Jury in RTE / Nicky Kehoe action asked to consider rights to freedom of expression and to a good name

By Ann O'Loughlin

A jury in a High Court defamation action by Sinn Féin political manager Nicky Kehoe against RTE will resume deliberations in the case tomorrow.

The jury was sent out to consider its verdict at 5.30pm this evening but came back a half an hour later when Mr Justice Bernard Barton told them he knew they had a lot to consider in the case and and they could sit on until 8pm if they felt they could reach a verdict by then.

The jury foreman asked if they could be allowed to discuss that and a few minutes later they returned and said they would like to come back on Friday.

The judge discharged them for the day and said they could resume deliberations as soon as they met in the jury room in the morning.

Nicky Kehoe

Earlier, in his closing speech on behalf of RTE, Cian Ferriter SC said Mr Kehoe had sued over comments by former junior minister Joe Costello had said on the live Saturday with Clare Byrne radio show that Mr Kehoe "is" a senior IRA member, Cian Ferriter SC said.

However, counsel said, in the three-to-four minute exchange between Mr Costello and SF representative Eoin Ó'Broin, who was another panellist on the show, Mr O'Broin "ripped to shreds" the Costello allegation.

By the end of that exchange, Mr Costello withdrew the allegation and said Mr Kehoe "was" a senior IRA member, counsel said.

Mr Ferriter said it was an "extraordinary feature" of this case that Mr Kehoe had come to court saying that RTE said he was a member of the IRA. But that was not stood over on the show and he cannot sue for that because he actually was previously a member of that organisation.

Mr Kehoe cannot take just "one bit" of the broadcast and the law required that it be taken as a whole, he said.

Mr Kehoe's action is over the October 2015 broadcast when Mr Costello alleged a former chief of staff of the IRA was at meetings of Dublin City Council telling SF councillors how to vote. Mr Kehoe's name was first used by Mr O'Broin, then a councillor and now a TD, who also went on to defend Mr Kehoe on the show.

Mr Kehoe says the reputation he built up 26 years since last coming out of prison was undone in "one swipe". RTE should have shut down the debate as soon as his name was mentioned, he says.

RTE denies defamation and says it is not liable.

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.

Joe Costello

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. RTE 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. RTE 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, he (solicitor) would have been criminally negligent, Mr Doyle said.

This was emblematic of the way RTE 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 RTE which was an organisation detached from the real world, he said.

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 RTE. counsel said.

Any reasonable and rational analysis of that allegation was that Mr Kehoe was a member of the army council and was subverting democracy by giving instructions to SF members of Dublin City Council, counsel said.

In his charge to the jury, Mr Justice Barton reminded the jury they were the only finders of fact in this case which is significant for both Mr Kehoe and RTÉ.

They had to balance the fundamental constitutional right to freedom of expression and the right to a good name, he said.

Most Read in Ireland