Michael McDowell
National University of Ireland · Independent · Ireland
“Then I think of this particular Chamber where people are polite and kind to each other and listen to each other respectfully. There is no baying or shouting down or whatever. It is a great tribute to the Seanad staff that that spirit continues to exist in this House.”
“I note that the whole scheme of the planning Act is that exempt development proposals are considered by the Houses. It is questionable whether this House has really considered the exempt development regulations. Without debate, we sent them off to a committee.”
“I am one of the people who disagrees with the substance of that report. We have to have a real solid debate on it here in this House, not merely a cursory one. It is an issue of fundamental importance. It cannot be avoided, one way or the other. Whatever your views are on it, it needs to be thrashed out.”
“Although coming up to the end of this term we are rushing things through, and the guillotine is well-oiled and slicing this way and that, we have a lot of work to do in the autumn.”
“The people who did that were brought before the International Court of Justice and condemned and imprisoned. If Ireland does not clearly state that there are to be consequences for people who do things like what Mladić, Milošević and Karadžić were brought to account for, if we are incapable as a State of publicly saying that what Secretar…”
“If we cannot, as a State, say publicly to Rubio, "Hands off the International Criminal Court", when they were quite happy when the people who did the 7,000 murders in Srebrenica got their just desserts, but when there is any suggestion that what has happened in Gaza, with 70,000 innocent people killed by aerial bombardment and land bombar…”
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“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.”
“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.”
“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.”
“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.”
“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.”
“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".”
“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.”
“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.”
“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.”
“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.”
“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?”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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?”
“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 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.”
“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.”
“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?”
“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.”
“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.”
“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.”
“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.”
“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?”
“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.”
“The costs are too vast. We have to have a serious debate about how the Irish Government at European level begins to deal with what I call, and I do not apologise for saying it, a racket which has emerged in describing migration as asylum-seeking.”
“In effect, people can go back to wherever they came from originally and participate in the ordinary life of that country, and keep transiting backwards and forwards to Ireland. This is the law. The final point the Minister made, and this is important from the point of view of resources, even though we have Apple money and corporate tax money, was that he pointed out that we spend €1 billion per annum housing Ukrainian displaced persons under a special scheme, and €1.2 billion housing other asylum applicants who have come to our shores. This is €2.2 billion. The reason I mention these three questions, and the Minister answered many other interesting questions, is that we have to have a serious debate in the House about how we tackle the asylum-seeking activity in Ireland. It is not sustainable in its present shape or form.”
“It emerged from this discussion that it appears at least 87%, and probably more, of asylum seekers in Ireland have transited through the United Kingdom to come here. He surmised, and I suppose it is a reasonable surmise, that they are coming across an open border. This is a huge number of people claiming protection whom we receive via a safe country into our own country. By the way, there is traffic the other way. Several other points also emerged from the answers he gave, and I will put two propositions before the House. The first is that anybody given refugee status in Ireland is, thereafter, free to go backwards and forwards between Ireland and wherever they claimed they were in danger of persecution, as often as they like on travel documents supplied to them.”
“I want to be associated with the kind remarks the Cathaoirleach and others have made about Julie Lyons on the occasion of her impending retirement, which we are marking. She is a wonderful woman and very kind to all of us. I definitely agree with what was said by Senator Boyle, that hospitality is slightly different to catering and that she managed to crown one with the other. At the end of the last session of the House we were speaking about the refugee crisis, asylum-seeking and the like. There is an Oireachtas joint committee on justice, and yesterday it was graced by the presence of the Minister, Deputy Jim O'Callaghan, who answered the questions put to him very forthrightly, honestly and truthfully.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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 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.”
“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.”
“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.”
“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.”
“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 sued 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 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.”
“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.”
“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.”
“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.”