Joe Flaherty (Fianna Fail)
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We are dealing with an amendment in section 4 in the names of Senator Nicole Ryan and Senator Patricia Stephenson. The Minister was in possession at the time. Does he wish to continue?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I think I had indicated everything I wanted to say. I am conscious that it was last July we were here, so just to remind people, the amendments we are talking about seek to change the situation in respect of the proposal to abolish juries. One of the points I mentioned the last time is that the law at present is that the plaintiff, the person taking the defamation action, can decide whether there is a jury in the High Court. If the plaintiff in the High Court wants a jury, they get a jury. If the defendant in the High Court does not want a jury, it does not have any impact because the decision is one exclusively to be made by the plaintiff. The alternative, of course, is that you just have a defamation action that is heard by a judge sitting alone. That has happened on many occasions in the past in the High Court. It always happens in the Circuit Court as you have no entitlement to a jury in a Circuit Court defamation action. The last time, some people referred to the right to trial by jury. This is not an example of where that right is being affected. The right to trial by jury as set out in the Constitution is the right to be tried on criminal charges before a jury, provided those criminal charges are not minor or charges that can be dealt with by a special court as provided for in the Constitution. A decision was made many years ago in the 19th century that defamation actions would be heard by a jury. It was the case that virtually all civil actions were heard by juries in the past. We removed the role of juries in civil actions because of the inconvenience of empanelling a jury to hear personal injury actions or other types of actions. It is now the case in the High Court in civil proceedings that the only proceedings that really have a jury are defamation proceedings, assault proceedings, trespass to the person proceedings and, interestingly, malicious falsehood. Therefore, there will still be jury actions in the civil part of the High Court for those types of cases, but predominantly civil cases are determined in the High Court without a jury.

I listened very carefully to what Senators had to say on the previous occasion. I was concerned that I may have been subject to filibustering on the previous occasion. That may or may not be the case but I am conscious I have to come back to the Seanad in the future. As things stand at present, I intend to proceed with the Bill as is, to be frank, as I am anxious to get the Bill through and enacted. Even though I listen to what people have to say, putting forward amendments will delay this quite significantly because I have to go back to Government, get approval and also it is more complicated than people think. I have had my say in respect of it. The Senators may wish to push it to a vote.

Joe Flaherty (Fianna Fail)
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Does anybody else wish to speak to this amendment? No.

Nessa Cosgrove (Labour)
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I move amendment No. 2:

In page 6, lines 27 and 28, to delete all words from and including “or” where it firstly occurs in line 27 down to and including line 28 and substitute the following: “or any question of fact or any issue arising in such action shall not be tried with a jury unless otherwise ordered. A court may order for trial with a jury where, having regard to the circumstances of the case, it is in the interest of justice to make such order.”.

Joe Flaherty (Fianna Fail)
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Does the Senator wish to speak to it?

Nessa Cosgrove (Labour)
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No.

Joe Flaherty (Fianna Fail)
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Does anybody else wish to speak to it? No. Has the Minister any contribution?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I will make a brief one. I suppose the point Senator Stephenson is making is a court could direct that a defamation action would be heard with a jury, if it were in the interests of justice to make such an order. Again, how is a court supposed to determine that one case should be heard by a jury in the interests of justice and the other should not? We would need to have a statutory scheme set out that would inform a court what are the interests of justice that would need to be taken into account. Otherwise, we would just be saying to a High Court judge whether he or she thinks it is in the interests of justice to hear a case with a jury. Again, there will be circumstances where the plaintiff may argue that it is in the interests of justice for it to be heard by a jury perhaps because the plaintiff is a controversial, well-known person, but that is not an adequate reason for a court to state it is in the interests of justice for a jury to determine this. Notwithstanding the effort made by Senator Stephenson in tabling the amendment, there is insufficient clarity within it to enable a court to determine what the interests of justice are that would designate that a jury should be allowed in a particular case. I have to oppose the amendment.

Michael McDowell (Independent)
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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.

Joe Flaherty (Fianna Fail)
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Before I go to the Minister, are there any other Senators offering on this amendment? No. Would the Minister like to respond?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Senator McDowell for his interesting contribution. At the heart of it is his submission that the proposal within the Bill is illogical because we will have a situation where defamation actions will now not be heard by a jury, whereas other actions, such as assault, could be heard by a jury.

