[ad_1]
A High Court judge has ruled that the Gardaí have the right to conduct a limited examination of the contents of a mobile phone seized from the home of a provincial newspaper editor as part of their investigation into a violent incident at a foreclosed home in Co Roscommon .
The ruling means that gardaí can access calls, texts, social media messages, photos, videos and other information by phone between December 11 and 17, 2018.
In a major lawsuit Friday on the protection of journalistic sources and other issues, Judge Garrett Simons refused to grant Emmet Corcoran and his company orders to vacate a search warrant that required him to surrender his phone when officers arrived at his home in Strokestown.
Mr. Corcoran, publisher of “The Democrat,” based in Strokestown, and Oncar Ventures Ltd, publisher and owner of that newspaper, represented by Michael McDowell SC, had initiated judicial review proceedings within hours of a search of his home and the seizure of his phone in April 2019 at the foot of a search warrant issued by a district court judge in late 2018.
The phone was seized as part of a Garda investigation into the violence at a home in Strokestown that had been recovered in December 2018. Several people face charges stemming from that incident.
Following a tip, Corcoran says he arrived at the scene, where several vehicles were on fire, before the fire and gardai services arrived, and recorded some phone images that were posted on the Democrat’s website.
Before his phone was seized, Mr. Corcoran, who invoked journalistic privilege a few months earlier in relation to its contents, turned it off and refused to provide the PIN. He has given Gardaí a copy of the video filmed by him and some photos.
Gardaí had agreed not to examine the phone pending the outcome of the judicial review, which was opposed by gardaí and the State represented by Frank Callanan SC with Tony McGillicuddy BL.
In his ruling, Judge Simons said that the core of the plaintiffs’ case was that the Oireachtas was required, but had not enacted laws prescribing an appropriate procedure by which judicial authorization is required before a search warrant is issued. in relation to a premises or property belonging to a journalist.
No journalistic privilege
Although Mr. Corcoran maintained the right to resist the examination and seizure of his telephone, strictly speaking, there is no journalistic privilege, the judge pointed out.
The relevant constitutional right, to freedom of expression, rather sought to protect the dissemination of information and public debate.
Journalists are central to this whole process and constitutional rights would be meaningless if the law could not, or did not protect, their “general” right to protect their sources.
This right “is not absolute” and may have to yield to other compensatory public interests, including, in a relevant way in this case, the adequate investigation and prosecution of criminal offenses.
Declared Section 10 of the Criminal Justice Act of 1997, pursuant to which the court order was issued, which means that the function of the District Court is primarily limited to determining that there are reasonable grounds to suspect that the evidence of, or related to the commission of an arrestable crime, is to be found in the place for which the warrant is requested.
The District Court did not have jurisdiction in such a request to determine any issue related to journalistic privilege, it said.
A journalist will not be ordered to reveal his sources unless such disclosure is justified by an overriding requirement of public interest and the need for any restrictions on freedom of expression must “be convincingly established,” he said.
In this case, there is no right to rely on journalistic privilege to resist revealing the contents of the phone, he said.
He stressed that his judgment did not address the validity of Section 10 as the plaintiffs had not held that it was unconstitutional or incompatible with the ECHR.
The last straw in his case was that the identity of the source of the tip that led to Corcoran attending the aftermath of a criminal incident must be protected, he said.
“Perhaps tellingly,” Mr. Corcoran did not provide any information about the circumstances in which that individual approached him and there was no attempt to explain the source’s motivation or what public interest they intended to promote by publishing the criminal incident. .
Without in any way questioning Mr. Corcoran’s own good faith, there must be some doubt as to the source’s motivation for trying to get the facts published. It could be reasonable to infer that the motivation may have been to spread the “message” that action would be taken against those, such as security personnel allegedly attacked, who seek to facilitate seizures by financial institutions. The evidence did not establish that this source was motivated to provide information that the public had a right to know.
The court had to balance the public interest expressed in protecting journalistic sources with the compensatory public interest in the investigation and prosecution of crimes.
In this case, the public interest in ensuring that all relevant evidence is available in the pending criminal proceeding annuls the claim of journalistic privilege, he ruled.
He stated that gardaí had the right to conduct the proposed examination of the phone, limited to activity on the phone during a specified period of time shortly before and after the events of December 16, 2018. His examination is limited to dates between December 11 and December 17. 2018.
Final orders will be placed at a later date.
[ad_2]