Wednesday 13 December 2017

Tribunal told press has 'right' to guard sources

Justice Peter Charleton presides over the Disclosure Tribunal at Dublin Castle. Photo: Colin O’Riordan
Justice Peter Charleton presides over the Disclosure Tribunal at Dublin Castle. Photo: Colin O’Riordan
Shane Phelan

Shane Phelan

Independent News & Media (INM) has told the Disclosures Tribunal the press has a fundamental right to protect sources and information obtained from sources.

Lawyers for INM said the same "cautionary views" were held by other media organisations.

Journalistic privilege is set to become a key issue for the tribunal as it investigates allegations journalists were given false information about whistleblower Maurice McCabe.

In his opening statement last month, Mr Justice Peter Charleton questioned whether privilege still applied if a source uses a journalist "as an instrument of naked deceit". The judge signalled he may have to make a ruling on the issue.

In a letter to the tribunal, Kieran Kelly, a solicitor representing INM, publishers of the Irish Independent and the Independent.ie website, said the media group was anxious to ensure the concept of journalistic privilege was fully recognised and protected.

"It is a fundamental right of the press and media to protect sources and the information obtained from sources. These rights are recognised under the Constitution and European law. These rights are effectively engaged where statements of the press are requested and potentially affect journalistic privilege," he said.

In the letter, Mr Kelly said media organisations were of the view the tribunal should be invited to consider the issue in the form of a preliminary discussion or submission.

The interaction of the former Garda press officer, Supt David Taylor, with members of the press will be a major focus of the tribunal's inquiries.

It will investigate allegations by Supt Taylor that he was instructed by former Garda commissioner Martin Callinan and/or then deputy and now current Commissioner Nóirín O'Sullivan to contact journalists to brief them negatively about Sgt McCabe.

Supt Taylor alleges he was told to encourage the media to write negatively about Sgt McCabe, to the effect that his complaints had no substance, that gardaí had fully investigated them and found no substance to his allegations.

The tribunal is also examining allegations by Supt Taylor that he was directed to draw journalists' attention to a false allegation of criminal misconduct made against Sgt McCabe.

Last month Mr Justice Charleton queried whether journalistic privilege could be attached to communications to a journalist by a source solely motivated by "detraction or calumny".

Mr Justice Charleton said for a ruling to be made on the issue, facts would need to be established, and that journalists to whom allegations were allegedly made would appear to be "a primary source of such facts". However, he added this may not be the only avenue of investigation.

The deadline set by Mr Justice Charleton for the submission by potential witnesses of written statements to the tribunal's solicitor Elizabeth Mullan passed yesterday.

Meanwhile, Belfast-born barrister Patrick Marrinan SC has been appointed to act for the tribunal. Mr Marrinan will be one of three barristers on the tribunal's legal team, which will examine witnesses during public hearings. A veteran of terrorist trials in the North, he has been a criminal case barrister in Dublin in recent years. He previously represented then Garda commissioner Noel Conroy at the Morris Tribunal, which examined corruption in the force in Co Donegal.

Also appointed to the Disclosures Tribunal last week was junior counsel Kathleen Leader, who previously worked alongside Mr Justice Charleton as counsel for the Morris Tribunal.

Irish Independent

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