Emmet Corcoran & Oncor Ventures Ltd v The Commissioner of An Garda Siochana (Unapproved)

Factual and Procedural Background

This appeal concerns the balance between the obligations of the national police force to investigate serious crime and the right of a journalist to protect his sources from disclosure. The first named applicant, Plaintiff, is the editor of a local weekly newspaper published by Company A. Following a violent incident at a property in The City, Plaintiff attended the scene, recorded photos and videos, and published them online. Plaintiff was interviewed under caution but declined to reveal sources, asserting journalistic privilege.

Several months later, a sergeant of the police applied ex parte to a District Court judge for search warrants for Plaintiff's home and Company A's premises under section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997, seeking to seize and access evidence including Plaintiff's mobile phone. The warrants were granted without reference to the applicants' journalistic privilege rights. Plaintiff's phone was seized but locked, and the applicants sought judicial review of the warrant and access to the seized data.

The High Court granted leave for judicial review, restrained police from accessing the phone's data pending resolution, and after extensive submissions and hearings, made a bespoke order limiting the data accessible from the phone to a specified period and type of content. The police appealed aspects of this order, including costs and exclusion of contact details. The applicants cross-appealed the substantive decision. The Court of Appeal heard the matter to determine the legal principles governing the issuance of search warrants involving journalistic material and the validity of the warrant issued in this case.

Legal Issues Presented

1. Whether the procedure under section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 adequately protects journalistic privilege in the issuance of search warrants.
2. Whether the District Court judge had jurisdiction and/or complied with constitutional and Convention obligations to balance the right to protect journalistic sources against the public interest in the investigation of crime before issuing the warrant.
3. Whether the warrant issued was lawful given the failure to inform the District Court judge of the engagement of journalistic privilege and the absence of a balancing exercise prior to issuance.
4. The scope and extent of journalistic privilege under the Constitution and Article 10 of the European Convention on Human Rights (ECHR).
5. The procedural obligations on applicants and courts in ex parte applications for search warrants that may interfere with journalistic privilege.
6. The consequences of any breach of these obligations on the validity of the warrant and the admissibility of seized material.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed analysis of the constitutional and Convention protections afforded to journalistic privilege, emphasizing that such privilege is a high-value right integral to freedom of expression but not absolute. The court reviewed Irish case law and ECtHR jurisprudence, particularly Goodwin, Sanoma, and Fine Point Films, to establish that any interference with journalistic privilege must be justified by an overriding public interest that is convincingly established.

The court highlighted that section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 provides for ex parte applications to District Court judges for search warrants but does not expressly address journalistic privilege or require a balancing exercise regarding it. The District Court judge’s role is administrative and judicial in nature but limited to determining whether reasonable grounds exist to suspect evidence of an arrestable offence at the place to be searched.

The court found that the procedure under section 10 does not permit an inter partes hearing or a balancing of journalistic privilege rights prior to the issuance of a warrant. However, the judge must still act judicially and consider constitutionally protected rights, including journalistic privilege, when exercising discretion to grant the warrant.

In the present case, the court concluded that the applicant for the warrant failed to meet the full disclosure obligation by not informing the District Court judge that journalistic privilege was engaged or providing the necessary legal and factual context to enable proper balancing. Consequently, the judge did not perform the required balancing exercise or apply the correct legal test before issuing the warrant.

The court emphasized that an ex post facto review by the High Court of the warrant’s execution cannot cure the fundamental defect of an absence of prior balancing and judicial scrutiny. The issuance of the warrant itself, even if no material was accessed due to password protection, constituted an interference with journalistic privilege rights.

The court acknowledged that while section 10 may, in some circumstances, provide an appropriate procedure for issuing warrants involving journalistic material, this requires full disclosure and judicial balancing of rights before the warrant is granted. The court also noted the desirability of legislative reform to establish a clear, constitutionally compliant procedure, potentially including the power to issue qualified or limited orders and the possibility of inter partes hearings.

Ultimately, the court held that the warrant issued in this case was unlawful as it was issued without the requisite balancing of rights and full disclosure, thereby breaching the applicants' constitutional and Convention rights.

Holding and Implications

The Court of Appeal ALLOWED the applicants' appeal against the High Court order permitting limited access to data on Plaintiff’s mobile phone and directed the return of the phone to Plaintiff. It QUASHED the search warrant issued by the District Court judge on 2 April 2019 as unlawful for failure to observe constitutional and Convention protections for journalistic privilege.

The court refused the Commissioner’s cross-appeal concerning the exclusion of contact details from the data accessible under the High Court order.

Implications of this decision include reinforcing the requirement that applicants for search warrants involving journalistic material must fully disclose the engagement of journalistic privilege and the relevant legal principles to the issuing judge. The judge must conduct a balancing exercise prior to issuing such warrants. The decision highlights deficiencies in current statutory procedures and signals the need for legislative reform to establish clear, constitutionally compliant processes for protecting journalistic sources in criminal investigations. No new precedent was set beyond clarifying the application of existing constitutional and Convention principles to the warrant procedure under section 10.