Whatever the issues at stake in Mr Justice Flood's tribunal of inquiry, it is a given that Independent Newspapers cannot hand over the documents which enabled it to publish a full account of the evidence of one witness, Mr James Gogarty. Yesterday, Mr Justice Flood said he was handing the matter over to the gardai. It may be that their inquiries will lead to proceedings against the newspaper group or against editors and journalists. Notwithstanding, the principle remains immutable that a newspaper's duty - ahead of the duty of disclosure - is to protect its sources.
Mr Justice Flood is well aware of the stance which the newspaper and its journalists are obliged to take. But it is easy to understand his dismay at the drip feed of information which has come into the public domain. It is difficult not to come to the conclusion that it is being done systematically with a view to hampering the work of the tribunal. The questions at issue before Judge Flood go to the very heart of public life. If there has been a canker of corruption at the centre of the planning process, this is the last chance to have it revealed. Successive inquiries by journalists and by gardai never got beyond the stage of suspicion. If a tribunal of inquiry, armed with the powers of the High Court, cannot unravel the truth then it will never be known.
The strategy behind the leaks, presumably, is to create a climate in which the evidence of certain witnesses may lose its value and to pre-empt information which may turn out to be significant. It is a thoroughly sinister development. The receipt of leaked information which is intended for this purpose must present editors and journalists with a dilemma. Their first instincts must be to print what comes to hand for it is a newspaper's function to put the latest intelligence into the public domain. But they are caught in a paradox if, in so doing, they jeopardise the likelihood of fuller information emerging. The Irish Times along with other newspapers was asked to give an undertaking that it would refrain from publishing any confidential information which may be made available to it. That undertaking could not be given for it is impossible to anticipate the circumstances which may arise, or the information which could come to hand. Not all journalists or editors would have put Mr Gogarty's affidavit into print. Had it come to the offices of The Irish Times it would very likely have been handled much as it was at Independent House although there would have been misgivings at putting a one-sided version of events into the public domain. It is an area, nonetheless, in which Independent newspapers should be especially sensitive. The Fitzwilton company, which shares a large number of directors with the Independent, could come into the frame of the Tribunal's inquiry because of the payment which it made to Mr Ray Burke. Nonetheless, most editors probably would have decided to publish, since Mr Justice Flood will not be influenced by anything which is not properly presented before him in evidence. It is not a question, as Mr Justice Flood put it, of considering the media to be above the law. It is a recognition that, on occasion in this jurisdiction, a newspaper may have to step outside the law - and to take the consequences of doing so. Ireland's jurisprudence has unhappily trailed behind many other European countries' in affording legal protection to journalistic privilege or to sources. In taking the stance which they have in this instance, Irish newspapers know they are on ground which is legally unsure. In many other EU states, the law is in favour of the media. And publishers, editors and journalists elsewhere would not have to face the hazards which are now strewn about the further reporting of these matters here.