Jury sent home in Sinn Féin activist’s defamation case against RTÉ

Counsel says Nicky Kehoe ashamed of IRA past but RTÉ damaged restored reputation


The jury in a High Court defamation action by Sinn Féin political manager Nicky Kehoe, a former IRA hunger striker, against RTÉ will resume deliberations on Friday.

The jury was sent out to consider its verdict at 5.30pm but came back 30 minutes later when Mr Justice Bernard Barton said they could continue until 8pm if they felt they could reach a verdict by then. The jury indicated they would prefer to come back on Friday, and the judge agreed.

In his closing speech on behalf of RTÉ, Cian Ferriter SC said Mr Kehoe had sued over a charge by former Labour TD Joe Costello on the Saturday with Clare Byrne radio show that the Sinn Féin member “is” a senior IRA member.

Mr Costello alleged that a former chief of staff of the IRA was at meetings of Dublin City Council telling Sinn Féin councillors how to vote.

In the exchange between Mr Costello and Sinn Féin representative Eoin Ó Broin in October 2015, Mr Ó Broin “ripped to shreds” the allegation made by Mr Costello, counsel said.

Mr Kehoe’s name was first used by Mr Ó Broin, then a councillor and now a TD, who went on to defend Mr Kehoe. By the end of that exchange, Mr Costello withdrew the allegation and said Mr Kehoe “was” a senior IRA member.

Mr Kehoe says the reputation he built up over the 26 years since he last came out of prison had been destroyed in “one swipe” and that RTÉ should have shut down the debate as soon as his name was mentioned. RTÉ denies defamation and says it is not liable in the case.

Mr Ferriter said it was an “extraordinary feature” of the case that Mr Kehoe had come to court saying that RTÉ said he was a member of the IRA. Counsel said that was not stood over on the show and Mr Kehoe cannot sue for that because he was previously a member of that organisation.

He said witnesses called on Mr Kehoe’s behalf said they did not think he was actually damaged by the broadcast in his own community.

‘Real villain’

The “elephant not in the room” in this case was why did Mr Kehoe not sue Mr Costello, who was the “real villain” and who must bear the lion’s share of responsibility if the jury does find there was defamation, Mr Ferriter said.

Mr Kehoe’s case is that Ms Byrne was floundering when the allegation was made, that she had lost control of the programme and had some huge meltdown in a distinguished career as one of the top broadcasters in the country. But this was not so, counsel said. The matter, including a clarification at the end of the programme, was dealt with in accordance with RTÉ radio guidelines, he said. Mr Ferriter urged the jury to dismiss the case.

Declan Doyle SC, in his speech on behalf of Mr Kehoe, said the law in Ireland is that if your are defamed you sue for damages. RTÉ had tried to present, during cross examination of Mr Kehoe, that he was taking this case for substantial compensation.

But what had happened was Mr Kehoe had first got a transcript of the radio show before going to his solicitor. RTÉ had denied it had defamed him “from the start” and if Mr Kehoe’s solicitor had not put something in the original letter about damages, the solicitor would have been criminally negligent, Mr Doyle said.

‘Even bigger bubble’

This was emblematic of the way RTÉ had dealt with this case and had tried to present it as though it was in some sort of bubble, away from the real world. But, counsel said, there was an “even bigger bubble” in RTÉ which was an organisation detached from the real world.

At the end of the exchanges on the radio show, the allegation against Mr Kehoe was still hanging there. It had not been put to bed as claimed by RTÉ. counsel said.

RTÉ had tried to present Mr Ó Broin as some kind of strategist and orator who had put Mr Costello on the ropes during the programme.

“You would think from RTÉ’s portrayal of Mr O’Broin that he was “Winston Churchill, Barrack Obama, Lionel Messi and Katie Taylor all rolled into one”, counsel said.

“But did you ever hear such nonsense in all you life and Eoin Ó Broin’s contribution is laughable if the consequences for Nicky Kehoe were not so serious.”

Mr Doyle urged the jury to award a very significant amount of damages.

In his charge to the jury, Mr Justice Barton said they are the only finders of fact in this case which is significant for both Mr Kehoe and RTÉ. The jury had to balance the fundamental constitutional right to freedom of expression and the right to a good name, he said.