Gardaí can examine calls, texts, social media, photos, videos on journalist’s phone, court rules

A High Court judge has ruled gardaí are entitled to carry out a limited examination of the contents of a mobile phone seized from the home of a provincial newspaper editor as part of their investigation into a violent incident at a repossessed house in Co Roscommon.

The ruling means gardaí can access calls, texts, social media messages, photos, videos and other information on the phone between December 11th and 17th 2018.

In an important judgment on Friday addressing the protection of journalistic sources and other issues, Mr Justice Garrett Simons refused to grant Emmet Corcoran and his company orders quashing a search warrant forcing him to hand over his phone when officers arrived at his Strokestown home.

Mr Corcoran, editor of the Strokestown-based "The Democrat", and Oncar Ventures Ltd, publisher and owner of that newspaper, represented by Michael McDowell SC had initiated judicial review proceedings within hours of a 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.

The phone was seized as part of a Garda investigation into violence at a house in Strokestown which had been repossessed in December 2018. A number of people are facing charges arising from that incident.

Following a tip-off, Mr Corcoran says he arrived at the scene, where a number of vehicles were on fire, before gardaí and fire services arrived 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. He has provided gardaí with a copy of the video shot by him and some photos.

Gardaí had undertaken not to examine the phone pending the outcome of the judicial review, which was opposed by gardaí and the State represented by Frank Callanan SC with Tony McGillicuddy BL.

In his judgment, Mr Justice Simons said the core of the applicants' case was that the Oireachtas was required but had failed to enact laws which prescribe an appropriate procedure whereby court authorisation is required before a search warrant is issued concerning a premises or property belonging to a journalist.

No journalistic privilege

While Mr Corcoran maintained the right to resist the examination and seizure of his phone, there is strictly speaking no such thing as journalistic privilege, the judge noted.

The relevant constitutional right, to freedom of expression, rather sought to protect the dissemination of information and public debate.

Journalists are central to that entire process and the constitutional rights would be meaningless if the law could not, or would not, protect their “general” right to protect their sources.

This right is “not absolute” and may have to yield to other countervailing public interests, including, relevantly in this case, in the proper investigation and prosecution of criminal offences.

He ruled Section 10 of the Criminal Justice Act 1997, under which the warrant was issued, meant the District Court’s function is confined principally to determining there are reasonable grounds for suspecting the evidence of, or relating to the commission of an arrestable offence, is to be found in the place in respect of which the warrant is sought.

The District Court had no jurisdiction in such an application to determine any issue concerning journalistic privilege, he held.

A journalist will not be ordered to disclose their sources unless such disclosure is justified by an overriding requirement in the public interest and the need for any restriction on freedom of expression must be “convincingly established”, he said.

In this case, there is no right to rely on journalistic privilege to resist disclosing the phone contents, he ruled.

He stressed his judgment did not address the validity of Section 10 as the applicants had not contended it was unconstitutional or inconsistent with the ECHR.

The height of their case was that the identity of the source of the tip off which lead to Mr Corcoran attending the aftermath of a criminal incident should be protected, he said.

“Perhaps tellingly”, Mr Corcoran had provided no information whatsoever as to the circumstances in which that individual approached him and there had been no attempt to explain the motivation of the source or what public interest they sought to advance by publication of the criminal incident.

Without in any way questioning Mr Corcoran’s own bona fides, there must be some doubt as to the motivation of the source in seeking to have the events publicised. It might not be unreasonable to infer the motivation may have been to propagate the “message” that action would be taken against those, such as security personnel allegedly assaulted, who seek to facilitate repossessions by financial institutions. The evidence did not establish this source was motivated to provide information the public were entitled to know.

The court had to balance the asserted public interest in protecting journalistic sources against the countervailing public interest in investigation and prosecution of criminal offences.

In this case, the public interest in ensuring all relevant evidence is available in the pending criminal proceedings overrides the claim for journalistic privilege, he ruled.

He ruled gardaí were entitled to carry out their proposed examination of the phone, confined to activity on the phone over a specified period of time shortly before and after the events of December 16th 2018. Their examination is limited to dates between December 11th and December 17th 2018.

Final orders will be made on a later date.