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Charleton says it would be 'absolutely futile' to bring journalists who claimed privilege to High Court

Four journalists have claimed privilege at the Disclosures Tribunal on the basis of protecting their sources.

Disclosures Tribunal Supreme Court judge Peter Charleton arrives to deliver his opening statement of the Disclosures Tribunal, February 2017. Source: Caroline Quinn

THE CHAIRMAN OF the Disclosures Tribunal has said he will not go to the High Court to require journalists to answer questions where they claimed journalistic privilege because it would be “absolutely futile”.

The tribunal is looking at allegations by Superintendent David Taylor, a former Garda Press Officer during 2013 and 2014, that he was directed to smear whistleblower Sergeant Maurice McCabe. Former commissioners Martin Callinan and Nóirín O’Sullivan deny there was any smear campaign.

On day 97 of the inquiry, barristers for some newspapers told Mr Justice Peter Charleton that journalistic privilege was a social good and essential to the right of free expression, and a basic condition of a free press.

Shane English BL, on behalf of the Irish Examiner, said that identifying a source would have a chilling effect and waiving privilege could deter future sources from coming forward.

Mr Justice Charleton said that if he was to order journalists to answer questions from the tribunal “there will be no change because the manner in which they resisted answering the question convinced me that any order I made would be absolutely futile”.

Journalistic privilege was claimed by three Irish Examiner journalists, Juno McEnroe, Dan McConnell and Cormac O’Keeffe, and by Irish Mail on Sunday journalist Debbie McCann.

In submissions to the chairman Michael McDowell SC, on behalf of Sergeant McCabe, said the tribunal had made every reasonable effort to inquire into whether there was negative briefing of journalists by Superintendent Taylor and the two former commissioners.

Journalists who refused to answer questions properly put as to whether they had such discussions do not have any state-able (sic) journalistic privilege which would justify such a refusal.

“If there is no privilege, there is no rule against drawing inferences from a refusal to answer a question,” McDowell said.

My submission is if a journalist is asked did you have ‘off the record’ conversations with Taylor concerning McCabe, and refuses to answer on a purported basis of privilege which does not exist, this tribunal is entitled to draw whatever inference is apposite from a failure to answer that question.

McDowell said that Taylor was entitled to have the questions answered when he had waived his privilege.

McDowell said he was not saying the tribunal should refer questions to the High Court as it would serve no useful purpose and delay the completion of this tribunal’s proceedings.

“There is no need to refer to the courts because it is so blindingly obvious that journalistic privilege is not involved, and there is no reason the tribunal should be delayed or frustrated by lengthy court proceedings,” McDowell said.

John Ferry BL for Taylor, said that some journalists had taken an “absolutist position” on journalistic privilege, and the interests of Taylor outweighed issues of privilege where no details have been given of what privilege was being claimed.

Ferry said that Taylor had identified himself as a source and provided waivers, and no journalistic privilege applied.

“The right of Superintendent Taylor to protect his good name trumps the claim of journalistic privilege in those circumstances,” Ferry said.

Ferry said that similar to McDowell, he was arguing that an inference should be drawn that Taylor’s evidence, as the only evidence about his interactions with some journalists, was the version that should be accepted.

Ferry said that in the event the tribunal did not draw an inference, Taylor was entitled to have all avenues exhausted.

Chilling effect

Shane English BL said that irrespective of waivers given by Taylor and the former commissioners, his clients would not answer questions about their sources.

English said that the journalists wished to preserve the free flow of information, and identifying a source would have a chilling effect. Journalistic privilege was a social good and essential to the right of free expression, and a basic condition of a free press.

Waiving that privilege could deter future sources from coming forward, undermine the ability of journalists to provide accurate information, and put their livelihoods at risk.

“They have appropriately invoked their lawful entitlement to journalistic privilege,” English said.

Tom Murphy BL, on behalf of the Irish Daily Mail and Irish Mail on Sunday, said his clients were also claiming privilege. Murphy said that given other evidence available to the tribunal, it was not necessary for the tribunal to require journalists to answer any further questions.

John Fitzgerald BL, on behalf of An Garda Síochána, said that for the tribunal to draw inferences from a refusal of journalists to answer questions would require it to leap to conclusions.

He said that Taylor’s evidence was “utterly devoid of supporting evidence”, and there was no electronic or documentary evidence to support his allegations.

One of the few details Taylor did provide was a list initially of nine journalists, which then grew to eleven, and which, on Wednesday, “extraordinarily” became twelve.

Fitzgerald said that none of the journalists supported Taylor’s evidence, which eight denied and four claimed privilege.

Fitzgerald said An Garda Síochána regretted the position taken by the journalists, which it believed was mistaken in law, but said it was not necessary for the chairman to go to the High Court.

Tribunal barrister Diarmaid McGuinness SC said that the tribunal legal team will consider whether any witnesses need to be recalled, following which final submissions would be heard. The chairman said he would meet with his legal team on Monday to decide on the next steps to take.

Judge Charleton also outlined 20 issues he had to consider in preparing his report, and which barristers should address in making their final submissions.

‘Rumours among journalists’

Earlier the tribunal heard from Tom Brady, a retired journalist formerly with Independent New & Media, where he worked as security editor from 1989 to 2014.

Professor Colum Kenny said Brady was one of two journalists he spoke to at a Dáil committee hearing in 2014 about McCabe “to sound out their views”.

Kenny said he was told that McCabe “was under investigation for alleged child abuse”. Kenny believed the encounter took place on 19 February 2014.

“I wasn’t at that committee meeting, ” Brady told the tribunal. Brady said he was covering a murder story on that date, and the Irish Independent report on the Dáil committee that day was reported on by two other journalists.

Brady said he rarely covered Dáil meetings, having done only three or four such stories in his life.

Brady said that he had heard a rumour about McCabe which he checked out, and established it had been investigated and in 2007 the DPP had directed no prosecution in the case. The Garda investigation took place following an allegation of historic abuse from Miss D in 2006.

The first person who told him the rumour “was probably a journalist”, Brady said. He said he could rule out any garda, past or present, as the source.

Fergus O’Shea, the deputy head of news in the Irish Sun in 2014, said that journalist Eavan Murray went to him about a potential interview with Miss D in 2014.

In her evidence, Murray said that the assignment was given to her by O’Shea, who told her the Independent was planning a large exclusive on the story.

“First of all I don’t recollect that. It that was heard, it wasn’t me that heard it,” O’Shea said.

O’Shea said it could have been someone else at the newsdesk who told Murray about Miss D. He said he did not hear that the Irish Independent was doing a story with Miss D.

Robert Cox, who was deputy news editor of the Irish Mail on Sunday from 2013, said that he had never spoken to Callinan or O’Sullivan.

He said he might have spoken to Taylor when he was press officer but could not be certain, but he definitely never spoke to any of the officers about issues before the tribunal.

Journalist Debbie McCann had approached the family and spoken to Mrs D, the mother of Miss D, but the family declined to give an interview.

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Gerard Cunningham

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