Journalists win appeal on guarding of sources


IRISH TIMES JUDGMENT:THE SUPREME Court has unanimously allowed an appeal by Irish Timeseditor Geraldine Kennedy and public affairs correspondent Colm Keena against a High Court order requiring them to answer questions from the Mahon tribunal relating to the source of an article about financial payments to former taoiseach Bertie Ahern.

The five judge court yesterday found the High Court devalued journalistic privilege “so severely” in its decision it had, as a result, failed to strike the proper balance between the rights of the tribunal to protect its private investigative phase and the journalists to protect the apparently anonymous source of the information.

An order compelling the journalists to answer questions for the purpose of identifying their source could only be justified by “an overriding requirement in the public interest”, Mr Justice Nial Fennelly said.

While agreeing the destruction of the documents on which the article was based and which were at the core of the case was “reprehensible”, the issue was not whether that destruction was wrong but the narrower question, given the documents no longer existed, whether there was a logical link between their destruction and the High Court order.

“It does not appear to me there is,” he said.

Noting the High Court’s finding the apparent anonymity of the source weakened the journalists’ case for resisting the order, Mr Justice Fennelly said that anonymity must also weaken the tribunal’s case for obtaining such an order.

Where the source was anonymous, the benefit of the order was “at best speculative” and it was very difficult to discern any sufficiently clear benefit to the tribunal from any answers to the questions they wished to pose to justify the making of the order.

The article, written by Mr Keena and published in The Irish Timeson September 21st, 2006, revealed the tribunal was investigating payments to Bertie Ahern in 1993 when he was minister for finance and 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 initiated High Court proceedings when the journalists refused to answer questions relating to the source.

In October 2007, a three judge High Court made an order requiring the journalists to answer questions but that order was stayed pending the outcome of the Supreme Court appeal.

The High Court ruled the privilege against disclosure of sources was “overwhelmingly outweighed” by the “pressing social need” to preserve public confidence in the tribunal. It stressed its decision must be seen in the circumstances of the case where answers to the questions were unlikely to reveal the source.

Giving the Supreme Court’s judgment, Mr Justice Fennelly said the relevant sections of the Tribunal of Inquiry Act must be interpreted in a manner compatible with the State’s obligations under the European Convention on Human Rights Act 2003.

Any restrictions on freedom of expression generally must be justified by an “overriding requirement in the public interest” and Article 10.2 of the convention recognised preventing the disclosure of information received in confidence may potentially justify such a restriction.

In this case, the tribunal had power to inquire into the source of the leak of the McKenna letter and it was also clear the article involved a matter of public interest, allegations of payments to an important political figure, which a newspaper would ordinarily be entitled to print.

The High Court had correctly said the exercise of deciding between competing interests in a democratic society was reserved to courts and that the journalists had cast themselves as the adjudicators of the proper balance to be struck, he 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 could not shrink from their duty to penalise journalists who refuse to answer questions lawfully put to them, he added.

The judge also asked whether it can truly be said journalists as a unique class have the right to decide for themselves to withhold information from any public institution or court regardless of a compelling need, such as production of evidence of commission of serious crime. Such a case could arise and must be decided by the courts as no citizen has the right to claim immunity from the legal process.

He said the Supreme Court had to take account of the principles relating to freedom of expression laid down in the ECHR decision in the Goodwin case.

Applying those principles, he concluded the High Court adopted an erroneous approach to balancing the rights of the tribunal and the journalists and allowed the appeal. The Chief Justice, Mr Justice John Murray; Mr Justice Hugh Geoghegan, Ms Justice Fidelma Macken and Mr Justice Joseph Finnegan all agreed.