Emmett Corcoran Oncor Ventures Ltd T/A The Democrat v Commissioner of an Garda Siochana

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 11 September 2020
• Neutral Citation: [2020] IEHC 382
• Docket Number: 2019 No. 200 J.R.
• Court: High Court
• Date: 11 September 2020

BETWEEN

EMMETT CORCORAN ONCOR VENTURES LIMITED T/A “THE DEMOCRAT”

APPLICANTS

AND

COMMISSIONER OF AN GARDA SÍOCHÁNA DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

[2020] IEHC 382

Garrett Simons J.

2019 No. 200 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Search and seizure – Public interest – Applicants seeking to challenge legality of search and seizure – Whether the Oireachtas had failed to enact legislation which prescribes an appropriate procedure whereby court authorisation is required prior to the issuance of a search warrant in respect of premises or property belonging to a journalist

Facts: The first applicant, Mr Corcoran, asserted that, in his capacity as a journalist, he had attended at the scene of a serious criminal incident. Mr Corcoran had been brought to the location by an unidentified third party. Mr Corcoran made a video recording of the scene on his mobile telephone and took a number of digital photographs. Mr Corcoran had since made a copy of the video recording and digital photographs available to An Garda Síochána, but had refused to hand over his mobile telephone on the basis that to do so could disclose his sources. Mr Corcoran expressly asserted journalistic privilege at a cautioned interview with An Garda Síochána. Several months later, An Garda Síochána obtained a search warrant from the District Court which purported to authorise the search of Mr Corcoran’s private residence and business premises, and the seizure therefrom of certain items. In the event, the only item seized was Mr Corcoran’s mobile telephone. Mr Corcoran and the second applicant, Oncor Ventures Ltd, the company which published the newspaper, immediately instituted judicial review proceedings seeking to challenge the legality of this search and seizure. An arrangement had been put in place whereby An Garda Síochána were precluded from accessing the content of the mobile telephone pending the determination of the proceedings. The gravamen of the applicants’ case was that the Oireachtas had failed to enact legislation which prescribes an appropriate procedure whereby court authorisation is required prior to the issuance of a search warrant in respect of premises or property belonging to a journalist. The applicants submitted, by reference to the case law of the European Court of Human Rights, that a procedure must be prescribed by law whereby a court can determine, prior to issuing a search warrant, whether a public interest which overrides the principle of protection of journalistic sources exists.

Held by the High Court that the applicants were not entitled to resist the very limited examination of the content of the journalist’s mobile telephone sought by An Garda Síochána. The Court held that the public interest in the protection of journalistic sources was outweighed by the countervailing public interest in ensuring that all relevant evidence was available in the pending criminal proceedings, and the related public interest in the proper investigation of criminal offences. The court found that the offences alleged were serious, involving the alleged assault of a number of individuals and criminal damage to property.

The Court held that the application for judicial review would be dismissed. The order of the Court would include a declaration to the effect that the examination of the content of the mobile telephone was to be limited to the following items: (i) the telephone calls to and from the phone for the period of the 11th – 17th December, 2018 inclusive; (ii) the emails and text messages, including other social media messaging services such as Whatsapp, Facebook Messenger etc., sent from and received to the phone for the period of the 11th – 17th December, 2018 inclusive; (iii) the images contained on the memory of the phone which were either captured, uploaded or placed onto the phone in the period of the 11th – 17th December, 2018 inclusive; (iv) the videos which were recorded, uploaded or otherwise placed on the phone in the period of the 11th – 17th December, 2018 inclusive; (v) other information contained in the phone which was uploaded to it in the period of the 11th – 17th December, 2018 inclusive.

Application dismissed.

JUDGMENT of Mr. Justice Garrett Simons delivered on 11 September 2020

INTRODUCTION

1 These proceedings raise important issues of principle in relation to freedom of expression, and. in particular, the protection of journalistic sources. More specifically, the proceedings require consideration of the difficult question of how the public interest in the proper investigation and prosecution of criminal offences is to be balanced against the public interest in a free press.

