The planning tribunal will say next Wednesday what action, if any, it intends to take over the leaking of confidential papers detailing payments to Taoiseach Bertie Ahern.
The Editor of The Irish Times, Geraldine Kennedy, and its public affairs correspondent, Colm Keena, yesterday declined to provide the tribunal with any information about the source of the leak, citing the need to protect journalistic sources.
Tribunal chairman Judge Alan Mahon had earlier expressed his "enormous concern" about the destruction, on the orders of Ms Kennedy, of the tribunal documents on which the September 21st article by Mr Keena was based. He said the tribunal deeply regretted that Ms Kennedy and Mr Keena, notwithstanding their "principled stance", had failed to help the inquiry trace the leak.
Before giving evidence, both journalists were warned of the consequences of failing to co-operate with the inquiry, which include a fine of up to €300,000 and/or up to two years in jail.
Tribunal lawyers said The Irish Times story detailing the payments to Mr Ahern broke the terms of a blanket injunction obtained by the tribunal in the Supreme Court last year. This restrains media outlets from publishing stories based on confidential tribunal material.
Ms Kennedy said the newspaper did not breach and never had an intention of breaching any order of the Supreme Court, however. She was not aware that Mr Keena's article breached the injunction.
Judge Mahon said Ms Kennedy had destroyed the documents after the tribunal had ordered her to produce them to the inquiry. "Whatever about a stance that she might take and might be expected to take to hold the document pending possibly a further airing of the issue in the High Court, to destroy it after an order was made by the tribunal is something we have to take very seriously."
Mr Keena's article was based on information from a tribunal letter to businessman David McKenna last June. Mr McKenna was one of 12 businessmen found to have made payments totalling £38,500 to Mr Ahern in 1993 and 1994. The information came from an anonymous, unsolicited leak to the journalist, the tribunal heard.
Tribunal lawyers were at pains yesterday to stress that the leak of the payments to Mr Ahern did not emanate from the inquiry. Des O'Neill SC, for the tribunal, said that if Mr Keena had received documents from a tribunal source he would not have known they were authentic because the tribunal's copies of correspondence were not on headed paper and were not signed. The chairman could now refer the newspaper's failure to comply with a tribunal order to the High Court, which could impose a fine and/or prison sentence.
Equally, Judge Mahon has the option of referring the breach of the Supreme Court injunction to that court. He could also refer the issue to the DPP for possible criminal prosecution.
Speaking to reporters outside the tribunal, Ms Kennedy said the payments to Mr Ahern might never have come to light had The Irish Times not printed its story. It was now known that the Taoiseach planned to go to the High Court next month to prevent the tribunal from entering family law matters.
"From what we now know about the money paid to him, we know they were not payments on planning matters, so we can come to the opinion that they might be outside the scope of the tribunal and they might never have proceeded to public investigation. That was a judgment call that had to be made in the publication of the story."
Ms Kennedy said she stood over the publication of the story and the decision to destroy the documents on which it was based. While the consequences of these action might be serious, the protection of sources was the very principle on which journalism was based.
"I believe we play an important part in society. We have to be able to receive information from sources and it's very important that we protect them so they can do that. It's really the primary obligation of an editor and a key principle in journalism to protect sources."
