RTÉ broadcast a documentary about Garda whistleblowers despite multiple warnings from the Director of Public Prosecutions (DPP) and gardaí that it could collapse a criminal firearms trial, the Irish Mail on Sunday has learned.
The programme, RTÉ Investigates: The Gardaí – Full Disclosure, was aired on Wednesday, September 16 and featured an interview with a Garda whistleblower whose trial – which has been adjourned no fewer than 28 times – is due to begin November 23.
But two days later, the documentary was removed from the RTÉ Player and the station’s platforms.
There are now significant fears the decision to proceed with the interview with the Garda whistleblower – whose serious allegations relating to defective gun holsters were first published in this newspaper three years ago – could collapse the trial.
A source with knowledge of the DPP’s correspondence said the State prosecutor wrote to RTÉ on Friday, September 11, alerting the broadcaster to its responsibilities to ensure a fair trial in the proceedings relating to the case.
The DPP then sent a second letter to the national broadcaster before broadcast, after receiving an independent assessment from a senior counsel.
Garda management also contacted RTÉ after they became aware of their intention to broadcast elements of the whistleblower’s case in early September, and warned the station of the potential impact this could have on the trial.
Deirdre McCarthy is MD of News & Current Affairs at RTÉ
Gardaí informed the Office of the DPP, prompting the DPP’s contact with RTÉ. A source told the MoS the correspondence from the DPP was ‘short and to the point’.
The first DPP communication is understood to have said they had been made aware – by An Garda Síochána – of a programme that will reference an upcoming trial and reiterated to RTÉ their responsibility to maintain a fair trial.
Causing the collapse of a criminal trial could cause serious damage to RTÉ.
Commenting on the transmission, a source with knowledge of the prosecution said: ‘If the court case comes down, the ramifications for RTÉ are far worse than the Mission to Prey scandal.’
In 2011, RTÉ’s Prime Time Investigates was disbanded after it emerged allegations about a priest, Father Kevin Reynolds, were completely false. A number of senior RTÉ personnel subsequently left the station.
In the documentary later removed from the RTÉ Player, the whistleblower discussed the circumstances of his arrest and other evidence that could potentially feature at his trial. It is now for a judge, who will try to convene a jury for the November trial, to decide on the next steps.
It’s not known whether RTÉ director general Kevin Bakhurst saw the programme before the final call was made to air it
The judge may decide it is not possible to source a jury that has not been influenced by the documentary or the publicity emanating from it, which was discussed in the Oireachtas and covered in other media.
The MoS first published details of protected disclosures that were made by the whistleblower three years ago, but our coverage did not identify the man.
Political figures at the highest levels of Government this weekend said they are ‘deeply concerned’ about the potential trial collapse. Ministers said the collapse of a trial would be ‘extremely damaging to RTÉ’s reputation’.
One Cabinet source said they feared the controversy could hurt financially insolvent RTÉ’s chances of getting further State bailouts.
RTÉ Director-General Kevin Bakhurst recently asked for an extension of the €1billion bailout for the State broadcaster. RTÉ has cited its current affairs and investigative journalism as a reason that it should receive further State bailouts.
In October 2023, the MoS published a front-page story detailing a protected disclosure made by a Garda whistleblower at the centre of the RTÉ legal controversy.
The whistleblower revealed that warnings of the dangers of non-regulation leather gun holsters had been made before the death of Det Garda Colm Horkan.
He had warned his superiors in 2019 that the holsters could cause automatic pistols to go off accidentally or make it easier for assailants to obtain a garda’s firearm.
Less than a year later, a garda received life-changing injuries when his firearm accidentally discharged. Within a week of that incident, Detective Garda Colm Horkan was shot dead after convicted murderer Stephen Silver managed to take his Sig Sauer weapon from holster.
At the start of this month, the RTÉ Investigates programme submitted 90 queries to the Garda Press Office. They took almost a week to respond, citing volume.
After receiving notice from RTÉ that the programme intended to broadcast details of the whistleblower’s trial – in the documentary he was filmed speaking about his arrest and other matters – Gardaí contacted the DPP.
Over a week before the airing of the documentary, Gardaí wrote to RTÉ, responding to questions but also notifying the programme makers of their concerns about the whistleblower’s trial.
