Charleton Tribunal may create tricky problems for journalists

Analysis: Inquiry may have to stray into contested area of journalistic privilege

The potential of the Charleton Tribunal to create difficulties for journalists, and vice versa, was very evident at its second sitting on Thursday.

The tribunal, which is investigating whether a smear campaign was directed against Garda whistleblower Sgt Maurice McCabe by the very top of Garda management, may have to stray into the contested area of journalistic privilege.

Four media organisations made applications for representation to Mr Justice Peter Charleton. He quizzed three of them as to whether their journalists had any information relevant to the tribunal’s terms of reference, but he got no answer.

RTÉ has a whole term of reference to itself concerning a broadcast in May 2016 and whether Garda Commissioner Noirín O’Sullivan did, or tried to, influence it. Its application for representation was relatively straightforward.



The area where the tribunal gets more tricky is where it may ask journalists about conversations they had with senior Garda figures and which may have involved the spreading of ‘dirt’ about Sergeant McCabe.

These conversations may have been “off the record”. If so, should the journalist co-operate with the tribunal? If the journalist does not want to co-operate, does he or she have any right to assert privilege?

Should the fact that the contacts were trying to use the media to spread lies, as against putting correct information into the public domain, affect these considerations?

On Thursday the tribunal chairman made the point that as matters stood, he did not know if journalists had information that was relevant to the issue of an alleged smear campaign involving senior Garda management.

The publishers of the Irish Daily Mail, The Irish Times, and the Independent group sought representation. Yet none of these organisations had told the tribunal if they had any information that was relevant to the terms of reference.

Furthermore, the chairman said, journalists asserted their right to publish information based on confidential sources, while not giving information to the tribunal, and at the same time making applications for publicly-funded legal representation.

The Daily Mail group sought representation for journalists Debbie McCann, Jennifer Bray, Ali Bracken, and Alison O'Reilly. The Independent group sought representation for Tom Brady, Paul Williams, Niall O'Connor, Ken Foy, Cathal McMahon and Mick McCaffrey. The Irish Times did not cite any particular journalists.

Parameters of engagement

The media groups appeared to want to know what the parameters of the engagement would be before their dipped their toes in the water. The chairman wanted to know if they knew anything that was relevant to the tribunal, by which he meant whether any of them were briefed, off the record, by senior gardaí, in ways that were aimed at discrediting Sergeant McCabe.

Mr Justice Charleton did not want to enter into any abstract conversations about journalistic privilege, which the media want so that they can know the rules of engagement. The chairman said he can only approach the matter in relation to particular circumstances, involving particular journalists with specific experiences relevant to the tribunal’s terms of reference.

Instrument of calumny

He said he wanted to know if journalists had been approached by people seeking to use the media not as an "instrument of truth" but rather as an "instrument of calumny". But Kieran Kelly, for the Independent group, queried whether the issue of privilege should be influenced by such "post facto" considerations.

The judge said he was being asked to be content with not being told. “I am not content.”

A key issue to watch will be what position the judge will take if there is a conflict of evidence between two witnesses which the evidence of a journalist, who was told something in confidence, would help resolve. There may be scope for further discontent, on all sides.