There can be no winner in the confrontation between the Mahon tribunal and the Sunday Business Post over, on the one hand, witness confidentiality and the authority of the tribunal and, on the other, the requirements of a free press.
Both have a shared interest in serving the public interest and in exposing corruption. Anything that deflects from those concerns, no matter how well intentioned, is likely to damage public confidence in the investigative process and the press.
The chairman of the tribunal, Judge Alan Mahon, yesterday asked the High Court to consider the cases of journalist, Mr Barry O'Kelly, of the Sunday Business Post and the managing director of Thomas Crosbie Holdings, Mr Anthony Dinan, who had failed to cooperate with the tribunal by identifying the source of confidential documents and by undertaking not to publish such material in future. Such behaviour, Judge Mahon insisted, undermined, obstructed and hindered his work. Those concerned now face possible jail sentences or substantial fines for contempt.
Sensitive material has been "leaked" from this tribunal over many years. As a consequence, journalists have been questioned; legal teams and their principals have been contacted; newspapers have been written to; and the Garda has been asked to investigate, but with little obvious effect. The latest material, released to Mr O'Kelly last October, concerned a property deal at Coolamber, Lucan, and the payment of donations to three named politicians. The documents had been circulated to interested parties by the tribunal. As on previous occasions, the "leak" was probably designed to embarrass or damage the tribunal while buttressing the positions of some of those appearing before it. The material may not have qualified as being of vital public interest. But punishing individuals for publishing it is unlikely to serve a useful purpose.
The National Newspapers of Ireland (NNI), representing 12 publications, recently urged the Minister for Justice, Mr McDowell, to introduce legislation conferring "qualified privilege" on journalists in such circumstances that would allow them to do their work without being faced by imprisonment or prosecution. Irish courts have traditionally ruled against journalists who refused to divulge their sources. But developments under the European Convention on Human Rights have broadened journalistic entitlements and new domestic legislation would bring much-needed clarity to the situation.
It is unfortunate that Judge Mahon has found it necessary to pursue this matter in the High Court. He obviously regards the development as extremely serious and has indicated the tribunal might not be able to function if media leaks interfere with witness confidentiality. The judge has a duty to protect the tribunal. And the press has a responsibility to uphold the public's right to know. There is a conflict but the journalist must be supported in the public interest.