Tribunal may not get answers from reporters
Judge concerned about the use of journalistic privilege as 'an illegitimate shield', writes Shane Phelan
For an inquiry into an alleged campaign by senior gardai to smear the reputation in media circles of a penalty points-whistleblower, the Disclosures Tribunal has done remarkably well to get this far without being tripped up by journalistic privilege.
Under the principle, considered a key pillar of the freedom of the press, a journalist can resist efforts to compel them to reveal confidential information or sources. It has enjoyed a high degree of acceptance by the courts, but there are those who argue that it is not absolute.
Indeed, at the outset of the tribunal Mr Justice Peter Charleton asked if privilege could be attached to communications with a journalist that were not in the public interest, but instead came from a source who was "perhaps solely motivated by detraction or calumny".
Lawyers for several reporters sought to canvas the tribunal's opinion on the issue in March of last year. They wanted to know what the tribunal viewed as the parameters of journalistic privilege.
Without knowing this, reporters could not determine what information of relevance they could give to the tribunal, it was argued.
Mr Justice Charleton baulked at the prospect of what he was being asked to do. He did not want to get involved in an "abstract" discussion as he felt the circumstances under which privilege arises have to be looked at on a case-by-case basis.
Perhaps this was a skilful move as there is little doubt a legal challenge over the issue of privilege at that stage had the potential to delay the work of the tribunal by several months. The tribunal will finally hear submissions from lawyers on privilege this Tuesday, in what is, barring further developments, supposed to be its final week of hearings.
The issue of privilege caused a major flashpoint last Friday when the judge clashed with Debbie McCann, crime correspondent with the Irish Mail on Sunday, after she cited the protection of sources as a reason for declining to discuss a conversation she may have had with former Garda press officer Supt Dave Taylor.
There were a number of pointed exchanges, with Mr Justice Charleton saying he could not see how privilege arose in the specific instance.
The tribunal is investigating allegations by Supt Taylor that he negatively briefed Ms McCann and 10 other journalists that Sgt Maurice McCabe had been investigated over a historic allegation of child sexual assault.
He claims to have been ordered to do so in mid-2013 by then Garda commissioner Martin Callinan and with the knowledge of then deputy commissioner Noirin O'Sullivan. They deny his allegations.
While it is true Sgt McCabe was the subject of a historic allegation, the DPP ruled out charges in 2007 after determining no crime was described in the complaint.
Supt Taylor has provided little in the way of corroborative evidence to back up his claims. Dates, times and other specifics about alleged briefings have been in short supply. So the tribunal has found itself largely dependent on other witnesses as it seeks to determine whether or not he is telling the truth.
The situation is proving problematic for many of the journalists named by Supt Taylor as they would regard confidential conversations with sources as being covered by journalistic privilege.
To divulge details of such contacts would potentially damage their reputations as journalists and make sources less likely to deal with them.
The vast majority of the journalists named by Supt Taylor are claiming privilege. Several are scheduled to give evidence this week.
Some, who deny receiving negative briefings from any garda in relation to Sgt McCabe, have been happy to convey this to the tribunal while maintaining their position of claiming privilege. These include Irish Daily Star assistant editor Michael O'Toole and Irish Times crime and security editor Conor Lally, who both gave evidence in recent days.
The tribunal did not appear to have much difficulty with the approach they took.
However, it was a different matter when Ms McCann gave evidence last Friday. She is regarded a key witness as she tried to approach Ms D, the woman who alleged that as a child she was sexually assaulted by Sgt McCabe.
Ms McCann told the tribunal she was not negatively briefed about Sgt McCabe by any member of the force.
She said that in February 2014, as controversy over penalty points abuses continued to rage, she heard "murmurings" about something in Sgt McCabe's past. After checking this out, she learned of the historic allegation and travelled to Cavan to seek an interview with Ms D, only to be rebuffed by the woman's mother.
Tribunal counsel Patrick Marrinan SC put it to Ms McCann that Supt Taylor had asserted she phoned him before she travelled to Ms D's home.
"Whether or not this was discussed, I don't feel comfortable revealing that," she replied. Ms McCann didn't feel she could answer "for source protection" reasons.
Mr Justice Charleton intervened and reminded her she had sworn an oath and there was an obligation to tell the truth and not to pick and choose words. The judge said that, in the event she had called Supt Taylor and he told her not to bother wasting her time going up to Cavan as the matter was in the past and the DPP had ruled on it, then he would need to know this.
"I don't believe that has anything to do with source protection," he said.
Ms McCann also declined to answer for "source protection reasons" when asked by Mr Marrinan if Supt Taylor had told her on another occasion that journalist Paul Williams of the Irish Independent visited Ms D in March 2014.
At this point, Mr Justice Charleton intervened again. "Sometimes it can be the case that people have to claim privilege for a genuine reason. Sometimes it can be a case where they claim privilege as an illegitimate shield. Unfortunately I may be in a position where I have to make a decision as to what you are doing here," he said.
The judge said there was "a very strong indication of delay and obfuscation coming, it seems, from your side", but he had yet to make up his mind on whether this was the case.
Ms McCann insisted she had been truthful to the tribunal. But she said revealing the content of conversations with a source would leave her open to not being trusted as a journalist.
"I am trying my best to defend not only my own career as a journalist but also assist the tribunal. It is a very difficult position to be in," she said.
As Ms McCann completed her evidence, the judge told her she may have to be called back again. "I don't mean to hang that over you like the sword of Damocles, but that is the situation that I'm," he said.