The Irish Timesdestroyed documents relating to an article disclosing that financial payments had been made to Taoiseach Bertie Ahern when he was minister for finance in 1993 because it believed that was "the proper action" to take in order to preserve the source of that information, the High Court was told.
The President of the High Court, Mr Justice Richard Johnson, asked Eoin McGonigal SC, for Irish Times editor Geraldine Kennedy and Public Affairs Correspondent Colm Keena, how his clients could reconcile the destruction of documents with their stated support for the work of the tribunal.
Mr McGonigal said The Irish Timesbelieved that was the proper action to preserve the source. The destruction of the documents was not done with any intention to show disrespect to the High or Supreme Courts, he added.
When Mr Justice Johnson asked was there "any other possible interpretation" of the destruction of the documents, counsel said that was "a matter for the court". "Indeed it is," Mr Justice Johnson replied.
Earlier, Denis McDonald SC, for the tribunal, said the destruction of the documents was "wholly irresponsible" as it was carried out after the tribunal had made an order that The Irish Timesshould reveal the source of its information. If The Irish Timeshad a problem with the order, they could and should have challenged it in the courts.
By destroying the documents, The Irish Timeshad "usurped" the function of the courts. Journalists were not above the law but here they had acted as judge, jury and executioner in their own case, he said.
Mr Justice Johnson said that if the documents were available, the court could have read them in order to reach a balanced conclusion on whether the tribunal was entitled to an order requiring The Irish Times to reveal the source of its information. In destroying the documents, the defendants had taken on the functions of the High and Supreme Courts, he said.
Earlier, opening The Irish Timesdefence of the proceedings brought against it by the tribunal, Mr McGonigal read a statement of clarification of the newspaper's position following the raising of several issues in the case.
The statement said The Irish Timeshad received "unsolicited and anonymously" a document referred to in its article of September 21st, 2006, giving rise to the present proceedings. It published that story "in the public interest and its sole concern has been and continues to be to protect journalistic sources".
The Irish Timeshas never given any indication as to the characteristic of this document and did not say whether it was or appeared to be a draft, an original or a copy of a draft or original letter from the tribunal, signed or unsigned, or whether it was or appeared to be a retained office copy or a copy of a retained office copy.
In publishing the article, in giving evidence before the tribunal and in defending the proceedings, The Irish Timeshad not suggested or inferred and did not now suggest or infer "that any document it received did or could have emanated, or leaked, from the tribunal, its officers or employees, or the addressee of the document or his solicitors or agents".
No inference should be taken by the tribunal or addressee from anything written, given in evidence, orally or by affidavit, or contained in oral or written submissions to the tribunal or High Court as to the source or origins of the document received by The Irish Times, the statement said.
Any comment or suggestion made by a third party unconnected with The Irish Timesas to the source of the document was "surmise" of the third party alone and had no basis in fact or connection with The Irish Times.
" The Irish Timeshas always and continues to support the work of the tribunal and the principles espoused in the terms of reference of the tribunal," it concluded.
Opening his submissions, Mr McGonigal argued the tribunal has no jurisdiction to direct the journalists to answer questions about the source of the article and said the court action was an abuse of process and misconceived. The documents in question were not confidential and the tribunal could not assert confidentiality over them or rely on alleged breaches of the rights of third parties.
The orders sought involved a disproportionate interference with the defendants' rights to pursue their chosen careers as journalists and were an unjustified attempt to restrain the right to freedom of expression, he submitted. Such restraints were not necessary in a democratic society and not valid under the Constitution or European Convention on Human Rights, he submitted.
The case continues today.
