamation cases in the past relating to a former Member of the Houses of the Oireachtas and a former Minister, namely Proinsias De Rossa. He took a case many years ago and succeeded after three jury trials. If his action was to come about now, on what basis would he say that it is in the public interest for him to have a jury? Even for somebody who is not well-known, on what basis can he or she that it is in the public interest that his or her case be heard by a jury. We are not giving any guidance to the Judiciary in respect of it.

Regarding what Senator Ruane said, the tweet sounds innocuous now. It stated, "Why is Lord McAlpine trending?" When it comes to a defamation statement, you look at what it means. The court at the time determined that meant that the individual was involved in child sexual abuse. It thought that because when you look at the context of what was going on at that time on social media, there were allegations about a prominent political figure in the House of Lords or the House of Commons being involved in child sexual abuse. With that being the background noise and a statement like that being made in the middle of everything, it does not sound as innocuous as it does now. Context is everything. When it comes to defamation, you have to identify the meaning of it. Just because it does not state that someone is a paedophile does not mean that it cannot convey that meaning quite subtly, as was done then.

I am sorry to go on. I hope I have answered Senator McDowell's direct question. The answer is because the Oireachtas has designated itself. I still cannot accept the amendment.