THE HIGH COURT in Belfast has thrown out a libel case brought by veteran Sinn Féin MLA Gerry Kelly against a journalist who said Kelly shot a prison officer during a prison escape in the 1980s.
In throwing out the case, Master Evan Bell described Kelly’s case as “scandalous, frivolous, and vexatious”.
Kelly was one of 38 IRA prisoners who escaped from the Maze prison in 1983.
Prison officer John Adams was shot in the head during the prison escape but survived.
Kelly had never made an admission to shooting Adams and was acquitted of the offence in a 1987 trial.
On 21 August, 2019, journalist and author Malachi O’Doherty conducted radio interviews with U105 and BBC Radio Ulster.
Speaking to U105, O’Doherty said: “Gerry Kelly has spoken very frankly about shooting a prison warder in the head, right? He did that. He shot a prison warder in the head.”
During his BBC Radio Ulster interview, he said: “How could we even function in Northern Ireland if every time we were going to interview Gerry Kelly, we had to notify the family of the prison officer he shot?”
A year later, Kelly issued a writ claiming damages for libel as a result of these interviews and said the statements “gravely damaged his character and reputation”.
In response, O’Doherty noted that Adams had identified Kelly as the person who shot him in the head.
O’Doherty also denied that Kelly had “suffered any loss or damage to his reputation” as he has for “many years been identified publicly as a former member of the Provisional Irish Republican Army” and has “acknowledged such membership in his book about escape from the Maze prison and in other interviews”.
Kelly has written a book called ‘The Escape’ about the 1983 Maze prison escape but it is unclear in the book who fired the shot that hit Adams.
And while Kelly has taken part in interviews on the escape, he has made no admission of shooting Adams in these interviews.
In a 55-page ruling on the case, the judge wrote: “What Mr Kelly has written in his books is, in my view, a clear statement of common design in respect of the battery of Mr Adams.
“Even if one accepts the submission that Mr Kelly has not explicitly admitted pulling the trigger, the content of his books appears to make Mr Kelly civilly liable, on the balance of probabilities, for the shooting of Mr Adams.
“In the light of that, these defamation proceedings against Dr O’Doherty are completely untenable.
“For that reason the court strikes them out on the basis that they are scandalous, frivolous and vexatious.”
The judge then asked in his written verdict: “Are the defamation proceedings an abuse of the process of the court?”
O’Doherty’s barrister described the case as an attempt to “frighten those who are his (Kelly’s) critics and stifle the expression of their opinions of him by the threat of legal costs”.
His barrister also noted that Kelly has not undertaken legal action against the BBC who aired the interview and argued that the proceedings “amount to a ‘SLAPP’”.
A ‘SLAPP’ is an acronym for “Strategic Lawsuits Against Public Participation”.
The UK Government describes a SLAPP as: “Legal actions typically brought by corporations or individuals with the intention of harassing, intimidating and financially or psychologically exhausting opponents via improper use of the legal system.”
In his written decision, Master Bell remarked that “every individual has the right to defend their good name” but added: “As elected representatives, politicians have a duty to display a greater degree of restraint when it comes to taking legal action against journalists.”
Bell further stated: “Rather than being a genuine attempt to defend a reputation which has been damaged by an untruth, the proceedings are what has been referred to as a SLAPP, namely an attempt to silence two bothersome journalists with the threat of legal costs.”
Kelly has also undertaken defamation proceedings against journalist Ruth Dudley Edwards, who is also applying to have the claim thrown out.
“The proceedings appear to be a strategic effort to intimidate them, to deprive them of time and resources, and ultimately to silence them,” said Bell.
He added: “It is difficult to discern any valid reason why defamation proceedings were brought after what Mr Kelly had written in his book The Escape.
“On the balance of probabilities therefore the proceedings do bear the hallmarks of a SLAPP and have been initiated not for the genuine purposes of vindicating a reputation injured by defamatory statements, but rather for the purpose of stifling the voices of his troublesome critics.”
In his written decision Bell also noted: “This decision obviously has implications for Mr Kelly’s similar defamation proceedings against Miss Edwards which will not be lost on his legal advisers and hers.”
Bell also awarded O’Doherty “both the costs of this application and the costs of the action on an indemnity basis”.
He added: “In my view, where a court is satisfied on the balance of probabilities that a defamation action amounts to a SLAPP, then an award of costs to the defendant on an indemnity basis is an inevitable consequence as a demonstration of the court’s repudiation of the way in which a plaintiff has abused the processes of the court.”
It’s the second time in recent months that Master Bell has quashed libel action by Sinn Féin.
In November, Sinn Féin vice-president Michelle O’Neill was not awarded any damages regarding a Facebook post by a former DUP councillor who said O’Neill would be “put back in her kennel”.
In his ruling, Master Evan Bell indicated that it should never have reached the High Court.
He accepted that the comments were abusive, highly offensive and misogynistic but said they fell short of being defamatory, having had “no adverse impact on Ms O’Neill’s reputation, either in the local community or internationally”.
A number of Sinn Féin members have taken legal action against Irish media outlets on either side of the border in recent years.
In November, Sinn Féin TD Chris Andrews filed a suit against The Irish Times and its political correspondent Harry McGee over coverage of Sinn Féin’s response to the Hamas attack on Israel on 7 October.
The National Union of Journalists described the action as a “sinister development” and NUJ Ireland secretary Séamus Dooley added: “The use of SLAAPs is bad for journalism, bad for citizens and poisonous for democracy.”
Speaking in the days after Andrews filed the suit, Press Ombudsman Susan McKay said: “Politicians, whatever their party background, who choose to sue rather than making a complaint through the Office of the Press Ombudsman, need to ask themselves if this is in the public interest.”
Elsewhere in April 2022, Sinn Féin leader Mary Lou McDonald began legal proceedings against RTÉ which was labelled a SLAAP and was flagged with the Council of Europe as a potential threat to media freedom by the Index on Censorship, a non-profit organisation based in the UK.
When pressed at the party’s Ard Fheis last November on the fact that her case had been labelled a SLAAP, McDonald said: “I have done no such thing and I reject that out of hand.”
Promised defamation law reform in Ireland will include measures against SLAAPs.
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