It is important to emphasise at the outset that when you look at the civil law system that operates in Ireland, we have categorisation of causes of actions and thresholds within that legal system. For instance, if the Senator goes back to the judicatory Acts and looks at the Courts of Justice Acts, he will see that there were certain causes of actions that entitled a claimant to have a jury. The vast majority of civil actions, however, did not give any entitlement to a jury. If one considers, say, a breach of contract claim or a standard tort claim regarding nuisance or trespass - not trespass to the person but a trespass claim - none of them, historically, merited a jury. We have had many significant decisions of these superior courts that have not been determined by juries. I refer to some of the most important decisions we have seen in the country such as the McGee decision, the Ryan decision and the bizarre Norris decision. All of those decisions, which had a huge impact on Irish jurisprudence, were decisions that were delivered without a jury. The reason they were delivered without a jury was because, historically, as I have said, our legal system categorises certain offences in the civil action as having an entitlement to a jury, and the others as not having an entitlement.

Senator McDowell says that is illogical. I do not think it is illogical but what it indicates is that the Oireachtas developed a determination - and prior to that it was developed through common law - that we would have juries in certain areas and we would not have juries in other areas.Prior to 1980 or a little bit later, there were juries for personal injuries actions. To use Senator McDowell's example, if the choirboy was the subject of the negligence of the bishop who crashed into him or did some other act as a result of negligence, there would be no entitlement for the choirboy to have a jury in his action because negligence was to be determined by a judge without a jury. Historically, personal injuries actions did have juries. We got away from them and removed them because we were seeking to introduce efficiency into the system. It is not illogical for the Oireachtas to decide that assault actions will be determined by a jury and judge but defamation actions will be determined by a judge sitting alone. We have determined that breach of contract claims should be determined by a judge sitting alone.

Very many of the issues Senator McDowell mentioned, such as, perhaps, perceived bias on behalf of a judge, can be present now because of the cause of action that can be taken. There could be a highly unpopular individual who takes a breach of contract claim. He is going to have his claim determined by a judge. There is nothing more he can do about that because we do not permit breach of contract claims to be heard by a jury. It is that the Oireachtas is deciding there are certain types of actions in the civil law where a jury will play a role and there are others where they do not. It is for the Oireachtas to decide what they should be.

Senator McDowell will agree with me that if we look at all the cases that are heard in the superior courts whether the case is heard by a judge sitting alone or by a judge and jury, a person is entitled to and will receive justice. There have been many historic cases that have been heard by judges sitting alone where there have been unpopular causes or issues which people may have perceived would not get a favourable outcome from a judge where they have received justice. It is important that we emphasise this, and I am sure Senator McDowell will agree, that if a person's case is being heard by a judge sitting alone, they will still get justice. It is not the case that somebody who takes a defamation action that is heard by a judge sitting alone will not get justice. It is an option that is available at present and the Oireachtas is making a decision to remove that option. The logic and reason behind this is because there is a belief that jury actions take longer than an action with a judge and a jury. It is unquestionably the case that they do take longer. If they take longer, they are going to cost more.

I wish to deal with an aspect of Senator McDowell's amendment. I express a concern as to how it would operate in practice. The Senator's amendment proposes that the default position would be that there would not be a jury in a High Court defamation action. However, the High Court could order that the case should be heard with a jury if the High Court was of the view that both the public interest and the interests of justice would be better served by its trial with a jury. What is inevitability is going to happen if this amendment is agreed is that we will have another interlocutory hearing that will take place immediately on service of the notice of trial. At present, what happens is the plaintiff serves a notice of trial and states that it is going to be trialled by a judge and jury. What would happen if this amendment were agreed, however, is that once the plea deals were closed and the notice of trial was issued, an interlocutory application would be brought before the High Court, predominantly by plaintiffs taking cases, stating this was a case where the High Court should direct there be a jury because it was both in the public interest and in the interests of justice to do so.

