Mattie McGrath: Removing juries will harm defamation victims

Amendment 4. I think it's a very, very, very great step to remove a jury situation in the High Court. And juries have proven their work in this justice system over the passage of time. And you had a different opinion yourself when you were on the opposition pinches, Minister. So I'd be very concerned, you know, that we would do that. Because we all do know that defamation is very, very serious. And I was a victim of myself one time. And it's a frightfully expensive process to engage with for a person who has been defamed by a media outlet or something like that. Frightfully expensive. And, you know, I only shocked cessation. You know, statements were totally untrue. And, you know, I wanted nothing myself only to clear my good name. I wanted a donation then to a charitable cause in the local district hospital, hospice units. And actually, I was shocked with the cost of the, of the, there was no hearing. There was just a number of emails back and forward. Maybe one or two phone conversations on a phenomenal bill. When I created it, I was told that representation for, to seek defamation, challenge defamation is, is frightfully expensive. So the legal eagles make the money. And we have jurors who give up the time. And I salute them and support them. The best, 100% of them. Because they sit on a voluntary capacity. But it's the legal eagles that get all the money here. And it shouldn't be so prohibitive. It shouldn't be so prohibitive that a person who's nakedly, blatantly defamed should be able to have recourse. And I think the best primary course to justice is being tried in front of your, by your peers, as a jury, with a judge presiding, obviously. And that should be a basic requisite in legislation. And, you know, Minister, why you've changed your mind since you were spokesperson in opposition? It's funny how, how the things people change when they move to that side of the house. The system here is too powerful. And, you know, it doesn't allow maybe ministers to have the view that they want to have. And I know you're probably privy to advice maybe to the Attorney General and everything else. But nonetheless, I think removal of a jury at any level is a retrograde step, in my opinion. And people have been willing to serve and have served, except for the case of special criminal courts and that. But in this case of civil litigation, juries are necessary and should be held. And I'm appealing to you to at least accept a later amendment if you want to accept this one. Thank you. I just want to thank deputies Carthy, McGrath and Gannon for their contributions. If I can start on where there is agreement in terms of what they have said, it's correct to say that the contentious part of the legislation that's going through the House this evening is part three, which concerns the abolition of juries. And I do acknowledge that the colleagues who have spoken are generally supportive of the legislation, notwithstanding their opposition to part three, which concerns the abolition of juries. As the deputies mentioned, with a very thorough discussion in respect of this issue at committee stage, and I stand over everything I said at committee stage, but I just would like to respond to a couple of pointers that have been made by the deputies. And as well as that, if I could say, that we're discussing at present a series of amendments. We're discussing amendments 5, 7, 8 and 9, which are my amendments, and amendments 4 and 6, which are in the names of deputies Carthy and Gannon. So what I propose to do is to deal with all those issues in my response here, if permitted. And just to get them out of the way very quickly, can I just say the non-contentious amendments, amendment 5 that I'm moving, amend section 4 to remove the word, as it appears twice. It's simply a technical issue and a typographical error. Amendments 7 and 9, which I'm also moving, substitute the word instituted with brought, to provide consistency with the terminology used in the 2009 Act. And then amendment 8 deletes subsection 1C of section 5, which removed the definition of court from section 26 of the 2009 Act. That's the section that deals with fair and reasonable publication on a matter of public interest. And as colleagues will know, amendment 15 proposes a change to that, and that's why amendment 8 is necessary. Can I now just turn to the amendments proposed by deputies Carthy and Gannon. And there are two amendments. Amendment 4, which is simply to remove that section, which deals with the abolition of juries. And amendment 6, which would substitute a different wording, so that there would be sort of a hybrid process, that a jury could be used to determine certain aspects of it, but a judge would determine other aspects of it. At the outset, can I just make two general points in response to the issues that have been raised by deputies Carthy and Gannon in particular. First of all, the majority of civil cases before the courts are not determined by a jury. They're determined by a judge sitting alone. And that has been a fairly constant progression from the time of the Courts of Justice Act in 1924 onwards. You've seen circumstances where all the personal injuries actions up to the 1988 used to be heard by juries in the High Court, and they were abolished. And there were reasons to abolish them because they did prolong the hearing of the action and also was too inefficient for the purpose of determining the increasing number of personal injuries actions. The latter argument doesn't apply here, but the former does in terms of trying to speed up the process. I should also point out as well that very many defamation cases are heard on a daily basis at present without a jury. Anyone who wants to take an action in the circuit court where you can get damages of up to €75,000, which is a considerable amount of money for the point of damage to your reputation, anyone who takes an action in the circuit court does not have a right to a jury. A case in the circuit court, a defamation case in the circuit court is heard by a judge sitting alone and individuals get justice there. Similarly, in the High Court, there are many defamation cases that are heard without a jury. That can happen in circumstances if somebody brings forward a claim for defamation and, say, a claim for breach of privacy. The latter claim can't be determined by a jury and, consequently, many plaintiffs opt to have a High Court judge sitting on his or her own determining the action. Any experience I have of judges on their own hearing defamation actions have indicated to me that there is not some lesser form of justice. There is no lesser vindication of the rights of the individual when a case is being heard by a judge sitting alone. I note the points made by Deputy Gannon that, you know, sometimes judges come from a certain perspective in society and that juries bring a broader assessment. The purpose of juries, I suppose, is to ensure that they will deal with questions of pure fact in respect of issues that are before the court. And that's happened in respect to defamation actions. However, any defamation action that anyone's ever been in front of or attended, you'll be aware that there is, you know, a lot of occasions where the jury has to rise and leave the room so that the questions of law can be dealt with by the judge sitting on his or her own. I think it is fairly clearly the case that a defamation case heard by a judge sitting on his own will be faster than a defamation case heard by a judge and a jury sitting together. I just think it is a matter of common sense that that is correct. I also am not fearful that it's going to result in miscarriages of justice or individuals being deprived of the opportunity to vindicate their good name. Can I just deal with Amendment 6, which I suppose is in broader detail and it's the one that's been put forward by Deputies Carty and by Deputies Gannon. Can I just say if Amendment 6 was accepted, it would divide roles between a judge and jury in cases that may involve substantial damages. And it's noteworthy that that term isn't defined in the proposed amendment. In those cases, juries would have a role in the determination of questions of fact, but it would have no role in respect of the assessment of damages. And as I noted at committee stage, my assessment is that it would be inappropriate to divide functions between a jury and a judge. Deputy Carty made the point on the last occasion, and I listened carefully to it, she said, that happens in the criminal proceedings at present where jury determine guilt or innocence or guilt or not guilty, and the court will then impose the sentence. But it is not feasible to suggest that in a criminal prosecution, that at the end of a determination of guilt, that the jury would then proceed to set the sentence. The reason why we don't do that is because of the necessity of ensuring consistency in the type of sentences that are imposed upon individuals who are convicted of similar offences. Similarly, I suppose the objective here is to achieve some form of consistency in the damages awarded. Thank you.