Court of Appeal rules in favour of journalist who had phone seized by gardaí in 2018
23rd April 2022
THE COURT OF Appeal has overturned a decision allowing gardaí to carry out a limited examination of the contents of a mobile phone seized from a journalist’s home as part of an investigation into an alleged violent incident at a repossessed house in Co Roscommon.
The High Court had ruled in 2020 that gardaí could access calls, texts, social media messages, photos, videos and other information on the phone, taken from Emmett Corcoran’s property, in December 2018.
The COA held that the warrant was flawed because it was not satisfied that the rights of a journalist to protect their sources was properly taken into account before it was issued.
In a highly significant decision that has implications for the protection of journalistic sources and journalist privilege, the three judge COA comprised of Ms Justice Caroline Costello, Brian Murray and Aileen Donnelly quashed the warrant that allowed the gardaí to search Corcoran’s home.
The COA also ruled that any material on the phone could not be used by the gardaí as part of their investigation, and the phone must be returned to Corcoran.
Ms Justice Costello said the issues raised in the case are complex but added that the right not to disclose journalistic sources is a constitutionally guaranteed right, albeit one which is not absolute.
In his judgement Mr Justice Garrett Simons refused to grant Corcoran, the editor of the ‘The Democrat’, and his company Oncar Ventures Ltd orders quashing a search warrant forcing him to hand over his phone when gardaí arrived at his Strokestown home.
Corcoran initiated judicial review 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 Judge in late 2018.
The phone was seized as part of a garda investigation into violence at a house in Strokestown which had been repossessed in December 2018.
Mr Justice Simons also ruled that the gardaí were not entitled to details of Corcoran’s contacts stored on the phone.
He also ordered the gardaí to pay Corcoran’s legal costs, on the basis that the proceedings were taken in the public interest.
Corcoran appealed the High Court’s findings against him to the COA.
The Garda Commissioner appealed both the cost rulings and the decision to exclude contact details from the information the High Court said the gardaí were entitled to examine.
In their appeal, Corcoran and the company, represented by Michael McDowell SC and Morgan Shelley BL, instructed by solicitor Donnacha Anhold argued that the High Court had erred in its findings and that the decision against the journalist should be set aside.
Following a tip-off, Corcoran claimed he arrived at the scene of the property in Roscommon, where several vehicles were on fire, before gardaí and fire services arrived, and he shot some phone footage which was put on the Democrat’s website.
Before his phone was seized, Corcoran, who invoked journalistic privilege some months earlier in relation to its contents, switched it off and refused to provide the PIN.
Giving the COA’s decision Ms Justice Costello said the appeal concerns “the balance between the obligations of An Garda Síochána to investigate serious crime on the one hand and the right of a journalist to protect his sources from disclosure on the other”.
The judge said An Garda Síochána can apply, in certain circumstances, to a District Court judge for a search warrant of a journalist’s home or place of work, once minimum safeguards identified are observed.
The District Court judge must be informed that the application engages or potentially engages journalistic privilege, that this privilege is protected by the Constitution and the Convention, that it may be overridden, that the judge may only issue the warrant if the applicant convincingly establishes that there is an overriding requirement in the public interest that justifies such an order, the judge said.
The applicant is under an obligation to make full disclosure in order that the District Court judge may properly balance the competing rights of the public interest in the investigation and prevention of crime and the rights of journalists, their sources and the general public in the protection of journalistic sources from disclosure, she said.
“A search warrant issued where these minimum requirements are not met may be quashed,” the judge said.
A review and balancing of the rights after a warrant has issued and executed “is not compliant with the requirements of the Constitution,” the judge said.
The very fact of the issuing of the warrant to search the home or place of business of a journalist, even if it is not executed or no journalistic material is seized on foot of it, may in some circumstances amount to a breach of the rights of a journalist, and their sources, under the Constitution, she said.
The judge said that it was clear that the Commissioner has not shown that the District Court judge was given the information necessary to decide whether in the circumstances of this case it was appropriate to issue a warrant.
Had that judge been given that information, he may well have decided that the material captured by the warrant was not subject to privilege or that if it was, the circumstances were such that that privilege did not outweigh the interest of the State in the investigation or prosecution of the offences in question.
“It follows that the warrant was issued in breach of the applicants’ rights under Article 40.6.1.i of the Constitution and the Commissioner was not entitled to search Mr Corcoran’s home on foot of the warrant or to seize his mobile phone or to access any data on the phone.” the judge said.
“Accordingly, the warrant that issued in this case ought to be quashed.”
The Judge said that Corcoran’s mobile phone should be returned to him, and the Commissioner is not entitled to access any information from the phone pursuant to the warrant issued on 2 April 2019.
The COA said that it was also allowing the applicants’ appeal against the order of the High Court directing that certain data on Corcoran’s phone be made available to An Garda Síochána and directed the return of the phone to Corcoran.
The COA also refused the Commissioner’s cross appeal in relation to the disclosure of Corcoran’s contacts on his phone.
The CAO said it would deal with all outstanding issues in the case, including costs, at a later date.
Speaking after the ruling, Corcoran’s solicitor Donnacha Anhold welcomed what was a very significant and important decision by the COA. He said that “the case has raised some very important issues of law concerning the area of invoking journalist privilege,”
The judgement, he added, had gone some way to addressing some of those issues.
However, he said that the case had highlighted the lacuna in the law regarding journalistic privilege and the protection of sources, which he says needs to be addressed by the legislature.