The High Court in Belfast has stuck out a libel action taken by Sinn Féin Assembly member Gerry Kelly against the writer and journalist Dr Malachi O’Doherty, saying the case was “scandalous, frivolous and vexatious”.
The Master of Belfast High Court, Evan Bell, said that the proceedings were an abuse of process “so blatant it would be utterly unjust if the court were to allow the proceedings to continue”.
Mr Kelly was also ordered to pay Malachi O’Doherty’s legal costs in regard to the action which the Sinn Féin MLA had initiated after the journalist said in a radio interview that Mr Kelly had shot a prison officer during an escape from the Maze prison.
38 IRA prisoners escaped from the prison in 1983, in a breakout which saw prison officer John Adams being shot in the head. Mr Kelly was found not guilty of the shooting of Mr Adams at a 1987 trial.
However, in his ruling today the Master, Evan Bell, said that what Mr Kelly had written himself in books he had published were reason to strike out his defamation claim.
Whether it was Mr Kelly or another man who actually pulled the trigger, what he had written about the escape in two books amounted to “a clear statement of common design in respect of the battery of Mr Adams… the content of his books appears to make Mr Kelly civilly liable, on the balance of probabilities, for the shooting of Mr Adams,” the Master wrote in his judgment.
Mr Kelly admitted “that during the escape he was armed with a gun and threatened to shoot a prison officer,” he said in the ruling.
“In the light of that, these defamation proceedings against Dr O’Doherty are completely untenable. For that reason, the court strikes them out on the basis that they are scandalous, frivolous, and vexatious.”.
Master Bell ruled that the case bore “the hallmarks of a Slapp” – an action initiated “not for the genuine purposes of vindicating a reputation injured by defamatory statements” but, he said, to “stifle” critics.
Addressing the issue of reputational damage, central to a defamation case, the ruling declared that Mr Kelly’s conviction in 1973 for the Old Bailey bombing in London meant he had “lost his moral compass”.
“I consider that a right-thinking person would take the view that anyone who is guilty to the criminal standard of proof of exploding car bombs in a capital city, putting the lives of dozens or hundreds of people at risk, has lost his moral compass, as he places little value on human life because he is prepared to take risks with their lives as collateral damage,” the judgement said.
A Slapp is a strategic lawsuit against public participation – taken in order to “censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition”.
Sinn Féin has denied it used Slapps, but critics point to the strategy – as was used against Dr O’Doherty – of taking the action against individuals in addition to or insread of targeting publishers or broadcasters.
Journalists Ruth Dudley Edwards also faces a similar defamation action from Mr Kelly, while Irish Times political correspondent, Harry McGee, has been personally joined along with the newspaper in a defamation case taken by Chris Andrews – a Sinn Féin TD for Dublin bay South.
.NUJ assistant general secretary Séamus Dooley said the ruling was “extremely significant” in the context of the use of Slapps against journalists in both Northern Ireland and the Republic.
“This case had no realistic prospect of success,” he said.
“Since 2020, the shadow of defamation proceedings has loomed over Malachi O’Doherty and, in a separate action, over Ruth Dudley Edwards.
“Such threats have a chilling impact on journalists and journalism. The unambiguous language used in the determination should give those intent on using SLAPPs pause for thought.”