No requirement for judge to be told of journalistic privilege claim over phone in warrant, court told

Lawyers for the Garda Commissioner before Court of Appeal over costs ruling

Lawyers for the Garda Commissioner have argued there was no legal requirement for a District Court judge to be informed that a claim of “journalistic privilege” had been made over materials subject to a warrant he was issuing.

Frank Callanan SC, for the commissioner and the State, told the Court of Appeal on Tuesday that there was no issue of non-disclosure on the part of gardaí ­ when they obtained a warrant to seize the phone of Emmett Corcoran, editor of the provincial newspaper "The Democrat", based in Strokestown, Co Roscommon.

The obligation of disclosure has to be defined by reference to the statutory jurisdiction that is being exercised by the District Judge, which in this case was section 10 of the Criminal Justice Act, he said. He noted that gardaí­ had told Judge James Faughnan that the subject of the warrant had a journalistic background.

When asked by Ms Justice Caroline Costello if, hypothetically, a judge should be informed of a solicitor’s claim of legal privilege, which is absolute, over materials sought, Mr Callanan said he did not believe the disclosure would be required under current search warrant legislation.

The Court of Appeal’s Ms Justice Costello, Ms Justice Aileen Donnelly and Mr Justice Brian Murray said on Tuesday that they would give their judgement at a later date.

High Court judge Mr Justice Garrett Simons found in a September 2020 judgement that Mr Corcoran did not have the right to rely on a claim of journalistic privilege in this case. He ruled that a limited examination of the phone was justified by the public interest in the proper investigation and prosecution of criminal offences. He ordered that a report accessible to investigating gardaí must not include contact details saved on the phone.

The judge later ordered gardaí to pay Mr Corcoran’s legal costs, noting that the proceedings were taken in the public interest.

The Commissioner of An Garda Sochana is appealing this costs order, as well as the limiting of information to exclude contact details. Mr Corcoran and his company Oncor Ventures Ltd issued a cross-appeal, seeking a review of the lower court's findings.

Mr Corcoran’s phone was seized as part of an investigation into violence following a home repossession at Falsk, near Strokestown, in December 2018. Mr Corcoran said he attended the scene as a journalist following a tip-off and he made available to gardaí­ footage and photographs he took.

The day after the warrant’s execution the High Court granted an order preventing gardaí­ from examining his phone, which had been locked by a passcode, until further court order.

Mr Callanan said on Tuesday that he does not accept the argument that Mr Justice Simons had not decided if the warrant was valid or not. He said the issuance of the warrant was not incompatible with the jurisprudence of the European Court of Human Rights. Rather, the “issue is the accessing of material”, he said, and any supposed requirement for an independent decision-maker to evaluate such a claim would come only before the subject material is accessed. Mr Callanan said this balancing exercise was carried out by the High Court in this case.

On Monday the Court of Appeal heard the issue of the warrant’s validity was a “critical point” the High Court had left undecided. Michael McDowell SC, representing Mr Corcoran and his company, argued the issuing of the warrant was “plainly unlawful” given the District judge was not informed Mr Corcoran had objected to handing over his phone on grounds that it would disclose journalistic sources.