Analysis: Matters of major public interest have been raised, writes Stephen Collins, Political Editor.
The controversy surrounding the decision of the Garda to arrest a journalist for writing a newspaper report raises some fundamental questions about the relationship between the media and the law in Ireland.
Claims that the Minister for Justice, Michael McDowell, who also happens to be the most controversial and outspoken figure in the Government, had a direct involvement in the case have heightened the drama, but may have actually obscured some of the basic issues involved.
At its heart, the case reveals the gulf in the approach of the law and journalism to matters of major public interest. The instinct of a journalist and a newspaper is to publish information once they are convinced it is accurate. If the information involved is supposed to be secret, for whatever reason, the desire to publish is even stronger because it is no longer a routine news story but a "scoop."
The British newspaper proprietor, Lord Northcliff, who is credited with inventing the popular newspaper at the end of the 19th century, famously remarked: "News is something that somebody somewhere doesn't want published; everything else is public relations." The ambition of every journalist is to get that elusive hot news story before everybody else and get it into print.
Yet there are limits to what can, or even should, be published. In Ireland it is against the law to publish the details of family law cases and that law is observed by the media. It is also contempt of court to publish incriminating details arising from a Garda investigation into a criminal case, once a person has been charged. That practice is designed to preserve the right of an accused to a fair trial.
In other countries media reporting of criminal cases is very different, but in Ireland the media generally adheres to the practice that protects the right of an accused person to be regarded innocent until proved guilty by a court.
However, the media coverage of tribunals has not followed the conventions applied to court cases. Statements by witnesses have formed the basis of a number of media reports over the past 10 years. The Mahon tribunal has attempted to clamp down on such reporting and the Supreme Court is currently deliberating on a case which could determine future reporting of tribunals.
The current controversy over the Evening Herald's report about the inquiry into the Dean Lyons case arises from the Commission of Investigation Act of 2004, which set up a new structure to replace the extremely costly judicial tribunals. Under Section 37 and Section 50 of that Act, it is an offence for a person who has received material from a commission of investigation to divulge such material in any way, in case it undermines the integrity of the investigation. It is designed to preserve the confidentiality of people named in the draft report in case they wish to challenge its contents.
The current Garda investigation arose from the publication of what are alleged to be elements of the draft report into the Dean Lyons case by the Evening Herald on August 10th last year. The draft report by George Birmingham SC, the sole member of the commission, had been presented to the Department of Justice but was not due for publication for a further three weeks.
"On the morning of 10 August 2006, my department's press office received a phone call from a journalist in the Evening Herald indicating that he had a copy of the report and seeking confirmation that the report was finalised," said Mr McDowell in a statement last night. "On the advice of a senior official, the department's press office drew the attention of the journalist to section 37 and section 50 of the Commission of Investigation Act 2004 as there was a possibility that the Evening Herald might be committing an offence as being an accomplice to a person contravening section 37 in publishing any material. A number of articles purporting to include quotes from Mr Birmingham's report did appear in the Evening Herald on 10 August," said Mr McDowell.
The arrest of the journalist who wrote the newspaper story and a Garda sergeant prompts the question as to whether the law is designed to punish the journalist as well as the leaker. That will only become clear as the case develops.
There is also the question why the journalist who wrote the story, rather than the newspaper that published it, should be prosecuted.
On the political front, the focus is on the role of Mr McDowell. In the Dáil yesterday, he strenuously denied Opposition claims that he was directly involved in the decision to ask the Garda to pursue the case.
"The secretary general of my department decided to make a formal complaint seeking an investigation by the Garda Síochána into the matter. He advised me by phone of his intention to do this. I was on a family holiday at the time. He made it clear to me that his decision was not being submitted to me for any form of approval or consent," said the Tánaiste.
It is impossible to say how the issues at the heart of the case will be resolved, but on the political front, it is yet another fire for the Tánaiste to fight.