Michael McDowell (Independent)

I move amendment No. 3:

In page 6, line 28, after “jury” to insert the following: “, unless it is ordered by the High Court that, having regard to the nature of the claim on which the particular action is based, both the public interest and the interests of justice would be better served by its trial with a jury.”.

This amendment is similar to amendment No. 2 but is different in some respects. It provides that in future defamation claims, the presumption would be that they do not attract jury trial in the High Court. It also provides for a discretionary exceptional jurisdiction for the High Court to make an order having regard to two issues: the nature of the claim on which the particular action is based and that the public interest and the interests of justice would be grounds for having a jury trial.

What is in contemplation here is that in the ordinary course of events there would be no jury trial but, in some cases, the High Court may look at the nature of the claim on which the particular action is based or, in other words, what the defamation or alleged defamation is supposed to be about. Is it a matter of high controversy? Is it a matter where there is major controversy in the public sphere, for instance? Is it a matter on which it is possible to have two diametrically different points of view, in good faith, as to whether the allegation is defamatory or as to whether the alleged defamer was actually motivated by malice or whatever? Bearing in mind the nature of the alleged defamation and the issues and people involved in the action, it would be better that case be determined not by a single judge alone but by a jury, as can happen at the moment.

I stress that this amendment is not designed to prevent any other approach being taken in relation to quantification of damages and the like. It is perfectly compatible with this amendment to state that the limited preservation of the possibility of a jury trial could be married to other provisions stating that the amount of damages that could be awarded would be limited or the amount of damages that could be awarded would be determined by a judge having regard to the finding of a jury on the basic facts.

I emphasise that when a jury sits down to consider its verdict, it has to consider the credibility of the witnesses who have given evidence before it. It has to consider issues, and it will if the later amendments are made to this Bill, as to whether a matter was or was not in the public interest when it comes to the publishing of a defamatory statement and whether it was a matter on which the alleged defamer was motivated by a genuine belief in the truth of what he, she or it published. These are the issues that have to be decided in many cases, particularly cases involving the media.

The rest of the Bill is getting rid of the Reynolds defence, insofar as that exists in Irish common law at this point. It is also getting rid of the old wording of section 26, which is probably justified. That wording, even though it emanated from a Bill that was passed by the Houses when I was Minister, is unnecessarily clumsy and difficult to deal with. It comes down to this. I know this possibly sounds old-fashioned but let us take a case, for example, where a bishop is accused, as happened in Australia, of assaulting a choirboy, mass server or something of that nature.What we are saying is a judge alone will determine whether the choirboy, or whoever, is to be believed or the bishop is to be believed or disbelieved. It might not be a bishop but a judge. The consequences for an institution of a verdict going one way or the other are very significant. If it was purely an assault action and there was no defamation angle to it at all, under this Bill’s provisions a jury would be available. However, if somebody says Bishop A assaulted Choirboy B and publishes that fact, an entirely different process is put in place where there is no jury. There is no evaluation by 12 disinterested people as far as the cause is concerned. No jury is made available in those circumstances.

I ask the Minister to reflect on this. If I am assaulted by a policeman, I am entitled to a jury trial provided it is a serious assault where I am badly beaten up. We are keeping that, rightly, as part of our law because we want that issue to be determined by a jury, not by a Judiciary that becomes case-hardened and is often regarded by the people as being, say, pro police. However, if a journalist says I was assaulted by a policeman and publishes that, the very same facts are not capable of being decided by a jury. A judge alone will decide the facts. To take an example, if a Garda assault case occurs, the plaintiff can sue for damages and ask for a jury trial and we are not proposing to change that law, but if a journalist says Garda X assaulted Citizen Y, there is no option for a jury trial even though the garda’s reputation, the alleged victim’s reputation and the credibility of each of them is precisely the same. The issues are exactly the same, but because one is in the realm of defamation, it is treated by the court system in an entirely different way from the other. What is the logic of that? Why is it logical to say a case where, in effect, the evidence will be a contest as to whether this man was beaten up by that man or this woman was sexually assaulted by that man is to be treated differently if it is the victim who brings the case from a situation where exactly the same physical actions, credibility of witnesses, and issues of public importance are an issue but because it is a defamation case, we have a radically different approach and what would be determined in one case by 12 people sworn to be impartial is now to be decided only by a judge?

I make that point, which is of more general application, to reinforce the argument that lies at the root of all of this about significant cases, such as those of major sexual assault. We had such a case recently. I will not go into the names, but an MMA participant of some notoriety was involved. The victim there was entitled to a jury, but if I had written a newspaper article saying what she said was true, I would not be entitled to a jury and that issue would be determined by a judge alone. Where is the logic in that?

