Whatever the benefits of a jury trial, it is indisputable that they are cumbersome and costly. Any reform that is not merely crafted - like the French burkini law - for the purpose of thwarting the authentic plaintiff are not lacking in merit, particularly in matters that fall outside the criminal code and are in the realm of the civil. Nevertheless, coming in the immediate wake of the Adams verdict, there will be public scepticism about the government's agenda; a suspicion that it wants to make it difficult for critics of the powerful. Even though Adams has long been a powerful person who has never balked from using that power to dissemble, prevaricate and deflect the truth away from himself - in the same haughty manner as Netanyahu or Trump - there is not a huge queue gathering to buy the government line in the wake of the Michael Lowry scandal.
Most people I talk to, inside both media and political worlds, think the BBC handled the affair poorly. The consensus seems to be that firstly it should never have aired the accusations against Adams on the basis of hearsay, and, secondly, it should have avoided going to court to defend its actions.
The Taoiseach's assessment of Jennifer O'Leary as a first-class journalist” is one to be shared. She is hardly to blame for the actions of the corporation nor should it entertain any idea of throwing her under the bus because of whatever upset it may feel at losing the courtroom battle. The content of the programme must surely have been lawyered before it aired. If a layperson like myself could spot instantly that Spotlight was in trouble the minute the accusations were made on screen, the barrister employed as a filter should never have let it through.Jennifer O'Leary's task was simply to gather whatever evidence she could access and frame a narrative for the documentary. Once that was done, it was over to the lawyers to decide whether it would leap high enough to clear the legal bar for defamation. This is standard fare for news media. Journalists routinely deliver their copy and barristers run a legal eye over it, often being over cautious, and frequently tweaking and amending what is in front of them for the purpose of making it resilient to legal challenge. Because of previous failure by Adams to legally respond to accusation of participation in war crimes inter alia, the BBC might have felt that he would never have gone into court - a reasonable enough presumption while he was still Sinn Fein president. The discomfort to the party when serious allegations were put to him in the witness box would have been factored in In his post-presidential era there was sufficient distance between him, no longer at the top, for the party to distance itself from him - it's a Gerry solo run type thing. Even for a person already accused in the media of of being a serial liar that considerably increased the chances of him going into the witness box.
Still, even if the BBC was absolutely certain that Adams would not go near a witness box that should not have been a consideration for its legal filter. The job of the barrister when asked to lawyer a story is not to calculate the odds of a complainant taking the stand but to ensure that what is to be published or broadcast is sufficiently firewalled against any potential court challenge. As the mafia might say why take a chance?
The judge by restricting the date and location for reputational damage - 2016 and to the Republic, seriously disadvantaged the BBC. Metaphorically, he advised the jury that if the smell of 1969-1998 decomposition was too overbearing, they should just hold their noses, lie back and think of the Good Friday Agreement which was a death certificate on the IRA campaign to coerce the British out of Ireland. Yet, while Adams was acknowledged as far back as 1997 by David Sharrock and Mark Davenport as both a warmaker and a peacemaker, the court made it clear that news institutions can't just say what they like about somebody. Thinking that Adams has no worthwhile reputation to protect could easily lead to accusations that he is a paedophile who used his IRA leadership role as an aid for raping children. He would be left with no grounds for refuting such a heinous and false accusation if his reputation is such that anything can be said about him without fear of consequence.After the verdict Sinn Fein could afford to come out of its monastic quietude and cheer their former president . . . when it was safe to do so. One former key IRA figure lambasted the BBC for covering up the truth on behalf of the British state, echoing sentiments expressed by Adams. Another bout of irony deficiency, because while BBC Spotlight was exposing spies like Freddie Scappaticci Sinn Fein was heavily employed in the cover up business. In fact, what was arguably the silliest article ever written on the North's violent conflict appeared in An Phoblacht under the byline of Adam O'Toole in which the author sought to rubbish allegations against the British agent. Rather than Spotlight being at fault in the matter of Stakeknife, there was much collusive activity between Sinn Fein and the British state at this time with Danny Morrison and Lord Chief Justice Carswell colluding, as distinct from conspiring together, to protect a senior British spy.
When the spy invited Sinn Fein and Spotlight to join him in a dance of deceit, there was only one taker - Ourselves Alone.