Emmett Corcoran and Oncor Ventures Ltd t/a The Democrat v The Commissioner of an Garda Síochána and the Director of Public Prosecutions
| Jurisdiction | Ireland |
| Judge | Mr. Justice Maurice Collins,Mr. Justice Gerard Hogan,Mr. Justice O'Donnell |
| Judgment Date | 22 June 2023 |
| Neutral Citation | [2023] IESC 15 |
| Court | Supreme Court |
| Docket Number | S: AP:IE: 2022:000077 |
[2023] IESC 15
O'Donnell C.J.
Dunne J.
Charleton J.
O'Malley J.
Baker J.
Hogan J.
Collins J.
S: AP:IE: 2022:000077
AN CHÚIRT UACHTARACH
THE SUPREME COURT
JUDGMENT of Mr. Justice Maurice Collins delivered on 22 June 2023
I agree with Hogan J that the search warrants issued on 2 April 2019 (“ the Search Warrants”) should be quashed and the Respondents' appeal dismissed.
I also agree with Hogan J that these proceedings highlight significant deficiencies in section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 (as substituted by section 6(1)(a) of the Criminal Justice Act 2006) (hereafter “ Section 10” and the “ 1997 Act”) that require the attention of the Oireachtas.
The material facts are set out by Hogan J and so it is unnecessary to recite them at any length. As he says, the events at Falsk, Strokestown, County Roscommon in the early hours of 16 December 2018 were “ very disturbing”, amounting to a violent attack on the rule of law, calculated to terrorize both the immediate victims and the wider community and involving the commission of very serious criminal offences, against both persons and property. That being so, the Gardaí were duty bound to take all appropriate measures to identify and prosecute the perpetrators.
On his own account, Mr Corcoran was present “ at the aftermath” of what he refers to as “ an incident at a house in which a number of vehicles were set on fire”. He travelled there, in his own car, “ as a consequence of “tip offs” from confidential journalistic sources”, the identity of which, he says, he is not “ entitled to reveal.” It is not clear whether Mr Corcoran gave, or was asked to give, any assurance of confidentiality to those sources. Equally, it is not clear what information, beyond the timing and location of the “ incident”, was given to Mr. Corcoran. In any event, he travelled to the scene and while there he took photographs and video footage which were subsequently uploaded to the website of The Democrat. That, it appears, was the entire purpose of the arrangement: Mr. Corcoran's “ sources” wished to generate publicity for the unlawful actions carried out at Strokestown, presumably in the hope that such publicity would amplify the intimidatory impact of those actions.
These are, it might be thought, unpromising circumstances in which to assert a claim to “ journalistic privilege”, in the form of an entitlement on the part of Mr. Corcoran not to be compelled to identify those “ sources”. 1 After all, the case-law on Article 10 ECHR, while emphasising that the protection of journalistic sources is “ one of the cornerstones of freedom of the press”, also indicates that such protection does not extend uniformly to all sources in all circumstances: see Application no 40485/02 Nordisk Film & TV A/S v Denmark and Application no 8406/06 Stichting Ostade Blade v Netherlands. As the ECtHR stated in Stichting Ostade Blade, not every individual who provides information to a journalist is a “ source” in the sense in which that term is used in the Article 10 case-law (para 62). The full protection of Article 10 arises in respect of “ sources in the traditional sense”, one “ who volunteers to assist the press in informing the public about matters of public interest” (paras
63 & 64). The same level of protection is not available where the “ source” is not “ motivated by the desire to provide information which the public were entitled to know.”The facts of Stichting Ostade Blade usefully illustrate this distinction. The applicant published a fortnightly magazine. Following a number of bombings in the Netherlands, the applicant issued a press release announcing that its next issue (to be published the following day) would include a letter from a group (the ELF) claiming responsibility for the bombing campaign. The following day, the magazine's offices were searched on foot of a search warrant for the purpose of obtaining the ELF letter. A large volume of material, including a number of computers, were taken by the authorities but subsequently returned. A challenge to the search in the Netherlands courts was unsuccessful and the applicant made a complaint under the ECHR. The ECtHR was not persuaded that “ source protection” was at issue. The informant was not motivated by a desire to provide information which the public was entitled to know. On the contrary, he was claiming responsibility for crimes which he had himself committed and “ his purpose in seeking publicity through the magazine … was to don the veil of anonymity with a view to evading his own criminal accountability” (para 65). While it did not follow that the applicant newspaper was left without protection under Article 10 ECHR – an order directed to a journalist to hand over original material could still have a “ chilling effect” on the exercise of journalistic freedom of expression – the degree of protection did not necessarily reach the same level as that afforded to journalists when it comes to their right to keep their “ sources” confidential because “ the latter protection is twofold, relating not only to the journalist, but also and in particular to the “source” who volunteers to assist the press in informing the public about matters of public interest” (para 64). On the facts in Stichting Ostade Blade, the court considered that the search pursued the legitimate aim of the prevention of crime and was necessary in democratic society given that the document sought could possibly assist in the identification of the person or persons suspected of carrying out dangerous criminal offences. In the circumstances, the applicant's complaint was rejected as manifestly ill-founded.
