Mahon Tribunal -v- Keena & anor [2009] IESC 64 (31 July 2009)

Mahon Tribunal -v- Keena & anor [2009] IESC 64 (31 July 2009)

The Supreme Court held that while the Tribunal had the power to investigate leaks and enforce confidentiality in its private investigative phase, the High Court erred in the balance struck between the Tribunal's interests and the journalists' privilege. The destruction of documents by the journalists, while improper, did not justify compelling them to answer questions that could infringe their privilege. The privilege to protect sources is fundamental and can only be overridden by an overriding requirement in the public interest, which was not established here. The appeal was allowed and the High Court order set aside.

Citation
[2009] IESC 64
Parties
Plaintiffs/respondents: His Honour Judge Alan P. Mahon, Her Honour Judge Mary Faherty, His Honour Judge Gerald B. Keyes, Members of the Tribunal of Inquiry into Certain Planning Matters and Payments; Defendant/appellant: Colm Keena; Defendant/appellant: Geraldine Kennedy
Jurisdiction
Ireland
Judgment Date
31 July 2009
Procedural Posture
Appeal / Supreme Court Judgment on Appeal From High Court Order
Outcome
Appeal allowed; High Court order set aside
Legal Topics
Journalistic Privilege, Freedom of Expression, Confidentiality of Tribunal Proceedings, Balance of Rights Under ECHR Article 10, Powers of Statutory Tribunals
Constitutional Law Media Law Administrative Law Journalistic Privilege Freedom of Expression Confidentiality of Tribunal Proceedings Balance of Rights Under ECHR Article 10 Powers of Statutory Tribunals

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Parties

His Honour Judge Alan P. Mahon, Her Honour Judge Mary Faherty, His Honour Judge Gerald B. Keyes, Members of the Tribunal of Inquiry into Certain Planning Matters and Payments

Plaintiffs/respondents

Colm Keena

Defendant/appellant

Geraldine Kennedy

Defendant/appellant

Procedural Posture

Appeal / Supreme Court Judgment on Appeal From High Court Order

Legal Issues

  1. 1 Whether the Tribunal had power to compel journalists to answer questions about confidential sources
  2. 2 Whether the Tribunal could enforce confidentiality of its private investigative phase
  3. 3 How to balance the Tribunal's need for confidentiality against journalists' privilege and freedom of expression under Article 10 ECHR

Ratio Decidendi

The Supreme Court held that while the Tribunal had the power to investigate leaks and enforce confidentiality in its private investigative phase, the High Court erred in the balance struck between the Tribunal's interests and the journalists' privilege. The destruction of documents by the journalists, while improper, did not justify compelling them to answer questions that could infringe their privilege. The privilege to protect sources is fundamental and can only be overridden by an overriding requirement in the public interest, which was not established here. The appeal was allowed and the High Court order set aside.

Court Disposition

Appeal allowed; High Court order set aside

Orders

  • Order of the High Court compelling the appellants to answer questions before the Tribunal is set aside.