The High Court’s Divisional Court ordered Irish Times journalist Colm Keena and editor Geraldine Kennedy to answer questions from the Mahon Tribunal about documents received in an anonymous communication. The court said the questions were unlikely to identify the source, but could help establish whether the documents had come from the Tribunal.
The judgment, delivered on 23 October 2007, arose from a Tribunal inquiry into payments to then Taoiseach Bertie Ahern. The Tribunal had sent David McKenna a letter during its private investigation in June 2006, marked strictly private and confidential and stating that its existence and contents should not be disclosed, except to a legal adviser.
Keena received an unsolicited, anonymous communication in September 2006 containing a copy of the letter and at least one other document. The Irish Times published a report about the Tribunal’s inquiries on 21 September. The judgment records that disclosure of the letter was unauthorised by the Tribunal.
The Tribunal ordered the journalists to produce the documents and later summoned them to answer questions. By then, the documents had been destroyed after the journalists learned of the production order and received legal advice. They declined to answer questions they believed could help identify the source. The Tribunal applied to the High Court under section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1997, as amended.
The court rejected the journalists’ argument that the Tribunal lacked power to investigate the leak. It held that the Tribunal’s terms of reference and section 4 of the 1979 Act gave it power to inquire into the source and summon the journalists. The judges also held that confidentiality applied to the Tribunal’s private investigative material, including against third parties who came into possession of material marked as confidential.
The court then weighed that interest against the journalists’ freedom of expression and protection of sources under Article 10 of the European Convention on Human Rights. It stressed the importance of journalistic source protection, but said the destruction of the documents meant the Tribunal could ask only whether the copy had the Tribunal’s letterhead or a signature. The court considered those answers unlikely to identify the source, which it said would probably remain unknown.
It concluded that the limited questioning could help establish that the Tribunal itself was not the source of the leak, and that this benefit outweighed the journalists’ source-protection claim in the circumstances. The court granted the relief sought. The judgment does not record any finding that the journalists’ answers identified the source or any contempt sanction; it notes that contempt was not before the court in these proceedings.