Again I make reference to what I said was a weakness in the previous amendments. There is no statutory architecture set out here to inform a High Court judge as to what is the public interest and why the interests of justice merit the selection of a jury. Senator McDowell referred to a number of cases. In fact, I can probably give a better example of it, but I am going to try to avoid that. Let us take the example of a prominent politician who has been defamed. Sometimes I think politicians would be hesitant about going before a jury because, by nature, we are partisan. No matter how popular someone is as a politician, are they going to have 60% of people who are supportive of them? Probably not, let us be realistic about it. There sometimes can be a concern on the part of a politician about going before a jury. Similarly, however, politicians may not want to go in front of a judge because they represent a political viewpoint that may not be popular with the judge. All of these are not questions about where the interests of justice lies. They are tactical calls that Senator McDowell has made on many occasions when he has advised people in respect of defamation actions. Sometimes, it is believed it in the interests of party to defamation to have a jury. Other times, it is believed that it is the interests to have a judge sitting alone. I do not see how you can say that the interests of justice in a particular case merits having a jury.

Rather than using an example of anyone else, I will use myself as an example. In the unusual circumstance that I were to be the person who Senator McDowell covers here, I was taking a defamation action, I was the Minister for justice and I decided I wanted a jury in this case because I was concerned that the judges would not give me a fair going, would that be a basis for me to get a jury because I was a politician and therefore it was in the interests of justice that I get a jury? What are the interests of justice that are going to determine that an individual has an entitlement to a jury? Is it somebody who is highly unpopular? Is it in the interests of justice that they do not have a jury but have a judge because they are so unpopular in the public realm, they are better off and it is in the interests of justice that their case is heard by a judge sitting alone? When we use the terms "public interest" and the "interests of justice", they have a meaning in certain statutory mechanisms for the purpose of a discretion being exercised by a judge, but that is when the judge knows what the statutory architecture is. There is no understanding here for a judge as to why it is in the public interest that a politician should get a jury. Why is it in the public interest that somebody who is very unpopular generally with public should get a jury? Why is it in the public interest for somebody who is a well-known celebrity and enormously popular - I do not know who the most popular person in the country is; it might be Shane Lowry - let us say somebody who is an outstandingly popular person-----

Sharon Keogan (Independent)
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Poor Shane.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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They might be told they are better off going in front of a jury because overwhelmingly the jury is going to like and respect them. However, that gives a distortion to what the administration of justice is about. It is not the administration of popularity. Cases are not determined on the basis of who is more popular or who is less popular. Cases are determined and justice is administered on whether there has been a cause of action or a breach of a right that a claimant has and what is the remedy.

We are reading too much into the presence of having a jury. No one suffers a miscarriage of justice in the civil sphere because they do not have a jury. I mentioned at the outset that we categorise causes of actions in our legislation in the Courts of Justice Act. We also categorise types of cases by thresholds. If a person is taking a defamation case and they believe their case is worth less than €75,000, they go to the Circuit Court. They do not get a jury in the Circuit Court. It could be a serious defamation, but because it is published to a small group of people, they may believe it is safer to go to the Circuit Court.Defamation cases are heard in the Circuit Court on a weekly basis. We cannot say that the people are not getting fair justice there. They are getting fair justice, and they are having justice administered by judges sitting alone. We need to be careful about emphasising the bias of judges. Everyone has their own prejudices. Everyone has their own personal biases, but when it comes to administering justice, every person who takes an oath has to administer and determine a case based on the facts produced before them. If we go back and look at some of the recent examples, I will not mention them, but recent prominent defamation actions were heard by juries. There was one very prominent case a couple of months ago involving a retired Member of the Houses of the Oireachtas. My view is that had that case been heard by a judge sitting alone, the result would probably have been exactly the same. A judge, however, would probably award more damages. Juries, when they come to assess damages, are probably not as generous, in my assessment, as judges when it comes to the award of damages. Ultimately, cases are determined on their facts. They are not determined by whether a person got a jury for it or a judge sitting alone. If a person has a good defamation action, if his or her reputation has been damaged by a publication that is false, he or she will get a remedy from the courts.

I generally avoid talking about myself or my past, but I was involved in defamation actions when I was a practising lawyer in front of judges sitting alone. From the point of view of the claimant, the outcome was very satisfactory. I am concerned that there is a view abroad that if judges are going to hear cases, plaintiffs will not get fairness in respect of it. That is not the case. Cases will still be heard fairly, and justice will be administered. Being blunt, the reason for this amendment, which was introduced, as I said, over a year ago when the defamation Bill was brought in to the Dáil, is for efficiency purposes and cost purposes. I do not think this is illogical, and I do not think it is going to result in unfair trials or people not getting justice. I am sure Senator McDowell will agree with me that no matter what the outcome here, if a person is a claimant taking an action in defamation before the superior courts, he or she will get justice if there is just a judge hearing it in the same way as today people get justice in the Circuit Court if they bring defamation actions.

