Court upholds Mahon appeal

The Supreme Court has upheld an appeal by Irish Timeseditor Geraldine Kennedy and public affairs correspondent Colm Keena against a court order requiring them to answer questions from the Mahon tribunal about the source of an article about former taoiseach Bertie Ahern.

The court said the High Court had erred in the exercise of balancing the rights of journalists not to disclose their sources against the need of the tribunal to investigate the source of leaks.

This had occurred because it had attached “great weight” to the “reprehensible” conduct of the two journalists in destroying documents on which the article was based.

Judgment was given by Mr Justice Nial Fennelly and assented to by the other members of a five-judge court. The issue of costs will be decided in the autumn.

The decision was welcomed by the National Union of Journalists. Irish Secretary Séamus Dooley described the decision as a “victory for press freedom, for journalism and for common sense”.

In his judgment, Mr Justice Fennelly said he found it very difficult to discern any sufficiently clear benefit to the tribunal from any answers to the questions they wished to ask the two journalists that would justify making the order.

He said the High Court was perfectly correct to hold that the tribunal had the power to conduct an inquiry into the source of leaks. It was equally clear that the information on which the article was based had the character of confidential information.

“The tribunal is right to investigate unauthorised disclosure of such information and the courts must support its efforts,” the judgment stated.

However, it was also clear, and had never been disputed by the tribunal, that the information was a matter of public interest which a newspaper would, in the ordinary way, be entitled to print.

The key issue was whether the High Court was correct in ordering the two journalists to appear before the tribunal and answer questions about the source and present whereabouts of the document on which the article was based.

“The answer to that question depends on whether the High Court was correct in the way in which it balanced the right and interest of the tribunal in seeking to uncover the source of the unauthorised disclosure and the interests of the appellants in protecting their source.”

Mr Justice Fennelly said the unilateral decision of a journalist to destroy evidence with intent to deprive the courts of jurisdiction was, as the High Court had held, designed to subvert the rule of law. “The courts cannot shirk their duty to penalise journalists who refuse to answer questions legitimately and lawfully put to them.”

He cited the Goodwin case before the European Court of Human Rights, which says that an order compelling journalists to disclose their sources can only be justified by an “overriding requirement in the public interest”.

“Once the High Court had devalued the journalistic privilege so severely, the balance was clearly not struck.”

The appeal was heard by the Supreme Court over two days last December, after which judgment was reserved. The judges who heard the case were: the Chief Justice, Mr Justice John Murray; Mr Justice Hugh Geoghegan; Mr Justice Fennelly; Mrs Justice Fidelma Macken; and Mr Justice Joseph Finnegan.

The article at the centre of the case, written by Mr Keena and published in The Irish Timeson September 21st, 2006, revealed the tribunal was investigating payments to Mr Ahern in 1993 when he was minister for finance.

It stated businessman David McKenna was among three or four persons contacted by the tribunal about payments totalling between €50,000 and €100,000.

Both journalists were summonsed to appear before the tribunal, which claimed it was based on a confidential letter it had sent to Mr McKenna. They refused to answer questions about the source of the article and Ms Kennedy told the tribunal the documents had been destroyed.

The tribunal then began High Court proceedings designed to compel the journalists to answer questions relating to the source of the article.

In October 2007, a three-man High Court made an order requiring the journalists to answer questions but put a stay on the order pending an appeal to the Supreme Court.

The High Court ruled that The Irish Timesprivilege against disclosure of sources was "overwhelmingly outweighed" by the "pressing social need" to preserve public confidence in the tribunal. However, it also ruled that if the answers given by the journalists at the tribunal could lead to the identification of the source, their privilege could be invoked.

In the Supreme Court, lawyers for the two journalists argued that the High Court order was “an impermissible restriction” on the right to freedom of expression. The European Court of Human Rights had ruled that the right not to reveal sources could only be overridden in exceptional circumstances, which were not present in this case.

Lawyers for the tribunal accused the two journalists of a “flagrant disregard” of their duties and obligations under European law by their destruction of the leaked document.