The Supreme Court dismissed an appeal by Emmett Corcoran and Oncor Ventures Limited, trading as The Democrat, and quashed warrants issued on 2 April 2019. Chief Justice O’Donnell said the warrants should not have been granted without telling the issuing judge that they concerned a journalist’s office and could expose the identities of sources unrelated to the Garda investigation.
In a judgment delivered on 22 June 2023, O’Donnell said the right of journalists to protect confidential sources is protected by Article 10 of the European Convention on Human Rights and Irish law under the European Convention on Human Rights Act 2003. He noted that executing a warrant at a journalist’s office could reveal not only a source connected with a particular story but also other sources with no relevance to the investigation.
O’Donnell said those were material facts that ought to have been disclosed to the judge before the warrants were issued. Although section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 is framed in broad terms, he said the judge retained the option to refuse a warrant. The failure to disclose the relevant facts meant the warrants had to be quashed.
The Chief Justice agreed with judgments by Justices Hogan and Collins that the appeal should be dismissed and the warrants quashed. His judgment discusses their analysis of whether Article 40.6.1.i of the Constitution provides journalists with protection for confidential sources comparable to Article 10 of the Convention. But he stressed that this constitutional question had not been fully argued in the appeal and had not been the subject of detailed argument in the lower courts.
O’Donnell reserved his position on whether the constitutional guarantee creates a journalistic privilege, and, if so, how its scope and exceptions compare with those under Article 10. He said those questions should be resolved when they arise in a case requiring a decision on concrete facts and fully reasoned argument.