The Supreme Court has agreed to hear an appeal by gardaí after the force was denied access to a journalist’s phone that had information on an attack during an eviction.
n 2018, eight security men working for KBC Bank were attacked by a group of 30 men in Falsk, near Strokestown, Co Roscommon, after they had repossessed the farmhouse from a local family.
The first reporter on the scene was Emmett Corcoran, editor and co-owner of the local Democrat newspaper in Roscommon, who then uploaded a video of the aftermath of the attack on his publication’s website and Facebook page. Videos of burning vehicles outside the reclaimed house went viral online.
In April 2019 gardaí seized Mr Corcoran’s phone but Mr Corcoran and his newspaper company, Oncor Ventures Ltd, instigated a High Court challenge, saying the contents were covered by journalistic privilege. Gardaí have been unable to access the phone while the legal case has made its way though the courts in the last three years.
Although the High Court dismissed Mr Corcoran’s case in September 2020 and the Supreme Court refused to hear a leapfrog appeal, last April the Court of Appeal handed down a landmark decision in Mr Corcoran’s favour.
It ruled gardaí should have told the District Court judge who heard the ex-parte application for a search warrant to seize Mr Corcoran’s phone that he had asserted journalistic privilege so the judge could balance up the opposing rights before deciding whether to issue the warrant to gardaí.
But in a decision published last week, the Supreme Court granted gardaí permission to appeal the Court of Appeal judgment. It said the appeal judges’ decision was “a comprehensive analysis of the relevant law”.
However, it ruled the interaction between the statutory provisions permitting the grant of a search warrant and the protection of journalistic sources under both the constitution and the European Convention on Human Rights, and the question of searches of journalists’ homes or offices and access to mobile phones or other equipment, “all raise important issues of general public importance which the court considers justifies an appeal to this court”.
The Supreme Court can decline to hear appeals if these do not raise significant public interest or constitutional issues.
Mr Corcoran, who is represented by Michael McDowell SC, had opposed the garda application to have the case heard in the Supreme Court on the grounds the Court of Appeal decision was “not controversial”. Mr McDowell said the appeal judges’ summation of the law in relation to the protection of journalistic sources was “correct” and this law was “well established”.
Mr Corcoran’s submission accused the gardaí of “concealing” his claim to a right to protect his sources when the force applied for its search warrant at the District Court. It noted Mr Corcoran has always been willing to provide the relevant photos and videos to the gardaí. He is a witness for the prosecution in the book of evidence in the criminal cases.
Four men are due to stand trial in relation to assault charges arising from the attack next January. Mr Corcoran, who has cancer, is not currently working as a journalist.
The Court of Appeal judgment had set out 28 principles that should be considered in protecting journalistic sources and that flow from the Constitution and the ECHR.
In its Supreme Court application, gardaí said appeal judges “erred in fact and in law in effectively engaging in a form of judicial legislation” in setting out these principles. It said these amounted to “imposing obligations” on District Court judges considering search warrant applications while the legislation was silent on such matters and these had not been sought by Mr Corcoran.
Gardaí said the appeal court’s ruling could have implications for a wide number of cases involving search warrants.
The force asked for a priority hearing of its appeal. It said while the criminal cases before the courts are not impeded by Mr Corcoran’s case, it wished to bring its criminal investigation to a conclusion as soon as possible.
The house at the centre of the dispute was recovered by the bank in 2021 after Anthony McGann, its former owner, and a supporter were arrested for breaching court orders to stay away from the house.