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Irish Supreme Court: Journalists Win Muted Victory on Protection of Sources

Keena and Kennedy Win Appeal at Irish Supreme Court
Keena and Kennedy Win Appeal at Irish Supreme Court

Today the Irish Supreme Court gave judgement on case concerning the publication of confidential material from an inquiry into the former Taoiseach’s accounts. Mr Justice Nial Fennelly found in favour of the journalists in a decision which was hailed as a victory for press protection of sources.

On 21st September 2006 an article by the Irish Times Public Affairs Correspondent, Colm Keena, regarding payments made to Bertie Ahern was published under the headline “Tribunal examines payments to Taoiseach”.

Mr Ahern was the Finance Minister of Ireland in 1993 when the alleged payments were made and later went on to become Taoiseach. The article alleged that businessman David McKenna was among three or four persons contacted by the tribunal about payments totalling between €50,000 and €100,000.

The Mahon Tribunal was investigating the payments when information from a private letter to Mr McKenna was leaked to The Irish Times. It then held an investigation into the source of the leaks and demanded that The Irish Times journalist and his editor Geraldine Kennedy face questioning. The High Court in Ireland backed the inquiry’s demand to question the pair.

The newspaper and its two employees challenged the decision, which was today overturned by the Irish Supreme Court. The court said the High Court had erred in the exercise of balancing the rights of journalists not to disclose their sources against the need of the tribunal to investigate the source of leaks. This had occurred because it had attached “great weight” to the “reprehensible” conduct of the two journalists in destroying documents on which the article was based.

The final judgement took account of the fact that the courts are the proper adjudicators of the balance of public interest and that in destroying essential evidence, the journalists in question took that judgement into their own hands.

I do not disagree with the language used by the High Court in reference to the deliberate destruction by the appellants of the very documents that were at the core of the enquiry. Nonetheless, I have to accept that the issue is not whether that act was a wrongful one and deserving of the opprobrium applied to it by the High Court, but the narrower question of whether, in circumstances where the documents no longer exist, there is a logical or causal link between that act and the order made. It does not appear to me that there is. The order now to be made has to be justified by the situation as it now exists and not by the need to mark disapproval of the unquestionably “reprehensible conduct” of the appellants. For the same reason, I do not think that the High Court was correct in reaching the conclusion that the “destruction of these documents by the defendants is a relevant consideration to which great weight must be given in striking the correct balance between the rights and interests at issue on this application.”

The key principle applied in the appeal was whether there was a pressing social need for restrictions on the press, rather than the need to protect journalists or sources. Judgment was given by Mr Justice Nial Fennelly and assented to by the other members of a five-judge court. The issue of costs will be decided in the autumn.

Read the full judgement at the Irish Supreme Court website by clicking here.

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Law Desk
Editors and staffers from the Law Desk at The Global Herald.

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