Mahon and Others v Keena & Kennedy

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly,Murray C.J.
• Judgment Date: 26 November 2009
• Neutral Citation: [2009] IESC 78,[2009] IESC 64
• Court: Supreme Court
• Date: 11 November 2009
• Docket Number: [S.C. No. 354 of 2007]

Mahon & Ors v Keena & Kennedy

[2009] IESC 64

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 4 OF THE TRIBUNALS OF INQUIRY (EVIDENCE) (AMENDMENT) ACT, 1997 AS AMENDED BY SECTION 3 OF THE TRIBUNALS OF INQUIRY (EVIDENCE) (AMENDMENT) ACT, 2004

BETWEEN

HIS HONOUR JUDGE ALAN P. MAHON, HER HONOUR JUDGE MARY FAHERTY and HIS HONOUR JUDGE GERALD B. KEYES, MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS

Plaintiffs/Respondents

-and-

COLM KEENA and GERALDINE KENNEDY

Defendants/Appellants

[2009] IESC 64

Murray C.J.

Geoghegan J.

Fennelly J.

Macken J.

Finnegan J.

No. 354 2007

THE SUPREME COURT

TRIBUNAL OF INQUIRY

Confidentiality

Journalistic privilege - Leek of confidential documents - Power of tribunal to inquire into leak of confidential documents - Freedom of expression - Privilege against non-disclosure of journalistic sources - Whether tribunal had power to order journalists to answer questions relating to leak of confidential documents - Test to be applied - Kiberd v Mr. Justice Hamilton [1992] 2 IR 257 applied; Mahon v Post Publications Ltd [2007] IESC 15, [2007] 3 IR 338 distinguished; Goodwin v UK (1996) 22 EHRR 123 applied; Lingens v Austria (1986) 8 EHRR 407, Fressoz and Roire v. France (2001) 31 EHRR 28 and Branzburg v Hayes (1972) 408 US 665 considered - European Convention on the Protection of Human Rights and Fundamental Freedoms 1950, article 10 - Defendants' appeal allowed (354/2007 - SC - 31/7/2009) [2009] IESC 64

Mahon v Keena

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1997 S4

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S1(1)(B)

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979 S3

CONSTITUTION ART 40.6.1.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

KIBERD & CAREY v JUDGE HAMILTON 1992 2 IR 257 1992 ILRM 574 1992/3/654

JUDGE MAHON & ORS (PLANNING TRIBUNAL) v POST PUBLICATIONS LTD T/A SUNDAY BUSINESS POST 2007 3 IR 338 2007 2 ILRM 1 2007/38/7912 2007 IESC 15

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10.2

LYNCH, STATE v COONEY & AG 1982 IR 337

NORWICH PHARMACAL CO v CUSTOMS & EXCISE CMRS 1974 AC 133 1973 3 WLR 164 1973 2 AER 943

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

LINGENS v AUSTRIA 1986 8 EHRR 407

CASTELLS v SPAIN 1992 14 EHRR 445

FRESSOZ & ROIRE v FRANCE 2001 31 EHRR 2

TROMSO v NORWAY 2000 29 EHRR 125

RADIO TWIST AS v SLOVAKIA 2006 22 BHRC 396

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S8

GOODWIN v UNITED KINGDOM 1996 22 EHRR 123 1996 1 BHRC 81

BRANZBURG v HAYES 1972 408 US 665

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979 S4

1 JUDGMENT of Mr. Justice Fennelly delivered the 31st day of July, 2009 .

2 Judgment delivered by Fennelly J (Nem Diss)

3 1. Where, as in this case, fundamental rights are invoked as a restraint on the exercise of statutory powers, the courts are increasingly called upon to strike a balance. In the present case, the Planning Tribunal wants to investigate a "leak" of confidential information to the Irish Times and is met with a countervailing claim based on confidentiality of journalists' sources.

4 2. The appeal is taken against an Order made by the High Court pursuant to section 4 of the Tribunal of Inquiries (Evidence) (Amendment) Act, 1997 directing a journalist and the editor of that newspaper to answer questions posed by the Tribunal intended to unveil the source of documents published in the Irish Times.

5 3. The plaintiffs are the Members of the Tribunal of Inquiry into Certain Planning Matters and Payments (hereinafter referred to as "the Tribunal") established pursuant to Resolution of Dáil Éireann passed on 7 ^th October, 1997 and by a number of instruments of the Minister for the Environment and Local Government from 1997 to 2004. I will refer to them as "the Tribunal."

6 4. The first-named appellant has been a journalist for over twenty years. He is the Public Affairs Correspondent of the Irish Times. I will refer to him as Mr Keena. The second-named appellant is the editor of The Irish Times. I will refer to her as Ms Kennedy.

