Tribunal won’t force journalists to reveal sources
Reporters are ‘protecting the freedom of the press’
‘Absolutely futile’
‘Not briefed negatively’
NO journalist will be sent to the High Court to force them to reveal their sources as it would be futile and could turn them into martyrs, the chairman of the Disclosures Tribunal has ruled.
Mr Justice Peter Charleton had suggested he might have to take drastic steps with journalists who would not answer questions about what information they were given by former Garda press officer Superintendent David Taylor.
A number of journalists have declined to do so due to the journalistic principle of not revealing their sources.
Michael McDowell SC, for whistleblower Sergeant Maurice McCabe, said it would ‘serve no useful purpose’ and would ‘delay completion of the tribunal proceedings’.
Judge Charleton said: ‘They [the journalists] could take the view that they wish to be conferred with a form of martyrdom. I presume not.
‘But I am convinced that there will be no change, because the manner in which they resisted answering questions indicates to me that it will be absolutely futile.’
The judge had previously invited counsel for all sides to make submissions on journalistic privilege, which is the right to protect a source.
He said the tribunal had otherwise reached the end of a long and arduous process in which it had contacted all 12 journalists to whom Mr Taylor alleged he had ‘smeared’ Sergeant McCabe on the instructions of then Garda commissioner Martin Callinan.
He said the tribunal had also contacted every newspaper editor in the country and had written to every senior member of An Garda Síochána. ‘The net effect of it is very simple. The tribunal is attempting to roll a very large stone, it seems to me, up a very large mountain, like Croagh Patrick,’ he said.
He asked if journalists who had cited privilege, despite waivers signed by Mr Taylor, Mr Callinan and former Garda commissioner Nóirín O’Sullivan, should be sent to the High Court where orders could be made compelling them to answer the tribunal’s questions.
The tribunal heard that of the 12 journalists, eight confirmed they had never been negatively briefed. Four would not say either way.
Judge Charleton said Irish Mail on Sunday crime correspondent Debbie McCann was claiming privilege ‘in the strongest possible terms’ and that she was ‘at the centre’ of events as she had visited the home of Ms D, the woman who accused Sergeant McCabe of sexual abuse.
Mr McDowell told the tribunal there was no factual or legal basis for journalists to refuse to answer questions relating to Mr Taylor.
He said their position was morally and legally wrong, and that they had a ‘patriotic duty’ to comply with the rules of the tribunal. He said the tribunal was entitled to draw an adverse inference from their refusal to answer – namely that they had been briefed by the press officer.
John Ferry, for Mr Taylor, also said the journalists had no legal grounds for their ‘absolutist’ stance due to his client’s waiver. Mr Ferry said the tribunal should infer from their silence that the journalists were briefed.
But Mr Fitzgerald, for the gardaí, said the tribunal should infer the journalists had not been negatively briefed by Mr Taylor. He said the two former Garda commissioners had waived their privilege so journalists could divulge their conversations and ‘give the lie to the allegations against them’.
He said Mr Taylor’s evidence had been ‘utterly devoid of supporting evidence’.
Tom Murphy, for the Irish Daily Mail and Irish Mail on Sunday, said his clients were not ‘grandstanding’.
He said the protection of sources went to the core of journalistic activity. He said that, given other evidence at the tribunal, there was no justification in the public interest to override journalistic privilege in this case.
Judge Charleton said he would meet his counsel next week to consider if any witnesses need to be recalled.
He said he hopes to take final submissions next week.