MICHAEL CLIFFORD: Muzzling news media is not the answer

Reporting the Taylor/McCabe disclosures was in the public interest, writes Michael Clifford.

Another tribunal bites the dust and hopefully we won’t see its likes again. The publication of the Disclosures Tribunal on Thursday was welcomed by many, particularly those who had been the focus of elements of the inquiry.

Maurice McCabe told the Irish Examiner he and his family were “delighted” at the outcome.

Nóirín O’Sullivan was cleared of having “any hand, act or part” in a campaign of calumny against Sergeant McCabe. Figures in the media were cleared of any wrongdoing, as were some senior gardaí.

The good thing about a tribunal report is that it is a considered judgment on the examination of all the facts. These facts are assembled using powers that include compelling witnesses to give evidence and demanding the production of all relevant documents, giving it great authority.

In his report Judge Peter Charleton does make mention of how, in some of the issues he examined, there had been a “rush to judgment” after they had initially emerged in the public domain.

One instance referenced in that regard was the aftermath of the publication in this newspaper that a protected disclosure had been made alleging a campaign to smear Maurice McCabe.

That was in September 2016. Two disclosures had been made. Superintendent David Taylor was the source of the allegation and he told McCabe about it. Both men then made disclosures.

Taylor’s claim was that he had spread scurrilous lies about McCabe in 2013-14 at the behest of then-commissioner Martin Callinan and with the knowledge of Callinan’s then-deputy Nóirín O’Sullivan.

On Thursday, more than two years after the disclosures and the Irish Examiner’s story about them, Charleton found that O’Sullivan had no “hand, act or part” in any campaign of calumny against McCabe.

The judge found there was a campaign by Taylor and Callinan, but it wasn’t as described by Taylor in his disclosure.

At the tribunal, counsel for O’Sullivan made a case that the publication of the Irish Examiner story about the disclosures had led to a febrile atmosphere in which allegations against O’Sullivan became facts in the public mind.

A case could certainly be made that there was a rush to judgment. The Irish Examiner story in October 2016 didn’t name any of the parties. A few days later O’Sullivan and Callinan were named under privilege in the Dáil. McCabe and Taylor were identified in the media. There was a public and political furore.

Did public opinion then begin to interpret allegations as facts? Quite possibly.

Does this imply that the story should not have been published? Judge Charleton touches on this in the recommendations section of his report.

He wrote that the two disclosures, “despite having been made in the proper manner, were promptly disclosed, inter alia, to public representatives and journalists working in the media. This constituted not merely the ignition switch, but the accelerant used to inflame public opinion in relation to the matters concerned.” He recommended that the legislature might want to re-examine this “lacuna” in the law on protected disclosures. That is worthy of consideration but context in the garda disclosures should not be forgotten.

The disclosures in September 2016 and the Irish Examiner story didn’t happen in a vacuum. Over the previous two years it had become obvious that Maurice McCabe’s complaints had seriously discommoded Garda management. The public was already — correctly — of the opinion that he had been treated badly. And now along comes another allegation to the same effect.

Muzzling news media is not the answer

Throw that reality into today’s world of public and political discourse, where issues are often conflated, exaggerated, inflated and amplified. In such an atmosphere public and political opinion is primed to rush to judgment.

One need only look at the recent CervicalCheck scandal where, as pointed out in the Scally Report, there had been an immediate rush in some quarters to the false belief that people died because scan information was withheld.

That is the world in which we live and trends in public discourse are certainly worthy of serious debate. But I would suggest that it is a considerable leap from there to, for instance, introducing a law to prevent media reporting on a protected disclosure.

Take the following example. Last December, this newspaper reported that a protected disclosure about serious misconduct at managerial level in the prison service had been made to the Department of Justice. The disclosure had been made in late September.

It was anonymous but a cursory examination would have elicited the prima facia evidence that it was worthy of proper investigation. Yet nothing happened until the matter appeared in the Irish Examiner. Thereafter a firm of solicitors was appointed to conduct an investigation.

Would the department have got around to it if the matter hadn’t received a public airing? Would the Taylor/McCabe disclosures have been investigated, as it was in 2016, by a retired judge who decided it merited a statutory investigation? Who knows.

When I reported on the disclosures in the Irish Examiner I was aware that Taylor couldn’t stand Nóirín O’Sullivan. I was unaware, as was everybody outside a tight Garda unit, of the extent of the trouble he was in, which inflamed his motive to do her wrong.

Irrespective of that, reporting the disclosures was in the public interest. Nóirín O’Sullivan was not identified in the report and as a reporter I had no control over the reaction to the story.

As it was to turn out, O’Sullivan was completely vindicated by Charleton. Anybody who has faced an allegation that is without substance might well be understandably aggrieved at having been put through a stressful period.

Yet the disclosures that were made did open up an avenue down which Judge Charleton found that Callinan, the head of the police force, and “his sidekick” Taylor, were actually smearing a Garda whistleblower who was doing the State some service. Would we all, the gardaí, the public, the McCabe family, have been better off if that did not come to light? Can everybody be sure that if the fact of the disclosures was not reported on that the department would have pursued the matter with the same vigour that was actually applied?

There is certainly an issue today in how figures can be summarily vilified in the public square. That applies to a teenager who goes off-message on social media; to the celebrity who strays from the marital home; to the sportsperson who lunges over the divide of acceptable aggression; to the public figure who is judged by what’s trending on social media.

Putting a muzzle on the news media is a different matter. The freedom of the press is under attack on many other fronts. Any examination of the media’s role in reporting protected disclosures must pay particular attention to where the public interest lies between the suppression of information and the duty to publish.

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