Mark Daly (Fianna Fail)
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I welcome Anne Marie Lenihan to Seanad Éireann. I also welcome the Minister and thank him for being here.

Mark Daly (Fianna Fail)
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Amendments Nos. 1 to 4, inclusive, are related. Amendment No. 2 is a physical alternative to amendment No. 1. Amendments Nos. 1 to 4, inclusive may be discussed together by agreement. Is that agreed?

Michael McDowell (Independent)
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I would prefer them to be discussed separately.

Mark Daly (Fianna Fail)
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Not agreed. We will discuss them separately.

Nicole Ryan (Sinn Fein)
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I move amendment No. 1:

In page 6, lines 26 to 28, to delete all words from and including “a” in line 26 down to and including line 28 and substitute the following:

“the court may, on the application of any party to a defamation action in the High Court, or a question of fact or an issue arising in such an action, order that the action or any issue of fact in the action shall be tried without a jury if it is of opinion that such trial—

(a) will require any protracted examination of documents or accounts or any technical, scientific or local investigation which cannot conveniently be made with a jury,

(b) is for any special reason (to be mentioned in the order) unsuitable to be tried with a jury.

(2) 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.”.

My amendment seeks to restore some measure of balance and common sense to what has become a deeply flawed approach. The amendment is not just a technical fix. It is at the heart of protecting people's fundamental rights to vindicate their good name and to ensure that the process is fair, transparent and rooted in justice. The complete abolition of juries in High Court defamation cases as proposed by this legislation is not reform; it is actually rapture. It removes a pillar of our justice system that has stood the test of time. That pillar says when your reputation is on the line, it is your peers, not just the State, that should be trusted to decide the facts. What a defamation case is about is not numbers on a balance sheet, not abstract legal theory, but the value of your name, your character and your integrity. When they are called into question, people deserve the right to have their case heard not just by a judge but by a jury of their peers. If we remove juries, we are not just cutting costs; we are creating a democratic deficit. This is not just an abolition of choice. It is actually the abolition of a citizen's statutory right to seek a trial by jury. That right exists not just as a procedural option, but as a reflection of the fundamental democratic value that ordinary people share in the administration of justice. It is also a safeguard and a check on judicial overreach and potential bias. Without it, we risk judicial caprice where one voice becomes the only voice in cases that cut to the core of a person's identity. I ask the Minister directly: why now? Why is the Government creating this exception for defamation alone?Why is this the only area in law, uniquely among all torts, being carved out and stripped of its jury protection? This move has been justified on the grounds of efficiency and cost, but the rationale falls apart on closer inspection. If somebody brings a case for both defamation and malicious falsehood, they currently can be heard together in a single trial without the option of a jury but under this Bill this will no longer exist. We will force citizens to run two separate cases: one for defamation without a jury, and one for malicious falsehood with the potential of a jury. That does not reduce cost; it actually increases it, and it does not streamline justice; it splinters it. We wish to be clear this is not about savings; this is about centralising decision-making power and limiting public participation.

We already have the tools to address excessive awards. The Higgins case was pivotal in this regard. The judgment created a new framework for assessing damages and introduced judicial guidance that brought balance and predictability. Since the ruling, there have been at least four cases where the recommendations held and functioned as intended. Would it not be fair then to pause and fully review the post-Higgins landscape before making this permanent change?

This Bill amends the law as it was, not as it is. That is a serious error. We are legislating blind to the outcomes already in motion. There is also a question of fairness to those currently in the system. This law will not apply retrospectively so we will not even have a clear, measurable view of the impact for some time. This amendment is a middle ground. It lets the courts, not the Oireachtas, decide if a jury is appropriate in a given case. It mirrors the approach taken in the North and across other common law jurisdictions. It recommends traditional oversight while preserving democratic involvement. We do not need to burn the house down to fix the window.

I regret that we are here. With some flexibility and humility, this could have been a moment for unity and cross-party agreement and a powerful signal that we as legislators can protect freedom of expression and the right to a good name without diminishing either. Instead, we are being asked to be remembered in this House as a House that removed the voice of the people from one of the most human and reputationally damaging of trials. I urge the Government to support this amendment and let us legislate with principle, balance and respect for both the Judiciary and the public.

Michael McDowell (Independent)
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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.

