Irish Independent

Kehoe case raises issues over the right of a reformed terrorist to his reputation

- Shane Phelan

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By the time Mr Ó Broin was finished challengin­g him, Mr Costello had withdrawn the allegation and said Mr Kehoe “was” a senior IRA member in the past.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.

 ?? Photo: Collins Courts ?? RTÉ presenter Claire Byrne arriving at the Four Courts yesterday for the continuati­on of a High Court action taken by Nicky Kehoe, inset.
Photo: Collins Courts RTÉ presenter Claire Byrne arriving at the Four Courts yesterday for the continuati­on of a High Court action taken by Nicky Kehoe, inset.
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