I have listened very carefully. In terms of malicious falsehood as a cause of action, people have to prove special damage. They have to actually sustain losses in respect of it. This is an issue. If I had been around when the Bill was being initiated, I probably would have put in a requirement that a cause of action and malicious falsehood would also lose the right to have a trial by jury. However, we need to proceed with the Bill. It is not illogical to proceed with the removal of defamation cases from juries. It will still be the case that assault cases will be determined by juries. However, I would have thought that the most important cases that come before the High Court are constitutional actions. Constitutional actions are enormously important. A former Senator in this House, Senator Zappone, took a constitutional action; she lost. It was never suggested that she got treated unfairly or that she lost because she did not have a jury. Another former Member of this House, Senator Norris, took a very famous case here in Ireland and lost. It was never suggested that he lost because he did not have a jury. Had his case been heard before a jury, it is probably the case, regrettably, that the outcome would have been the same. Therefore, I do not think it is as consequential as Senator McDowell has indicated in his contribution. The motivation behind it was predominantly to speed it up and cut down on costs.

My concern about Senator McDowell's amendment relates to the issues I have highlighted. How do we determine what is public interest? How do we know what is in the interests of justice when it comes to deciding whether we want a jury or not. The only other way we deal with this issue is when we use, in a criminal context, the Special criminal Court. Sometimes people challenge the fact that their claim has been dealt with by the Special Criminal Court, and they want what they regard as their constitutional right to a trial by jury in the criminal offence to operate. In that instance, however, the basis upon which a court determines that, in fact, it is appropriate for the Special Criminal Court to hear it is that there will be both evidence and a submission from the DPP to the effect that there may be threats to the jury because of the nature of the criminal act or the involvement of the accused in certain activity that it merits there being a non-jury court. That is the evidence that is set out here in that context for a Special Criminal Court application.

What is going to be the basis here for the application before the High Court to say legal representatives want a jury because their client is not popular or is popular, or do not want a jury because it is too complicated, or want a jury because it is too complicated and they think they will be able to present it in a more simple way to a jury? I do not know on what basis someone would look for a jury. That is why, historically, when we look at the other causes of action and the categorisation in the courts of justice, it is always just on the basis of what is in the schedule and the causes of action.

Personal injuries are gone from juries. Breach of contract is dealt with by a judge sitting alone. Defamation is with the jury at present, and we are on the basis of this piece of legislation going to remove it into another category. Categorisation is the most appropriate way to deal with this rather than trying to do an abstract assessment as to whether it is in the interests of justice for a jury to hear a particular case. If we start going down that route, we are going to have a hierarchy of administration of justice in some respects such that when it comes to civil actions, a civil action with a jury is in some respects more sacrosanct or reliable than a civil action heard by a judge. They are both the High Court findings, and we need to preserve the integrity of that. With the greatest of respect to Senator McDowell, who I always listen to, I am not going to accept the amendment.

Michael McDowell (Independent)
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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.

Anne Rabbitte (Fianna Fail)
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Minister, just before you respond, Senator Ruane would like to make a contribution.

Lynn Ruane (Independent)
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It will be minuscule in comparison to Senator McDowell's. I agree with Senator McDowell's points on discretion. I had some further thoughts about a case from about ten years ago in the UK, which has a similar criminal justice system to ours. I was also thinking about the media or somebody else saying that something happened and they were held liable and brought to court for defamation. I do not think we have seen any precedence in law yet here in Ireland in relation to this, but in the UK, about ten years ago, the wife of the Speaker of the House of Commons, Sally Bercow, was held liable by Lord McAlpine, I think it was, for a tweet she sent. It is not only about what damages are given out in defamation cases, but it is also about the discussion on what is and is not considered to be defamation. In this case, Lord McAlpine was trending online regarding a report about claims about some misbehaviour around sexual abuse cases or something. Sally Bercow retweeted the report and asked the question, "Why is Lord McAlpine trending?", including an emoji after the question mark. That was it. She made no statement but posed a question.You could say the intent of that question was to draw attention. He was already trending, but anyway it made no statement of guilt or defamation or named him or anything like that. If I am correct, they do not have the right to a jury trial for defamation cases in the UK. Maybe I can be corrected on that. They do not have an automatic right, but the judge can make a decision if it is in the public interest, which coincides with the discussion that is happening. She was held liable for that with regard to defamation.

