Tuesday 20 November 2018

Journalists will not be referred to High Court by tribunal

'The situation gave rise to the prospect of the tribunal seeking High Court orders requiring journalists to answer the questions put to them. However, Mr Justice Peter Charleton ruled out this course of action yesterday following legal submissions' (stock photo)
'The situation gave rise to the prospect of the tribunal seeking High Court orders requiring journalists to answer the questions put to them. However, Mr Justice Peter Charleton ruled out this course of action yesterday following legal submissions' (stock photo)
Shane Phelan

Shane Phelan

The chairman of the Disclosures Tribunal will not be asking the High Court to compel journalists to answer questions.

Several reporters invoked journalistic privilege at the tribunal, refusing to divulge information they felt could impact upon the protection of sources.

The situation gave rise to the prospect of the tribunal seeking High Court orders requiring journalists to answer the questions put to them.

However, Mr Justice Peter Charleton ruled out this course of action yesterday following legal submissions.

The judge said such a move "might be futile" and he was convinced journalists would not change their position, even if ordered to do so by the court.

His decision came on what is expected to be the final day of evidence at the tribunal, which has been hearing testimony since July last year.

He said the tribunal had come to the end of all the evidence it had been able to gather, and it didn't seem likely there would be "any great breakthrough at this point".

"The tribunal has been attempting to roll a very large stone up a very large mountain, like Croagh Patrick. And if we haven't succeeded fully, I think at this point it might be fair to say we've done our very best and that what we have done is reasonable," he said.

In its current module, the tribunal has been investigating claims by former Garda press officer Supt Dave Taylor that he was ordered in 2013 by then Commissioner Martin Callinan to negatively brief journalists that penalty points whistleblower Maurice McCabe had been the subject of a child sexual assault investigation.

Supt Taylor alleged the smear campaign was conducted with the knowledge of Mr Callinan's then deputy, Nóirín O'Sullivan. Both deny the allegations.

While it was true Sgt McCabe had been investigated, a Garda inquiry fully cleared him of the of the allegation in 2007.

Supt Taylor claims 12 journalists were negatively briefed. However, none of these supports his account.

Eight have denied it, while four have claimed privilege.

During submissions, Sgt McCabe's counsel, Michael McDowell SC, said it "would serve no useful purpose" to refer matters to the High Court and would only delay the tribunal's work. Mr McDowell said Supt Taylor had provided a waiver releasing journalists from any obligation of confidentiality.

He argued there was no factual basis on which the refusal to answer questions could be justified and pressed the judge to draw inferences from the failure to answer.

However, Shane English BL, who is representing journalists from the 'Irish Examiner', said his clients believed they were entitled to claim journalistic privilege. "They believe that answering the tribunal's questions could lead to the identification of any source," he said.

Mr English said his clients believed the identification of a source would have a chilling effect on the free flow of information. He said they believed there was a pressing social good in not revealing a source and that it was a basic condition for a free press.

Irish Independent

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