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A cold, calculated decision to step outside the law

The Ahern story had to be published; and there was a duty to protect sources

Colm Keena’s story that eventually led to the resignation of taoiseach Bertie Ahern was served up at the weekly political conference in the editor’s office in The Irish Times on Tuesday, September 19th, 2006. The news desk had told Keena, the public affairs correspondent who would not normally attend this conference, to go up and present it. He did.

He said he had received documents from an anonymous source – note the plural – that Ahern had received money from businessman David McKenna in or around December 1993 while he was minister for finance and the Mahon tribunal was investigating this and other payments to the taoiseach.

There was no question of a rush to publication because there had to be a rigorous verification process for such a serious story. It might be forgotten now but Ahern was then the most popular taoiseach in modern times and was on his way to winning three general elections, matching the electoral success of the founder of Fianna Fáil, Éamon de Valera. He was heir to Charles Haughey, and with Keena’s story he would be set alongside Haughey, Ray Burke and Pádraig Flynn in taking advantage of political office to get money.

The story stacked up for the following Thursday’s paper. It was presented as a “strip” on the front page. The documents were corroborated with other information.


Mark of authority

The only question arising from our legal adviser, Andrew O'Rorke of Hayes Solicitors, was whether it was wise to state that the story was based on documents "seen by The Irish Times". There had been so many leaks from tribunals, however, that this story needed the mark of authority about it. That was an editorial call.

The taoiseach denied Colm Keena’s story the following day, but only sort of. He was quoted as saying “it was off the wall”.

McKenna sent a letter to The Irish Times threatening legal proceedings. There was a potential defamation case on the cards.

The long-sitting Mahon tribunal sent a warning letter to The Irish Times about breaching the confidentiality of tribunals. It claimed the publication of this material was "in breach of an injunction granted by the Supreme Court" on October 7th, 2005.

The focus, at this point, was on how to defend a potential defamation action rather than what was seen as an obligatory slap on the wrist from the Mahon tribunal. It was the only judgment call to be made on Thursday, September 21st, the day of publication.

The tribunal made an order the following Monday, September 25th, requiring Keena and me to produce “all documents which comprised the communication” which led to the publication of the story.

After meeting our legal advisers and taking all issues into consideration I decided the documents had to be destroyed in order to protect journalistic sources. I instructed Keena to do so. He agreed with the decision. It was taken against legal advice. The tribunal was informed by letter that day that The Irish Times could not comply with its order as the material sought had been destroyed.

The decision to destroy the documents was not made in some hot flush of panic by a woman editor. It was a cold, calculated, deliberate decision weighing up the magnitude of Keena’s story. It was a matter of legitimate public interest that the taoiseach of the day had received money from a businessman while he was minister for finance in 1993. There was a strong possibility that the matter was outside the tribunal’s terms of reference since the payments did not relate to planning. The story might never enter the public domain.

It had to be published. And, in so doing, there was a duty to protect journalistic sources in a democratic society – even at the cost of going to jail.

The experience of Peter Preston, former editor of the Guardian, in the Sarah Tisdall case informed that decision to destroy documents. That newspaper received a "secret" British ministry of defence document from an anonymous source in 1983. The British government wanted it back and invoked daily escalating fines against the Guardian to get it. To put it simply, after many legal battles, the editor handed it over. The source was anonymous and, he presumed, had looked after himself. The document was sourced to a specific photocopier. Tisdall, a 24-year-old foreign office clerk, was arrested. She pleaded guilty, was sentenced to six months in jail and served four months.

The tribunal served summonses on Keena and me to appear before it on Friday, September 29th. We could not answer any questions that would give any assistance in identifying the source of the anonymous communication. The tribunal subsequently sought orders from the High Court compelling us to answer all questions. The rest is history – until now.

High Court judgment

The High Court sat as a three- man divisional court and delivered its judgment on October 23rd, 2007. The tribunal won its case; and Keena and Kennedy lost. The court was extremely critical of the deliberate destruction of the documents: “In so doing the defendants cast themselves as the adjudicators of the proper balance to be struck between the rights and interests of all concerned.”

The court condemned the action in the following words: “It need hardly be said that such a manner of proceeding is anathema to the rule of law and an affront to democratic order. If tolerated it is the surest way to anarchy.”

The Irish Times decided to appeal the case. The Supreme Court in its judgment, delivered on July 31st, 2009, held that the High Court had not correctly struck the balance between the journalistic privilege derived from the right to freedom of expression and the public interest of the tribunal in tracing the source of the leak.

This was an important victory and it should be acknowledged that only a newspaper such as The Irish Times, owned by a trust, would spend money on fighting for such a principle. The journalistic right to protect sources was – and is – enshrined in the Constitution for the first time.

The Supreme Court, in its final judgment in Mahon tribunal v Keena & anor on November 26th, 2009, decided that the journalists' behaviour was such as to deprive them of the normal expectation that the costs would follow the victor. The Irish Times was ordered to pay the tribunal's High Court and Supreme Court costs. The tribunal has claimed about €380,000.

It was a Pyrrhic victory. The principle of journalistic privilege was established but it came at such a high price that it would have a chilling effect on journalism. The right might never be used. So what, if anything, could be done?

To the eternal credit of the Irish Times Trust and the board of the Irish Times Ltd, it was agreed to pursue the principle further. In May 2010, the year before my retirement as editor, we complained to the European Court of Human Rights (ECHR) that the imposition of costs was a breach of our rights and of freedom of expression covering protection of sources.

The case was taken under article 10 of the European Convention on Human Rights. This provides the right to freedom of expression and information, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”. This right includes the freedom to hold opinions and to receive and import information and ideas.

The ECHR invited the two parties, the State and Keena and Kennedy, to attempt to reach a “friendly settlement” in the case but it came to nothing in early 2013.

Majority decision

The court sat and deliberated on the papers in the case on September 30th, 2014. A majority of the seven judges decided against Keena and Kennedy. It is not known whether there was a big or a small majority. One Irish judge, Ann Power-Forde, sat on the case.

In summary, the court found the order for costs in the circumstances of the case could have no impact on public-interest journalists who vehemently protect their sources yet recognise and respect the rule of law. “This complaint is manifestly ill- founded and must be rejected.”

This is a disappointing outcome. When I took the decision to destroy the documents I was conscious I could damage the authority of The Irish Times by going outside the rule of law to protect sources. This action led to a heated debate among colleagues in the newspaper. There was no backlash from readers.

I believed then, and know now, that all of the Mahon tribunal’s correspondence had different and distinguishing security codes. If the documents were handed over there was no guarantee we could protect sources.

As we have seen again in recent times, the protection of whistleblowers is at the very core of journalism in a functioning democracy. And I still don’t know how the Ahern story could be published if the journalist had to seek a judge’s permission to do so.

Geraldine Kennedy was editor of The Irish Times from 2002 to 2011