When I was listening to Senator McDowell, I was reminded why it is so important we have a right to a jury trial. The complexities that are still to be exposed in relation to some defamation cases, where a mere retweet of information that is out there, whether it is true or not, in the public realm or a reshare on Instagram can be considered as defamation, creating new and or precedents in Ireland. In the public interest, regarding the complexities, we are yet to know how defamation cases can unfold in the future regarding online behaviour or the sharing of stuff. When you look at the case ten years ago in the UK, it is quite concerning that a person could be held liable, and a law could be created in Ireland, based on sharing something and merely posing a question and that it was seen as defamation.

Answering the Senator's question specifically regarding what he raised, which was not answered in his first contribution, it is more important to me now as I remember that case and how scary it would be if a person could be held liable for a retweet or a share in which the person does not actually say anything. The person is not even saying whether he or she agrees with the allegation or not. No determination is being made on what is being shared; the person is merely sharing information that was already shared. Given the complexity of that, it is extremely important that people have a right to a jury trial, especially when it could lead to setting precedents for a brand-new area of law or defamation.

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

Michael McDowell (Independent)
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I listened very carefully to the Minister's reply. When I asked why do this, he said it is because we can do it. That is a remarkable proposition. I asked the question as to why should we do it and he said because we can. It is a very strange argument in favour of changing the law. Of course we can change the law. We can do many things, subject to the views of the Members of the House. However, to say to me when I ask why something should happen is that it is because we can do it is avoiding the issue of whether we should. As I understand it, if somebody comes to change the law, he or she is saying there are reasons why we should do it. I asked if the Minister would mind explaining how a journalist can say something happened and no jury can be involved but an alleged victim can say precisely the same thing, have all the same witnesses and all the same rows in the court between the lawyers for both sides and so on and have a jury trial. To say to me that we should do that because we can does not really deal with the matter in a satisfactory manner.

The Minister rightly referred to a case which I think both he and I were in, where a privacy matter was determined in the High Court, sitting without a jury, in Trim in County Meath. It was a seminal case at the time because it was to do with the nature of the right to privacy. I fully concede that in that case, there was not a right of trial by jury and it would have been strange indeed if a jury had made up new law or decided a novel point in Irish law and decided whether there was a constitutional right to privacy and what its consequences were. I am not arguing for juries to decide everything. I am merely saying that there will be cases involving the artificiality of distinguishing between a dispute between somebody who says he did not assault someone, in circumstances where there is a jury involved if that other person is the alleged victim, but if a newspaper, broadcaster or ordinary citizen publicly states their opinion on that question and makes an allegation of exactly the same kind, no jury will be involved. I cannot put the matter any further than that.

Anne Rabbitte (Fianna Fail)
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Before I put the question, I welcome Catríona Rogers from the Institute of Guidance Counsellors to the Gallery. She is a tireless advocate for students' well-being. I welcome Deputy John Paul O'Shea and his guests to the Gallery. I know Senator Ní Chuilinn has left. She had transition year students who were here for the entire debate between my colleagues. They are all very welcome.

Mark Daly (Fianna Fail)
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I welcome from St. Mac Dara’s Community College in Templeogue transition year students Kate Fairbrother and Saoirse O'Callaghan, who are working hard for Senator Evanne Ní Chuilinn. I am sure they will give her a very high rating among Members of the Seanad.

Michael McDowell (Independent)
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I move amendment No. 4:

In page 7, between lines 14 and 15, to insert the following: “6. Nothing in this Part prohibits the trial in the High Court with a jury of a claim in defamation in conjunction with any related claim arising substantially out of the same alleged facts and circumstances which would otherwise be triable by the High Court with a jury.”.

