Lawyers for the Mahon Tribunal have argued that two Irish Times journalists acted wholly irresponsibly when they destroyed a confidential piece of tribunal correspondence which formed the basis of a story published in that paper in September last year.
The Mahon Tribunal is seeking an order compelling Irish Times editor Geraldine Kennedy and Public Affairs Correspondent Colm Keena to provide any information which might help it prove it was not the source of the leaked letter.
The letter from the tribunal to businessman David McKenna contained confidential information about tribunal enquiries into payments made to Taoiseach Bertie Ahern in the early 1990s.
This afternoon, counsel for the tribunal, Denis McDonald, said the court must consider if it was responsible behaviour to publish private material from the tribunal.
He also asked the court to consider was it responsible to destroy the documents after an order had been made by the tribunal seeking their disclosure.
Mr McDonald questioned whether it would not have been more responsible to contest the order. Journalists were not above the law, he said, claiming the journalists concerned had usurped the courts' function.
Mr McDonald also claimed that because the journalists had admitted that the documents had been sent to them anonymously and had not been solicited, the issue of protection of sources was not relevant to the case.
Mr McDonald said the tribunal was not taking the action because the leaked document concerned the Taoiseach, but because it was seeking to keep the proceedings of its own private investigative unit private.
He also claimed the tribunal's right to freedom of expression had been infringed by the publication of the confidential documents.
Tribunal may seek contempt proceedings
This afternoon, senior counsel for the tribunal, Denis McDonald, also clarified that his clients would seek to have contempt proceedings taken against the journalists if the High Court granted the order being sought and the journalists failed to comply with it.
Mr McDonald told the court that he had taken instructions from his client during the lunch break.
He said the tribunal's intent was to recall the defendants before it, if the court granted the order.
He said if the journalists failed to comply with the order by answering the questions, the matter would be brought before the High Court again seeking a ruling of contempt against them.
Beginning legal submissions on behalf of the two journalists, Senior Counsel Eoin McGonigal said the documents had been destroyed, not out of disrespect to the courts, but in order to protect the source of the information.
He said the journalists would be arguing that the application by the tribunal must fail for a number of reasons, including that it would infringe on the defendants rights to freedom of expression, and would interfere with their rights to pursue their careers.
