ALTHOUGH Geraldine Kennedy and Colm Keena are reading the Sunday papers from the comfort of their homes today, there seems little doubt after last week's High Court proceedings that The Irish Times' journalists are ultimately prepared to be sent to jail.

The editor and public affairs correspondent of the newspaper are determined to take a stand and will not reveal the source of the leaked letter which prompted the Bertiegate affair, even if it means a stint behind bars.

Counsel for The Irish Times Two has already told the High Court that his clients will not obey any ruling forcing the journalists to go back to the Mahon tribunal to answer questions about the source of the letter which disclosed payments made to the taoiseach in 1993.

The tribunal's legal team has responded by saying that if Kennedy and Keena refuse to obey the court order they will seek a contempt of court hearing which would almost certainly see the pair sent to Mountjoy.

After four long days of proceedings, an insurmountable impasse has been reached.

The journalists say they published the leaked information in the public interest and will not cooperate on any level in revealing their source. The Mahon tribunal wants the Times to go on the record and confirm that it was not the source of the leaked details as has been suggested by some politicians and journalists.

It is obvious to everybody that the contentious information did not come from the tribunal, but the newspaper is not willing to say this in case it leads to the real source being outed.

Fewer than four people had access to the information so even a small piece of information from the paper could result in the source's identity being compromised. This has led to some bizarre exchanges, with Denis McDonald, senior counsel for Mahon, repeatedly asking if the leaked letter had an official harp and signature on it. If it did, then it would exonerate the tribunal because all its original documentation is harpless.

A tribunal infuriated

One of the three judges hearing the case told McDonald that it was "surely a bit fanciful" to expect that the existence of this harp would lead to the tribunal getting their man.

All of this is irrelevant without the help of The Irish Times, and counsel for the paper, Eoin McGonigal, is insistent that the journalists will not be giving even one iota of information which would either clear or implicate the tribunal. He is not in a position "good, bad or indifferent, upstairs or downstairs" to talk about sources, he said.

The Irish Times has ended up at this very expensive hearing after it published an article on 21 September last year revealing that Bertie Ahern received payments of between 50,000 and 100,000 from businessmen while he was minister for finance in 1993.

The tribunal believes that the information came from a letter it had sent to businessman David McKenna during its private investigative stage.

The article's author, Colm Keena, and his editor, Geraldine Kennedy, were summoned before the tribunal five days later to give up their source. Both refused to say who sent them the letter detailing the payments and Kennedy revealed that she had destroyed the offending documents.

This infuriated the tribunal which then went to the High Court in a bid to compel the journalists to answer its questions.

The media was anticipating that the pair would be jailed and there was a sizeable press contingent as the court case got underway on Tuesday.

On Wednesday, it became clear that events would be something of a damp squib when Denis McDonald admitted that he did not even know if his client was seeking the detention of Kennedy and Keena.

He eventually confirmed that this was not an option being considered at this time. Following this, the number of journalists present in court each day could be counted on one hand.

Proceedings have been dominated by long, complicated and often dull case history and legalese. Even those at the centre of the case have seemed a bit overawed at times.

Geraldine Kennedy said in an affidavit that it was her "public duty" to publish the article because it was of "legitimate and significant public interest" and otherwise might not have come in to the public domain.

It has been accepted by Mr Justices Richard Johnson, Peter Kelly, and Iarfhlaith O'Neill that a finance minister receiving cash in "an unorthodox fashion" is a matter of public interest and one that warrants reporting.

The decision of the paper to publish the story is not an issue, but its conduct after the story appeared is more debatable.

Denis McDonald argued that Geraldine Kennedy had "pre-empted and usurped" the process of the High Court by destroying the documentation. It seems obvious that the three judges agree with this and are not impressed with Madame Editor's actions.

A recipe for anarchy Eoin McGonigal said that The Irish Times "always has and continues to support the work of the tribunal, " but the judges wondered how the paper reconciles its stated support of the tribunal with the destruction of the leaked documents.

They said the newspaper should have gone to the High Court seeking to challenge the tribunal rather than making themselves "judge, jury and executioner" in destroying the documents.

By doing this the journalists had "unquestionably overstepped the mark."

McGonigal tried to argue that David McKenna should have been brought before the Mahon tribunal and asked about the letter that was sent to him before the tribunal decided to take on the newspaper. "What letter, the one you've destroyed?" scoffed High Court president Richard Johnson.

The three judges seem to have accepted that the tribunal had the power to require the journalists to answer questions about their source.

This was disputed by the newspaper.

This should now result in the High Court directing that the journalists go back to the tribunal to answer more questions about the source.

McGonigal has made it clear that Kennedy and Keena will not be answering any questions if they are forced back before the Mahon tribunal.

"That's a recipe for anarchy, " was the response from the bench.

Whatever it is a recipe for, the two journalists are taking a stand and could soon be one of only a small number of Irish journalists sent to jail.