High Court rules against claim of journalistic privilege

The High Court has ruled the editor of a local paper in Co Roscommon was not entitled to refuse to disclose the contents of his mobile phone to gardaí investigating the events surrounding an eviction in the county almost two years ago.

Emmett Corcoran, the editor of the Strokestown Democrat, along with the owners of the paper, brought legal proceedings challenging the seizure of his mobile phone by gardaí investigating events at a farmhouse at Falsk, near Strokestown on 16 December 2018. 

Several people are facing criminal charges as a result of the incident.

Mr Corcoran said he had attended the scene as a journalist, following a tip off. He recorded some footage and took photographs. 

He made these available to gardaí but refused to hand over his mobile, to protect his sources. Several months later, gardaí obtained a search warrant, searched his home and workplace and seized the phone.

Mr Corcoran did not give them the password to the phone and gardaí agreed not to access it pending the outcome of these proceedings.

Mr Corcoran's lawyers argued that a court should decide, before such a warrant is issued, whether there is a public interest, overriding the principle of protecting a journalist's sources.

But the High Court ruled there was no right to rely on a claim of journalistic privilege in this case. It found the limited examination of the phone was justified by the public interest in the proper investigation and prosecution of criminal offences. 

The judge also said he took into account the motivation of Mr Corcoran's source.

Mr Justice Garrett Simons said the height of Mr Corcoran's case was that the person who tipped him off and led to him attending the aftermath of a criminal incident should be protected.

However he ruled the public interest in the protection of journalistic sources was outweighed by the countervailing public interest in the investigation and prosecution of criminal offences.

The judge said gardaí wanted to carry out a very limited examination of the mobile telephone, confined to a specified period of time shortly before and after the events.

He said journalists' right to protect their sources was not absolute or inviolable.

He said an allegation that the provision of information to a journalist had involved the "theft" of confidential information would not be enough to override a claim of journalistic privilege.

Otherwise, he said it would be too easy to suppress the publication of material by "conjuring up" an alleged criminal offence.

But, the judge said the facts of this case were entirely different. The alleged criminal conduct consisted of the carrying out of arrestable offences arising out of a serious assault and the destruction of property. 

He said these were separate from the disclosure of information. The judge said he was satisfied the public interest in ensuring all relevant evidence was available in the pending criminal proceedings outweighed the claim for journalistic privilege.

The Judge found there was also a related public interest in the proper investigation of criminal offences. He said it was necessary for gardaí to ensure that they had obtained all of the video footage and photographs taken by Mr Corcoran and to validate their authenticity.

He said such material may be of assistance to the defence, not the prosecution.

Mr Justice Simons said the examination of the phone proposed by the gardaí was proportionate. 

He also said there must be "some doubt" about the motivation of Mr Corcoran's source in seeking to have the events publicised. 

According to gardaí, the events sought to reverse the effects of an eviction carried out earlier in the week following a court order. 

The judge said the motivation of the source may have been to put out a message that action would be taken against those who helped financial institutions to repossess properties.

He said there was case law from the European Court of Human Rights indicating that the motivation of a source was relevant in carrying out a balancing exercise relating to a claim of journalistic privilege. 

The judge said he had regard to the fact that the evidence did not establish that the source in this case was motivated by the desire to provide information the public were entitled to know.