Supreme Court to hear Garda appeal concerning seizure of journalist’s phone

The Supreme Court has agreed to hear an appeal against a refusal to allow gardaí to carry out a limited examination of a phone seized from a journalist’s home as part of an investigation into an alleged violent incident at a repossessed house in Co Roscommon.

The court agreed to hear the appeal after holding that it raises important issues concerning the laws that allow the authorities to obtain warrants to search journalists’ homes and access to their equipment and phones.

The High Court ruled in 2020 that gardaí could access calls, texts, social media messages, photos, videos and other information on the phone taken from Emmet Corcoran’s property in December 2018. That decision was overturned by the Court of Appeal (CoA) in April.

In a decision that has implications for the protection of journalistic sources and journalist privilege, the three-judge CoA quashed the warrant that allowed gardaí to search Mr Corcoran’s home.

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The court held that the warrant was flawed because it was not satisfied that the rights of a journalist to protect their sources was properly taken into account before it was issued. The CoA also ruled that any material on the phone could not be used by gardaí in their investigation and that the phone must be returned to Mr Corcoran.

In a written decision, a three-judge panel of the Supreme Court agreed that it should determine the Garda Commissioner’s appeal against the CoA’s decision on grounds that it raises important issues of general public importance.

The Supreme Court panel, comprised of the Chief Justice Donal O’Donnell, Mr Justice Peter Charleton and Mr Justice Gerard Hogan, said the CoA had considered it was possible for it to resolve the civil law case without deciding whether Mr Corcoran’s claims to withhold documentation or information was valid.

The CoA had decided the case on a narrower procedural ground.

‘So-called journalistic privilege’

In seeking to appeal the CoA decision, the Commissioner argued the case concerns the interaction between criminal investigations that use search warrants and “so-called journalistic privilege” asserted by Mr Corcoran, according to the Supreme Court.

This matter, it was contended by the Commissioner, will apply to other criminal investigations and specifically to applications for search warrants before the District Court.

The Supreme Court has not previously addressed the issues raised in the case, namely the balance between the public interest and the investigation of serious crimes, any claim of privilege, and the remedies available to courts.

In these circumstances, the Supreme Court held that the criteria had been met for it to hear and determine the Commissioner’s appeal.

Mr Corcoran, represented by Michael McDowell SC, instructed by solicitor Donnacha Anhold, initiated judicial review proceedings shortly after the search of his home and seizure of his phone in April 2019 on foot of a search warrant issued by a District judge in late 2018.

The phone was seized as part of a Garda investigation into violence at a house in Falsk, Strokestown, which had been repossessed in December 2018.

Following a tip-off, Mr Corcoran claimed he arrived at the scene of the property in Roscommon, where several vehicles were on fire, before gardaí and fire services arrived. He said he shot some phone footage that 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.

In the High Court, Mr Justice Garrett Simons refused to grant an order to Mr Corcoran, the editor of The Democrat and his company Oncar Ventures Ltd, that would quash a search warrant forcing him to hand over his phone when gardaí arrived at his Strokestown home.

Mr Justice Simons ruled that gardaí were not entitled to details of Mr Corcoran’s contacts stored on the phone. Mr Corcoran appealed the High Court’s findings against him to the CoA. The Commissioner also appealed certain findings to that court.

In its decision overturning the High Court’s key finding, the CoA held that the issues raised in the case are complex, but added that the right not to disclose journalistic sources is a constitutionally guaranteed right, albeit one which is not absolute.

A date for the hearing of the appeal Supreme Court will be fixed later this term.