Tribunal opens case against 'Irish Times'

The Mahon tribunal has told the High Court it wants to "very effectively demonstrate" that it was not the source of information which led to a front page article in The Irish Timesdisclosing that Taoiseach Bertie Ahern received substantial cash payments from businessmen when he was minister for finance in 1993.

The only way to do that was by getting information from the editor of The Irish Times, Geraldine Kennedy, and Public Affairs Correspondent Colm Keena which might help the tribunal establish it was not the source of the information, Denis McDonald SC said.

Because both journalists had refused to provide any such information, the tribunal was asking the court to order them to do so, he said. The tribunal was no longer seeking an additional order compelling the journalists to produce the document relied upon for the article. This would be "futile" as they had confirmed the document had been destroyed.

Mr McDonald was opening proceedings by the tribunal against both journalists, which is being heard by a three judge divisional High Court, consisting of the President of the High Court, Mr Justice Richard Johnson, Mr Justice Peter Kelly and Mr Justice Iarfhlaith O'Neill.

The proceedings arise from an article in The Irish Timesof September 21st, 2006, written by Mr Keena and entitled: "Tribunal examines payments to Taoiseach". The tribunal claims the article was based on a letter sent by the tribunal to a businessman, David McKenna, which letter was marked "strictly private and confidential".

The article reported that the tribunal was investigating a number of payments to Mr Ahern around December 1993, including cash payments, and that Mr McKenna was one of three or four persons contacted by the tribunal about payments to Mr Ahern totalling between €50,000 and €100,000. It also stated the tribunal had been told the money was used to pay legal bills around that time.

When summoned before the tribunal on September 26th, both journalists refused to provide documents or answer questions which might identify the source of the information on which the article was based. Ms Kennedy said the letter in question had been destroyed.

Yesterday, Mr McDonald said the tribunal accepts the principle of freedom of expression and that the European Court of Human Rights has held that freedom of expression is fundamental to a democracy and extends to the protection of journalistic sources. The tribunal also accepted that Ms Kennedy and Mr Keena are journalists "of high repute and experience", he said.

However, at the kernel of this case was the tribunal's argument that freedom of expression is not absolute and that other rights come into play, including the right of the tribunal to conduct a private investigation.

The tribunal also had a right to its own reputation and, in particular, to defend itself against suggestions that it was responsible for the leaking of the document into the public domain. A third issue was confidentiality and, in that regard, this case was different from that where the Supreme Court had rejected claims by the tribunal of confidentiality over documents published by the Sunday Business Post, counsel said.

The document in this case was a confidential tribunal document, sent to Mr McKenna in circumstances where he was asked to maintain the privacy of its contents. The document was also related to the tribunal's private phase and had not come into the public domain. All of those were legitimate factors which must be weighed against the right to freedom of expression, counsel said. The balance of the case, he argued, lies with the tribunal.

The Irish Timeshad contended there was a public interest in publication but there was "undoubtedly a public interest" in maintaining the confidence of the public in tribunals of inquiry, counsel also submitted. Tribunals were set up by the Oireachtas to inquire into matters of urgent public importance and, in order to do so, they must have public confidence. The release of confidential information gathered in the tribunals' private stage undermined that public confidence and was detrimental to the tribunal's work.

In this case, the journalists knew the information was confidential and Mr Keena's evidence to the tribunal indicated he accepted that damage would be done to the tribunal by publication of the material, counsel said. Mr Keena had also said he believed the information was of "significant public interest".

The tribunal's action has an "extremely narrow focus" and does not entrench seriously on the right to freedom of expression or on the obligation of journalists to protect sources, counsel added. What was being sought was only "very limited interference" with freedom of expression.

The case was essentially about protecting and vindicating the reputation of the tribunal, which reputation was inextricably bound up with preserving the confidentiality of what happens in the private stage of the tribunal's proceedings, counsel said.

The tribunal was concerned that, since The Irish Timesarticle was published, there had been innumerable media articles suggesting the tribunal was responsible for the "leak" of information. The then tánaiste Michael McDowell and other public figures had made similar claims and the Taoiseach had been reported as complaining about "perfidious leaks" from the tribunal.

Mr McDonald said it could be inferred from The Irish Timessubmissions in the case that it too was suggesting the tribunal was the source and this was at variance with their refusal to disclose information which might identify the source.

Eoin McGonigal SC, for The Irish Times, said his client had never suggested the tribunal was the source and he did not recollect any such insinuation in its submissions. Mr McDonald maintained there was such a statement. The case continues today.