The Court of Appeal has quashed a search warrant used to seize journalist Emmett Corcoran’s mobile phone, holding that the District Court judge was not told that the search could expose journalistic sources or advised of the legal test for interfering with their protection.
The court allowed an appeal by Corcoran and newspaper publisher Oncor Ventures Limited, which trades as The Democrat. It directed that the phone be returned and that the Garda Commissioner could not access its data under the warrant issued on 2 April 2019. The court did not decide whether a fresh warrant could issue: it said Gardaí may apply again, with the required safeguards, and left the outcome to the District Court judge.
The warrant application concerned an investigation into a serious attack at a repossessed property in Falsk, Strokestown, on 16 December 2018. Corcoran had given Gardaí photographs and videos he said he took after the incident, but declined to identify the person who alerted him to it. The sworn information supporting the warrant alleged that Corcoran had been present during the attack and that further footage might be on his phone or other devices. Those were allegations advanced in support of the application, not findings by the Court of Appeal.
The District Court issued warrants for Corcoran’s home and The Democrat’s premises. Gardaí seized his phone on 4 April 2019. Corcoran challenged the warrant before the data was accessed. The High Court later permitted limited examination of phone data from 11 to 17 December 2018. The Commissioner also appealed the exclusion of contact details and the High Court costs order.
In her judgment, Ms Justice Costello said a District Court judge considering an ex parte warrant application must be told that journalistic source protection may be engaged, that the right is protected by the Constitution and the European Convention on Human Rights, and that it may be overridden only where the applicant convincingly establishes an overriding public-interest requirement. The judge must also receive full disclosure of relevant information and carry out the balancing exercise before the warrant issues. A later review cannot repair the failure to do so.
The source-protection issue had not been brought to the District Court judge’s attention, and the Commissioner accepted there had been no balancing of rights during the warrant application. The Court of Appeal therefore found the warrant had issued in breach of the applicants’ constitutional rights. It said the High Court’s later review could not cure that breach.
The court refused the Commissioner’s cross-appeal concerning access to Corcoran’s contacts. It left the costs of the appeal and High Court proceedings, and the final form of order, for further submissions. Murray and Donnelly JJ. agreed with Costello J.’s judgment.