Tribunal judge refers Independent's refusal to return affidavit to Garda

The chairman of the planning tribunal, Mr Justice Flood, has called in the Garda to investigate a newspaper group's refusal to return a confidential affidavit which is in the possession of one of its journalists.

Mr Justice Flood told Independent Newspapers yesterday that its refusal to hand over the copy of Mr James Gogarty's affidavit was `'a proper matter for further criminal complaint".

The journalist who has the affidavit, Mr Jody Corcoran, had earlier indicated in evidence that he was unable to return it for fear of revealing his source. His employers were unwilling to compel him to produce the document.

Under the legislation setting out the powers of tribunals of inquiry, persons found to have hindered or obstructed the work of a tribunal can be liable to a fine of up to £10,000 and/or two years in jail.

In his ruling, Mr Justice Flood did not envisage seeking a High Court order to compel Mr Corcoran to return the affidavit. However, he has left open the possibility that he may yet seek court support for his stance. Alternatively, the case could be referred to the Director of Public Prosecutions if the Garda finds that a criminal offence has been committed.

The tribunal has already called in the Garda to investigate the leaking of the affidavit, although it is understood gardai have yet to interview the main interested parties. In referring the refusal of Independent Newspaper to cooper ate to the Garda "forthwith", the judge said he did not wish to prejudice this investigation by further comment. It was a "matter of regret" that the newspaper was not prepared to produce the affidavit.

Mr Corcoran told the tribunal he had considered the chairman's request of last week that the document be returned. Since Wednesday, he had met the source of the information and had discussed the matter with him or her.

The source had informed him that there were two distinguishing features on the copy of the affidavit in Mr Corcoran's possession which might lead to the source being identified. Mr Corcoran told Mr Donal O'Donnell SC, for Independent Newspapers, that he subsequently checked and verified this information.

Asked by Mr Desmond O'Neill SC, for the tribunal, whether he accepted that the copy in his possession was confidential, Mr Corcoran replied that the original affidavit was confidential. He could not be sure to whom the tribunal had circulated the document.

Mr Corcoran said he had made no complete copies of the affidavit, but for the purposes of reproducing it in the newspaper some of the document would have been copied. These were immediately destroyed. His immediate superiors, the deputy editor of the Sunday Independent, Mr Willie Kealy, and the operating manager, Mr Campbell Spray, would have been involved in making copies.

Mr O'Neill asked whether the distinguishing features were capable of being masked or obliterated in such a way that the document could be returned. Mr Corcoran said that one could possibly be, but not the second.

Earlier Mr Michael Roche, managing editor of Independent Newspapers, told the tribunal that he had asked Mr Corcoran for the document but did not insist. He said anywhere between five and 10 people would have seen the document during the different stages of editing, printing and publication.

Mr O'Donnell said that while it was possible there might be nothing on the document to identify it, there could be something which was not on the document which would assist in tracing its source. The company had satisfied itself this was a reasonable conclusion; it was certainly not a "fanciful position" adopted merely to prevent the return of the document.

Mr Corcoran was willing to ensure the document was destroyed and to have this action verified, if this was the tribunal's wish.