Patricia Stephenson (Social Democrats)
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I thank the Minister for coming in. I am also supporting Senator Ryan's amendment. I know we are not speaking about the amendments together but I have a similar amendment coming in after this. The amendments that both Senator Ryan and I tabled are effectively a fall-back position on the retention of jury trials, with some modification, as recommended by the Oireachtas joint committee on justice. If the Minister insists that the Government will not be moved on the issue of jury trial removal in its entirety, then I urge him to consider this amendment, because it is consistent with the Government's position of delivering judge-only jury trials in defamation actions, a position that I do not agree with, but I think Senator Ryan's amendment and my amendment both propose a sort of halfway house.

As the Minister will be aware, since 2022, the law on the method of trial in the North has been amended to bring it into line with the law in Scotland, England and Wales. Specifically, defamation actions are to be tried by a judge alone unless otherwise ordered. That is in the interests of justice. The court has the power to allow for jury trial when it deems it critical for the delivery of justice. This amendment therefore aims to ensure there is uniformity in the method of defamation cases across this island.

I would like to take this opportunity to touch on the Good Friday Agreement and to emphasise the incongruity that this new law will bring between the North and the South with respect to access to justice. In the North, it is open to parties in defamation cases to request jury trials in the interests of justice. If the Bill goes ahead without my amendment, in its current form, we will see a canyon of differential rights between the two jurisdictions on this island and there will be a divergence of rights afforded to litigants. The Minister will no doubt be aware of the fundamental principles of the Good Friday Agreement. One of the fundamental principles is the principle of equivalence of rights and equality protections. Equal rights for people living across the island is one of the cornerstones of the Good Friday Agreement, so I take great umbrage with the removal of juries, because it erodes the right of public participation in the justice system and relies too heavily, as Senator McDowell outlined, on judge decisions only, which I believe undermines justice.

In addition to that, this Bill erodes a fundamental piece of the Good Friday Agreement. I am deeply concerned that the Irish Government, as a co-signatory of the Good Friday Agreement, would ever consider taking a step that would see a divergence of rights on this island. We should be working towards greater equalisation. We all saw the fiasco of Brexit and what damage that did to the Good Friday Agreement and the divergence of rights. Both with regard to having an option for a jury trial and in the context of the Good Friday Agreement, I urge the Minister to consider accepting Senator Ryan's amendment or mine.

Democracy and rule of law are founded on the principle of people being at the core of administrative justice. I know the Minister has much experience in the legal profession, so I am not telling him something he does not know. The removal of juries will lead to taking rights away from the people. The justice committee unanimously agreed last term to recommend that jury trials be maintained. The Government is going against the express recommendations of the justice committee, hence the importance of this amendment. The committee heard all sides of the argument and came to the decision that jury trials should be maintained. I would love to hear why the Minister is choosing to ignore those recommendations of the Oireachtas committee. We heard from the Law Reform Commission, which also unanimously recommended the retention of jury trials.

This Bill was produced after a report following a review by the Department of justice. There were several reviews. We had a review in 1924, 1930, 1961, 2003, 2007 and 2008, and in 2022. I think that is seven reviews of defamation. We had reviews in the Department of justice and of course the Oireachtas joint committee report, which I mentioned before. All the independent reviews have said that we must keep trial by jury. The only outlier is the review by the Department. It is curious to me how the vast majority of reviews say we should keep trial by jury.

The central concept of the core of the legal system is democratic principles, specifically in the involvement of the public in the administration of justice. It is really core to our democracy. In fact, hundreds of years before we even had the right to vote, we had the right to trial by jury. That dates back to medieval times and the Magna Carta. I know the Magna Carta is a British document. We have our own version in the crypt of Christchurch. The concept of trial by jury is one of our oldest public rights in the democratic process. That we are being asked through this Bill to take the jury out of the question is, I believe, profoundly undemocratic. I cannot fathom why, beyond Senator McDowell's comments about media concerns. People are not out on the streets demanding that this right be removed from them. We have many rights enshrined in our Constitution, including the right to a good name, freedom of speech, the right to assembly, the inviolability of the home, the right to private property, bodily integrity and the liberty of the citizen. They are fundamental rights guaranteed by our Constitution. All of these rights allow for the plaintiff in the case to be entitled to trial by jury. Currently, all of these rights are therefore vindicated by trial by jury, not trial by judge.

