Defying tribunal necessary to protect sources

On Thursday, September 21st, 2006, a report saying the Mahon tribunal was investigating payments to the then taoiseach, Bertie Ahern, appeared on the front page of The Irish Times. It was the beginning of a major political crisis but also, for this reporter and for this newspaper, the start of an extraordinary odyssey related to the issue of journalists and their sources.

Ahern reacted angrily to the report, denouncing the leak as “scurrilous”. He was not, he said, going to answer any questions about his “Holy Communion or Confirmation money or what I got for my birthday”. The next day he held a bizarre press conference at which he read out a short statement in which he complained about the “sinister” nature of the leak. He refused to take questions.

I had been expecting Ahern to stick to his line that he never commented on matters that were before the tribunal. Perhaps he decided that, in the circumstances, that wouldn’t wash. But it seemed he was severely rattled and might be losing control.

On the Friday evening, when leaving the office, I remembered an episode concerning a witness to the Moriarty tribunal.

Catherine Butler had been a personal assistant to Charles Haughey and in 1999 had destroyed a diary she had kept after guessing, correctly, the tribunal would soon call on her to produce the document. In the witness box she asked Mr Justice Michael Moriarty to agree she had been perfectly within her rights to do so, given that she had not at the time been contacted by the tribunal. The judge agreed.

I paused. Maybe I should destroy documents I had, before the tribunal came looking for them. I couldn’t make up my mind. I moved them from a drawer in my desk to a locker nearby. I went home. When I came to work on the following Monday it was too late. The tribunal had written to us demanding any documents we had that were linked to our scoop.

Protection of sources

Once we had received the order my then editor, Geraldine Kennedy, became very focused on the protection of sources. She was mindful of the case of Sarah Tisdall, a UK civil servant who had leaked confidential documents to the

Guardian

and had eventually been jailed after the courts ruled the documents should be handed over.

Kennedy decided we should shred the documents and told me to do so, which I did. Then we told the tribunal what we had done.

People have asked since why we didn’t lie and tell the tribunal we had destroyed the documents before receiving its order? I had spent years reporting on tribunal witnesses whom people thought were lying. Never for a moment was I going to join their company.

We were called before the tribunal and refused to answer its questions. It went to the High Court and three judges of that court ordered us to co-operate with the tribunal’s inquiry into the leak, rejecting our argument that, under article 10 of the European Convention on Human Rights, we shouldn’t be so ordered. That article is concerned with freedom of expression, and case law has recognised the role played by the media and sources in facilitating freedom of expression in a democracy.

We appealed to the Supreme Court, which overturned the High Court finding. We should not, the higher court found, be ordered to help the tribunal identify the source of the leak.

But both courts were, as lawyers say, ad idem as to their views on what Kennedy and I had done: our behaviour in destroying the documents subsequent to having received the order from the tribunal was reprehensible.

In fact, the five-judge Supreme Court found its colleagues in the High Court had erred in their finding because they had given too much weight to the reprehensible nature of what we had done.

Courts’ role usurped

By destroying documents so as to frustrate any effort to identify the source, before going to court to argue that we shouldn’t have to help identify the source, we had usurped the role of the courts. For this reason, the Supreme Court, while finding in our favour, decided we should nevertheless shoulder the massive legal costs.

We complained to the European Court of Human Rights that the imposition of costs was a breach of our rights and and of freedom of expression covering protection of sources. The court has now found against us by a majority decision of a seven- judge court. We don’t know the split or what the dissenting judge or judges thought.

So, were we wrong to destroy the documents?

It is patently obvious there can be no freedom of expression, indeed few if any freedoms, without the rule of law. No one is above the law, and that includes journalists.

All that I can say in response is that we explained straight up to the courts what we did and why we did it. If, for instance, we had been fined, or jailed, I would have had no argument in principle.

Say we had handed over the documents as ordered, the tribunal had identified the source of the leak and the source had gone to jail? I would have felt truly rotten, because I would have let down someone who had trusted me and The Irish Times; but also because it would have been a bad day for journalism, freedom of expression and the flow of important information into the public domain. I think many other people would have felt that too.

If that is not a very clear answer, then so be it. Life is messy. I am proud I got the story and also proud no one knows where it came from.