No ruling yet on journalists' appeal

THE SUPREME Court may rule next month or in the autumn on the 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.

The questions relate to the source of an article about financial payments to former taoiseach Bertie Ahern.

The two-day appeal concluded before a five-judge Supreme Court last December, when judgment was reserved. Legislation requires that it be listed for review at regular intervals.

The Chief Justice, Mr Justice John Murray yesterday further listed the matter for July 31st, the last day of the existing law term.

Judgment may or may not be given on that date.

The article at the centre of the case, written by 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 also stated businessman David McKenna was among three or four persons contacted by the tribunal about payments totalling between €50,00 and € 100,000.

The tribunal claimed the article was based on a confidential letter sent by it to Mr McKenna and it initiated High Court proceedings when the journalists refused to answer questions from the tribunal relating to the source.

In October 2007, a three-judge High Court made an order requiring the journalists to answer questions but a stay on that order has continued pending the outcome of the Supreme Court appeal.

The High Court ruled The Irish Times's privilege against disclosure of sources was "overwhelmingly outweighed" by the "pressing social need" to preserve public confidence in the tribunal. The court also stressed its decision must be seen in the circumstances of the case where answers were unlikely to reveal the source.

If the answers would or could lead to source identification, the journalists’ privilege against disclosure could be invoked, the court said.

It was argued on behalf of Kennedy and Keena that the tribunal had failed to show any vital public interest justifying the order to answer questions about the source. The right of journalists to protect sources was a basic component of the right of free speech protected by article 10 of the European Convention on Human Rights, it was submitted. The journalists also argued their case was supported by the Constitution.

The tribunal has argued, while it is not in opposition to the press’s traditional role as watchdog, it was seeking to bring to light wrongdoing occurring within its terms of reference. The privilege over journalists’ sources was a weaker consideration, it said.

The tribunal has also submitted both journalists acted in “flagrant disregard” of their duties and obligations under article 10 in destroying a leaked document on which the article was based.

The Supreme Court was also told the outcome of the appeal would have an impact on all tribunals as an “enormous point of principle” for rights under the European convention was at stake.