Cormac O’Keeffe


An inquiry that is both lofty and grounded

The judge chairing the Disclosure Tribunal says that while its findings may not be to everyone’s taste, the truth is powerful and will be victorious, writes Cormac O’Keeffe

An inquiry that is both lofty and grounded

Common sense. Fairness. Impartiality. The truth. These are the guiding principles of the Disclosure Tribunal, the judge chairing it yesterday declared.

Giving his opening statement at Dublin Castle on a crisp sunny morning, Mr Justice Peter Charleton was equally sharp in the message he conveyed.

In clear and accessible language, he outlined from the start what the tribunal was all about — basically “how the top officers within our national police force react when concerns are aired”.

To which he added: “The central concern is whether such reaction has, possibly — and this is now unknown — not only been one of distaste, but of active and thought-through malice whereby media briefings take place against individuals who rock the boat.”

He said that, “if this were not enough”, there was a further question that those who do the rocking may also be targeted and attacked as to their family life and as to their adherence to basic standards of human decency.

It’s not that Mr Justice Charleton doesn’t have an insight into the deep recesses of the Garda Síochána.

He was counsel for the Morris Tribunal. He saw, for himself, the shocking abuse of power and criminal conduct of certain gardaí. These were events, he said, which “spanned over a decade of police activity”.

But this experience will not cloud his viewpoint, and he stressed the tribunal was “not a party” to matters under investigation.

“There are no pre-conceived notions in this tribunal as to who is a villain and who is a victim, if there are such,” he said.

“And it may be that what the tribunal finds will not be to everyone’s taste: Bíonn an fhírinne searbh ach ní fhaigheann sí náire go deo — the truth is bitter, though not shameful.”

The discipline of the law will assist in the task, said Mr Justice Charleton: “One useful aspect of the legal mind is that it is conditioned to look for evidence, to seek supporting evidence, to look for patterns indicative of truth, to not leap to conclusions and to not declare that someone has done something discreditable without sufficient proof.

“That is the standard and we will abide by it.”

Though this is what the public can expect from the Charleton inquiry, it is not yet clear what evidence the tribunal will be able to gather and distill and how it will access some of it.

Mr Justice Charleton said the basic touchstone of tribunals was “fairness and balance of application of procedures” and said there “should be no need” for judicial reviews which have dogged tribunals in the past.

One of the key issues Mr Justice Charleton has been tasked with is to investigate whether false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Garda Commissioner Nóirín O’Sullivan to discredit Sergeant Maurice McCabe at the O’Higgins inquiry.

Sergeant Maurice McCabe
Sergeant Maurice McCabe

Up until now, the commissioner has cited client-lawyer privilege as one of her reasons for not disclosing what she instructed her lawyers to do.

Mr Justice Charleton yesterday accepted that the “client holds the privilege” in such situations and “only the client can waive the privilege”.

The commissioner and her senior team have stated, pointedly, in recent days that they were glad there was a public inquiry and that the full truth would come out.

So, is the judge now flagging to the commissioner that the spotlight will be on her to rescind her right to privilege and tell the tribunal what her instructions were?

A second key legal principle to be explored and determined at the tribunal is the slippery one of journalistic privilege — the ‘right’ of journalists to protect the identity of sources.

The tribunal is tasked with investigating allegations from protected discloser Superintendent David Taylor that he was instructed or directed by former commissioner Martin Callinan and/or then deputy commissioner O’Sullivan to brief the media negatively about Sergeant McCabe: that Sgt McCabe was motivated by malice; that his claims had been investigated and found to have no substance, and that he had been subject to a criminal misconduct investigation himself.

Mr Justice Charleton asked whether journalistic privilege extended to communications from their source that may not be in the public interest and where the contact is perhaps “solely motivated by detraction and calumny?”.

He said submissions will be heard and a ruling may be necessary. But he said that before making a ruling, facts would need to be established.

“A primary source of such facts would appear to be the journalists to whom such allegations were allegedly made,” he said. “This, according to the terms of reference, looks as if it may need to be pursued.

“The tribunal has been specifically tasked in the public interest to find out whether the media was used as an instrument for the dissemination of lies.”

Garda Commissioner Nóirín O’Sullivan
Garda Commissioner Nóirín O’Sullivan

He gave an early indication that journalists might be on shaky grounds by relying on journalistic privilege.

He said if there was privilege it would apply to the informer providing the journalist with the information, not to the journalist receiving it.

Mr Justice Charleton said was it possible that this informer privilege, if it existed, did not cover using the media “as an instrument of naked deceit” which, he added, may or may not have happened.

“Either way, the existing law suggests that the privilege is that of the confidential informant and not of the journalist,” he said.

He said the tribunal had “no settled view” on the matter and would carefully consider submissions.

In their submissions, media groups and journalists will be mindful of a Supreme Court decision which accepted journalistic privilege but ruled it had to be balanced against other rights such as the right of a tribunal to conduct its business.

That ruling also stressed that the decision was to be determined by the courts.

Whether this issue could end up in a judicial review is not yet known.

Judge Charleton said the “rule of commonsense” will apply in the cross-examination of witnesses which, he also said, had to be both “concise” (with reasonable latitude) and “polite” (with no latitude).

Touching on the sensitive issue of the motivation of a witness, he said that “where a person is coming from may be germane to some cases”.

In relation to evidence, he said the rules of “logic and good sense” will operate, including in relation to hearsay.

He said legal representation will be afforded to those whose reputation is adversely affected.

Mr Justice Charleton said the tribunal was assisted by “crystal clear” terms of reference. He said the tribunal was a drain on the resources of Irish people and that he expected to “reach conclusions rapidly”.

In an, at times, eloquent address and quoting as Gaeilge, he said the descendants of Ireland valued education as almost a high a virtue as truth, but that “truth is supreme”.

He said: “Our ancestors adopted the motto once learned by every Irish child: Glaine ár gcroí, neart ár ngéag, agus beart de réir ár mbriathar — purity of heart, strength, and adherence to our word. That was once our pride. This tribunal is here to establish the truth.”

Appealing against lies, obfuscation, and non-cooperation by witnesses, he said: “In embarking on this task, one can only be reminded of human frailty and can only hope: is mór í an fhirrine agus bufaidh sí, the truth is powerful and will be victorious.”

Starting his address, Mr Justice Charleton said he wanted to give an assurance as to how his tribunal “will go about its work”.

By the end of his statement, he had done that. In doing so, he hit a tone that was both lofty and grounded — lofty in terms of his aspiration and grounded in terms of how he intended to get there.

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