Sunday 17 November 2019

A week of more contradictions, testing the parameters of journalistic privilege

As the Disclosures Tribunal enters its final stages, the spotlight fell on protecting sources, writes Andrew Phelan

Paul Reynolds. Photo:
Paul Reynolds. Photo:
Andrew Phelan

Andrew Phelan

'What, exactly, are you protecting?" The question was posed by Kathleen Leader, a barrister for the Disclosures Tribunal as the inquiry clocked up its 90th day.

On the stand in the chandelier-lit expanse of a Dublin Castle hall was Daniel McConnell, one of 11 journalists called for questioning on whether they were used as part of an alleged smear campaign against whistleblower Sgt Maurice McCabe.

Mr McConnell replied that in refusing to answer a question about a source, he was protecting "the principle" of journalistic privilege.

Ms Leader was making the point that the source in question, former Garda press officer Supt Dave Taylor, does not want to be protected. In fact, he has asked journalists to come forward and corroborate his version of events.

Eavan Murray. Photo:
Eavan Murray. Photo:

What Supt Taylor says is that he "negatively briefed" the 11 reporters about Sgt McCabe in 2013 an

d 2014 on the orders of then Garda Commissioner Martin Callinan, with the knowledge of then Deputy Commissioner Noirin O'Sullivan. Both reject his claims.

Several of the journalists giving evidence would not confirm or deny if Supt Taylor had briefed them, refusing to cross the red line of journalistic privilege, considered a cornerstone of press freedom.

Others were more forthcoming, but not one of the 11 has supported Supt Taylor's claims.

Martin Callinan
Martin Callinan

Exactly where the red lines of source protection are drawn seemed to shift from day to day as one reporter after another testified and the parameters of journalistic privilege were teased out by teams of lawyers.

The negative briefing Supt Taylor alleges he gave journalists was that Sgt McCabe was investigated over an allegation of child sexual assault in 2006.

While a complaint was made by a woman known as Ms D, the DPP decided on investigating that what was described did not amount to a crime and Sgt McCabe was not prosecuted.

Crucially to the issue of source protection, Supt Taylor and the two former commissioners have waived their own rights to privilege over anything they said to journalists.

Dave Taylor. Photo: INM
Dave Taylor. Photo: INM

Some of the reporters had already given evidence. First to take the stand last week was John Mooney, Sunday Times security correspondent.

He initially told investigators it was his practice not to comment on sources. But, having reflected, he told the tribunal he was never briefed by Supt Taylor or any garda.

Eavan Murray of the Irish Sun said she did not believe she was ever negatively briefed either. The first time she heard a rumour about Sgt McCabe it was not from a Garda source.

Three Irish Examiner journalists all claimed privilege on anything Supt Taylor might have told them, refusing to confirm or deny anything about their contact with him.

Noirin O’Sullivan. Photo: INM
Noirin O’Sullivan. Photo: INM

The paper's political correspondent, Juno McEnroe, said he never heard of the allegation about Sgt McCabe until after Supt Taylor had left the Garda press office, but still maintained his claim of privilege.

Crime correspondent Cormac O'Keeffe said he did not want to answer any questions that might identify a source. He said it was "the principle" that was at stake.

Mr McConnell, the paper's political editor, went further, saying the principle trumped everything, including confidence in policing.

Crime journalist Paul Williams said before he wrote Irish Independent articles based on an interview with Ms D in 2014, he had only heard "vague, general rumours" about Sgt McCabe. He had been contacted by Ms D's family and was not briefed by any garda, he said.

Recalled after testifying last year, he said he had been "loath" to provide his own phone records to the tribunal but did this because he was disputing an allegation that he called Supt Taylor from Ms D's house to say "guess where I am".

"To be absolutely clear, the waivers were given by all the protagonists, and that is why I co-operated with the tribunal," he said.

Last of the 11 to take the stand, testifying over the course of three days was RTE crime correspondent, Paul Reynolds. He also denied any negative briefing by Supt Taylor, but his evidence focused more on his May 2016 coverage of the findings of the O'Higgins Commission, an inquiry into policing failings carried out on foot of complaints by Sgt McCabe.

One of the issues the tribunal is investigating is whether Ms O'Sullivan, as then Garda Commissioner, influenced or attempted to influence the RTE broadcasts "in which Sgt McCabe was branded a liar and irresponsible".

Mr Reynolds insists there was no outside influence, the coverage was fair and balanced, and was based on a leaked copy of the commission report itself. What he would not tell the tribunal was where that leak came from. He provided his own handwritten notes from conversations he had with sources in the run up to the reports.

These were just "bits and bobs" and not the basis for the reports, but he would not disclose who he was speaking to.

"I'm afraid I'll have to take it to my grave," he told Sgt McCabe's barrister Michael McDowell. Also giving evidence, Irish Independent editor Fionnan Sheahan denied telling a former Sunday Independent editor that Sgt McCabe was a "paedophile", saying her allegations were born out of a "grudge".

Mr Sheahan said Anne Harris was "disgruntled" and "bitter" following her departure from Independent News and Media. Ms Harris has denied these claims. Mr Sheahan went on to say she was "headline hunting".

Former INM head of news Ian Mallon said there was never any "muttering campaign" in the organisation about Sgt McCabe. The group's outgoing Editor-in-Chief Stephen Rae said INM was never "anti" Sgt McCabe nor "pushed the garda line" on his story.

Dearbhail McDonald, INM group business editor. who was then legal affairs correspondent, said Mr Rae asked her to "stress test" the draft of Mr Williams's article before publication.

Now in its final stages, the tribunal, chaired by Mr Justice Peter Charleton, is scheduled to hear from 10 more witnesses over two days next week, including TDs Clare Daly and Mick Wallace.

Sunday Independent

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