The Gardaí expressed ‘serious and substantial concerns’ with one potential segment of the programme referring to the whistleblower’s case. They also told RTÉ that they had informed the DPP.
In its reply to RTÉ a week before the documentary was aired, the Garda Press Office said: ‘An Garda Síochána has serious and substantial concerns as to whether your research to date and the proposed airing of these issues has appropriately protected and respected the rights of those named or implicated in your correspondence.’
The correspondence stated: ‘As no doubt you are aware, the constitutional rights of an accused person to a trial in due course of law and to fair procedures are found in Articles 38.1 and 40.3 of the Constitution of Ireland. Article 6 of the European Convention on Human Rights also guarantees that a person charged with a criminal offence has the right to a fair trial.
The show was pulled from the RTÉ Player two days after it aired
‘As such, matters are sub-judice at this time and it is not appropriate to comment, beyond noting that any further comment could be regarded as potentially prejudicing the fair trial rights of this accused person and likely to interfere with the due and proper and fair trial of any legal proceedings, particularly criminal proceedings.’
The DPP then contacted RTÉ on the Friday before the documentary aired, echoing the Garda concerns.
The State prosecutor also took advice from a respected senior counsel, whose legal opinion supported the view of gardaí and the DPP that identification and interview with the whistleblower posed a serious threat to the criminal trial – a fact also communicated to Montrose. Gardaí expressed specific concerns about the interview with the whistleblower at the centre of an ongoing criminal trial.
Despite this, the documentary – which had been advertised for days in advance by RTÉ – was aired on September 16, before being removed from all the broadcaster’s platforms two days later.
A Garda spokesman told the MoS this week: ‘It is a matter of public record that as part of An Garda Síochána’s response to questions from RTÉ Investigates in relation to an individual RTÉ named who was to feature on the programme and who was before the courts shortly on serious charges.’
Gardaí confirmed they informed the DPP about their concerns.
They added they ‘received no response from RTÉ Investigates to our concerns’ about the identification and interview with the whistleblower they said were ‘raised well in advance of the broadcast’.
In response to queries from the MoS, RTÉ this weekend said: ‘RTÉ Investigates: The Gardaí – Full Disclosure is an important documentary of considerable public interest as evidenced by the response to the programme since it was broadcast. It raised serious issues about how whistleblowing is dealt with in An Garda Síochána.
‘It went through all correct and robust editorial and legal processes, in accordance with RTÉ Editorial & Content Guidelines.’
RTÉ’s content guidelines place responsibility with the ‘editorial chain of management’ and content makers are encouraged to refer ‘upwards for consideration of any editorial policy issues’.
RTÉ DG Kevin Bakhurst is Editor-in-Chief, but the guidelines delegate ‘day-to-day routine editorial decision-making to be made by line management across RTÉ, with the final editorial decisions resting with the MD of News & Current Affairs, Deirdre McCarthy, the Head of Video, and the Director of Audio, as appropriate. It is unlikely, however that this decision was deemed ‘routine’. RTÉ refused to say whether or not DG Bakhurst watched the programme before the final decision to broadcast.
The broadcaster confirmed it got more than one ‘correspondence’ from the Office of the Director of Public Prosecutions (ODPP).
A spokeswoman said: ‘RTÉ responded to a number of correspondence from the ODPP. We wouldn’t comment on details of legally related correspondence.’
RTÉ also confirmed it had several interactions with the gardaí. ‘RTÉ Investigates wrote to An Garda Síochána a number of weeks ahead of broadcast and provided them with a significant opportunity to respond to a detailed list of questions. Details of their responses were included in the programme and additional online reporting as viewers would have seen.’
Asked about the decision to remove the documentary from its platforms, RTÉ said they intend to return the film to public access after the whistleblower’s trial.
‘As previously stated last week, the documentary has been removed temporarily from the RTÉ Player pending the conclusion of third-party court proceedings. RTÉ will continue to report on the public interest questions raised in the programme and the programme will be made available again on the RTÉ Player in due course,’ the spokeswoman said.
‘This RTÉ Investigation adhered to the high standards set in RTÉ Editorial Guidelines. RTÉ stands over its journalism, the accuracy and public interest of which has not been called into question,’ she added.
The Office of the DPP said ‘I can confirm that the Office of the DPP corresponded with RTÉ about the RTÉ Investigates programme, in the context of an upcoming court case.’
