THE possibility of a crime reporter being forced by a court to identify his confidential sources of information could become a matter of life and death for the journalist concerned, Dublin Circuit Civil Court was told yesterday.
Mr Kevin Feeney SC, for the Star's Barry O'Kelly, told Judge James Carroll the fundamental importance of enforced disclosure for O'Kelly was not a matter of theoretical debate. It was potentially a matter of life and death.
"The protection of sources for a crime journalist is of crucial importance in relation to his capacity to carry out his day today work," Mr Feeney said.
"If it was perceived that sources who had given information in relation to serious criminal matters to enable crime reporters to expose them in the public press could be identified by order of a court, then that journalist's personal safety would be significantly at risk," Mr Feeney said.
Judge Carroll said he appreciated that and accepted that on one end of the scale the potential danger was as outlined by Mr Feeney. But on the other end of the scale it was whether journalists could declare a law to themselves which would be superior to the Constitution and to the laws of the State as they now stood.
Judge Carroll was dealing with the resumed hearing of a claim for damages by a former employee of the Garda Representative Association, Ms Nicola Gallagher of Terenure, Dublin for alleged breach of contract arising out of a confidential settlement reached between the parties in 1992. She had claimed, and the GRA had denied, that it had revealed the terms of the settlement to Mr O'Kelly, who has admitted publishing them in the Irish Press.
He said the issue before the court was a very serious matter and Mr Feeney had obviously prepared his arguments very carefully. He felt there should be somebody to put the other side of the case and he thought this person should not be the presiding judge. He did not think it would be satisfactory to deal with the matter without a legitimus contradictor to argue the law. He adjourned the case until December 11th to allow the Attorney General to fulfil that role.
He told Mr Barry White SC, for the plaintiff in the initial action and Mr Seamus Woulffe, counsel for the defendants, that the proceeding the court was now embarking upon was collateral to the substantive action and did not require an input from them. He told Mr Feeney that it was only as his submissions developed that he had appreciated the weight of the vehicle he was endeavouring to unleash.
When yesterday's proceedings resumed in Court 27 at 11 a.m. Judge Carroll recalled Mr O'Kelly and asked him if, after having had the benefit of time for reflection and legal advice, he was prepared to name his source.
When Mr O'Kelly said he was not prepared to do so, Judge Carroll said it appeared to him that there was a clear contempt of court and the case was now in fact a summary trial.
Mr Feeney then submitted that in preliminary matters it was well established law that a judge should always keep an ultimate discretion in relation to having a witness disclose evidence which was received in confidential circumstances.
The judge should exercise a discretion that he should only require a witness to breach confidence if it is appropriate and necessary to do so," Mr Feeney said.
Judge Carroll: "If it is a material question."
Mr Feeney: "No. In this instance before the stage is reached where my client is put in a position where he is asked that question, it is for the parties to the proceedings to have used the procedures of discovery and interrogatories to seek to establish from the defendant the information sought."
Mr Feeney submitted it was inappropriate to put a witness in a position of breaching a confidence to him without the parties to the proceedings having exhausted the procedures available to them. He suggested the matter now before the court was premature and the appropriate way to proceed was to allow the plaintiff to seek, by way of proper inter party procedures, to elicit the information sought in the question to Mr O'Kelly.
Mr Feeney then addressed the current standing of the law on contempt in Ireland and indicated that he would seek to show by case law that the situation was either of two positions.
Either common law had evolved to the position whereby there was now journalistic privilege in relation to confidential sources or Irish legislation was now in clear and unequivocal contravention of the European Convention on Human Rights.
He emphasised the European Court of Human Rights ruling in March of this year in the case of a British journalist, William Goodwin versus the United Kingdom. Goodwin had refused to disclose his source and the European Court had found that to punish him would be a breach of the Convention on the grounds of free speech.