LATER today, Judge Tom Burgess will deliver a verdict in Belfast that will either have a chilling effect on the nature of investigative journalism across the UK, or will justify Suzanne Breen’s decision not to betray a confidential source to the police. Not that all police agree with the PSNI prosecution – Alan McQuillan, the former senior Special Branch officer and deputy chief constable of the force, who went on to head the Assets Recovery Agency here, has backed Breen’s decision. I would argue that neither Suzanne (nor Ian Paisley Jr, for that matter) deserve prison for protecting their sources. Here’s a clip I made of the NUJ protest from last Thursday explaining the importance of this case.In Laganside courthouse last Thursday, it eventually became clear that the PSNI is prepared to expose the lives of journalists to a terrorist group that regards even pizza delivery men as ‘collaborators’ – and not just Suzanne Breen’s, as the court listened to the bombshell dropped in proceedings by the counsel for the PSNI. It was mentioned by Roy Greenslade on his blog here, and was commented upon by a poster named gleamin, who is surely a cypher for the police.
The PSNI counsel, Tony McGleenan, virtually identified a journalist who had passed on information on RIRA in the past – of little evidential or intelligence value, from what was heard in court, but enough to cause concern about his/her safety. When McGleenan sprung this on the BBC’s John Ware, who has exposed more about the Omagh bomb and investigation than anyone else, the Panorama investigator was caught off guard. Yet he still had the wit to ask: “Is this person still working as a journalist?”
I thought it was incredible and irresponsible that the PSNI would deliberately expose someone who helped them to potential harm. Since the court heard that this occurred in the course of the Omagh bomb investigation, we now know that the information was of limited use, since the PSNI investigation did not lead to any successful prosecutions. Yet that journalist has been hung out to dry by the police, may now be in danger from a terrorist group and is probably unlikely to find much support amongst journalists now for breaching the NUJ code of conduct.
The PSNI’s counsel also tried to argue that because there was no legal precedent, Suzanne could not avail of an Article 2 defence (the right to life), as her life was not in imminent danger, because the threat from the RIRA was conditional upon information being disclosed to the police. This seems perverse; he was implicitly acknowledging that her life would be under threat as soon as Suzanne did as he asked.
Suzanne – photographed last week outside court with Eamonn McCann – also explained how she would not be able to continue her current work if she did so, how the life of her baby and partner would also be jeopardised, and how the authorities could not guarantee her safety if she was forced to co-operate. The petition supporting Suzanne’s stance has been signed by Nick Martin Clark, a former journalist who broke source confidentiality, who has subsequently regretted the decision and has neither set foot in Northern Ireland nor worked as a journalist since. Nor have the authorities been able to prevent attacks on those who willingly gave their assistance.
I am unsure of the legal status, if any, journalists have these days to retain source confidentiality. In 1999, Lord Chief Justice Sir Robert Carswell ruled that another judge had been wrong to order another Sunday Tribune journalist, Ed Moloney, to give up his notes on the Pat Finucane murder to the Stevens Inquiry, which, coincidentally, the current Chief Constable was also involved in. Carswell said:
Police have to show something more than a possibility that the material will be of some use. They must establish that there are reasonable grounds for believing that the material is likely to be of substantial use to the investigation.
If there are “reasonable grounds”, they will not be made public in Suzanne’s case, as the police evidence was heard behind closed doors. Nor did the wilful exposure of the journalist referred to above reveal information of “substantial use”, as it was nothing more than recollections during a phone call of a possible age, accent and so forth.
The NUJ code of conduct obliges members not to disclose information that could identify sources who have spoken in confidence, which can bring it into conflict with the law. Yet it is confidential sources who enable journalists to put into the publish and broadcast information that is in the public interest. There would have been no Watergate saga without ‘Deep Throat’. The recent expenses scandal – which is leading to wholesale reform at Westminster – was revealed through an anonymous source, although he later chose to go public. Would these and other whistleblowers have come forward if they knew that they would be exposed to a State determined to keep its secrets?
Even before last week’s evidence was heard, the judge had heard evidence in secret from the police, after which he stated he was “minded” to grant the police application to force the journalist to hand over her notes. Today we’ll find out if what he heard in public last week was enough to change his opinion and keep Suzanne from behind bars.