Kehoe case raises issues over the right of a reformed terrorist to his reputation
Sinn Féin political manager Nicky Kehoe’s legal action against RTÉ is one of the most interesting defamation cases to come before the courts in recent years – not just because of the personalities involved, but also because of the questions the case has raised.
Here is a former Provisional IRA gunman and now senior Sinn Féin figure suing RTÉ over comments made by then-Labour Party TD Joe Costello on a political discussion radio programme presented by prominent broadcaster Claire Byrne.
The case has raised questions over the extent to which someone who has committed serious crimes in the past is entitled to their good name and reputation.
It has raised questions over the extent to which broadcasters need to challenge and mitigate comments made by a contributor which are without foundation.
It has also potentially presented jurors with a novel question in an Irish defamation case – if fault applies, what proportion lies with RTÉ and what proportion with Mr Costello, who is not a defendant.
The background of the case is that during a broadcast of the ‘Saturday with Claire Byrne’ show in October 2015, Mr Costello said a member of the IRA’s army council was directing Sinn Féin councillors on Dublin City Council. Over the course of the following three-and-a-half minutes he was tackled, first by Ms Byrne and then by Sinn Féin TD Eoin Ó Broin, who identified the man referred to by Mr Costello as Mr Kehoe.
By the time Mr Ó Broin was finished challenging him, Mr Costello had withdrawn the allegation and said Mr Kehoe “was” a senior IRA member in the past.
Ms Byrne also took the precaution at the end of the show of saying RTÉ had no reason to believe what Mr Costello had said. RTÉ felt the “curveball” had been dealt with appropriately.
But Mr
Kehoe felt this clarification was “very watery” and that “in one swipe” the reputation he had built up since his release from prison in 1983 had been taken away.
RTÉ contends Mr Kehoe was not defamed and even if he was it could trump this with a defence of fair and reasonable publication as the comments came during a discussion of a subject of public interest, the examination of which was for the public benefit. The jury went out on Thursday evening, but by last night it had yet to reach a verdict. Yesterday afternoon Mr Justice Bernard Barton said he would accept a majority verdict. The jury will resume deliberations on Monday
There are potentially six questions for jurors to answer. The first is broken into five sections. They have been asked to decide if the meaning of the broadcast, taken as a whole, is that Mr Kehoe is a senior member of the IRA army council; is a member of an illegal criminal organisation; controls the way Sinn Féin councillors vote at Dublin City Council meetings on behalf of the army council; is involved in a deliberate attempt to subvert the operation of the council to further the ends of an illegal organisation; and is not a fit person to be involved in the democratic process.
If the answer to all parts of this question is “no”, they are to go no further. But if they answer yes to one or more parts of the question, they must consider if RTÉ is entitled to the benefit of the defence of fair and reasonable publication.
If they answer “yes” to this, they are to go no further.
However, if the answer is “no” they have to assess damages. Should they reach this point the final question they will face is to assess the degrees of fault as between RTÉ and Mr Costello.