Can journalistic privilege be used to avoid giving evidence?

The question of whether journalistic privilege exists and if it can be used as a reason for not giving evidence has been raised by Mr Justice Peter Charleton.

Sergeant Maurice McCabe arrives at Leinster House in 2014 to appear before the Public Account Committee. Picture: Laura Hutton/Photocall Ireland

Mr Justice Charleton has been tasked with leading the tribunal of inquiry into allegations of an orchestrated smear campaign against Garda whistleblower Maurice McCabe, including whether the media was used as an “instrument for the dissemination of lies”.

It is expected a number of journalists will be called to appear before the tribunal.

On its opening day, the fundamental question of whether journalists have a right to protect their sources was raised.

Mr Justice Charleton has been tasked with looking into contacts with the media “to brief them negatively that Sgt McCabe was motivated by malice and revenge” in order to encourage negative comment about him.

Another of the terms of reference centres around allegations that Garda Commissioner Nóirín O’Sullivan influenced, or attempted to influence, RTÉ broadcasts through a leaked account of the unpublished report by the O’Higgins commission, in which Sgt McCabe was branded a liar and irresponsible.

Mr Justice Charleton said his “central concern” is to find out if media briefings take place against individuals who “rock the boat”.

He said: “As if that were not enough, there is an additional question as to whether those who air concerns about poor policing may also be targeted and attacked as to their family life and as to their adherence to basic standards of human decency.”

The inquiry will ask whether Garda Commissioner Nóirín O’Sullivan attempted to influence media reports. Picture: Gareth Chaney

In his opening statement, Mr Justice Charleton said he would look at privilege in communications with journalists. He questioned whether false information received from a source is protected by journalistic privilege.

“Is it possible that such privilege does not apply to using the media as an instrument of naked deceit,” he asked.

He said that submissions would be heard on the issue and a ruling may be necessary.

“Is there a privilege against giving evidence, including relevant records, where someone communicates in confidence or off the record, as the phrase goes, to a journalist?” he asked. “Does journalistic privilege attach to communications to a journalist where that communication by the source may not be in the public interest but, instead, where the source is perhaps solely motivated by detraction or calumny?”

Mr Justice Charleton also referenced ‘informer privilege’, which, due to the “danger of the life” to those who help police, is given to the informant and may last beyond death. In the case of the media, he said the law suggests “the privilege, if there is one”, relates to “that of the confidential informant and not that of the journalist”.

He said the tribunal, being held in Dublin Castle, has “no settled view” and “careful consideration” would be given to submissions on the matter.

Supreme Court judge Peter Charleton has urged witnesses to come forward to the tribunal. Picture: Caroline Quinn/PA

Mr Justice Charleton called on all witnesses to come forward, adding that the tribunal “needs your help and needs it urgently”.

He asked potential witnesses to write to the tribunal before March 13, and

indicate whether they wish to assert “professional privilege” or “journalistic privilege” against disclosure of evidence or documents.

“If there is any such assertion against giving a complete account of events, then that’s not ruled out, but at least we know what needs to be further explored,” he said.

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