Supreme Court to rule on Irish Times case by end April

The Supreme Court will rule before the end of next month 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 relating 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 and was listed for mention today.

The Chief Justice, Mr Justice John Murray, said judgment would be given on or before April 30th.

Written by Mr Keena and published in the Irish Timeson September 21st 2006, the article at the centre of the proceedings disclosed 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 totaling between €50,000 and €100,000.

The tribunal claimed the article was based on a confidential letter sent by it to Mr McKenna and took 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 staywas put on that order pending the outcome of the Supreme Court appeal.

The High Court ruled the Irish Timesprivilege against disclosure of sources was "overwhelmingly outweighed" by the "pressing social need" to preserve public confidence in the tribunal. The court stressed its decision must be seen in the circumstances of the case where answers to the questions 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.

During the appeal hearing, it was argued by Donal O’Donnell SC, for Ms Kennedy and Mr Keena, that the tribunal had failed to show any vital public interest justifying the order requiring them to answer questions about the source of the article.

The tribunal had demonstrated a “skewed attitude” to the public interest which did not override the right of journalists to protect sources, a basic component of the right of free speech protected by Article 10 of the European Convention on Human Rights (ECHR), the court was told.

The journalists’ case was also supported “in spades” by the protection in Article 40 of the Constitution of the role of the press in educating public opinion, it was submitted. The article was “at the very heart of the education of public opinion.”

In submissions for the tribunal, Michael Collins SC said there was a clear public interest in ensuring wrongdoing was brought to light but, in this case, the tribunal was not in opposition to the press’ traditional role as watchdog.

The tribunal was seeking to bring to light wrongdoing occurring within its terms of reference and journalist’s privilege over sources was therefore a weaker consideration. He argued 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.

Mr Collins said the tribunal was coming towards the end of its work but the court should not decide the issue on the basis of its impact on this tribunal alone. The matter would have an impact on all tribunals and at stake was an enormous point of principle for rights under the ECHR, he added.