The Supreme Court has reserved judgment in the appeal taken by Irish Timeseditor Geraldine Kennedy and public affairs correspondent Colm Keena against a High Court order requiring them to answer questions at the Planning tribunal about a leaked document.
The tribunal wants to ask questions relating to the source of an article about financial payments to former taoiseach Bertie Ahern when he was minister for finance in 1993.
The case concluded this afternoon after two days and the decision of the five-judge court is expected in the New Year.
Earlier, lawyers for the tribunal accused Ms Kennedy and Mr Keena of a "flagrant disregard" of their duties and obligations under European law by their destruction of the leaked document.
Michael Collins SC, for the tribunal, said that because the journalists had driven "a coach and four" through the rights of others under the European Convention on Human Rights (ECHR) they could hardly expect the court to attach the same weight to their interests. By destroying the documents, the journalists had purported to put themselves above the law.
Counsel said there was a clear public interest in ensuring that wrongdoing was brought to light. However, in this case, the tribunal was not in opposition to the press in its traditional role as watchdog. The tribunal was also seeking to bring to light wrongdoing occurring within its terms of reference. It was not a private enterprise but one set up by the Oireachtas under the 1921 Tribunals of Inquiry Act.
The interest of journalistic privilege was therefore a weaker consideration in this case because it came up against the tribunal, which was designed not to hide wrongdoing but to illuminate it using forensic investigation techniques and orders from the High Court.
The justification used by Ms Kennedy for disclosing the material, that it may not have fallen within the terms of reference of the tribunal, was an untenable position, counsel argued. It was very hard to see how payments made to Mr Ahern could not be regarded as anything other than relevant to the tribunal's inquiries.
The countervailing interest asserted by the journalists in this case was weak, he claimed. Because the source of the information was anonymous, there was no relationship of confidentiality and trust between the journalist and the source.
The journalist had given no promise of confidentiality and if compelled to answer questions at the tribunal, no damage would be done to any relationship of confidence between the parties.
Journalists were subject to the law like anyone else and could not be released from their obligations to comply with the law. In this case, the journalist came into possession of information that he knew to be confidential but chose to publish it, in breach of his obligations.
Article 10 of the ECHR asserted the right to freedom of expression but made this subject to duties and obligations, counsel pointed out. The question for the court to consider in this case was whether the journalists were exercising their rights consistent with the duties and obligations due to the rights of others.
Mr Collins accused the journalists of a "flagrant disregard" of these duties and obligations by the fact that they had destroyed the documents supplied by the anonymous source. By doing so, he claimed, they were happy to subvert and pre-empt the decision of the courts.
He rejected an assertion by lawyers for The Irish Timesthat the High Court was misguided in its criticism of the destruction of the documents. The court had to balance countervailing rights and in a situation where the journalists had driven "a coach and four" through the rights of others they could hardly expect the court to attach the same weight to their interest. By destroying the documents, the journalists had purported to put themselves above the law.
The Chief Justice, Mr Justice John L Murray, asked counsel what effect it would have on the tribunal's work if the Supreme Court declined to give the inquiry the order it was seeking.
Mr Collins said the tribunal was coming towards the end and had finished taking evidence. If the court failed to give the order, that would leave one issue among others unresolved.
However, he said, the court should not decide the issue on the basis of its impact on the Planning tribunal alone. Just as The Irish Timeswas asserting an important point of principle for all journalists, the tribunal was arguing that the decision would have an impact on all tribunals. The rights of neither party could be diminished by the passage of time and what was at stake was an enormous point of principle for rights under the ECHR.
Mr Collins said a number of factors weighed on the tribunal's side of the argument. It was obviously of vital public interest that the mechanism of tribunal inquiry worked as efficiently as possible.
The tribunals were set up by the Oireachtas specifically for the purpose of investigating matters which are deemed by the Oireachtas to be matters of urgent public importance. The courts had already held in a previous judgment that the tribunal needed to ensure the purity and integrity of public life, without which a successful democracy wouldn't be possible.
This judgment was a powerful support and authority for the importance of the tribunal working efficiently, Mr Collins said. An essential and important feature of the tribunal's operations was that it could work in private and that it could be sure that the obligations of confidentiality it imposed on people would be respected, and that these rights were not violated, whether by well-meaning journalists or malicious and mean-minded people.
Where a journalist obtained information that he knew to be confidential he was under a prima facie obligation to respect that confidentiality, Mr Collins argued. Whether this obligation was trumped by the obligation to protect sources was a matter for article 10 of the European Convention on Human Rights.
Counsel said there was a clear public interest for the public to know that for all tribunals, the system was such that when people gave information in private they knew that this confidentiality will be respected, so that tribunals could do the work they are supposed to do.
There was a much wider "circle of importance" attaching to the tribunal's work than merely encouraging people to come and co-operate with the tribunal. It also had to do with the tribunal's investigations and its contacts with people who themselves may not be the subject of any allegations.
