knowledge 26 April 2022 |

When investigating serious crime, is law enforcement entitled to access material which will or may identify journalistic sources?

In Corcoran v The Commissioner of An Garda Síochána,¹ the Gardaí were investigating a serious criminal offence. The first plaintiff, a journalist, recorded the aftermath of the incident on his mobile phone. At a subsequent Garda interview, he declined to reveal his sources and in particular the individual who alerted him to the event, asserting “journalistic privilege”.

Relying on section 10 of the Criminal Procedure (Miscellaneous Provisions) Act 1997 (“the Act”), the Gardaí then sought, and obtained, search warrants from the District Court for both the journalist’s home and his publisher’s premises, and seized the mobile phone. However, before the Gardaí could access the data on the phone, the journalist and publisher applied for judicial review, seeking to quash the warrants and prevent the use of the information.

In the High Court, Simons J made a limited order permitting the Gardaí to access certain content on the mobile phone. Both sides appealed various aspects of the order.

It was agreed in argument before the Court of Appeal that the Act did not provide for any consideration of journalistic privilege in respect of the grant of a search warrant. The applicants contended that there was, nonetheless, an obligation on the party applying for the search warrant to disclose to the District Court the fact that it could potentially impact journalistic material, and that the District Court must vindicate the rights of the journalist in assessing whether to grant a warrant. An Garda Síochána argued that there was no such obligation.

Relevant legal principles

In her judgment, Costello J considered the case law on journalists’ sources in detail and outlined a framework of principles that can be derived from those cases. 

• As a starting point, if an issue concerning the protection of journalists’ sources arises, it must first be considered under the Constitution and in particular Article 40.6.1.i. The protection afforded to journalistic sources under Article 10 of the ECHR is substantively the same as that under the Constitution, which is to be attributed a high value.

• A court that is required to interpret or apply any statutory provisions or rule of law, must so far as possible do so in a manner compatible with the State’s obligations under the Convention and take judicial notice of the Convention and ECtHR judgments and, when interpreting and applying the Convention, take due account of the principles laid down in those judgments.

• The right to protect journalistic sources is not absolute, but constitutional protection for journalistic privilege would be meaningless if the courts could not, or would not, protect the general right of journalists to protect their sources, and the test is whether the case for the restriction on, or overriding of, journalistic privilege has been “convincingly established”. A judge must therefore subject any application which will interfere with the protection of journalistic sources with “special” or “careful scrutiny”. The court may only order a journalist to reveal their sources if it is justified by an overriding requirement in the public interest or a pressing social need.

• The interference must be: authorised by a procedure “prescribed by law”; for the furtherance of a legitimate interest; necessary in a democratic society; and proportionate.

• An order authorising a search of a journalist’s home and/or premises was a more drastic measure than an order to divulge the identity of a journalist’s source, and an order for the compulsory surrender of journalistic material which contains information capable of identifying journalistic sources constitutes, in itself, an interference with the journalist’s/publisher’s freedom to receive and impart information, even if the order is not acted upon and no source is identified.

• The court must be able to prevent unnecessary access to information capable of disclosing the identities of sources and the judge should be able to refuse to make a disclosure order, or to make a limited or qualified order, so as to protect sources from being revealed, whether or not they are specifically named in the material. Significantly, save in the case of urgency, the review and the balancing of rights must take place prior to the seizure and access of the material and an ex post facto review cannot retrospectively authorise a search which is invalid for breach of these requirements;

• In cases of urgency, it is permissible to seize – but not access – the material prior to the review by the court or other independent and impartial body.

Conclusion of the court

Costello J concluded that An Garda Síochána could apply in at least some circumstances ex parte to the District Court for a search warrant of a journalist’s home or place of work under section 10 of the 1997 Act, provided that the minimum safeguards identified were observed.

The District Court judge must be informed that the application engages or potentially engages journalistic privilege, protected by the Constitution and the Convention, that it might be overridden and that the judge could only issue the warrant if the applicant convincingly established that there was an overriding requirement in the public interest that would justify the order.

The applicant must make full disclosure in order that the District Court judge could properly balance the competing rights involved.

In the case before the court, the relevant safeguards had not been observed, particularly around disclosure, and the warrants had been obtained in breach of the plaintiffs’ constitutional rights and should be quashed. The issue of a warrant, even if not executed, could itself amount to a breach of constitutional rights. The defects in the warrants were not remedied by a review and ex post facto balancing of rights.

The seized phone should be returned to the journalist and the information on it should not be accessed by the Gardaí. However, it was open to the Gardaí to apply for a fresh warrant provided the appropriate safeguards were observed.

Comment

In this important judgment, the Court of Appeal has outlined the parameters of journalistic privilege and set down a firm marker for An Garda Síochána when applying for a search warrant which may cut across this privilege.

The disclosure obligations imposed are significant and are not dependent on the invocation of journalistic privilege by any person.

Costello J also pointed to the desirability of more detailed legislation in and around journalistic privilege which would enable a District Court judge to tailor a warrant to ensure that it is proportionate to the particular circumstances of the case. It will be interesting to see if lawmakers take up her suggestions here.

Her comments in relation to the different layers of protection that exist in and around journalistic privilege are also important, with the court making the point that even if a source is not protected, a journalist still enjoys a constitutional protection, if at a lower level.

Outside the criminal sphere, the judgment may have relevance to discovery in civil proceedings in that the court’s discussion on the scope of journalistic privilege could well inform decisions on when the production of a document can be refused on grounds of journalistic privilege.