The Supreme Court has dismissed the Garda Commissioner's appeal against a refusal to allow gardaí to examine a mobile phone seized from a journalist's home as part of an investigation into an alleged violent incident at a repossessed property in Co Roscommon.
In its ruling, the Supreme Court upheld the Court of Appeal’s decision that a warrant obtained by Gardaí to search journalist Emmet Corcoran's home in 2019, and seize his phone, was invalid and should be quashed.
The case raised important issues concerning journalistic privilege and the protection of sources, as well as issues concerning applications for search warrants to the Distrcit Court made by the Gardaí as part of criminal investigations.
In his judgement, Mr Justice Gerard Hogan said the case "identified the lack of safeguards designed to protect journalistic privilege, and a requirement to provide for an independent merits-based assessment of such a claim".
The judge also said that "without some constitutional protection of the right of the media to protect their sources, the press 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".
The judge accepted that the constitutional issue concerning journalist privilege was "not fully argued in the appeal" before it.
However, "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 5 of the Constitution and the general protection of sources is integral to a free press," he added.
Judicial review
Mr Corcoran brought 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 Court judge in late 2018.
His phone was seized as part of a garda probe 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, taken from Mr Corcoran's property, in December 2018.
That decision was overturned last year by the Court of Appeal (CoA), which quashed the warrant allowing the gardaí to search Mr Corcoran's home.
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.
The CoA also ruled that any material on the phone could not be used by the Gardai as part of their investigation, and the phone be returned to Mr Corcoran.
The Garda Commissioner appealed the CoA's decision to the Supreme Court, which accepted the case raised important issues of public interest which required to be adjudicated on.
In its judgement on Thursday, the seven judge court, comprised of the Chief Justice Donal O'Donnell, Ms Justice Elizabeth Dunne, Mr Justice Peter Charleton, Ms Justice Iseult O'Malley, Ms Justice Marie Baker, Mr Justice Gerard Hogan and Mr Justice Maurice Collins, unanimously 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 that "highly relevant information was not before the District Court judge".
He added that District Court judges cannot properly exercise their independent roles unless all relevant facts are 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 action "exposed serious shorting comings" in the laws governing search warrants, in terms of the State's obligations under the Constitution and the European Convention on Human Rights.
The resolution of such shortcomings, he added, "stand beyond the capacity of the courts to amend and cure" and were matters "the Oireachtas may wish to give urgent consideration to".
Informed assessment
In his judgement, Mr Justice Collins agreed that the information put before the District Court judge "did not adequately disclose the position that would allow that judge make a proper informed assessment as to whether it was appropriate to issue 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 that conclusion was not inevitable, he said.
Mr Justice Collins said it was "inappropriate to express any view" if Irish law or the Constitution provides protection against the compelled disclosure of journalist's sources.
Several matters, he said, need to be addressed before a court could make any decision being made about the existence of any form of journalistic privilege existing in the constitution or in the common law.
In his judgement, the Chief Justice also agreed that the warrant was invalid and that the constitutional matters concerning journalistic privilege had not been fully argued.
The judgements of Mr Justice Hogan and Mr Justice Collins, he said, had made an important contribution to the debate.
However, he said any final resolution of those issues should not be addressed until such matters arise in proceedings where it is necessary to do so.
The Garda Commissioner, in seeking to overturn the CoA's ruling, argued that the case concerns the interaction between criminal investigations utilising search warrants and "so-called journalistic privilege" asserted by Mr Corcoran.
The Garda Commissioner claimed the ruling would impact on other criminal investigations, specifically applications for search warrants made before the District Court.
Mr Corcoran claimed that in 2018 he arrived at the scene of the property in Falsk. He said when he arrived, before gardaí and fire services, several vehicles were on fire and he shot some phone footage which was put on the Democrat’s website.
Before his phone was seized, Mr Corcoran, who invoked journalistic privilege some months earlier in relation to its contents, switched it off and refused to provide the PIN.
The High Court refused to grant Mr Corcoran, the editor of the The Democrat and his company, Oncar Ventures Ltd, orders quashing the search warrant requiring him to hand over his phone when gardaí arrived at his home in Strokestown.
That court also ruled that Gardaí were not entitled to details of Mr Corcoran's contacts stored on the phone.
In its decision overturning the High Court's key finding, the CoA 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.
