HAYES ACTS FOR IRISH TIMES EDITOR GERALDINE KENNEDY AND PUBLIC AFFAIRS CORRESPONDENT COLM KEENA IN LANDMARK SUPREME COURT CASE
The Supreme Court gave judgment on 31 July in the appeal brought by Geraldine Kennedy and Colm Keena of the Irish Times against a High Court Order made in 2007. The High Court had ordered that the Appellants attend before the Tribunal to answer all questions to which the Tribunal may require answers in relation to the source of documents which resulted in a story appearing in the Irish Times on 21 September 2006 concerning payments made to Bertie Ahern in December 1993 when he was Minister for Finance.
We represented Ms. Kennedy and Mr. Keena all through the process from the publication of the original story to the Supreme Court Judgment.
A five judge court presided over by Chief Justice John Murray heard the appeal in December 2008. In probably the most expansive legal argument yet heard by the court on media in the context of Articles 40 of the Irish Constitution and Articles 8 and 10 of the European Convention on Human Rights, detailed submissions were considered on the integrity of Tribunals, the rights and privacy of those being investigated, freedom of expression, freedom of the press, protection of sources and the role of journalism in contemporary society.
The unanimous judgment of the court was given by Mr. Justice Nial Fennelly. Having analysed the facts of the case, the issues and the relevant law Mr. Justice Fennelly considered the High Court judgment. He held that the appeal turned entirely on the balance struck by the High Court between the power of the tribunal to investigate and the right of the Appellants to refuse to disclose any information about their sources. He found that the information in question, relating as it did, to allegations of the payment of monies to an important political figure, was a matter of public interest, which a newspaper would, in the ordinary way be entitled to print.
Mr. Justice Fennelly went on to state: “that the courts cannot and should not abdicate their responsibility to decide when a journalist to disclose his or her source. The unilateral decision of a journalist to destroy evidence with intent to deprive the courts of jurisdiction is, as the court has held, designed to subvert the rule of law. The courts cannot shirk their duty to penalise journalists who refuse to answer questions legitimately and lawfully put to them.”
However, Mr. Justice Fennelly felt that the High Court’s view of the appellants having destroyed the documents in question coloured that Court’s judgment: “looking at the High Court judgment as a whole, I have come to the conclusion that the great weight which it attached to the reprehensible conduct of the appellants in destroying documents led it to adopt an erroneous approach to the balancing exercise.”
Mr. Justice Fennelly endorsed the tribunal’s right to conduct an investigation into the source of the “leak” but held that an order compelling the appellants to answer questions for the purpose of identifying their source could only be justified by an over-riding requirement in the public interest. Such a requirement was not present in this case and the appeal was therefore allowed.
The judgment copper-fastens the High Court’s recognition of the right of journalists to refuse to reveal their sources. The judgment gives careful consideration to the jurisprudence of the European Court of Human Rights and is a welcome fillip for freedom of expression and legitimate journalism.
Andrew O’Rorke/Matthew Austin.
