The Garda Commissioner has lost his Supreme Court appeal against a refusal to allow gardaí to examine a mobile phone seized from a journalist’s home in an investigation into a violent incident at a repossessed property in Co Roscommon.
A seven-judge Supreme Court upheld the Court of Appeal’s finding that a warrant obtained by gardaí to search journalist Emmett Corcoran’s home and to seize his phone in 2019 was invalid and should be quashed.
Mr Corcoran, who edited Strokestown-based newspaper the Democrat, invoked journalistic privilege over the phone’s contacts.
In his judgment on Thursday, Mr Justice Gerard Hogan said the case identified the “lack of safeguards designed to protect journalistic privilege”.
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Without some constitutional protection of the media’s right to protect sources, journalists “cannot be reasonably be expected to discharge their functions of educating public opinion and holding government to account in the manner expressly provided for in article 40.6.1 of the Constitution”, he said.
Although the judge accepted the constitutional issue of journalist privilege was “not fully argued in the appeal”, he commented that “without a free press there is no democracy in the manner required as part of the State’s constitutional identity as provided for in article five of the Constitution”.
“The general protection of sources is integral to a free press,” he added.
Mr Corcoran, represented by Michael McDowell SC, instructed by solicitor Donnacha Anhold, brought proceedings shortly after the search of his home and seizure of his phone in April 2019 on foot of a search warrant issued by a District Court judge in late 2018.
His phone was seized as part of a Garda investigation into violence at a house in Falsk, Strokestown, in December 2018.
The High Court ruled in 2020 that gardaí could access calls, texts, social media messages, photos, videos and other information on the phone.
That decision was overturned last year by the Court of Appeal, which quashed the warrant allowing the search of Mr Corcoran’s home.
The appeal court held that the warrant was flawed because it was not satisfied that the rights of a journalist to protect their sources were properly taken into account before it was issued.
It ruled that any material on the phone could not be used as part of the Garda investigation and the phone should be returned to Mr Corcoran.
The Garda Commissioner appealed to the Supreme Court, which dismissed the appeal.
In his decision, Mr Justice Hogan said the failure to inform the District Court judge that Mr Corcoran had asserted journalistic privilege after being interviewed under caution, meant “highly relevant information” was not before the judge.
He added that District Court judges could not properly exercise their independent roles unless all relevant facts were furnished. This is in circumstances where a failure to do so might result in a breach of the relevant law or the Constitution.
Mr Justice Hogan said the case “exposed serious shortcomings” in the laws governing search warrants.
The resolution of such shortcomings, he added, “stand beyond the capacity of the courts to amend and cure” and is a matter “the Oireachtas may wish to give urgent consideration to”.
In his judgment, Mr Justice Maurice Collins agreed that the information put before the District Court judge “did not adequately disclose the position that would allow that judge to make a properly informed assessment about the appropriateness of issuing the search warrant.
The District Court judge, he added, should “at a minimum” have been told “in unambiguous terms that Mr Corcoran was a journalist and that the purpose of the search was to identify Mr Corcoran’s sources”.
If the District Court judge had been given that information, that court may well have proceeded to grant the warrant, but such a conclusion was not inevitable, he said.
Mr Justice Collins said it was “inappropriate to express any view” if Irish law or the Constitution provided protection against the compelled disclosure of journalistic sources.
Several matters, he said, needed to be addressed before a court could make any decision about the existence of any form of journalistic privilege existing in the Constitution or in the common law.
In his judgment, Chief Justice Donal O’Donnell agreed the warrant had been invalid and that the constitutional matters concerning journalistic privilege had not been fully argued.
The judgments of Mr Justice Hogan and Mr Justice Collins had made an important contribution to the debate, he said.
However, any final resolution of these issues should not be addressed until such matters arise in proceedings where it is necessary to do so.
In seeking to overturn the Court of Appeal’s ruling, the Garda Commissioner argued the case concerned the interaction between criminal investigations using search warrants and “so-called journalistic privilege”.
The commissioner claimed that the ruling would affect other criminal investigations.
The case was unanimously dismissed by the court comprising the Chief Justice, Mr Justice Hogan, Mr Justice Collins, Ms Justice Iseult O’Malley, Ms Justice Marie Baker, Mr Justice Peter Charleton and Ms Justice Elizabeth Dunne.