Irish Times versus a tribunal and the judiciary

The Irish Times and its editor, Geraldine Kennedy, have come into direct conflict with the judiciary in breaching a court order and in destroying a document that the newspaper was legally obliged to produce to a tribunal. By Vincent Browne and Colin Murphy

Geraldine Kennedy is facing the most serious confrontation with the courts that any editor has had to face in Ireland. While editors have been charged with contempt of court for breaching court orders before, never previously has an editor deliberately destroyed documents having been ordered to produce them to a tribunal established by Dáil Éireann.

The courts are likely to view this as among the most serious of contempts and a direct challenge to their authority. It will be alleged that here is an editor unilaterally substituting her judgement on where the balance of justice lies between the protection of journalists' sources and the protection of the integrity of the procedures of a tribunal established by the Dáil. It is not that the interests of a tribunal's integrity automatically supersede the interest in protecting journalists' sources – rather it is the presumption in an editor taking a decision that is constitutionally reserved for the judiciary.

The law on protection of journalists' sources is unclear. The late Brian Walsh, a distinguished judge of the Supreme Court for nearly 30 years, held in the Court of Criminal Appeal in 1974: "Journalists or reporters are not any more constitutionally or legally immune than other citizens from disclosing information received in confidence." However, a judgement of the European Court of Human Rights in 1996 held that the protection of journalistic sources was one of the basic conditions for press freedom and that an order for the disclosure of sources was not compatible with the European Convention of Human Rights, unless justified by an overriding public interest.

But what seems clear is that only the courts should decide whether an overriding public interest applies, not an editor or a journalist.

It seems, therefore, likely that, under Irish and European law, the Irish Times and Geraldine Kennedy, along with journalist Colm Keena, are in some difficulty. The issue is to come before the planning tribunal on Tuesday 10 October and then it is likely to be referred to the High Court.

The following is a transcript of Geraldine's Kennedy's statement and letter to the Mahon tribunal

Geraldine Kennedy was questioned by Des O'Neill, senior counsel for the tribunal, and occasionally by the tribunal chairman, Alan Mahon.

Geraldine Kennedy: I took the view that it was a matter of very legitimate public interest that the Taoiseach of the day had received monies from businessmen while he was Minister for Finance in 1993. I took legal advice as we normally do on any contentious story every night. I decided it was my duty as editor to publish the story, but I regret any offence caused to the tribunal...

Des O'Neill: As Mr Keena has given us to understand, he had some material which allowed him to write the story, but he has not given any information to the tribunal as to what that material is or was. But it is apparent, I think, from your statement, that you yourself looked at the material, isn't that so?

GK: Yes I did. I think that the story of this nature was so very serious that I had a hands-on involvement in it and I did get copies of the material from Colm Keena.

DO'N: And I think we also know from your statement that those copies were destroyed by you, isn't that so

GK: That's correct...

DO'N: I am asking you to provide details to the tribunal of the documentation which you saw sometime between the 19 September and its destruction by you, apparently on 25 September, which allowed for the letter to be written. Are you prepared to do that?

GK: You can continue questioning me if you wish, but I wouldn't be taking you any further than Mr Keena did.

The day the Irish Times published the story, the tribunal's solicitor, Marcelle Gribbin, wrote to Geraldine Kennedy saying she had written to her previously on 7 October 2005, drawing her attetion to the interlocutory injunction granted by the Supreme Court which prohibited the Sunday Business Post and "all other persons having knowledge of the granting of the order" from publishing "confidential" tribunal documents. This letter, and Geraldine Kennedy's response, were quoted at the tribunal.

Geraldine Kennedy wrote: "Your letter, addressed to me as strictly private and confidential, to be opened by the addressee only, was faxed at 18.17pm to the general news desk where all the main fax communications for this newspaper are routed. The volume of material arriving through that fax is quite significant and as a result it was some considerable time before I became aware of your letter.

"The circumstances of this matter are straightforward. The Irish Times received an unsolicited and anonymous communication that I considered an important matter in the public interest for this newspaper to verify and publish. The vital issue of public interest which I considered I had a duty to publish was that the Taoiseach, Mr Ahern, while a serving minister, was in receipt of certain payments of money. The fact of these payments is a matter that this newspaper had a proper interest in publishing. This is not a sutuation where an allegation of a payment has been made that is denied or is false. The fact of these payments is admitted.

"I am not aware that the article in yesterday's edition of the Irish Times is in breach of an injunction granted by the Supreme Court. I [do not] have a copy of the order made by the Supreme Court on the 7 October 2005...