The observations of the ECtHR in Stichting Ostade Blade have an obvious resonance here and it may well be that, as a matter of principle, a compelling case can be made that Mr Corcoran's claim to “ journalistic privilege”, whether derived from Article 10 ECHR or otherwise, must in the circumstances here yield to the compelling public interest in the effective investigation of the events of the 16 December 2018, such that Mr. Corcoran might properly be compelled to identify the “ sources” that led him to be present at the scene.
That was, indeed, the view taken by Simons J in the High Court: paras 90 – 102 (no constitutional source protection in the circumstances here) and paras 103 – 116 (no source protection under Article 10 ECHR either). A difficulty with the High Court's decision is that, in the name of judicially reviewing the Search Warrants, the Court undertook an exercise that, on its own analysis, it was not open to the District Judge to carry out under Section 10. Furthermore, having evidently found that the Search Warrants were properly issued, and dismissing the application for judicial review on that basis, it is not entirely clear what jurisdiction the High Court had to make the Order of 4 January 2021.
Furthermore, and fundamentally, in common with Hogan J and with the Court of Appeal, I differ from the High Court Judge as to the proper scope of the District Judge's functions and duties under Section 10. The Search Warrants here were issued without any evident regard to Mr Corcoran's status as an active journalist or any consideration of the fact that execution of the Search Warrants would potentially result not just in the disclosure of the identity of the sources that led Mr Corcoran to attend at Strokestown on the night of 16 December 2018 but of other sources, and other journalistic material, relating to Mr Corcoran's activities as a journalist which were unrelated to that incident. In my opinion, these were matters to which the judge could – and should – have had regard in determining whether or not to grant the Search Warrants. They were matters which ought to have been – but were not – specifically drawn to the judge's notice by the Gardaí involved. That omission is, in my view, fatal to the validity of the Search Warrants here.
Section 10 is set out in the judgment of Hogan J. The section was the subject of close examination in the recent decision of this Court in People (DPP) v Quirke [2023] IESC 5 (per Charleton J; O'Donnell CJ. Dunne, O'Malley, Baker, Woulfe & Murray JJ concurring). As Charleton J noted in his judgment, Section 10 does not make any reference to the searching of computers or mobile phones (in contrast to many other search warrant provisions on the statute-book) and does not include any of the ancillary/consequential provisions that have also been provided for by statute, including the power to require the provision of any passwords necessary to gain access to and/or to operate such computers or phones. Section 48 of the Criminal Justice (Theft and Fraud Offences) Act 2001, which is referred to in Quirke, provides an example of such a provision. Similar provisions may be found ( inter alia) in section 14 of the Criminal Assets Bureau Act 1996 (as amended), section 908C of the Taxes Consolidation Act 1997 (as amended) and section 17A of the Sea-Fisheries and Maritime Jurisdiction Act 2006 (as amended).
For the reasons explained by Charleton J in Quirke, the search of a personal computer or phone may intrude upon privacy interests to a more significant extent than the search of a physical location, even of a dwelling-house: at para 73 and following, citing ( inter alia) R v Vu [2013] SCC 60, [2013] 3 SCR 657 and R v Fearon [2014] SCC 77, [2014] 3 SCR 621 (decisions of the Supreme Court of Canada), Riley v California 573 US 373 (2014) (a decision of the United States Supreme Court) and Dotcom v Attorney General [2014] NZSC 199 (a...
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