As it stands, the public have a choice, to a trial by judge or a trial by jury. The removal of the statutory right in defamation cases means you are removing the choice from the public. If this measure is enacted without our amendments, we would create an extraordinary exception. Of all the rights, only with defamation will Irish citizens be deprived of the choice of trial by jury. I ask the Minister to comment on why we are creating such an extraordinary exception in our laws. Surely by the Government's own logic, we should then be abandoning trial by jury in all civil cases equally, for cases of false imprisonment or trespass. If the Government believes that juries can indeed be trusted in other civil cases, why can they not be trusted in defamation cases?

As well as the ousting of the public in the administration of justice in defamation cases only, there are significant other logical and factual flaws behind the decision to remove juries. That brings us to the Higgins case. Guidance to juries on damages was provided after the 2009 Act. I know the Minister will know this. This is as much for my benefit and perhaps that of other colleagues who have not been following this case. In the very first case that guidance was provided to juries, a significant amount was awarded and the defendant appealed the decision and went to the Court of Appeal. The Court of Appeal decided that the award was really outsized and took away 80% of it on appeal. This Court of Appeal ruling is the bedrock of the Government's decision to remove jury trials. It apparently provided evidence - I emphasise "apparently" - that the juries gave outsized awards. However, the law on how defamation cases assess damage was then fundamentally changed by the Supreme Court ruling on exactly the same case when it rejected the Court of Appeal ruling, restored the original award to the plaintiff and said it was correct. The publication of the Supreme Court ruling should be the actual basis of legislation in this area and this Bill does not draw from that Supreme Court ruling. It is drawing from the appeal court ruling. As I said, I know the Minister is aware of this but it is important to state it for the record.

Why did this all matter? The report recommending abolition is based on an understanding of the law as it was in 2022, including a decision of the Court of Appeal, but the Supreme Court ruling which overturned the Court of Appeal decision and returned the full award to the plaintiff came just three weeks after the report publication. By doing so, the Supreme Court ruling swept away the legal basis for this Bill, because the Supreme Court in the Higgins case totally changed the law on how damaged are assessed. What does that all mean? Under the 2009 Act, the number of successful appeals on the basis that juries give disproportionate awards is fewer than five cases out of almost 100. That tells us that the idea that juries give outsized awards is largely based on fantasy and not on fact. I know we are not debating this section yet because we are not debating the Bill in totality, but I urge the Minister to consider withdrawing the abolition of jury trials. If not, at the very least, I urge him to consider the amendments we have tabled today that offer some method of jury trial, both in the interests of the Good Friday Agreement and in the interests of democracy and accountability.

Michael McDowell (Independent)
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I echo what Senator Stephenson has said about ignoring other voices in society. If the Irish Council for Civil Liberties thinks jury trials should not be abolished, if the Law Reform Commission thinks they should not be abolished and if the justice committee of this House and Dáil Éireann thinks they should not be abolished, who actually is demanding that they should be abolished? If we are holding the scales of justice and if the justice joint committee and these impartial, pro-citizen bodies, especially the Law Reform Commission, cannot see the argument for abolishing juries, who is moving this?

I have to be cynical and say the commitment to do this was made under the Ministry of the previous holder of the Minister's position and was done, in my view, to enlist the support of the media uncritically in an electoral context. That is what I believe was going on. It was made a manifesto commitment at the demand of the media. The media felt they did not get a fair deal from juries and felt, for the reasons I mentioned earlier, none of which I will repeat, that somehow they would fare better without juries.

It is true, however, as Senator Stephenson has said, that if we pass this legislation, there will be forum shopping. Will The Irish Times or The Sunday Times be soon before a jury in Belfast because they circulate there or will they be sued in the Republic? One court will have a jury; the other will not.

People do forum-shop. I remember that on one occasion when I was Minister for justice I said the newspaper which the Sinn Féin-IRA movement was trying to establish to take out the Irish News in Belfast - unsuccessfully, as it turned out - was a danger to Irish democracy in the same sense as the Völkischer Beobachter, the people's watchdog, was to Weimar Germany. I was sued in the Northern courts by a man who later became finance Minister in the Northern Executive. He was at that stage editor of the newspaper. I had to plead sovereign immunity and the case was dropped. He did not dare come to a Dublin jury with his case. He dropped it in Belfast. There is such a thing as cross-Border forum shopping, and it will happen, especially if one gets jury trial in one place and judge trial in the other place. Is there any reason, as Senator Stephenson says, to accord somebody the right to a jury trial north of the Border, where the juries are smaller in number, by the way, and to deny him or her that right south of the Border? I cannot see the logic of that.

