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Wednesday 8 February 2023 Dublin: 4°C
Leah Farrell/ Mr Justice Charleton will make a crucial ruling on privilege.
# privileged info
'So many lies': Mr Justice Charleton left with plenty to mull over as Tribunal winds up
The Tribunal won’t be going to the High Court over privilege, paving the way for the closing of proceedings.

THE NAME ON the witness list may have been Michael Wallace but Mick wasn’t having any of it.

He wasn’t having any of the stories that have been told at the Disclosures Tribunal either, having been present for a number of the 90+ days so far.

On Thursday, the Wexford TD told Mr Justice Peter Charleton that “there’s never been a judge in the history of the State told [that's been] told so many lies”.

With the accounts of some witnesses were directly contradicted by others, it must be the case that some haven’t told the truth and the judge’s task in the coming weeks and months is to unpick the intricacies and write a lengthy report at the end of it.

The Tribunal had faced a potentially indefinite delay this week over journalistic privilege but the judge’s ruling yesterday means that we’re just about finished the public hearings into the whole Maurice McCabe saga that has dominated the Irish news agenda for the best part of half a decade.

Why would it have been delayed?

The Tribunal has spent the last month looking into claims from former garda press officer Superintendent Dave Taylor that he was directed by former commissioner Martin Callinan to smear Maurice McCabe to the media.

Taylor alleges that he gave a number of journalists negative briefings about McCabe, would “do down” McCabe and that Nóirín O’Sullivan was aware of the smear campaign.

However, when called to give evidence to the Tribunal, a number of journalists claimed journalistic privilege when asked to say who gave them certain bits of information relating to McCabe.

As outlined here, not compelling journalists to reveal confidential sources does have legal precedent but not a strict provision in Irish law.

Counsel for the various journalists involved made their case to Mr Justice Peter Charleton yesterday as to the basis for their clients claiming privilege.

There were two possible outcomes: either the judge ruled that the journalists can claim privilege or he ruled that they must reveal their sources.

In the case of the former, the Tribunal would proceed as normal and likely finish up proceedings by the end of next week.

In the case of the latter, however, the Tribunal could have been sent into limbo. If the judge ruled that sources must be revealed, then that matter would have ended up in the High Court.

In its updated list of proceedings, the Tribunal noted: “If a referral to the High Court is made, the tribunal will adjourn appropriately with no known recommencement date.”

Privileged info

One journalist who repeatedly claimed privilege during her evidence was Irish Mail on Sunday journalist Debbie McCann.

She was one of three journalists who sought out an interview with Ms D – the woman who had previously made an allegation of sexual abuse against Maurice McCabe. At the time it was alleged in 2006, McCabe was exonerated of wrongdoing.

McCann claimed privilege when asked if Taylor had negatively briefed her or gave her the information about Ms D, and it led to this exchange involving Mr Justice Charleton and Tribunal counsel Patrick Marrinan SC:

Judge: “If you think you have journalistic privilege, I will certain listen to that, but you have to give me the facts and circumstances upon which you claim to base it… And at the moment I just can’t see how it arises, and unfortunately at the moment a reasonable person might see this as a complete smokescreen. I’m not saying whether I see it that way or not, but I’m here to listen.”
Marrinan: “I mean, could it ever be right that a source could be left in jeopardy by a journalist exposed to being condemned as a liar when you know that that’s not so and that the truth is that he was in contact with you? Could that be in any way healthy for journalism, for the truth or anything else?”
McCann: “I am in a position where I am trying my best to defend not only my career as a journalist but also assist to the Tribunal. It is a very difficult position to be in. By revealing the contents of my communication and conversations with a source, is leaving me very much open as a journalist to not be trusted when I continue my career as I intend to do.”

This form of argument has been mirrored in other interactions between the judge and other journalists and their counsel.

Mr Justice Charleton has expressed a wish on numerous occasions to be given all the information he needs to judge whether or not there was a smear campaign against Maurice McCabe.

At the same time, he has also appeared keen to hear all the evidence as expeditiously as possible.

chairman over Disclosures Tribunal Disclosures Tribunal

In submissions yesterday, most of the counsel did not think it would achieve much by bringing the matter to the High Court and the judge could still draw conclusions despite some journalists not disclosing information.

So what now?

Some journalists chose not to reveal their sources but a number also said that David Taylor did not smear Maurice McCabe to them.

Before closing yesterday, the judge outlined a myriad of factors he’ll now have to consider in his final report.

They included:

  • How Maurice McCabe is saying one thing and Dave Taylor is saying another about what was said when they met in September 2016. McCabe said Taylor told him he ran the smear campaign via text and that there “hundreds, possibly thousands” of texts sent. Taylor said he never told McCabe this and didn’t conduct the smear via text.
  • What Taylor said then and what his case is now. When he sat down with Tribunal investigators he said when smearing McCabe that he’d mention the sexual abuse claim that McCabe was exonerated that he’d drop it in on the basis that “there was no smoke without fire”. The case from his counsel recently was that it was done on the basis that McCabe was “embittered”. If he did smear McCabe, which is the accurate version?
  • What did Martin Callinan say to other people? We’ve had RTÉ journalist Philip Boucher-Hayes say Callinan said McCabe had done “horrific things” and had “psychological and psychiatric” issues. We’ve had Fianna Fáil TD John McGuinness say Callinan told McCabe “fiddles with kids”. Callinan has said he never said these things.

The judge’s decision not to take the matter to the High Court means that closing submissions from the various parties on what they think happened here are all that’s left.

And then it’s just a matter of waiting for the report. The near 100-day Tribunal has actually been going on for roughly a year and it’s likely that Mr Justice Charleton has been writing the report as he goes along.

But, in the last month or so, there has been a hefty chunk of evidence on the most crucial part of the Tribunal so it’s not likely to be ready too soon.

With the courts traditionally out for the month of August, it’ll possibly be September at the earliest when the surely mammoth report is published.