The High Court has ordered An Garda Síochána to examine a journalist’s mobile phone only through a restricted process, and to pay the applicants’ costs of their judicial review proceedings. The orders are stayed for 28 days after they are perfected; if an appeal or application for leave to appeal is filed within that period, the stay continues until the appeal is decided or an appellate court directs otherwise.
The supplementary judgment by Mr Justice Garrett Simons, delivered on 4 January 2021, dealt with the form of the orders, costs and a stay pending appeal. It followed the principal judgment of 11 September 2020, which refused the applicants’ request to prevent any examination of the phone’s contents.
The judge said it was not technically possible to download only selected phone data. Gardaí must download and decode the full file system, then prepare a separate report identifying relevant content created between 11 and 17 December 2018, inclusive. The report must exclude contact details stored on the phone. It is to be transferred on an encrypted drive to a Chief Superintendent independent of the Garda investigation into events at Falsk, Strokestown, Co Roscommon, on 16 December 2018. That officer will supply the report to the investigating team and a copy to the applicants’ solicitor.
The downloaded full file system is then to be deleted from the Garda computer system. The judgment says the phone itself will be retained by the Chief Superintendent, presumably because it may need to be produced as evidence in pending criminal proceedings. The injunction restrains Gardaí from accessing or examining the phone’s contents except in accordance with this process. The parties may apply to the High Court, including to refine the order if technology advances.
The judge found the applicants were not entirely successful because their central request to prevent any examination had been refused. However, he concluded they acted reasonably in continuing the case after Gardaí offered in May 2019 to limit examination to a specified period. That offer reserved the possibility of extracting further information and did not provide for Garda payment of the applicants’ costs.
The proceedings raised issues of public importance concerning freedom of expression, protection of journalistic sources and the balance between a free press and criminal investigations, the judge said. He ordered Gardaí to pay the applicants’ costs, including the leave application, the three-day hearing in July 2020, two sets of written submissions and reserved costs. The costs cover a solicitor and two counsel and are to be measured by the Office of the Legal Costs Adjudicator if the parties cannot agree.