There is “quite a considerable stretch” between the standard-of-proof thresholds in criminal and civil trials, according to an experienced barrister.
The different thresholds for finding against a defendant in civil and criminal trials has become an issue in the general election because a Fine Gael candidate in Co Louth, Senator John McGahon, was found not guilty of assault in a criminal trial, but later found liable for damages for assault in the civil courts.
During the Leaders’ Debate on RTÉ Television on Monday night, Taoiseach Simon Harris referred to the candidate having been found not guilty of a crime as a reason for his being a party candidate.
“I backed him on the basis of what had happened in court. If John McGahon had been criminally convicted, he would not be a candidate in this party,” he said.
The threshold that must be reached in criminal trials for deciding against a defendant is beyond reasonable doubt while in civil trials it is on the balance of probabilities.
There is “quite a lot of difference” between the two as “the smallest thing” in a criminal trial can prevent the threshold for conviction being reached, according to an experienced barrister who did not want to speak on the record.
“The jury can be told that, if you have a doubt, they can’t convict,” he said.
Most civil claims in the High Court do not involve juries but a plaintiff can seek a jury trial when seeking damages for such matters as physical and sexual assault, and defamation.
In deciding in a civil case whether a plaintiff should seek a jury trial, the facts of the case and the likely attitude of a jury towards the parties involved are among the factors considered, according to the barrister.
Both the civil and the criminal trials where McGahon was a defendant involved juries and in both instances they spent a long time deliberating before coming to their decisions.
The Fine Gael politician pleaded not guilty when charged with assault causing harm to Breen White on a date in June 2018 outside the Rum House pub in Dundalk.
His four-day trial in Dundalk Circuit Criminal Court in May 2022 heard that a fight occurred on the street after McGahon had put his arm around White’s wife inside the pub and words were exchanged. McGahon pleaded self-defence.
After failing to reach a unanimous verdict following more than 2½ hours of deliberations, Judge Dara Hayes told the jury he would accept a majority verdict of at least 10 to one. Following a further four hours of deliberations, the jury found the politician not guilty.
McGahon was an unsuccessful candidate in the 2020 general election but was appointed to the Senate afterwards and was a senator at the time of the 2022 trial.
[ Simon Harris doubles down on defence of John McGahon despite widespread criticismOpens in new window ]
In June of this year, after more than three hours of deliberation, the jury in the High Court, at the end of a four-day trial, found White, who had taken the case, was entitled to damages from McGahon because he had been assaulted.
They awarded damages of €60,000, including €10,000 for aggravated damages, and apportioned blame at 65 per cent against McGahon and 35 per cent against White. On this basis Mr Justice Alexander Owens gave a decree against McMahon for €39,000.
In September of this year McMahon and Cllr Paula Butterly were selected as Fine Gael candidates for the Louth constituency in the general election at a party convention in Dundalk chaired by Leo Varadkar. A controversy over the decision has arisen recently, after video footage of the 2018 fight appeared online. McGahon has yet to comment.