This proposed section is to insert in Part 3 a provision that, "Nothing in this Part [which effectively abolishes jury trial in the High Court] ... [prevents] the trial in the High Court with a jury of a claim in defamation in conjunction with any related claim arising substantially out of the same alleged facts and circumstances which would otherwise be triable by the High Court with a jury.”What I am dealing with here is a situation where defamation might also be tried by a jury in conjunction with, say, a sexual assault or an assault of a non-sexual character, for that matter. I mentioned the logic of this. If we are going to have, for instance, an action for malicious falsehood, I do not see why there should not be at the same time a right of the High Court to have a jury entertain in conjunction with that the lesser tort of defamation. If a jury is going to be empanelled to listen to one bit of evidence and decide one particular case, why is it that it cannot at the same time consider whether damages should be awarded for defamation as well? We could have people being assaulted in circumstances where a High Court jury action was justified and the facts before the court might also include the making of defamatory statements by the defendant. In those circumstances I cannot see any good reason the jury determining the assault case should not also have the right, based on its appreciation of the evidence, to deal with a claim in defamation.

There are plenty of examples of this which occur to me. Supposing somebody was accused of, say, sexual assault and battery, and that is triable by a jury, why could a jury listening to that case not come to the conclusion the perpetrator had, in the course of the events before the court in the assault case, stated something wholly untrue about the victim of the assault? Why would there have to be a second trial of the defamatory part of the evidence? I do not see any good reason that should happen. The Minister earlier mentioned the privacy case where one effectively has to elect, in relation to serving notice of trial, between the right to a jury trial and the right to adding in a breach of privacy claim. People should not be forced to that election. If we are going to have a jury decide a serious sexual assault, a serious Garda assault, or whatever, if in addition to the physical actions that took place a statement was made about the victim of a grossly defamatory kind, I cannot see any reason the jury should not consider that as well and take that into account when awarding damages, if it accepted the evidence of the alleged injured party. We can have a situation, as the Minister says, for instance in a privacy action, that if you want to claim damages for breach of privacy, you cannot at the same time run it in conjunction with a defamation action, as things are happening at the moment. That is unfortunate. If we are going to empanel a jury and it is going to listen to all the evidence, there is no reason they should not also consider whether, in addition to the substantive case that is triable before them, there has also been defamation which merits an award of compensation.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Senator McDowell and the other Senators for putting forward this amendment. The objective here is to try to deal with a situation which can arise when, if defamation is removed from a jury, it will still be permissible to be heard by a jury if other causes of action which are heard by juries are taken. Senator McDowell's example probably expresses it most clearly. He says if this legislation is enacted as it has been approved in the Houses up to now, the default position would be that you would not be entitled to a jury for a defamation action. However, under this amendment it is proposed that if another cause of action which gave rise to a right to a trial by jury was engaged, the defamation action could be heard by it. As the Senator said, he is thinking of circumstances where, for instance, somebody is assaulted, takes an action for assault, that assault action in the High Court is heard before a jury. They may also want to take a defamation action if a defamatory publication was made.

Can we just assess how that would be dealt with if this amendment were not enacted? As I said earlier, we have had numerous examples of this operating where you have two different causes of action taken and only one permitting you to get a jury trial. At present, if you sue for damages for defamation and damages for breach of privacy, the latter does not give you an entitlement to a jury. What happens in general is that the plaintiff opts for a trial by jury for the defamation action. All the evidence is heard, including the evidence, perhaps, in respect of the privacy action, but ultimately the judge will just determine the cause of action in respect of the privacy claim while the jury will determine it in respect of the defamation claim. As such, it is not a mischief that is unknown to the legal system and it is a mischief that is engaged and responded to by the legal system.

I do not think it is necessary to bring forward this amendment and, consequently, I regret to say to Senator McDowell and his colleagues that I will be opposing it. I also have a concern that it could be used a statutory provision to ensure the intention of the Oireachtas is got around and that, in fact, for most defamation actions a plaintiff would be able to ensure trial by jury. I am aware that is not the intention of Senator McDowell's amendment, but taking into account what the statutory provision would allow, it would be possible, I suppose, for individuals who wanted to sue for defamation to put into their plenary summons a claim for damages for malicious falsehood. They would have to establish a basis for a malicious falsehood claim, but once they established that claim they would be able to bring a defamation action before a jury and that would be defeating the purpose of the main statutory enactment contained in this Part. Regrettably, for that reason I cannot accept the amendment. It probably would have the effect of defeating the purpose of the amendment that has already been agreed by this House.