In the confrontation between the Mahon tribunal and The Irish Times, the arguments of both sides share striking similarities, writes NUIG media lawyer Marie McGonagle
The path from the Mahon (formerly Flood) tribunal to the courts is by now a well-trodden one. Time and again individuals called before the tribunal, and the tribunal itself, have made their way to the courts to challenge or uphold procedures or decisions. The debacle involving Geraldine Kennedy, editor of this newspaper, and Colm Keena, its public affairs correspondent, is the latest in a long line of such outings.
On Tuesday of this week, the High Court made an order requiring the editor and journalist to attend before the tribunal and to answer all questions to which the tribunal may require answers in relation to the source of a letter and a reply to it that they had received, unsolicited and anonymously, concerning payments to the Taoiseach, Bertie Ahern, when he was minister for finance.
The letter, clearly marked confidential, had formed part of the private phase of the tribunal's investigations. There was no point in the court ordering the journalists to produce the letters, however, since they had already destroyed them - a matter to which the court took grave exception.
The case before the court raised very serious issues both in relation to the workings of the tribunal itself and the role of journalists. On the one hand there was the danger that the work of a tribunal, established by parliament in the public interest, could be undermined.
On the other, there was the unthinkable prospect of respected journalists with a leading newspaper facing prison sentences for protecting their sources, a sine qua non in a modern democracy.
The court, therefore, was presented with two compelling aspects of the public interest, pitted against each other, and had the difficult task of weighing each in the balance.
The judgment of the three-judge court - itself a rarity and an indication of the seriousness of the issues at stake - sets out and addresses in considerable detail and depth the competing claims of the parties to uphold and serve, in their own domains and roles, the particularly complex and problematic notion of the "public interest".
In doing so, the judges bring some clarity to a number of aspects of the power and functions of tribunals. They also recite the high standards of freedom of expression and protection of journalists' sources in Article 10 of the European Convention on Human Rights (ECHR).
The main concern of the tribunal in seeking the intervention of the court was essentially to prove to the public that neither it, nor any of its personnel, had been the source of the leak. In the private investigative phase of the tribunal's work, which was expressly provided for in Dáil resolutions, there was, it was argued, and the court agreed, a strong public interest in the maintenance of confidentiality.
A perception among the public that confidential material could be leaked by the tribunal would be very damaging. The tribunal, therefore, had an interest in ensuring that confidential material was not disclosed.
Likewise, the journalists had an interest in ensuring that the identity of their source was not disclosed. Like the tribunal, they, too, would be hampered in their capacity to do their job, a lack of public confidence in them would result and co-operation from the public would diminish.
The arguments, perceived benefits and detriments on both sides bear striking similarities to each other. Indeed, there was a degree of acceptance of each other's role and contribution to the public interest.
The action of the journalists in destroying the documents, however, weighed heavily with the judges. The journalists defied an order of the tribunal (not a court) to furnish the documents and instead destroyed them. The alternative from a journalist's point of view might have been to retain the letters, refuse to hand them over to the tribunal and subsequently refuse to obey a likely order from the High Court to do so.
At that point they would have been in contempt of court. To hand over the documents, even if they were anonymous, ran the risk of the source being identified, which journalists could and would not take.
In the event, they incurred the wrath of the High Court, which described their behaviour among other things as "an astounding and flagrant disregard of the rule of law" and "anathema to the rule of law and an affront to the democratic order".
"If tolerated," the court said, "it is the surest way to anarchy."
The language used could scarcely have been stronger in respect of an act that amounted to a deliberate breach of an order not of a court of law but of a fact-finding body (albeit one established by parliament under legislation), and an act that the journalists viewed as being in the public interest.
Although so critical of the journalists' destruction of the documents, the judges looked beyond their conduct to the text and case law of Article 10 of the European Convention. In so doing they noted, as the European Court of Human Rights has done on many occasions, the "critical importance of a free press as an essential organ in a democratic society" and that an "essential feature of the operation of a free press is the availability of sources of information", without whom journalists "will be unable to keep society informed . . ."
"Thus," the judges said, "there is a very great public interest in the cultivation of and protection of journalistic sources of information as an essential feature of a free and effective press." Besides, there was no reported case of the European Court upholding a decision of a domestic court (never mind a tribunal) ordering the disclosure of a journalistic source.
In an even more important statement for journalists, and one that represents a break with the tradition of Irish law and an embracing instead of the ECHR, the judgment expressly recognises the right of journalists not to reveal their sources, when it states that "journalists should have little to fear and certainly no grounds for thinking that their right not to reveal sources does not or would not be given just consideration and vindicated where appropriate".
There is, therefore, something for everyone in this judgment. The decision, however, went in favour of the tribunal and Kennedy and Keena were ordered to appear before it.
The court has censured the journalists for destroying the documents but the practical question at the end of the day remains: how can the fact that the tribunal was not the source of the leak be established by ordering the journalists to answer questions about a source who was anonymous?
The High Court judgment contains a very clear statement: "We are satisfied on the evidence that the tribunal did not in any way authorise the release or 'leaking' of this material."
This may be the strongest endorsement and vindication the tribunal can expect in the circumstances and it raises the question as to whether the answers of the journalists are really "necessary".
In the absence of the documents, rightly or wrongly destroyed, all that the journalists have to rely on, even if minded to answer the tribunal's questions, is their memory and, as the tribunal already knows, memory can be a very delicate thing.
The central issue of the public interest might best be served now by drawing a line under the court judgment.
Marie McGonagle is head of the law school and director of the LL.M. in public law at NUI, Galway. She specialises in media and communications law