Tribunal revelations could damage citizens, court told
The reputation of citizens could be profoundly damaged if newspapers reveal they are being investigated by a tribunal, a court heard today.
The Mahon Tribunal is taking the Sunday Business Post newspaper to the High Court to obtain a permanent injunction to prevent it publishing any confidential material from the tribunal.
Senior Counsel Paul O’Higgins said the tribunal had a duty under the constitution to protect the privacy of the people who co-operated with it. He added that even the disclosure that the person was dealing with the tribunal could breach their right to privacy.
“It is in general a profoundly damaging thing for a person to be spoken of, in whom any one of the tribunals has taken an interest,” he said.
The Mahon Tribunal circulates confidential material, including witness statements and other documents, to relevant parties, six weeks before it begins a module into a particular planning corruption allegation.
Mr O’Higgins said the Sunday Business Post had refused to give an undertaking that it would not publish such confidential information. He said wholly unobjective people could use newspapers to put “blackening material” into the public domain in a subjective way, months before it was examined in public session at the tribunal.
Judge Peter Kelly asked if this meant the immediacy of cross examination at the tribunal was lost. Mr Higgins agreed, adding: “And the damage to reputation has long been done before the cross examination can begin.”
The Mahon Tribunal is also seeking a High Court order against the Sunday Business Post’s Barry O’Kelly to force him to reveal the sources for the confidential material.
Judge Kelly asked what powers the tribunal had to designate its documents as confidential. Mr O’Higgins said the tribunal had a statutory power under the amended Tribunals of Inquiry Act to make orders to that effect.
He said lawyers for the Sunday Business Post would argue that it was entitled to publish confidential material under the freedom of speech provisions of Article 10 of the European Convention on Human Rights. However he said the newspaper was actually in breech of Article 10 itself.
“I say the conduct of this paper is in effect an invasion of the right of citizens to communicate freely...and confide to the tribunal,” he said.
Mr O’Higgins said, citing the case of Hamilton v Kibard, there was a real danger that citizens would not cooperate with the tribunal if steps were not taken to prevent their right to confidentiality being breached.
The Sunday Business Post was represented in court by reporter Barry O’Kelly, editor Cliff Taylor, chief executive Fiachra O’Riordan and Anthony Dinan, the managing director of the Post’s owners, Thomas Crosbie Holdings.
The paper’s lawyer, senior counsel Eoin McCullough, said the prosecution case was reflected more in assertions than actual evidence.
He said that the Mahon Tribunal claimed to have the power to say that material was confidential even if it was published in the Oireachtas public report. “It’s a logical nonsense. You can’t make something confidential simply by saying it is,” he said.
Mr McCullough said that in one hypothetical scenario, if a county councillor under investigation by the tribunal provided minutes of council meetings to prove his innocence, those publicly available minutes would then become confidential.
The tribunal was seeking to impose restrictions on information:
:: Which was already in the public domain
:: Which was in the public interest
:: Which was sought in the interest of people to whom confidentiality was not owed
:: Which went beyond the Irish Constitution and the right to freedom of expression under Article 10 of the European Convention on Human Rights.
The case will resume in the High Court at 11am tomorrow. It is expected to last a further two days.
