Emmett Corcoran and Oncor Ventures Ltd T/A the Democrat v The Commissioner of an Garda Síochána and DPP

JurisdictionIreland
JudgeMs. Justice Costello
Judgment Date22 April 2022
Neutral Citation[2022] IECA 98
CourtCourt of Appeal (Ireland)
Docket NumberCourt of Appeal Record Number: 2021/18
Between
Emmett Corcoran and Oncor Ventures Limited T/A the Democrat
Applicants/Respondents
and
The Commissioner of an Garda Síochána and Director of Public Prosecutions
Respondents/Appellants

Murray J.

Costello J.

Donnelly J.

Court of Appeal Record Number: 2021/18

THE COURT OF APPEAL

Disclosure – Warrant – Journalists – Applicants appealing against an order directing that certain data on the first applicant’s phone be made available to An Garda Síochána – Whether the warrant that issued ought to be quashed

Facts: The High Court, on 4 February 2021, crafted a bespoke order delimiting the information on the mobile phone of the first applicant, Mr Corcoran, which the gardaí could access following the seizure of the phone on foot of a warrant issued by a District Court Judge to a member of An Garda Síochána. Both parties claimed that the trial judge erred in making that order, and at the heart of the appeal was the balancing of the conflicting rights and duties of the parties: the entitlement or otherwise of An Garda Síochána to access material while investigating serious crime but which will or may identify journalistic sources of the applicants.

Held by the Court that it is open to a member of An Garda Síochána to apply in at least some circumstances ex parte to a District Court judge for a search warrant of a journalist’s home or place of work under s. 10 of the Criminal Procedure (Miscellaneous Provisions) Act 1997 provided that the minimum safeguards are observed. The Court held that the District Court judge must be informed that the application engages or potentially engages journalistic privilege, that this privilege is protected by the Constitution and the European Convention on Human Rights, that it may be overridden, and that the judge may only issue the warrant if the applicant convincingly establishes that there is an overriding requirement in the public interest that justifies such an order. The Court held that the applicant is under an obligation to make full disclosure in order that the District Court judge may properly balance the competing rights of the public interest in the investigation and prevention of crime and the rights of journalists, their sources and the general public in the protection of journalistic sources from disclosure. The Court held that a warrant issued where those minimum requirements are not met may be quashed. The Court held that a review and ex post facto balancing of the rights after a warrant has issued and after it has been executed is not compliant with the requirements of the Constitution. The Court held that the very fact of the issuing of the warrant to search the home or place of business of a journalist, even if it is not executed or no journalistic material is seized on foot of it, may in some circumstances amount to a breach of the rights of journalists, and their sources, under the Constitution. Accordingly, the Court held that the warrant that issued in this case ought to be quashed, Mr Corcoran’s mobile phone should be returned to him and the first respondent, the Commissioner of An Garda Síochána, was not entitled to access any information from the phone pursuant to the warrant issued on 2 April 2019.

The Court allowed the applicants’ appeal against the order of the High Court directing that certain data on Mr Corcoran’s phone be made available to An Garda Síochána. The Court directed the return of the phone to Mr Corcoran. The Court refused the Commissioner’s cross appeal in relation to the disclosure of Mr Corcoran’s contacts on his phone.

Appeal allowed.

JUDGMENT of Ms. Justice Costello delivered on the 22nd day of April 2022

1

This appeal concerns the balance between the obligations of An Garda Síochána to investigate serious crime on the one hand and the right of a journalist to protect his sources from disclosure on the other. On 4 February 2021, the High Court (Simons J.) crafted a bespoke Order delimiting the information on the mobile phone of the first named applicant, Mr. Corcoran, which the gardaí could access following the seizure of the phone on foot of a warrant issued by a District Court Judge to a member of An Garda Síochána. Both parties claim that the trial judge erred in making this order, and at the heart of this appeal is the balancing of the conflicting rights and duties of the parties: the entitlement or otherwise of An Garda Síochána to access material while investigating serious crime but which will or may identify journalistic sources of the applicants.

Background
2

In 2018, Mr. Corcoran and Mr. Phelim O'Neill, a solicitor, incorporated the second named applicant (“the publisher”) to publish a local weekly newspaper, known as the Democrat, in Longford, Leitrim and Roscommon. By December 2018, sixteen or seventeen editions had been published with a weekly circulation of between 5 and 6,000. Mr. Corcoran is the editor of the Democrat and he is a journalist who has been published in the Irish Times. The Democrat also has an online presence. Mr. Corcoran resides in Strokestown, County Roscommon.

