Battle of writs against the IRA

The IRA are using the libel laws to intimidate newspapers and fill their coffers.

The British and Irish media could give the IRA millions of pounds over the next few years. The farcical twists and turns of libel laws have caught newspapers and broadcasters in a legal labyrinth that could lead to their financing acts of terrorism. In the last six years, a record number of writs in Ireland have been issued against newspapers that name or give clues about people they suspect to be IRA members. Of course, many of the plaintiffs will have genuinely been wrongly accused, but according to Sean O'Callaghan, a former high-ranking member of the Provisional IRA, some of the claims are the result of a senior-level IRA decision to intimidate newspapers.

O'Callaghan spells out a situation that challenges every journalist who wants to cover Northern Ireland, and raises uncomfortable questions for newspapers and broadcasters that want to boast a clean bill when condemning terrorism. He says: "About two-and-a-half to three years ago, there was a deliberate decision taken by senior IRA management to issue writs even when there was no hope of the case being won. It's a sophisticated way of working the system, which intimidates papers who try to name IRA members.'

O'Callaghan's account is backed up by Jason McCue, a British lawyer who specialises in defending newspapers and television companies against alleged terrorists. Most recently, he was involved in the battle between The Sunday Times and Tom Murphy, a leading IRA man.

McCue noticed a dramatic increase in writs issued some time before the IRA decision reported by O'Callaghan. He says: "Over the last six to seven years, about 30 writs have been issued by alleged IRA members against the media. If they are justified in their complaints, then these should be dealt with accordingly, but I feel I have a responsibility to fight these cases, because if the allegations are correct, the money could go straight into buying arms for the IRA."

So what does it take to fight these actions and win? Until May this year, the answer was: "No one wins against the IRA." That was before the Dublin trial instigated by Thomas "Slab" Murphy against The Sunday Times. Murphy claimed he was only a pig farmer, who could not even remember his date of birth and had never heard of the Maze prison. By the end of the trial, the story was strikingly different. The jury agreed by a majority of 10 to one that Murphy was a prominent member of the Provisional IRA who had presided over a planned bombing campaign of 12 English seaside resorts.

But what did The Sunday Times have to do to win such a victory? How do you prove someone is an IRA activist, if, as was the case with Murphy, he or she has no former conviction for terrorist activities? When that individual has won tens of thousands of pounds from other publications that have dared to name him, what kind of gamble is it to risk a full court case? How many newspapers can afford to weigh up the ethics of the situation against the potential drain on their finances?

David Palmer, managing director of Independent Newspapers (Ireland), expresses the frustration felt by many newspapers, especially in Ireland, when he says: "The operation of the libel laws in Ireland is completely at variance with the principle of free speech and a free press in a free society. If someone decides to go after you, the standards of proof demanded by the law are often too high to be met."

The result of The Sunday Times's decision to go against the grain is the greatest libel adventure story since the battle between The Guardian and Jonathan Aitken. It took The Sunday Times eight years to pin Murphy down, and the verdict came 13 years after the article was written. The then editor, Andrew Neil, had to threaten to resign before it was seriously considered that The Sunday Times would go ahead with the case. Until then, lawyers had been urging him to hand over pounds 480,000 in an out-of-court settlement. Stunned by the newspaper's decision, Murphy asked the court hearing to be postponed from 1989 to 1990. Still he lost the case. However, in May 1996 his appeal against the verdict was finally allowed. This time, The Sunday Times realised it would to have to deploy its full investigative forces to win again.

The key point was to prove that a forged passport, used by Murphy on suspected arms-buying trips to Greece and the former Yugoslavia, was part of a stolen batch that was being used by other IRA terrorists. Two other significant factors were the witness statements of Eamon Collins and Sean O'Callaghan, former members of the IRA. Both knew they were putting their lives in danger by testifying against Murphy. Days before the trial took place in Dublin, it was uncertain whether O'Callaghan would take the plunge, and appear in the Irish Republic for the first time in 15 years. When he did, the force of the combined testimonies and evidence was such that the jury took less than an hour to find Murphy guilty.

So this is what is needed. Witnesses prepared to risk their lives, large amounts of surplus money, and a lot of executive time - all rare commodities on a newspaper. The journalist who names a suspected terrorist balances on a knife-edge. If he or she is wrong, the political and social damage inflicted on the named individual can be irreparable. Even if the journalist is right, a complex legal battle lies ahead.

This is the battle of writs that needs to be fought if journalists are to justify their role at this fragile time in Northern Irish politics. Let's face it: pounds 20m is a hell of a lot of money to get wrong.