Tribunal told that journalistic privilege is not ‘absolute’

Journalist and academic Colum Kenny has told the Disclosures Tribunal that journalistic sources should not be protected in every instance.

The tribunal is investigating an alleged smear campaign against Sgt Maurice McCabe and has asked journalists who might have received negative briefings about the whistleblower to come forward.

Mr Kenny, a former chair of the Masters in Journalism programme at Dublin City University, said the claim that journalistic privilege was “absolute” could bring it into disrepute.

The former head of the Garda Press Office, Supt Dave Taylor, has claimed he was ordered in 2013 to conduct a smear campaign by the then Garda commissioner Martin Callinan, and that the then deputy commissioner, Nóirín O'Sullivan, knew about this. Both former officers have denied Supt Taylor's claim.

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The chairman of the tribunal, Mr Justice Peter Charleton, has complained about journalists citing privilege in a situation where Supt Taylor has said he revokes any claim to privilege that might exist over contacts he had with journalists as part of the alleged smear campaign.

Mr Kenny said his feeling was that the Department of Justice and Garda management, as well as crime and security journalists, had not dealt properly with the matters raised by Sgt McCabe.

“It didn’t have to end up here with 50 lawyers in a hall. It could have been nipped in the bud,” he said.

Ongoing matter

He said two security correspondents he had spoken to some years ago told him Sgt McCabe was under investigation for alleged child abuse. He said he formed the impression they were talking about an ongoing matter.

Sgt McCabe was the subject of a child sex abuse allegation in 2006 that was comprehensively dismissed by the Director of Public Prosecutions.

It was agreed at the tribunal that Mr Kenny would supply the names of the two journalists so that the tribunal could make contact with them.

Mr Kenny agreed with Noel Whelan SC, for Garda HQ, that journalists, when consulting sources, have to be sure that one source was not just repeating what that person has heard from another of the journalist’s sources.

Mr Whelan said the claims made by Sgt McCabe in his protected disclosure about a smear campaign were based on what he had been told by Supt Taylor, who had made similar claims in his protected disclosure. However, much of what Supt Taylor had claimed in his original disclosure had now been withdrawn.

Serious journalist

Mr Kenny said he did not believe that any serious journalist would think that just because a claim was in a protected disclosure meant there was something to it.

Mr Justice Charleton asked the witness what he would think of a situation where someone said publicly that they were waiving their claim to privilege, but was also saying privately to particular individuals that it didn’t apply to them.

Mr Kenny said that would appear to be completely wrong. Keeping sources confidential would not be valid in the circumstances the chairman suggested, he said.