High Court judgment:A three-judge High Court has ordered Irish TimesEditor Geraldine Kennedy and Public Affairs correspondent Colm Keena to answer questions from the Mahon tribunal in relation to the source of an article about financial payments to Taoiseach Bertie Ahern when he was minister for finance in 1993.
In its decision, the court found The Irish Times'sprivilege against disclosure of sources in this case was "overwhelmingly outweighed" by the "pressing social need" to preserve public confidence in the tribunal. As there was no other means by which that could be done other than the tribunal asking the journalists questions, the court believed the orders sought by the tribunal were necessary in a democratic society.
The court stressed its decision must be seen in the circumstances of this case where the answers to the questions were unlikely to reveal the source.
If the questions could lead to identification of the source, then the journalistic privilege against disclosure could be invoked. That was not the situation here because the source had been stated to be anonymous and because of the "reprehensible" destruction of documents by The Irish Times, the court said.
In destroying the documents, the defendants cast themselves as the adjudicators of the proper balance to be struck between the rights and interests of all concerned, a role reserved by the Constitution and the law exclusively to the courts. Such a manner of proceeding was "anathema to the rule of law and an affront to democratic order". "If tolerated, it is the surest way to anarchy."
The court said the answers could indicate that the tribunal itself was not the source and therefore be of real benefit to the tribunal in preserving the integrity of its private investigative phase. This was "an important matter" in a democratic society where inquiries into matters of public interest conducted by tribunals at the behest of Parliament were an essential tool in the formulation of legislative policy.
A feature of such inquiries was the private investigative stage of tribunal inquiries and the maintenance of confidentiality was essential for the success of this scheme, it added.
In the court's view, "nothing could be more damaging" to the capacity of the tribunal to carry out its functions than the perception that the tribunal itself leaked information given in confidence. Where a leak occurred, the tribunal must inquire into it and establishing that the tribunal itself was not the source of the leak was a "legitimate aim and pressing social need".
The divisional court, consisting of the President of the High Court, Mr Justice Richard Johnson, Mr Justice Peter Kelly and Mr Justice Iarfhlaith O'Neill, was giving its reserved judgment on proceedings in which the Mahon tribunal sought several orders against Ms Kennedy and Mr Keena arising from publication of the article on September 21st, 2006.
Written by Mr Keena, the article was published under the heading: "Tribunal examines payments to Taoiseach". The tribunal claimed the article was based on a confidential letter sent by it during its private investigative stage to a businessman, David McKenna.
The article reported that the tribunal was investigating a number of payments to Mr Ahern around December 1993 and that Mr McKenna was one of three or four persons contacted by the tribunal about payments totalling between €50,000 and €100,000.
The tribunal wrote to the newspaper on the evening of September 21st, 2006 expressing concern the article was based on a letter sent in its private stage. Ms Kennedy replied that The Irish Timeshad received an unsolicited and anonymous communicaiton which she considered an important matter in the public interest for the newspaper to verify and publish. The "vital issue" of public interest which she considered she had a duty to publish was that Mr Ahern, while a serving minister, was in receipt of certain payments of money. The fact of the payments was admitted, she added.
Both journalists were summoned before the tribunal on September 26th last year but refused to provide documents or answer questions which might identify the source of the information. Ms Kennedy said the documents had been destroyed. Among the issues before the High Court were whether the tribunal had the legal power to conduct an inquiry aimed at ascertaining the source of the communication to The Irish Timesand to order the defendants to appear before it, hand over documents and answer questions. The court concluded the tribunal had those powers.
The court also ruled the tribunal was entitled to conduct investigations in private and to impose confidentiality on documents sent in its private investigative stage to persons of whom it was making inquiries. Confidentiality extended to documents the subject of an unauthorised leak, it found. The tribunal could also impose confidentiality on others who came into possession of such documents.