3

On 11 December 2018, a property at Falsk, Stokestown was repossessed pursuant to a court order for possession and security personnel acting on behalf of the charge holder went into occupation of the property. On 16 December 2018, at approximately 5 a.m. a violent and serious incident occurred in which a number of masked and armed people attended at the premises, attacked and injured the security personnel and set a number of vehicles alight. Mr. Corcoran says he attended at the aftermath of the incident and took photos and videos which he uploaded on the website of the publisher and which were viewed and reproduced many times.

4

On 19 December 2018, Mr. Corcoran was interviewed under caution by members of An Garda Síochána investigating the incident of 16 December 2018. He was accompanied by Mr. O'Neill who was solicitor for both of the applicants. Mr. Corcoran offered to make available all copies of videos and photos which he took on the occasion and he did so on the following day. He declined to reveal his sources and in particular the individual who alerted him to the event, asserting “ journalistic privilege”.

5

The gardaí continued their investigation into this extremely serious incident. Three and a half months later, on 2 April 2018, Sergeant Siggins applied ex parte in chambers to a District Court judge in Roscommon for two search warrants: one in respect of Mr. Corcoran's home and one in respect of the publisher's premises. The application was made pursuant to s. 10 of the Criminal Procedure (Miscellaneous Provisions) Act 1997 (“the 1997 Act”). The provisions of the Act will be considered in greater detail below. At present, it is sufficient to state that if a judge of the District Court is satisfied by information on oath of a member of An Garda Síochána not below the rank of sergeant that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an arrestable offence is to be found in any place, the judge may issue a warrant for the search of that place and of any persons found at that place.

6

Sergeant Siggins swore an information in the following terms:-

“THE INFORMATION of Sergeant Dermot Siggins of Castlerea Garda

Síochána Station.

Who says on oath:-

I am a member of the Garda Síochána not below the rank of sergeant.

I have reasonable grounds for suspecting that – evidence of, or relating to, the commission of an arrestable offence (within the meaning of section 2(1) of the Criminal Law Act 1997, as amended by section 8 of the Criminal Justice Act 2006), False Imprisonment, unlawful possession of a firearm, assault causing harm, criminal damage, is to be found at a place (within the meaning of section 10(6) of the Criminal Justice (Miscellaneous Provisions) Act 1997), namely [ ], Strokestown, the home of Emmet Corcoran in the said Strokestown, District Court Area No. 4 district.

The basis for such grounds is as follows –

In the early hours of the 16th December 2018 at Falsk, Strokestown, a group of approximately 30 men attacked a group of 8 security men with weapons and a firearm inflicting injuries on three of the security men. The immediate aftermath of the attack was recorded on a device which was handed over voluntarily by Emmet Corcoran to Sergeant Dermot Siggins at Roscommon Garda station on 20th December 2018. [NAME REDACTED] one of the injured parties alleges that when he was on the ground just after the attack a Peugeot vehicle pulled up, a male wearing square shape glasses, heavy set, approx. 5′ 8″, blue jeans, tan/brown dealer boots, was recording on his mobile phone, he was accompanied by a man in a balaclava who was wearing a camouflage jacket with DPM on it. He was in possession of a wood cudgel with a knotted head on. This video was recorded prior to the emergency services arriving. As the emergency services lights were seen the man in the balaclava told the other male that it was time to go. A video of the immediate aftermath of the incident was then posted online on Facebook page Democrat and also on Democrat.ie. These sites are co-owned by Emmet Corcoran and Phelim O'Neill. The description of the male given by the injured party matches the description of Emmet Corcoran who was present with the person with the balaclava at the scene. Furthermore the USB Hardrive (sic) handed over by Mr Corcoran was examined by the Computer Crime Cyber Unit which indicates this footage was downloaded from an iphone 6 between the hours of 5:34hrs – 5:40hrs on the 16th December 2018. The article in both sites contains information that was not in the public domain unless the person who posted it was present at the scene. I believe from investigations carried out there are reasonable grounds to believe Emmet Corcoran was present at the attack and I believe an iphone 6 and further video...

To continue reading

Request your trial
2 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT