Some of the Mahon tribunal's arguments regarding confidential material were steps too far for the Supreme Court, writes Michael Kealey
Last week, Barry O'Kelly presented a Prime Time programme about crime and punishment. In late 2004, he had a more direct connection with the topic. Not for the first time in his career, he was facing the prospect of jail.
O'Kelly had written two articles for the Sunday Business Post about the Mahon tribunal based on confidential tribunal documents. One of the reports was even illustrated by a photograph of a witness statement with the word "confidential" stamped prominently on it. The tribunal felt that this and similar unauthorised disclosures were deliberately intended to undermine and delay its work. It took immediate action.
It wrote to O'Kelly and told him to produce any tribunal documents he had. It summonsed him to attend before it and to identify his source.
O'Kelly refused and told the tribunal that he had destroyed the documents, after he had received its letter seeking the documents, because their production might reveal his source. Judge Mahon referred this "express act of defiance" to the High Court.
Simultaneously, the tribunal obtained a High Court injunction banning publication by the media of all documents circulated in private by it in advance of public hearings. Last Thursday, after a 2½-year legal battle, the Supreme Court narrowly (by a 3-2 majority) dismissed the tribunal's case.
The work of tribunals is divided in two. First there is an entirely private investigative stage, then there are public hearings. Before its public work, the tribunal must, to comply with natural justice, circulate documents to affected persons, who receive the documents on a strictly confidential basis. However, not all the documents contained in these briefs are private. Often they include material in the public domain, eg planning maps, records of council decisions and newspaper reports.
The tribunal argued that the press should be stopped from referring to any of this confidential material until it was disclosed at public hearings. It also said that even the fact of its circulation should be kept private. The tribunal would decide what was confidential. These were steps too far for the Supreme Court.
This form of order is called prior restraint. It calls for the most careful scrutiny as it affects freedom of expression. As Mr Justice Nial Fennelly, delivering the majority decision of the Supreme Court, said: "The right of a free press to communicate information without let or restraint is intrinsic to a free and democratic society."
He continued: "I regard as strange, not to say bizarre, the notion that the press may be restrained from publishing the fact that the tribunal had circulated a document, even an entirely innocuous one, which is already in the public domain. If it is already a public document, what is confidential about the fact of it being circulated by the tribunal?"
While freedom of expression is important, its practical implementation is not always pretty. Much of what appears in the press is neither worthy nor important. One of the most remarkable parts of the Supreme Court's decision is its recognition that this is an acceptable price to pay for the exercise of an important right.
Mr Justice Fennelly said: "The media are not required to justify publication by reference to any public interest other than that of freedom of expression itself. They are free to publish material which is not in the public interest. I have no doubt that much of the material which appears in the news media serves no public interest whatever . . . Much of it is motivated and perfectly permissibly so, by the pursuit of profit. Publication may indeed be prompted by less noble motives . . .
"The right of freedom of expression extends the same protection to worthless, prurient and meretricious publication as it does to worthy, serious and socially valuable works. The undoubted fact that the news media frequently and implausibly invoke the public interest to cloak worthless and even offensive material does not affect the principle."
Consequently, while Mr O'Kelly's "direct defiance of the wishes of the tribunal was disgraceful . . . that does not mean that it was unlawful".
The right to freedom of expression is not absolute and can be restricted by laws passed to advance other legitimate social purposes. However, applying principles derived from the Constitution and the European Convention on Human Rights, the Supreme Court reiterated that any restriction must be proportionate and no more than is necessary to promote the legitimate object of the restriction. It could find no legal basis for the restrictions sought by the tribunal.
Two other reporters, who are in dispute with the Mahon tribunal, are also facing the might of the criminal law. A case against the editor of The Irish Times, Geraldine Kennedy, and its public affairs correspondent, Colm Keena, is due to start in June or July. They have refused to reveal the source of a leak for a story that the tribunal was investigating a number of payments to Taoiseach Bertie Ahern.
The decision will be of both comfort and assistance to them.
The Supreme Court stressed that the tribunal was an arm of the State. Consequently, when taking action that would affect the rights of the press, it would have to demonstrate an overpowering public interest. (It might be different if an affected individual took action to enforce private rights.)
The European Court of Human Rights has long recognised that forcing journalists to reveal sources can have a "chilling effect" on the press and ought only be ordered in rare cases. If sources cannot be confident that their identity will not be revealed, the media's source of important information will dry up.
The tribunal is seeking criminal sanctions against The Irish Times over the publication of material. It has been bedevilled by leaks and may therefore find it difficult to show a sufficiently strong counterveiling public interest to trump that of the need to keep sources confidential.
We may yet be deprived of the opportunity to read Madam Editor's prison diaries.
Michael Kealey is a solicitor specialising in media law with William Fry, Solicitors