A High Court judge was "mistaken" in not deciding if a warrant issued for the seizure of the phone of a provincial newspaper editor was valid or invalid, the Court of Appeal has heard.
Michael McDowell SC, representing Emmett Corcoran and his company Oncor Ventures Ltd, trading as Strokestown-based The Democrat, said the issue of the warrant's validity was a "critical point" the High Court left undecided and this must be adjudicated on in the appeal court.
Mr Corcoran's phone was seized as part of an investigation into violence following a home repossession at Falsk, near Strokestown, Co Roscommon, in December 2018. Mr Corcoran said he attended the scene as a journalist following a tip-off. He made available to gardaí footage and photographs he took at the scene.
In obtaining a warrant several months later, gardaí did not inform District Court Judge James Faughnan that Mr Corcoran had objected to handing over his phone on grounds that it would disclose journalistic sources, said Mr McDowell. It is his client's case that the issuing of the warrant under these circumstances was "plainly unlawful" and it should be quashed on this basis.
Journalistic privilege
Were it not for the phone’s passcode, said Mr McDowell, gardaí could have immediately accessed matters that Mr Corcoran and his company maintain are protected under “journalistic privilege”. The day after the warrant’s execution the High Court granted an order preventing An Garda Síochana from examining his phone until further order of the court.
The High Court's Mr Justice Garrett Simons found in a September 2020 judgement that there was no right to rely on a claim of journalistic privilege in the 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 Síochana is appealing this costs order, as well as the limiting of information to exclude contact details. Mr Corcoran issued a cross-appeal, seeking a review of the lower court’s findings.
Opening the appeal on Monday, Mr McDowell said it is clear from the State’s appeal that the “dominant” reason for possessing Mr Corcoran’s phone is the gardaí’s desire to identify the source of communications the editor received in relation to the 2018 event. The commissioner’s submissions show that exclusion of contact details “defeats the purpose” of the warrant, Mr McDowell said.
Despite a recommendation to European member states by the Committee of Ministers, counsel said, the Irish State has chosen “almost consciously” to leave a “complete vacuum” in place of a system of preemptive protection of journalist sources.
Frank Callanan SC, for the commissioner, submitted that the issue of the warrant's validity was already decided by Mr Justice Simons in making the orders.
The appeal continues on Thursday before Ms Justice Caroline Costello, Ms Justice Aileen Donnelly and Mr Justice Brian Murray.
