The Irish Supreme Court declares ‘the protection of sources is integral’ to a Free Press
The Supreme Court upheld the Court of Appeal decision in Emmett Corcoran v The Commissioner of an Garda Síochána and DPP. The judgments of Collins J, Hogan J, and O’Donnell C.J. iterate the importance of journalistic privilege, emphasising the significance of protecting journalists’ sources in a democracy.
On December 16th 2018, a number of armed individuals attacked and injured security personnel and set vehicles alight. Journalist of local newspaper ‘The Democrat’, Emmett Corcoran, received telephone messages from a source alerting him of the incident. He attended the immediate aftermath and took photos and videos, uploading the material onto ‘The Democrat’ website. A few days later, An Garda Síochána interviewed Mr Corcoran under caution. He offered to cooperate by offering all copies of the photos and videos but wouldn’t reveal his sources, asserting journalistic privilege. He handed over a USB containing the aforementioned material.
On 2nd April 2019, Sergeant Siggins, one of the investigating Garda, applied to the District Court for 2 search warrants - one for Corcoran’s house, the other for the newspaper’s premises. This was made in pursuant of s.10 of the Criminal Justice (Miscellaneous Provisions) Act 1997. Sergeant Siggins, in his application, did not note that Mr. Corcoran was a journalist and had asserted journalistic privilege.
Mr. Corcoran’s house was then visited on foot of the warrant and his phone was seized. In protest, Mr. Corcoran refused to hand over his password. That afternoon, he applied for judicial review and a stay preventing An Garda Síochána from examining or accessing the information on his phone until the following day. Subsequently, the case went to the High Court where the judge upheld the warrant. In the Court of Appeal, the warrant was quashed, with An Garda Síochána appealing the judgement before the Supreme Court.
The appellants questioned if s.10 of the 1997 Act permits the District Court to conduct a balancing act between public interest and the rights of journalists. Mr. Corcoran’s counsel, challenged the original application of s.10 of the 1997 Act by the District Judge. Section 10(1) entitles a District Court Judge to issue a warrant if there are reasonable grounds to suspect that evidence relating to an arrestable offence might be found. This section operates in a “binary manner” - a Judge may grant or refuse the warrant. There is no allowance for a judge to apply conditions to the grant of a warrant. The main concern from Mr. Corcoran’s counsel was the lack of disclosure of Mr. Corcoran’s assertion of journalistic privilege.
In the European courts, the right to protection of journalistic sources has been thoroughly interpreted. It is protected under Article 10 of the European Convention on Human Rights Act 2003 (2003 Act), and confirmed as one of the ‘basic conditions for press freedom’ in Goodwin v United Kingdom. Under section 3, ‘organs of the State’ are required to comply with the Convention’s provisions. An Garda Síochána, for purposes of the Act, are organs of the State and thus must comply with Article 10’s protection of journalistic sources.
Counsel for Corcoran conceded that Article 40.6.1° of the Irish Constitution had the same scope and effect as the aforementioned Article 10 of the 2003 Act. The aforementioned article endeavours to ensure organs of public opinion have liberty of expression, unless it undermines public order.
In his judgement, Hogan J stated that “without a free press there is no democracy, and the protection of sources is integral to a free press.” In his view, protection for the work of journalists is essential in protecting free speech and democratic debate, hence coming within the confinements of Article 5 (State’s constitutional identity as a democracy) and Article 40.6.1° (freedom of expression provisions) of the Irish Constitution.
The main legal question to be tackled by the Supreme Court was whether the search warrant was valid. In this specific case, the District judge was not offered the opportunity to reject the grant based on the fundamental information that Mr. Corcoran was a journalist and had invoked his journalistic privilege. An Garda Síochána have a responsibility to protect and respect journalistic sources and hence a responsibility to disclose this information to the District Court judge.
Confirming the view of the Court of Appeal, the Supreme Court ruled to quash the s.10 warrant by reason of objective failure to disclose a highly material fact, namely, that Mr. Corcoran had claimed journalistic privilege to the sources in question. Hogan J recommended “urgent” legislative action is required to address the “systemic” problems of the 1997 Act.