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

Patricia Stephenson (Social Democrats)
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Recognising that the Minister feels there are implementation challenges with amendment No. 1, perhaps he will consider amendment No. 2 when we get to that stage, which has slightly different wording, or indeed, maybe he will commit to us that he will take on the essence of our amendments and bring forward his own amendment on Report Stage. We will be readily available to discuss the intricacies of that. The Minister stated that a plaintiff has the right to the final decision on whether there is jury or not. I thought a defendant could then take an appeal against that so there was the right to appeal. No one is saying that we want to have differential treatment when it comes to the right to freedom of expression versus the right to have a good name, but we will have that differential treatment by the removal of juries. The Minister mentioned the Special Criminal Court. He said some of us support that, but some of us do have an issue with the Special Criminal Court and its process of not having juries because it violates international human rights standards.

The Minister did not feed back on how he feels about the differential rights this will create and the implications for the Good Friday Agreement. That is important. The Government signed the Good Friday Agreement more than 25 years ago. The Government was rightly critical of the British Government for its flagrant disregard for the fragile peace we have in the North. Why does the Minister think it is appropriate to create differential rights on the island? Why did the Department feel it was okay to ignore the various recommendations we had from all the reviews and, indeed, the joint committee on justice in the previous term? Why were those recommendations not heard in the report?

Michael McDowell (Independent)
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I agree with Senator Stephenson's remarks. The funny thing is that if a person brought a case in the Circuit Court for defamation, the judge could disbelieve them. The judge in the Circuit Court may or may not give a long judgment one way or the other on the matter. The judge can come to a view, one way or another, without a jury. However, if a person does not think they got a fair hearing in the Circuit Court, they can appeal to the High Court and get another judge to look at exactly the same claim they had brought. We are talking, however, about one judge on one occasion only who looks at the facts. Let us remember what the law is. The Court of Appeal is not going to going to reverse a decision on credibility except in the most extreme of circumstances, where it comes to the view that no reasonable person could have come to the view that the trial judge did in the High Court. It is not going to say that the trial judge was wrong to believe A and right to believe B. At least in the Circuit Court, if a case is determined there and gets what is necessarily a much shorter trial - I have not heard of any lengthy defamation cases in the Circuit Court - there is the right and the safety valve whereby they can appeal to the High Court against the entirety, have the whole case retried, bring different evidence if they like and improve their case. That is not possible in the High Court. It is a one-off job. If the judge disbelieves a person or accepts the other side's evidence, there is no way out of that.

One issue the Minister has not dealt with is the necessity in the High Court to give reasoned decisions. A judge cannot simply say with one sentence that they are holding for the plaintiff and against the defendant and awarding damages of, say, €40,000. A High Court judge cannot do that. They have to say precisely why they disbelieved the defendant and are holding for the plaintiff. They have to set out the reasoning for their decision, such as why they discounted the witnesses that were brought by the defendant and why they did not appeal to the judge as credible witnesses. They cannot simply give a broad-brush, jury issue paper-type determination in a High Court proceeding.

The Minister said, and this is important, that there is a balancing act over the Constitution. That is very true. The freedom of expression, on the one hand, versus the right to protect one's reputation, on the other, is a question of a balancing act. As we all know, in the United States of America, the balance is struck ridiculously differently. People can say anything they like in America about anybody else and it is freedom of expression. It is not actionable unless the plaintiff establishes that the defendant did not believe a word of it when they said it. In other words, that was akin to a malicious falsehood. That is the test in America. There was a case of President Trump in his primary campaigns hinting that one of his colleagues had pushed his wife down the stairs. You could not get away with that in Ireland, but he got away with that because he is entitled to say that is his view and that he had probably pushed her down the stairs. Unless the would-be rival in that case said Trump did not believe that and unless he could prove that Trump did not believe it when he said, it would not be actionable.

