Are Michael McDowell's latest proposals aimed at Garda corruption or an attempt to stop whistle-blowing, asks Carol Coulter, Legal Affairs Correspondent.
Yesterday the Minister for Justice spelled out for the first time what he intends to restrict in his new proposals on Garda contacts with the media.
He does not intend to limit "genuine whistle-blowing", he told The Irish Times. He has no objection to members of the Garda Síochána giving information about their activities, like the widely reported "Operation Hyphen" raids in search of illegal immigrants, or the raids on lap-dancing clubs.
He also does not seek to restrict journalists ringing up local Garda stations on a routine basis checking on what is happening in the area.
What he wants to prohibit, he said, are four categories of contact between journalists and the gardaí, involving corruption, the invasion of privacy, compromising a trial, and endangering the security of the State.
The Association of Garda Sergeants and Inspectors and the National Union of Journalists, which were angered by his earlier pronouncements, have said they do not object in principle to these proposals, though they need to see the details.
Crime and the prosecution of criminals, the protection of the State, and the general maintenance of law and order are matters of great interest to the public, and receive wide coverage in the media.
Therefore the media have a more intimate relationship with the police than any other State institution.
In every town in Ireland, journalists and members of the Garda Síochána rub shoulders in court-rooms and at scenes of crimes.
But their interests are not the same. The Garda not only want information about their activities publicised, and help sought in solving crimes, they also want their activities presented in the best possible light. For the media, the old adage that "news is what somebody, somewhere, does not want made public; all else is advertising," applies. There may often be things happening in the criminal justice system that the Garda Síochána does not want made public, and here its interests and those of the media diverge.
Other factors come into play. There is widespread public interest in the lives and actions of celebrities.
There is also a public fascination with the sensational end of crime, especially sexual crimes. Members of the Garda Síochána are often in a position to have information in both these areas, and the Minister has alleged that a small number pass such information to journalists for reward.
His allegations have been challenged, but no-one has defended this practice, if it exists.
The Minister has also signalled his intention to stamp out the release of information which impinges on an individual's privacy, whether given for reward or not.
He instanced the publication of the contents of Garda files on sexual assaults, when the cases had not even been prepared for the DPP, let alone come into the public domain through a trial.
The victims of crimes, especially those of such an invasive nature as sexual assault, deserve to be treated with sensitivity by the Garda and media, and few journalists would defend adding to their trauma.
But privacy is a broad term. Would it be an invasion of privacy, for example, to report on the arrest of a politician charged with corruption?
The European Court of Human Rights has distinguished between the right to privacy of ordinary citizens and that of public figures, but there is nothing in our laws, so far, making such a distinction.
Mr McDowell will also make it illegal for a member of the Garda Síochána to give information to the media that might prejudice a trial. The right of an accused to a fair trial is sacrosanct in our Constitution, and that can be prejudiced by pre-trial publicity.
There have been instances where members of the Garda have circulated information about people they suspect of crimes when they cannot prove their case in court.
If such individuals already have criminal convictions, or are socially and educationally disadvantaged, the chances of them suing for defamation are slim, so their characters can be attacked with impunity, and they can be punished without any due process at all. There is nothing about this in the Minister's proposals.
Mr McDowell will also prohibit the release of information that threatens State security.
But what is State security, and who defines it? Few would argue, for example, that information that could jeopardise the personal safety of central figures in the criminal justice system, and that of their families, should be widely disseminated.
But what about, say, the activities of the Garda "Heavy Gang" in the 1970s, who routinely assaulted suspects?
At the time there were many in Government who felt that concerned "State security", yet its exposure was in the public interest, and would have been impossible without the help of gardaí worried about this stain on the force's reputation.
What about the allegations of corruption in Donegal, which led to the Morris tribunal?
Would a member of the force who approached his local TD with his concerns be liable to prosecution for doing so? Would he face punishment if he spoke of his concerns to a journalist?
Mr McDowell has said he will make sure that a "genuine whistleblower" is protected, and he will listen to this case being made.
There is a compelling case for such protection, and for the definition of "whistle-blowing" not to be left to ministerial discretion, but a public-interest defence to be enshrined in the legislation.