That brings me to the point of this amendment, and that is that there will be cases, just like there was the other day. It was hugely important in that case that a jury decided it. It was of crucial importance that 12 people looked at this swearing match and said one person was telling the truth and the other person was not. It was not just some little thing we put into our law to keep lawyers wealthy. That case was decided by a jury and it was a matter of huge importance that a person who was of great public notoriety carried out an assault on a particular woman. It was important a jury decided that. If that case had been decided by a judge alone, I have no doubt there would have been a massive argument in favour of the proposition made by the unsuccessful defendant that the judge was biased. No argument was made and no argument is ever made that 12 jurors are biased in matters such as this. It does not happen. The quality of justice and the public acceptance of the outcome of cases of certain kinds is hugely increased where a jury comes to the verdict rather than simply a judge alone. I ask the Minister to think of that case and think whether, if one or other party in that case had been able to say they objected to a jury being involved in this and that they wanted a single judge to decide it and it had gone one way or the other, the outcome of that case would have been as accessible as the outcome of the jury’s verdict was. Is it good enough, in some cases, for a single judge to say he or she believes A and disbelieves B or to find the witnesses in favour of A are lying and the witnesses in favour of B are to be believed? What I cannot understand is we all know in our hearts we are going to keep in law a situation where, as the Minister has just said, malicious falsehoods will be triable by a jury, meaning if I deliberately concoct a story against somebody else and deliberately invent a lie about him or her, then I can be sued, but if I engage in a less provable untruth, a jury cannot and should not be involved. I do not see the logic of that.It is sometimes dangerous for anybody in a parliament to say “I warned you” or “I told you so” but I am fairly confident that there will be controversial cases. There will be cases where the defendant will walk of out of the Four Courts or wherever and say that Ms Justice or Mr. Justice so-and-so was totally biased and that they could see from the beginning of the whole case, from the judge's demeanour, that he or she was biased and that this is an unfair outcome. There will be cases of great significance where that kind of a charge could be easily made against a judge-only trial, whereas it simply would not stand up against a case decided by 12 jurors.

I am not trying to preach that every case should be decided by a jury or that every case merits a trial by jury. I am not saying that, but I am saying that there will in the future be cases where it will be apparent to everyone that it would have been much better if the plaintiff had the benefit or condemnation of his or her case by 12 ordinary people. I emphasise the fact that acceptance of this amendment does not in any way affect who decides the amount of damages that should follow from a verdict. It does not affect that. If the theory is that juries go a little bit mad in damages, change the law in that respect if you so wish. However, please do not tell me there is some underlying logic where if I am badly beaten up by a policeman, I can have a jury determine who is telling the truth about that but if a journalist says I have been badly beaten up by a policeman, then the journalist is not entitled to a jury trial. I do not see the logic in all of this. I refer to keeping one species of jury trial for assaults, sexual assaults, trespass to the person and all of that territory, and keeping jury trial for malicious falsehood - that is, inventing a lie about somebody else and deliberately telling an untruth in a malicious way. If a jury is going to be allowed to determine all of those cases, I do not see how it could be said that there is any sense in distinguishing between a defamation where those facts are the substance of the dispute between the parties, such as a man or woman who claims to have been beaten up, sexually assaulted or whatever by another person, and a situation where a journalist, or not even a journalist but somebody who in public says, "I believe so and so was beaten up or sexually assaulted by another person", should not be entitled to a jury trial. There is no logic in this.

I am not filibustering. I am emphasising this point to the Minister because I want to hear from him what the logic is in distinguishing between those cases and saying one may be tried by a jury alone and the other must be tried by a judge because it is only defamation. Defamation by its very nature, I would say to the Minister, is in many cases the allegation of wrongdoing by an individual. If the question on whether that wrongdoing did or did not occur merits a jury trial depending on whether the plaintiff is the victim, we have a slightly Alice-in-Wonderland approach if we say that, yes, if the victim had sued, a jury would have to decide this if the plaintiff wanted it but, because it is defamation and the exact same issue is at the heart of the case, a jury cannot be given to a party to the defamation case. This would be the case even though, in effect, at the bottom of either of those situations is the determination of the truth or falsehood of an assault, a malicious falsehood, a sexual assault on some person or whatever.

We are walking towards a situation where what I am saying is not fanciful. There will be cases where a well-known football star is alleged to have raped a woman or raped a young man or whatever. There will be cases. If the case is brought by the woman or young man in question, they would be entitled to have a jury determine it. On the other hand, if somebody honestly says that the incident as would be described by the victim took place, no jury would be involved. No matter who is involved or how important, controversial or consequential a decision on the defamation is made, no jury would be involved.

I have made the point. I do not want to be accused of filibustering but I think I have made the point. How can malicious falsehood deserve jury trial? How can assault by a garda entitle the plaintiff to jury trial? How can sexual assault of the kind I mentioned earlier, involving an MMA artist, give rise to an entitlement to jury trial but anyone who says that happened is exposed to a trial where all the facts and witnesses are the same but, because it fits into the bracket of defamation, the consequences are being believed or disbelieved, and the verdict, damages and all the rest of it are identical? I want to hear the logic that lies behind that.