Charleton outlines his desires for Garda tribunal

Analysis: Judge lays out his stances on legal costs and the media in opening statement

The Disclosure Tribunal has opened at Dublin Castle. The possibility that senior garda management may have responded with “malice” to whistleblowers is a central concern for the new tribunal, its chairman Mr Justice Peter Charleton has said.

 

The opening statement by Supreme Court judge Mr Justice Peter Charleton gives a number of pointers regarding how he hopes the tribunal he chairs will proceed.

A key one is conveyed by the fact of the opening statement itself, coming less than two weeks after he was appointed to his role.

The tribunal, as he said, has already made a range of orders preserving or requiring the handing over of documents.

He has now asked that phones, computers and electronic records or paper records relevant to the terms of reference be handed over by March 13th next, the date he also wants people with information relevant to the tribunal to file voluntary statements.

The judge set out his view that the various court objections to previous tribunals and their procedures means the law as to how tribunals should go about their work is clear. “There should be no need for yet further judicial reviews.”

Any parties who might end up having dealings with the tribunal, he said, should, if they have a problem, in the first instance approach the tribunal.

He obviously hopes that the delays caused to previous tribunals by court challenges, some of which have gone to the Supreme Court, will not be a feature of the tribunal he obviously wants to move along with dispatch.

Legal costs

He has also laid out his stall on legal costs, saying that while all persons whose reputations might be adversely affected are entitled to legal representation, it is expected that the bulk of examination will be done by the tribunal’s legal counsel.

He pointed out that witnesses in court hearings are sometimes not believed by judges.

“Just because you are a witness who may be disbelieved does not entitle you to representation” in the tribunal. Where they occur, cross-examinations, he said, should be “concise”.

One area where there might be possible room for appeals to the court is with journalistic sources, an area that gets some attention in the judge’s remarks.

The tribunal has been asked to report on whether the media was briefed negatively about Sgt Maurice McCabe and, as the judge said, a primary source for facts about this would appear to be the journalists to whom such allegations were allegedly made.

Supt David Taylor, formerly of the Garda press office, has alleged he was directed by former Garda commissioner Martin Callinan and/or current Garda Commissioner Nóirín O’Sullivan to brief the media negatively about Sgt McCabe.

Ms O’Sullivan denies the allegation. Mr Callinan has not yet commented publicly on the matter.

Off-the-record contacts

The judge’s remarks indicate he is of a mind to ask persons who had “off-the-record” contacts with journalists to give evidence about those communications.

Any effort to call the journalists then to confirm those contacts, or to give information to the tribunal as to the source or sources behind a broadcast by RTÉ on May 9th last about matters to do with McCabe could well result in legal challenges.

Mr Justice Charleton has indicated he may want to explore how journalistic privilege is affected if a source is using the media to disseminate lies.

Any development whereby journalists would end up in the witness box giving evidence, and even disputed evidence, about confidential dealings with sources, whatever their motives, would be a troublesome one which could have obvious perils for the flow of information through the media.

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