Strasbourg is a beautiful city: it possesses a magnificent gothic cathedral; the Grande île is a UNESCO World Heritage site; and it is home to many European institutions, including the the European Court of Human Rights (ECHR, pictured left). It is a city with which Geraldine Kennedy, the Editor of the Irish Times, and Colm Keena, that paper’s Public Affairs Correspondent, will become very familiar, as they bring an exceedingly important case to the ECHR.

In Mahon Tribunal v Keena (No 1) [2009] 2 ILRM 373, [2009] IESC 64 (31 July 2009), the Supreme Court held that the Irish Times would not be compelled to disclose the source of a leaked Tribunal document which it had destroyed rather than produce to the Tribunal. Reversing the High Court ([2007] IEHC 348 (23 October 2007)), Fennelly J for a unanimous Supreme Court held:

68. Looking at the High Court judgment as a whole, I have come to the conclusion that the great weight which it attached to the reprehensible conduct of the appellants in destroying documents led it to adopt an erroneous approach to the balancing exercise.

69. According to the reasoning of the European Court in Goodwin [v United Kingdom 17488/90, (1996) 22 EHRR 123, [1996] ECHR 16 (27 March 1996)], an order compelling the appellants to answer questions for the purpose of identifying their source could only be “justified by an overriding requirement in the public interest.” Once the High Court had devalued the journalistic privilege so severely, the balance was clearly not properly struck. On the other side, I find it very difficult to discern any sufficiently clear benefit to the Tribunal from any answers to the questions they wish to pose to justify the making of the order.

70. I would, therefore, allow the appeal and substitute an order dismissing the Tribunal’s application.

However, the destruction of the document returned to haunt the Irish Times. In Mahon Tribunal v Keena (No 2) [2009] IESC 78 (26 November 2009) (also here), Murray CJ for the Supreme Court held that this deliberate act of destruction of evidence deprived the Tribunal of the possibility of conducting any meaningful inquiry into the source of the leaked letter, and such as to deprive the Irish Times of their normal expectation that the Court would, in the exercise of its discretion, award costs in their favour. As a consequence, the Court ordered that the Tribunal were entitled to recover from the Irish Times the costs of the action in both the High Court and the Supreme Court.

This struck me at the time as a bizarre conclusion that undermined the original decision that the journalists did not have to answer the Tribunal’s questions. If the journalists had a privilege to with-hold the document and decline to answer the questions, then they had the privilege, and it doesn’t matter what they did with the document. Moreover, I argued that the costs order infringed Article 10 of the European Convention on Human Rights. I am therefore delighted to learn that the Irish Times is to challenge it in the ECHR:

‘Irish Times’ applies to ECHR over costs

THE IRISH Times has applied to the European Court of Human Rights concerning the award of costs against it by the Supreme Court, despite it winning its case against the Mahon tribunal … on the grounds that a number of the rights of Kennedy and Keena have been violated, in particular their rights under article 6 of the European Convention on Human Rights, guaranteeing a fair trial, and Article 10, guaranteeing freedom of expression. …

They point to the “chilling effect” of such an award of costs on the exercise of press freedom, pointing out that the ECHR has already ruled that an order to disclose sources cannot be compatible with article 10 unless it is justified by “an overriding requirement of public interest”.

The Court will first determine whether the application is admissible. If it is declared inadmissible, that decision is final, but I would be shocked if the case failed at this stage; since the case is not manifestly ill founded. If it is declared admissible, the Court will encourage the parties to reach a friendly settlement. This is, to say the least, unlikely, so the Court will then proceed to a public hearing to consider the application “on the merits”, that is to say, to determine whether there has been a violation of the Convention. This whole process will take several years. And Kennedy and Keena will no doubt have to visit Strasbourg several times. But they should be satisfied with their visits, not only as tourists, but ultimately as litigants as well.