"The Irish Times was not a party of the proceedings to which you refer and has not had the opportunity to consider the legal or factual issues involved in that case... It would be something of a surprise to discover that a general order had been made restraining this newspaper (and the print, broadcast and electronic media in general) from publishing matters of an important public interest in a case I was not involved in, on the basis of evidence that I was unaware of, without an opportunity to make any submissions and in relation to an interlocutory order I do not have...

"The Irish Times does respect the important public function of the tribuinal. This does not, however, mean that this newspaper will desist from discharging its separate duty to publish matters in the public interest. I think you might agree that no single person or entity in this State (including this newspaper) has a monopoly on supporting constitutional democracy."

The tribunal issued a summons to Geraldine Kennedy and Colm Keena to produce all documents they had received leading to the publication of Colm Keena's story, 'Tribunal examines payments to Taoiseach', on 21 September. Kennedy said she had sought legal advice and, subsequent to that advice, had destroyed the documentation sought by the tribunal.

Des O'Neill: In doing so, I take it you were aware of the fact that you were in breach of the order which specifically directed you to produce this information by the specific time to the tribunal?

Geraldine Kennedy: Well, as editor I didn't consider it in that legal fashion. I made, at that time, the only decision I felt I could make in the circumstances by ordering Colm Keena to destroy any documents in his possession. But I did not make this decision out of any disrespect for the tribunal or its work but rather as the only way to fulfil my duty and obligation to protect journalistic sources.

Chairman: But Ms Kennedy, the net effect of that, for whatever reason you may have done that, was to fail to comply with an order of the tribunal.

GK: If you say so. I accept that if you say so, yes.

DO'N: [The reason for that] was a perpetuation of the stance that you had taken in relation to disclosing the sources?

GK: I wouldn't call it perpetuation of a stance. I would say it was a further honouring of the principle that we had to protect our sources in this particular story.

DO'N: In [Geraldine Kennedy's statement to the tribunal] you indicated that the information had come to the tribunal unsolicited and that it was an anonymous communication.

GK: I did.

DO'N: In what circumstances then do you believe that any public interest is served by your failure to indicate to the tribunal that the documentation in question was not, as far as you were aware, a communication which was an unauthorised disclosure by the tribunal itself of this information? ...

GK: As anybody here could see from the questioning of my colleague Colm Keena this morning, it's quite clear that you have methods of keeping tabs on letters and the way you send them out and security processes with the tribunal, which is within your remit. I think one consideration of mine would be that the provision of any documentation could assist you in identifying sources... And you certainly confirmed in our judgement that we did the right thing this morning.

Chairman: But any such encryption... could not indicate that the source was a source within the tribunal, it would be impossible for that encryption to exist?

GK: I accept what you say and you are in a position as the tribunal chairman to say whatever you wish about yourselves on this matter, but I again would support Mr Keena in his position this morning, in that the narrowing down of avenues of communication on this type of story could lead to identification of sources and we are setting out at this hearing to fulfil our primary obligation which is to protect journalistic sources... And we are relieved that we are doing so, not for any personal reasons or advantage to ourselves, but in the public interest, because in this particular story you had a communication to Mr Keena in the Irish Times, you had further information that came to light during our verification process, so therefore you were in the position that you were aware that there were facts, not allegations, that the person who is now Taoiseach was receiving payments in 1993 while he was Minister for Finance. And, furthermore, as we learned, that he was moving in the High Court to stop this tribunal from proceeding with its investigation into those payments made to him in 1993. And in making the decision to publish, in the public interest, I was very conscious of the possibility that this tribunal could find that the matter that it was investigating was outside of its terms of reference... and that this material might never have entered the public domain and I remain of the view that it was in the public interest to publish for these reasons.

On the issue of the injunction against the media publishing leaked 'confidential' documents of the tribunal:

DO'N: You say that you obtained legal advice in advance of the publication, is that right?

GK: Yes... which would be quite a normal thing in the Irish Times every evening. A number of stories would go for legal advice every night. This was a more important story, but that would be nothing abnormal in a newspaper on a daily basis.

DO'N: Was legal advice being sought in the context of the defamation aspect of the case or was it in seeking advice as to compliance with tribunal directions or rulings for the provisions of the Tribuinal of Inquiries Act?

GK: No, it wasn't seeking advice in relaition to the tribunal of Inquiries Act, I am sorry to say, because I had not been aware of any implications for the Tribunals of Inquiry Act or the order of 2005 which you subsequently notified me about. I had never been furnished with a copy of it by the tribunal...

Compiled by Colin Murphy