The media storm that arose in response to the arrest of journalist Mick McCaffrey by gardaí investigating the premature publication of the Birmingham inquiry's report into the Dean Lyons case was disproportionate. When journalism itself became the story, many journalists lost perspective, writes Noel Whelan.
It took a couple of news cycles for the context of the story to emerge and, with this story, context is very important. In 2003 and 2004, the Dáil and Seanad debated and then enacted the Commissions of Investigation Act 2004. This legislation provided for a new form of inquiry into matters of urgent public interest which would be more efficient, quicker and less costly than the tribunal process.
The key characteristic of a commission of inquiry under the Act is that its investigation is held in private; the full outcome of its investigation only becomes public when its final report is published. Conducting the investigation and hearing in private is designed to avoid the scenario whereby parties who are the subject of the investigation and are seeking to protect their reputation, arrive muscled up with lawyers.
An important part of the process was a provision requiring a commission, after its hearings and investigations are complete, to send a draft report to the various parties affected. This limited circulation of the draft report is designed to give the parties affected the opportunity to comment on it; to correct any inaccuracies; and then to apply to the courts, if necessary.
Obviously, for this part of the commission's work, there needed to be a way of ensuring that these draft reports would not be published widely. There was an obvious risk that one of the parties to whom the draft report was circulated would seek to get their retaliation in first, or to curry favour with the media to ensure better press when the final report comes out, or to help a friendly journalist by leaking a copy of the draft report.
To guard against this possibility, Section 37 of the Act made it an offence for a person who receives a draft of a report to disclose its contents or the fact that it has been sent to them without the commission's permission.
The Birmingham commission, established to investigate the circumstances surrounding how Dean Lyons came to admit to two murders he did not commit, was the first commission of investigation set up under the Act.
At the end or near end of its work, the commission circulated its draft report to several of the affected parties. Lo and behold, the predictable happened - somebody sought to circumvent the process or undermine the commission's work by leaking a copy of the draft report to the Evening Herald three weeks before the final report was formally published to the full media.
Comprehensive details of the report were published in the Evening Herald and, in the Department of Justice's view, some of that content appeared to come from the draft report. The department made a complaint to the Garda, and the investigation led to this week's arrest.
The level of coverage which the media gave the story was self-indulgent. The attitude adopted by some journalists and their representatives was precious and self-important, and the manner in which the story was covered by some media outlets lacked impartiality.
On news bulletins, the decision by the Garda to carry out this arrest was described as an attack on the media or as part of some campaign to gag the media. In one interview, the National Union of Journalists' general secretary characterised the arrest as an act by the State against the press and as "a shot across the bow of the media in the lead-in to an election". Conspiracy theories abounded.
If the reaction of some of the media was over the top, the reaction of the Opposition parties was ridiculous. The performance of the Fine Gael spokesman on justice, Jim O'Keeffe TD, was particularly bizarre. Having named the journalist in the Dáil, he spent most of the rest of Wednesday spouting what was essentially the Evening Herald's line, and he did so in a tone even more outraged than that of the paper's editor himself.
O'Keeffe repeatedly demanded answers from the Minister for Justice to questions about his role in the arrests, and when he got the answer that the Minister had no role, O'Keeffe ploughed on regardless and penned a photo-bylined piece for the Evening Herald, in which he again demanded answers to the questions already answered and continued to imply that the Minister had somehow directed the arrest of the journalist.
What is most interesting is that if you look through the record of the debate on the Commissions of Investigation Act 2004 as it wound its way through the Dáil, the lead spokesman for Fine Gael at each stage, including the committee stage where the Bill was examined line by line, was the very same Jim O'Keeffe. At no stage did he or his party object to the section creating this offence.
During Thursday morning's order of business, Enda Kenny took up this media-friendly line and talked of "an authoritarian regime".
He denounced by implication the department for making the complaint about the leak of the draft report, whereas in fact what he should have been doing was complimenting them for seeking to ensure that legislation enacted by the Oireachtas was enforced. It is this type of judgment on Kenny's part which re-enforces residual reservations held by some voters about his capacity to lead on the hard issues by swimming against the media tide.