Mon, 04 Jan, 2021 – 16:42 Noel Baker
A judge has ordered Gardaí to pay the legal costs of a reporter whose mobile phone was taken and which subsequently sparked a High Court application seeking to stop gardaí from accessing messages on it.
The new judgement also specified that while gardaí had been granted permission to download material from the phone – as per an earlier ruling last September – the extent of the information which they can access, pending any appeal, should be limited and that the case highlighted a potential deficiency in Irish law when it came to the protection of journalistic sources.
Emmett Corcoran, the editor of the Strokestown Democrat, along with the owners of the paper, had brought legal proceedings challenging the seizure of his mobile phone by gardaí who were investigating an incident at a farmhouse at Falsk, near Strokestown on December 16, 2018.
Last September the issue made it to the High Court, with Mr Corcoran saying he had attended the scene that December as a journalist following a tip-off. He had recorded some footage and took photographs on his mobile phone and made those available to gardaí, but had refused to hand over the device so as to protect his sources.
Months after the incident gardaí seized the phone having been granted a search warrant, but Mr Corcoran did not provide any access password and gardaí had not sought to access the phone’s contents pending the High Court hearing.
That concluded last September in a ruling that there was no right to rely on a claim of journalistic privilege in the case. Mr Justice Garrett Simons had found the limited examination of the phone was justified by the public interest in the proper investigation and prosecution of criminal offences.
However, in a High Court judicial review issued today, Mr Justice Simons said the proceedings “raise important issues of principle in relation to freedom of expression, and, in particular, the protection of journalistic sources.”
Mr Justice Simons said “the actual logistics of accessing the content of a mobile telephone are more complex than I had appreciated” and it would be necessary to download and decode the full file system on the phone, rather than just part of it.
That would mean a separate report would need to be prepared identifying the relevant content over the period December 11-17, 2018, with the judge stressing that “the report is not to include contact details (such as names, telephone numbers, email addresses etc.) saved on the mobile telephone.”
The judge specified how that data was to be handled but said gardaí would also retain the mobile phone and both sides have leave to appeal.
As to costs, Mr Justice Simons said: “Notwithstanding that the applicants were ultimately unsuccessful in obtaining all of the relief sought, the taking of the proceedings was nevertheless in the public interest.
“These proceedings appear to have been the first proceedings in which the question of the seizure of a journalist’s mobile telephone in the context of ongoing criminal investigations has been addressed in a written judgment of the High Court.”
Referring to the court’s discretion in the matter of costs, the judge said a three-day High Court hearing costs “tens of thousands of euro” and “an adverse costs order would be financially ruinous for all save the very wealthy”. He also said “the case has indirectly highlighted a potential deficiency in the protections afforded to journalists’ confidential sources under domestic law”.
“The interpretation of the legislative provisions governing search warrants contended for by both parties has the consequence that there is, arguably, no statutory procedure prescribed under domestic law whereby the right to protection of journalistic sources is attended with legal procedural safeguards commensurate with the importance of the principle at stake. This might well represent a breach of the European Convention on Human Rights.”
The court directed An Garda Síochána to pay the applicants’ costs of the proceedings and granted a stay pending any appeal on the substantive orders made last September.