2 The first named applicant for judicial review (“Mr Corcoran”) describes himself as a journalist and the editor of a local, monthly newspaper. Mr Corcoran asserts that, in his capacity as a journalist, he had attended at the scene of a serious criminal incident. It appears that Mr Corcoran had been brought to the location by an unidentified third party. Mr Corcoran made a video recording of the scene on his mobile telephone and took a number of digital photographs. Mr Corcoran has since made a copy of the video recording and digital photographs available to An Garda Síochána, but had refused to hand over his mobile telephone on the basis that to do so could disclose his sources. Mr Corcoran expressly asserted journalistic privilege at a cautioned interview with An Garda Síochána. Several months later. An Garda Síochána obtained a search warrant from the District Court which purported to authorise the search of Mr Corcoran's private residence and business premises, and the seizure therefrom of certain items. In the event, the only item seized was Mr Corcoran's mobile telephone.

3 Mr Corcoran and the company which publishes the newspaper immediately instituted the within judicial review proceedings seeking to challenge the legality of this search and seizure. An arrangement has been put in place whereby An Garda Síochána are precluded from accessing the content of the mobile telephone pending the determination of the proceedings.

4 The gravamen of the Applicants' case is that the Oireachtas has failed to enact legislation which prescribes an appropriate procedure whereby court authorisation is required prior to the issuance of a search warrant in respect of premises or property belonging to a journalist. The Applicants submit, by reference to the case law of the European Court of Human Rights, that a procedure must be prescribed by law whereby a court can determine, prior to issuing a search warrant, whether a public interest which overrides the principle of protection of journalistic sources exists.

5 The shorthand “journalistic privilege” is employed in this judgment when referring to the right asserted on behalf of the Applicants, namely the right to resist the seizure and examination of Mr Corcoran's mobile telephone. However, for the reasons explained by the High Court (Hogan J.) in Cornec v. Morrice [2012] IEHC 376; [2012] 1 I.R. 804, such a shorthand is not entirely accurate. Strictly speaking, there is no such thing as “journalistic privilege”. Rather, what the constitutional right seeks to protect is the dissemination of information and public debate. Journalists are central to that entire process. The constitutional right would be meaningless if the law could not (or would not) protect the general right of journalists to protect their sources. This right is not absolute and may have to yield to other countervailing public interests, including. relevantly, the public interest in the proper investigation and prosecution of criminal offences.

STRUCTURE OF JUDGMENT

6 The legal challenge is advanced by reference both to the Constitution of Ireland (“ the Constitution”) and the European Convention on Human Rights (“the European Convention”). The Applicant contends that An Garda Síochána acted unlawfully in applying for a search warrant pursuant to section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 (as substituted).

7 The striking feature of the case, however, is that the Applicants have not sought to challenge the validity of the relevant statutory provision by reference to the Constitution. Nor have they sought a declaration of incompatibility pursuant to the provisions of the European Convention on Human Rights Act 2003. Rather, the Applicants' case, as refined at the hearing, is as follows. It is said that it is impermissible for An Garda Síochána to invoke the conventional search warrant procedure in any case where there is a prima facie claim of journalistic privilege. This is because the existing statutory procedure does not allow for the possibility of the consideration of a claim of journalistic privilege prior to the issuance of a search warrant. It is said that An Garda Síochána are required, instead, to institute proceedings before the High Court seeking the detention. preservation, or inspection of any property or thing pursuant to Order 50. rule 4 of the Rules of the Superior Courts. The High Court would then carry out the requisite balancing exercise in those proceedings.

8 In order to determine whether the Applicants' case is well founded, it is necessary to address a number of issues as follows. First, the nature and extent of the right engaged under the Constitution must be examined. Whereas the case law recognises that, in certain circumstances, a journalist may be entitled—as a corollary of the right of freedom of expression—to withhold details of his or her confidential sources, the precise range of circumstances are not yet fully defined. Secondly, the meaning and effect of section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 (as substituted) must be considered. Thirdly, the legality of the search and seizure must then be ruled upon. Fourthly, if the search and seizure is found...