7 5. On 29 ^th June, 2006, as part of its private investigations the Tribunal wrote to Mr. David McKenna seeking information in relation to certain payments said to have been made to Mr. Bertie Ahern, T.D. The letter asked Mr McKenna for a detailed narrative statement setting out the circumstances in which he had made any such payment. The letter specified a number of the matters to be included in the statement.

8 6. The envelope which contained this letter was marked "strictly private and confidential - to be opened by addressee only." The final paragraph of the letter was as follows:

"This inquiry is being made of you as part of the Tribunal's confidential inquiry in private. The fact of this letter or its content should not be disclosed to any third party save your legal advisor, if you should choose to seek legal advice in respect of this request."

9 The Tribunal regarded this phase of its investigations as private and confidential. It claimed the power to impose an obligation of confidentiality on the recipient of the letter and did not consent to its publication.

10 7. On 19 ^th September 2006, Mr. Keena received anonymously an unsolicited copy of the letter from the Tribunal to Mr McKenna. It contained information relating to payments alleged to have been made to An Taoiseach, Bertie Ahern T.D., in 1993 when he was the Minister for Finance.

11 On 21 ^st September, 2006 the Irish Times published on its front page, under the name of Mr Keena, a report under the headline "Tribunal examines payments to Taoiseach." It read as follows:

"A wealthy businessman, David McKenna, has been contacted by the Mahon Tribunal about payments to the Taoiseach, Bertie Ahern.

The Tribunal is investigating a number of payments to Mr. Ahern in or around December, 1993 including cash payments, the Irish Times has learned. Mr. McKenna is one of three or four persons contacted by the Tribunal concerning payments to Mr. Ahern totalling between €50,000 and €100,000. The Tribunal has been told that the money was used to pay legal bills incurred by Mr. Ahern around this time. In a letter to Mr. McKenna in June of this year and seen by the Irish Times he was told the 'Tribunal has been informed that you made payment of money to Mr Bertie Ahern, TD, or for his benefit, in or about December 1993. The Tribunal seeks your assistance in reconciling certain receipts of funds by Mr Ahern during this period.'

The Tribunal requested a detailed statement from Mr McKenna. He was asked to name the person who requested the payment and his understanding as to why it was required. He was also asked who the payment was given to and whether it was in cash or another form.

It is understood a solicitor who was an associate and personal friend of Mr Ahern's, the late Gerry Brennan, may have played a role in the matters being inquired into. Mr Brennan, a former director of Telecom Éireann, died in 1997.

Mr McKenna, a friend of Mr Ahern's and a known supporter of both him and his party, was estimated to be worth more than €60 million a number of years ago. However, his publicly-listed recruitment firm, Marlborough Recruitment, collapsed in 2002.

Mr McKenna is also a friend and business associate of Des Richardson, the businessman appointed by Mr Ahern in 1993 as full-time fundraiser for Fianna Fáil and who also fundraises for Mr Ahern's constituency operation. The Tribunal was told in private that Mr McKenna was one of the people who made a payment to Mr Ahern.

Special adviser to the Taoiseach Gerry Howlin was not available for comment as he was on leave.

When contacted by The Irish Times the Government press secretary, Mandy Johnston, passed the query on to the Fianna Fáil press officer Olivia Buckley, who said Mr Ahern did not comment on Tribunal matters.

Mr McKenna, when asked about the matter, said: 'Contact my solicitor.' His solicitor said he had no comment.

The Mahon Tribunal and Mr Ahern are scheduled to make representations about the matter before the President of the High Court, Mr Justice Joseph Finnegan, next month.

In December 1993, Mr Ahern was Minister for Finance and Fianna Fáil treasurer.

The inquiries into Mr Ahern's finances are understood to have begun after allegations were made about supposed payments to him by property developer Owen O'Callaghan in relation to the Quarryvale development in west Dublin.

Both Mr Ahern and Mr O'Callaghan have stated publicly that no such payments were made."

12 This article quoted from the contents of the letter of 29 ^th June, 2006 from the Tribunal to Mr. McKenna.

13 8. The Tribunal wrote to Ms Kennedy on the day of publication of Mr Keenas's article stating that it quoted "the content of a letter written to Mr David McKenna by a solicitor acting on behalf of the Tribunal" and asserting that "such communication was confidential to the Tribunal and was expressed to be so." The Tribunal letter also claimed that the publication of this material was in breach of an injunction granted by the Supreme Court on 7 ^th October, 2005.

14 By a letter of 29 ^th September, 2006 Ms Kennedy replied:

"... the circumstances of this matter are straightforward. The Irish Times received an unsolicited and anonymous communication that I considered an important matter in the public interest for this newspaper to verify and publish. The vital issue of public interest which I considered I had a duty to publish was that the Taoiseach, Mr. Ahern, whilst a serving minister was in receipt of certain payments of money. The fact of these payments...