Last night.

On TV3’s Tonight with Vincent Browne.

The panelists were: Michelle Murphy, from Social Justice Ireland; policy analyst Dr Rory Hearne; media lawyer Andrea Martin, and political correspondent at The Irish Times Harry McGee.

In the latter half of the show, they discussed the Disclosures Tribunal, following on from Judge Peter Charleton making his opening statement yesterday morning.

The tribunal will investigate allegations of a smear campaign against Sgt Maurice McCabe.

Specifically, Mr Browne raised the subject of journalists and their sources.

Vincent Browne: “There is another issue that arises and it is that a woman made, allegedly made allegations of misconduct against Maurice McCabe which she subsequently withdrew*. And which the DPP found, it couldn’t possibly prosecute on the basis of those allegations. But the name of that person was disclosed to at least two journalists who went off and got exclusives in interviews with this woman. Now that would seem to me that there’s something really insidious involved in that. And who disclosed it? And the journalists then going and interviewing those people. What do you think about that, Harry?”

Harry McGee: “Well, I don’t know if, I mean, what evidence is there that the name was disclosed to journalists?”

Browne: “Well, how else would journalists know otherwise?”

McGee: “Well, I don’t know, you’d have to ask the journalists.”

Browne: “I know but can you think how the journalists would know otherwise?”

McGee: “I can think of many ways in which journalists might know otherwise.”

Browne: “Tell us.”

McGee: “Well, they might have been told my some other people, they might have…”

Browne: “By who? Who’d know?”

McGee: “Well, I don’t know, Vincent.”

Browne: “But who’d know? A priest? A nun? A social worker? A counsellor?…”

McGee: “Well, who do you say? Who would you suggest told the journalist?”

Browne: “I would think that the likelihood is that it was the gardai, members of An Garda Siochana.”

McGee: “I just, I don’t know. I, I…”

Browne: “These are crime journalists that were…”

McGee: “But listen I wasn’t [inaudible] to that particular story, Vincent, you’re asking me to give…”

Browne: “Social workers wouldn’t have much truck with crime journalists…”

McGee: “You’re asking me to answer a question for which I have no, I have no direct knowledge.”

Browne: “Assuming, assuming that it was revealed by gardai – or that the journalists were tipped off by members of An Garda Siochana – this would be pretty insidious, wouldn’t it?”

McGee: “If they were tipped off about the…the identity of…?”

Browne: “Given the name of the person who originally made the complaint.”

McGee: “But there’s no evidence to suggest that at this particular juncture, Vincent, other than supposition. And I, I have no direct influence…”

Browne: “What do you mean there’s no evidence for it? The fact of the matter is: a woman made a claim of abuse. Subsequently, that woman’s name was released to journalists, crime journalists and they went and interviewed that person.”

McGee: “But, you, there is no direct evidence that the identity of the woman was released by gardai. They might have come to identify that woman and find out where that woman was and contact that woman from a separate source. To illicit that information. I think that you should ask…”

Browne: “But is it likely that, is it likely that, given that it was the crime journalists that were given that information – not journalists that are involved in social issues or political journalists or whatever – it’s crime journalists. Isn’t it likely that they got it from the gardai?”

McGee: “Well, there’s a possibility…”

Browne: “But anyway…”

Talk over each other

McGee: “I just can’t…”

Browne: “If that’s so, do you think that’s another dimension of insidiousness with the garda in this whole thing?”

McGee: “Well, I mean, if that were so, yes it would be. But there’s no direct evidence to suggest  that, Vincent.”

Browne: “Ok, in your view, in your view, can journalists validly claim confidentiality with regard to their sources, in respect of texts they may have received, or emails, or whatever, they may have received, concerning phone calls, relating to false information concerning Maurice McCabe?”

McGee: “Well, I think that, what the judge was doing today was he was making a distinction between legal professional privilege where he said that the privilege lay with the client and that of informant privilege where it lay with the informer, as opposed to the recipient of that, which is the journalist in this case. And that’s an important distinction, that he’s making. So, I think that, from what I, he said he [Judge Peter Charleton] hasn’t reached a conclusive decision in relation to this and he’s going to receive submissions on it. But he is making the case that if the informer were to waive his or her privilege, than the privilege wouldn’t attach to the journalist who received it. Now, but, for that to work, the journalist would have to reveal who their source was and the journalist, no journalist, in my experience would reveal who the source was. The second…”

Browne: “But, on what basis?…where information was received, that was entirely false, designed to do terrible damage to a person’s reputation, all in the aim of discrediting that person, in the context of…”

McGee: “But in your own, you said that it was, in your opinion, that journalists actually believed the information that was conveyed to them. So, in this case, I think that the test will be a subjective test because if it were an objective test, if the journalist believed that what was being said to them was a calumny, detraction, was a lie – that would be ludicrous and the journalist would be in dereliction of their duties as journalists. So I think that journalists, who received that information, believed that information to be true…”

Browne: “And they should not disclose and, in your view, they should not disclose the source?”

McGee: “Well, yes, if, I think journalists are quite entitled not to disclose their source.”

Browne: “On what basis do you think that?”

McGee: “On the basis that they gave an undertaking to their source that they wouldn’t compromise that source. They believed that information that was being given to them at the time…”

Browne: “And if it then emerges that that source told them lies, and malicious lies, should the journalist still be bound by the the confidentiality arrangement?”

McGee: “Well, that would be post-hoc and so..”

Browne: “Well, we now know it was lies…”

McGee: “I think that might change the circumstances somewhat, if the informer were to waive their privilege. But the difficulty is that the journalist would then be required to reveal their source.”

Browne: “Yeah.”

McGee: “That would present a difficulty for journalists.”

Later

Andrea Martin: “[If she was a journalist] What I would do is I think that I would disclose my source. If ordered to by the court to do so, if there was no greater good going to be had by staying silent on it. But I think many, many journalists would not agree with that. And it’s a personal decision…”

Michelle Murphy: “I think if you are aware that, or if you become aware that what you have been used as a conduit to spread lies then, I think the journalist, in order to protect their integrity, might do so. If they felt that they were being used by a particular individual….in this exact situation, I think they should. But then there’s other areas where you need whistleblowers, in for example, the HSE…”

Rory Hearne: “I think in this case, yeah, they should. I think that the level of maliciousness, the extent and depth of, you know, it’s just shocking to see the corruption and the way people are treated. Our institutions are, you know, used. People who are supposed to be there to protect us are actually, you know, like the guards, are doing things like this to other guards. Tusla has appeared to be used, it’s just disgusting if you ask me. And I think if you were a journalist, and you realise that these people had done this, you know, used you, to denigrate their colleague, then I think I would say, ‘I’m going to tell who that person is’.”

*Broadsheet understands that what’s been reported thus far has been that the girl made an allegation against Sgt Maurice McCabe in 2006, it was investigated, a file was sent to the DPP – with the recommendation that there was no grounds for a prosecution – and the DPP directed that no prosecution should be taken, with the observation that it was doubtful the allegations should constitute a crime at all.

Watch back in full here