A former High Court judge has described a proposal from the government to remove juries from High Court defamation cases as “inherently undemocratic”.
Speaking at the Oireachtas justice committee today, Justice Bernard Barton said that removing juries from defamation actions would be a “far-reaching and fundamental alteration” of the law that would, if enacted, have “serious consequences” for individuals and companies seeking to defend their reputation.
The former judge explained that he had presided over some of the most high-profile defamation cases in the country before outlining his concerns.
He said that the right to jury trial had existed for centuries and was enshrined in the Irish Magna Carta.
Mr Justice Barton told the Oireachtas Committee that removing the right to have an action heard by a jury would remove the public from the administration of justice in defamation cases.
“In essence, if the proposal were enacted, the democratic input into the decision-making process inherent in a trial by jury would be extinguished,” he said.
“Abolition of the legal right to trial by jury would constitute a fundamental and profound shift in public policy which has long underlain the administration of justice in Ireland both before and after independence.
He argued that the basis on which the changes to the law were proposed was erroneous, and that the recommendation to remove juries from defamation actions is “legally flawed” because a recent decision by the Supreme Court set out guidance as to the correct level of damages awarded in individual cases.
He said this Supreme Court decision should be given an opportunity to see how it worked in practise – and that it allowed future defamation cases to be decided with “proportionate and fair” awards.
In March, then Minister for Justice, Simon Harris, proposed abolishing juries in defamation actions as part of a series of changes to the existing Defamation Act.
Harris said that the right of freedom of expression must be “carefully balanced with safeguarding the individual right to good name and reputation, and the right of access to justice.”
Speaking on the publication of the General Scheme, Minister of State James Browne said the changes would be “a milestone in reform of Ireland’s defamation laws.”
The Council of the Bar of Ireland said that the changes suggested were ‘far-reaching’, and criticised the proposal to abolish juries in defamation cases before the High Court.
He said that abolition of juries would actually lead to an increase in costs as pre-trial applications might rise.
The Oireachtas Committee also heard that the office of the Press Ombudsman had not requested that the right to have a defamation action heard by a jury be abolished.