This article first appeared in Village magazine, March 2017 edition
The Disclosures Tribunal – or the Charleton tribunal, as it may come to be known – got of to a surprisingly quick start, with Supreme Court Justice Peter Charleton making an opening statement on Monday 27 February, only eleven days after the first draft of the terms of reference were approved by the cabinet.
Charleton is no stranger to garda tribunals, having previously been lead counsel for the Morris tribunal, which spent the five years from 2003 to 2008 examining goings-on in Donegal during the 1990s, and he will be aware of just how quickly they can spiral out of control. His opening statement contained a stern warning that “every lie told before this tribunal will be a waste of what ordinary men and women have paid for through their unremitting efforts. Every action of obfuscation, of diversion of focus, and of non-cooperation is unwelcome for that reason.” This shot across the bows of all parties is meant to show that the judge is in no mood to tolerate multi-year sittings.
But Morris, too, began optimistically, with reckless early talk during the first March day of hearings that it would all be over by Christmas. That optimism lasted all of a few hours, until Garda Martin Leonard – a local GRA rep in Letterkenny – was called to the stand. Described later by retired Freddy Morris as “incorrigible and unbiddable”, Leonard bluntly told the tribunal in early evidence that “you don’t want to hang your own.”
Morris later went on to identify “Garda speak”, defined as “the practice which the judiciary have witnessed in the Courts for many years whereby Gardaí in the witness box will parry and fence with counsel in a well-recognised choreography to avoid answering counsel’s question.” The eight reports of the Morris tribunal, with their many recommendations, sought to challenge and change that Garda culture, and led to reforms including the Garda Síochána Ombudsman Commission (GSOC) and the Garda Inspectorate, as well as changes in aspects of policing from informant handling to the conduct of interrogations.
However, the Morris tribunal showed a marked reluctance to criticise any Garda outside Donegal. This time, the tribunal’s focus will move away from the regional divisions and districts and into Garda headquarters in the Phoenix Park.
But what will ensure media interest in the tribunal is the tribunal’s interest in the media. As outlined in the opening statement, the tribunal “has been specifically tasked in the public interest to find out whether the media was used as an instrument for the dissemination of lies.” Everyone loves a bit of attention, and this is as true of journalists as anyone else.
Leaving aside until another time the specifics of who may have said what to which journalist, it is somewhat remarkable to hear a Supreme Court justice wonder aloud whether journalistic privilege even exists. Granted, the Irish courts have historically been sceptical about the extent of claims by the press of a right to protect their sources, and have sought to limit any such right, but to question whether it exists at all flies in the face of established Irish and European jurisprudence. Journalists have on occasion asserted a pretty much absolute right to privilege in protecting their sources (and have at times been jailed for contempt for doing so), while courts have considered that any such privilege is at best limited and must be weighed against other rights and the public good, but there was on the face of it at least an agreement that a right of some sort, however limited and ill-defined, did exist.
In that context then, it is worth considering the wide-ranging questions Charleton raised about privilege in his opening statement. “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? If that privilege exists, does it exist because of the public interest in protecting investigations by the media? 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?”
“In informer privilege, because of the danger to the life of those who confidentially help the police, the privilege is that of the informer and even lasts beyond death, according to some cases from abroad. The only person, in our law, who can waive the privilege, is the informer. In legal professional privilege, similarly, the client holds the privilege, and not the lawyer who gives legal advice on the basis of confidential instructions. Only the client can waive the privilege and reveal the confidential instructions: not the lawyer. Here, the privilege, if there is one, may attach to a communication to a journalist in the interests of providing truthful information to the public, but is it possible that such a privilege does not apply to using the media as an instrument of naked deceit? That may or may not have happened. Either way, the existing law suggests that the privilege is that of the confidential informant and not that of the journalist. However, the tribunal has no settled view on the matter and careful consideration will have to be given to the issue after submissions are heard.”
It’s difficult to imagine a court entertaining the argument that legal privilege is pierced if a client’s instructions to a lawyer were untrue or malicious in nature, yet this seems to be what the tribunal is contemplating as an argument against source protection.
It has already been stated by several commentators that the treatment of Sergeant Maurice McCabe and others is hardly an encouragement to other Garda officers who might wish to come forward and report concerns about the police force. A pre-emptive strike against a cornerstone of investigative journalism seems like ill-judged at the outset of a tribunal established to allay concerns about “allegations that senior members of An Garda Síochána sought to discredit Sergeant Maurice McCabe because of complaints he made about the performance of An Garda Síochána.”