The High Court dismissed a journalist’s challenge to the seizure of his mobile phone, but ordered that Gardaí could examine only specified material from 11 to 17 December 2018.
Mr Justice Garrett Simons ruled that the public interest in obtaining relevant evidence for pending criminal proceedings outweighed the claim to protect a journalistic source in this case. He said the evidence did not establish that the source was motivated by a desire to provide information the public were entitled to know.
The case arose after journalist and newspaper editor Emmett Corcoran attended the aftermath of an alleged incident at Falsk, Strokestown, on 16 December 2018. Gardaí were investigating alleged assaults and criminal damage, including the burning of vehicles. The judgment noted that several people had been charged, and that no charges had been brought against Corcoran.
Corcoran had provided Gardaí with a USB containing video and photographs from the scene, but declined to hand over his phone password, citing the risk of exposing his sources. Gardaí obtained search warrants for his home and newspaper premises. On 4 April 2019 they seized his phone. An arrangement, later continued by court undertaking, prevented access to its contents while the judicial review was pending.
The court held that the warrant procedure under section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 operates on an ex parte basis. The District Court’s role in issuing a warrant is principally to consider whether there are reasonable grounds to suspect evidence of an arrestable offence will be found at the location; it has no jurisdiction in that application to decide a claim of journalistic privilege.
The judge did not decide whether Gardaí must use another procedure when a journalist claims source protection, or whether the law provides adequate safeguards for such claims. The applicants had not challenged the validity of section 10 or sought a declaration that it was incompatible with the Constitution or European Convention on Human Rights. The court found it unnecessary to resolve those broader questions because it concluded that Corcoran could not rely on journalistic privilege to resist the limited examination sought here.
The permitted examination covers calls, emails, texts and other social media messages, images, videos and other information placed on the phone during the specified seven-day period. The court also rejected the applicants’ bias argument concerning the District Court judge who issued the warrants and found the execution of the warrant lawful. The parties were asked to correspond on the precise form of order and legal costs.