There is a balance to be struck. The balance is set out in the substance of our law, but it is not to do with a jury. The jury is not the problem with establishing a balance between the rights of the media, and the rights of the individual about whom they write or the rights of people who are defamed on a casual basis day to day, for example by a store detective or somebody like that. It is not a question of the jury determining the balance between the right of free speech and the right to protect one's reputation. The jury has to decide the case in accordance with the law of defamation. As for pointing out that there is a balance to be struck, Ireland has struck that balance. It is noteworthy that the Bill deals with section 26 of the Defamation Act 2009 and proposes to change it. I agree with the changes that are proposed, but they are changes to the law that will bind a jury just as much as anybody else. Without disclosing what went on in government, I can tell the Minister that the present state of section 26 of the 2009 Act was radically affected by people other than me in government at the time who did not like Reynolds defence and wanted to trim it down. I was the liberal on that occasion. I will not identify anybody as being illiberal but the Minister can draw his own conclusion. I do not want to trespass onto the defence set out in section 26 of the Act, but the defence is a defence to be observed by either a judge or a jury. Therefore, applying the proposed amendment, there is no difference between what a jury properly instructed should do and what a judge properly instructed should do in that context.

Assault cases can be brought in the Circuit Court. If somebody alleges that they have been beaten up by a member of the Garda, they are entitled to go to the Circuit Court if they wish, but they are also entitled to go to the High Court if their case merits that. To say we have to get rid of juries in the High Court because they are not available Circuit Court is a false argument. People go to the High Court and ask for a jury because they do not want a judge, High Court or Circuit Court, to decide their case. They want a jury to do it. It is important that when it comes to the forces of law and order and other cases, jury trial be preserved in the High Court. The mere fact that a person can bring an assault claim in the Circuit Court does not justify abolishing jury trial in the High Court.The argument that it is not available in the Circuit Court simply does not carry the day. A feature of the amendments tabled by the Opposition and not by the Government strangely is the serious harm threshold. That is the curious thing. The Government is not adopting the serious threshold for most plaintiffs - only for companies and only in very limited circumstances. If we did introduce a serious harm threshold, as the Opposition amendments are claiming with regard to this Bill, the argument that it is a waste of time having a jury trial in the High Court would evaporate. What I would call silly defamation cases, which are often brought, for example, because they mixed up two photos or got someone's age wrong, are the kind of cases that the poor embattled media have been fending off for years. We have an opportunity in this Bill to simply say there should be a serious harm threshold for everybody. Someone cannot waste a court's time about remarks that were shouted across at him or her in a pub unless on the test we are proposing, lasting and serious damage is done to the person.

Nicole Ryan (Sinn Fein)
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We have talked at length about this amendment but the one thing we have not yet heard is why the Government is proposing this now and why it is being proposed in this legislation. We still do not understand why that is being pressed now.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I am conscious that we will not get to a vote but I will try to respond to the issues raised. Senator Stephenson asked me why I am proceeding with this diminution of rights. We have to be careful about the use of the term "right". There is a statutory provision under the Courts of Justice Act 1924 and the Defamation Act 2009 that states someone is entitled to a jury in the High Court so we are entitled to change the law. It is not like a right that comes from the Constitution or the ECHR. It is simply a statutory provision so we are entitled to change it. Simply because we are changing or removing juries from the High Court does not mean it is an interference with a right. People who go to the Circuit Court still have their rights vindicated. Everyone who has a civil action before the High Court that is not heard by a jury has his or her rights vindicated so the idea that simply because there is no jury, that is a diminution of one's rights is not correct.

We also need to recognise that the vast majority of civil actions are dealt with by judges hearing cases and justice is being administered so we cannot say that just because someone does not have a jury in a civil action, he or she is not getting justice. People's access to justice is provided.

Senator McDowell said that it will be a necessity to give reasons if it involves a judge sitting on his or her own. That is correct. However, I would have thought it is an advantage that the public is able to find out why it was that a plaintiff in a particular action lost his or her defamation action or why he or she was awarded €100,000 or €200,000. At present, we do not get that information because all that happens is that the jury comes back with the issue paper and answers "Yes"to the question of whether the plaintiff was defamed, there are a couple of other questions and then damages are assessed. The judge just reads out "Yes, €100,000" and then enters the judgment so we do not get any explanation as to why the jury reached a determination that the plaintiff was defamed and that €100,000 was the appropriate amount of damages so it is to the benefit of the public and in the public interest that we find that out. Senator McDowell said that this will have a detrimental effect because individuals will be identified as untruthful or unreliable and that will hang over their heads for eternity. That is one of the consequences of civil actions in the High Court. Judges write judgments stating: "I disbelieve the evidence of Mr. O'Callaghan. I prefer the evidence of Mr. McDowell".

Garret Ahearn (Fine Gael)
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As it is 1.15 p.m., according to the order of the House, progress must be reported.