Sunday 22 April 2018

'Nicky Kehoe was a member of IRA and cannot sue over that' - counsel for RTÉ tells High Court

Claire Byrne pictured arriving at the Four Courts Tuesday for the continuation of a High Court action taken by Nicky Kehoe.Pic: Collins Courts
Claire Byrne pictured arriving at the Four Courts Tuesday for the continuation of a High Court action taken by Nicky Kehoe.Pic: Collins Courts

Tim Healy

Sinn Féin political manager, Nicky Kehoe, was a senior member of the IRA and he cannot sue for that because it is true, counsel for RTÉ told a High Court jury today.

What Mr Kehoe had sued over was that former junior minister Joe Costello had said on a live radio show that Mr Kehoe "is" a senior IRA member, Cian Ferriter SC said.

However, counsel said, in the three-to-four minute exchange between Mr Costello and SF representative Eoin Ó'Broin on that Saturday with Claire Byrne show, Mr O'Broin "ripped to shreds" the Costello allegation.

By the end of that exchange, Mr Costello withdrew the allegation and said Mr Kehoe "was" a senior IRA member.

Mr Ferriter was making the closing speech to the jury on behalf of RTÉ on the sixth day of Mr Kehoe's action over the October 2015 broadcast when Mr Costello alleged a former chief of staff of the IRA was at meetings of Dublin City Council telling SF councillors how to vote. Mr Kehoe's name was first used by Mr O'Broin, then a councillor and now a TD, who also went on to defend Mr Kehoe on the show.

Mr Kehoe says the reputation he built up 26 years since last coming out of prison had been destroyed in "one swipe".  RTE should have shut down the debate as soon as his name was mentioned, he says.

RTE denies defamation and says it is not liable.

Mr Ferriter said it was an "extraordinary feature" of this case that Mr Kehoe had come to court saying that RTE said he was a member of the IRA. But that was not stood over on the show and he cannot sue for that because he actually was previously a member of that organisation.

Mr Kehoe cannot take just "one bit" of the broadcast and the law required that it be taken as a whole, he said.

The "elephant not in the room" in this case was why did Mr Kehoe not sue Mr Costello, who was the "real villain" and who must bear the lion's share of responsibility if the jury does find there was defamation, he said. 

RTÉ says there was no defamation but the law is clear and there was no bar or reason whey he could not sue Mr Costello.  Not only did he not sue or send a legal letter, he did not even lift up the phone to call a man he knew for 30 years but decided "I will go after RTE", counsel said.  It was a remarkable feature of the case that Mr Costello was not in the witness box.

RTÉ also argued, in the context of its fair and reasonable defence, the jury had to consider that this was an unprecedented situation where a TD sent out to represent the government on a radio show makes this allegation and Ms Byrne and her producer deal with that responsibly. 

Mr Kehoe's case is that Ms Byrne was floundering when the allegation was made, that she had lost control and had some huge meltdown in a distinguished career as one of the top broadcasters in the country. But this was not so, counsel said.

"It is not remotely tenable to say she and RTE acted irresponsibly. Her judgment call was impeccable", he said. The matter, including a clarification at the end of the programme, was dealt with in accordance with RTÉ radio guidelines, he said.

Witnesses called on Mr Kehoe's behalf said they didn't think he was actually damaged by the broadcast in his own community.

The proceedings were misguided and should never have been brought, counsel said.

Mr Ferriter urged the jury to dismiss the case.

Declan Doyle SC, in his speech on behalf of Mr Kehoe, said the law in Ireland is that if your are defamed you sue for damages. RTE had tried to present, during cross examination of Mr Kehoe, that he was taking this case for substantial compensation.

But what had happened was Mr Kehoe had first got a transcript of the radio show before going to his solicitor. RTE had denied it had defamed him "from the start" and if Mr Kehoe's solicitor had not put something in the original letter about damages, he (solicitor) would have been criminally negligent, Mr Doyle said.

This was emblematic of the way RTE had dealt with this case and had tried to present it as though it was in some sort of bubble, away from the real world.  But, counsel said, there was an "even bigger bubble"  in RTE which was an organisation detached from the real world, he said.

At the end of the exchanges on the radio show, the allegation against Mr Kehoe was still hanging there.  It had not been put to bed as claimed by RTE, counsel said.

The evidence of one of Mr Kehoe's witnesses, a member of the local GAA club and a fireman, was that there was banter some days after the programme among his fire fighter colleagues asking was he "now taking instructions from the army council"

Any reasonable and rational analysis of that allegation was that Mr Kehoe was a member of the army council and was subverting democracy by giving instructions to SF members of Dublin City Council, counsel said.

Mr Kehoe had been upfront and was ashamed about his IRA past but this case was about someone being accused of subverting democracy in 2015, counsel said.

RTE had tried to present Eoin O'Broin as some kind of strategist and orator who had put Joe Costello on the ropes during the programme.  You would think from RTE's portrayal of Mr O'Broin that he was "Winston Churchill, Barrack Obama, Lionel Messi and Katie Taylor all rolled into one", counsel said.

"But did you ever hear such nonsense in all you life and Eoin O'Broin's contribution is laughable if the consequences for Nicky Kehoe were not so serious".

In relation to Joe Costello, it was said by RTE that if it was not for Mr Costello there would be no case.  If it were not for RTE they would not be here, counsel said. RTE had nine or ten opportunities to close down the radio discussion but did not do so and left it to Mr O'Broin, he said.

Mr Doyle urged the jury to award a very significant amount of damages.

The jury is expected to go out to consider its verdict later today following the judge's charge.

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