High Court judgment:The Mahon tribunal has a right to impose and enforce confidentiality over material assembled in its private investigative phase, including material that was the subject of an unauthorised "leak", the High Court ruled. That confidentiality affected all persons who come into the possession of such material.
In this case, there was no doubt that the material which formed the basis of the Irish Timesarticle was "leaked" and the court was satisfied the tribunal did not in any way authorise that leaking.
The tribunal's right to enforce confidentiality over it was, therefore, not lost by virtue of the leaking.
The fact that it was "leaked" distinguished it from material authorised by the tribunal to be released and circulated, as, for example, in the form of briefs circulated in advance of public hearing, the court stressed.
The tribunal, the court found, had the necessary legal power to conduct an inquiry into the source of the leaking of information to The Irish Times, to summons the defendants to attend before it and to produce documents.
The court was satisfied the documents in question, a tribunal letter to David McKenna and the envelope in which it came, were clearly marked as confidential material and had the attributes of confidentiality. The tribunal was entitled to impose an obligation of confidentiality in relation to their recipient and anyone else who came into possession of them.
The functioning of the private investigative stage of an inquiry would be "grossly impaired" without a confidentiality which could be enforced. The assurance of confidentiality was essential in gaining the co-operation of the public and in having information and documents volunteered to the tribunal which were relevant to and of assistance in its inquiries.
The court also ruled that the "deliberate decision" of The Irish Timesto destroy the documents, after being ordered to produce them to the tribunal and having taken legal advice, was "an astounding and flagrant disregard of the rule of law".
"Great weight" must be given to the decision to destroy the documents when striking the correct balance between the rights and interests at issue here, the court said. The starting point of that exercise was the realisation that, in a democratic society, "freedom of expression was of the highest order of importance".
The non-disclosure of journalists' sources enjoyed unquestioned acceptance here and could only be interfered with where the requirements of Article 10.2 of the European Convention on Human Rights were met. These were that the proposed interference was (1) "prescribed by law" and (2) "necessary in a democratic society" in the interests, in this case, of preventing the disclosure of information received in confidence.
The tribunal's legal right to impose and seek to enforce confidentiality over the information provided "a sound legal basis" to justify the interference sought.
On the second issue, it was of direct relevance that the information was received from an anonymous source and the documents had been destroyed. An "essential step" in balancing the rights was whether the answer to the questions could lead to the source being identified.
In relation to anonymous communications, the journalistic privilege against non-disclosure should not be invoked at all or given only the slightest weight, the court said.
If a journalist could not identify the source, it was "nonsense" to say there was a professional obligation to protect it from disclosure.
However, if the answers to the questions could identify or tend to identify the source, the privilege against non-disclosure could be invoked.
In this case, "very slight" weight should be attached to the defendants' privilege against disclosure of their sources, but establishing that the tribunal was not the source of the leak, which answers to the questions could assist in doing, was a "legitimate aim and a pressing social need".
The court also noted general acceptance of a "very great public interest" in the cultivation and protection of journalistic sources of information as an essential feature of a free and democratic press. No reported case had been opened where the European Court of Human Rights had upheld any order requiring disclosure of a journalistic source and the ECHR's approach was particularly evident in cases involving publications relating to political matters.
Where a journalist asserted the right not to disclose sources, this was invariably not the only right or interest in issue and, as in this case, the rights and interests of other persons or institutions had also to be considered.
In a democratic society based on the rule of law, that was an exercise reserved to courts established by law for that purpose.
In this case, the defendants had cast themselves as the adjudicators of the proper balance to be struck between the rights and interests of all concerned and then proceeded to decide the issue summarily in their own favour, without any consideration of the rights of others.
