AN CHÚIRT UACHTARACH

THE SUPREME COURT

                S: AP:IE: 2022:000077

[2023] IESC 15

O’Donnell C.J.

Dunne J.

Charleton J.

O’Malley J.

Baker J.

Hogan J.

Collins J.

 

BETWEEN

EMMETT CORCORAN AND ONCOR VENTURES LIMITED

TRADING AS THE DEMOCRAT

Applicants

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

 

JUDGMENT of Mr. Justice Maurice Collins delivered on 22 June 2023

BACKGROUND

 

1.                  I agree with Hogan J that the search warrants issued on 2 April 2019 (“the Search Warrants”) should be quashed and the Respondents’ appeal dismissed.

 

2.                   I also agree with Hogan J that these proceedings highlight significant deficiencies in section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 (as substituted by section 6(1)(a) of the Criminal Justice Act 2006) (hereafter “Section 10” and the “1997 Act”) that require the attention of the Oireachtas.

 

3.                  The material facts are set out by Hogan J and so it is unnecessary to recite them at any length. As he says, the events at Falsk, Strokestown, County Roscommon in the early hours of 16 December 2018 were “very disturbing”, amounting to a violent attack on the rule of law, calculated to terrorize both the immediate victims and the wider community and involving the commission of very serious criminal offences, against both persons and property. That being so, the Gardaí were duty bound to take all appropriate measures to identify and prosecute the perpetrators.

 

4.                  On his own account, Mr Corcoran was present “at the aftermath” of what he refers to as “an incident at a house in which a number of vehicles were set on fire”. He travelled there, in his own car, “as a consequence of “tip offs” from confidential journalistic sources”, the identity of which, he says, he is not “entitled to reveal.” It is not clear whether Mr Corcoran gave, or was asked to give, any assurance of confidentiality to those sources. Equally, it is not clear what information, beyond the timing and location of the “incident”, was given to Mr. Corcoran. In any event, he travelled to the scene and while there he took photographs and video footage which were subsequently uploaded to the website of The Democrat. That, it appears, was the entire purpose of the arrangement: Mr. Corcoran’s “sources” wished to generate publicity for the unlawful actions carried out at Strokestown, presumably in the hope that such publicity would amplify the intimidatory impact of those actions.

 

5.                  These are, it might be thought, unpromising circumstances in which to assert a claim to “journalistic privilege”, in the form of an entitlement on the part of Mr. Corcoran not to be compelled to identify those “sources”. [1] After all, the case-law on Article 10 ECHR, while emphasising that the protection of journalistic sources is “one of the cornerstones of freedom of the press”, also indicates that such protection does not extend uniformly to all sources in all circumstances: see Application no 40485/02 Nordisk Film & TV A/S v Denmark and Application no 8406/06 Stichting Ostade Blade v Netherlands. As the ECtHR stated in Stichting Ostade Blade, not every individual who provides information to a journalist is a “source” in the sense in which that term is used in the Article 10 case-law (para 62). The full protection of Article 10 arises in respect of “sources in the traditional sense”, one “who volunteers to assist the press in informing the public about matters of public interest” (paras 63 & 64). The same level of protection is not available where the “source” is not “motivated by the desire to provide information which the public were entitled to know.”

 

6.                  The facts of Stichting Ostade Blade usefully illustrate this distinction. The applicant published a fortnightly magazine. Following a number of bombings in the Netherlands, the applicant issued a press release announcing that its next issue (to be published the following day) would include a letter from a group (the ELF) claiming responsibility for the bombing campaign. The following day, the magazine’s offices were searched on foot of a search warrant for the purpose of obtaining the ELF letter. A large volume of material, including a number of computers, were taken by the authorities but subsequently returned. A challenge to the search in the Netherlands courts was unsuccessful and the applicant made a complaint under the ECHR. The ECtHR was not persuaded that “source protection” was at issue. The informant was not motivated by a desire to provide information which the public was entitled to know. On the contrary, he was claiming responsibility for crimes which he had himself committed and “his purpose in seeking publicity through the magazine … was to don the veil of anonymity with a view to evading his own criminal accountability” (para 65). While it did not follow that the applicant newspaper was left without protection under Article 10 ECHR - an order directed to a journalist to hand over original material could still have a “chilling effect” on the exercise of journalistic freedom of expression - the degree of protection did not necessarily reach the same level as that afforded to journalists when it comes to their right to keep their “sources” confidential because “the latter protection is twofold, relating not only to the journalist, but also and in particular to the “source” who volunteers to assist the press in informing the public about matters of public interest” (para 64). On the facts in Stichting Ostade Blade, the court considered that the search pursued the legitimate aim of the prevention of crime and was necessary in democratic society given that the document sought could possibly assist in the identification of the person or persons suspected of carrying out dangerous criminal offences. In the circumstances, the applicant’s complaint was rejected as manifestly ill-founded.

 

7.                  The observations of the ECtHR in Stichting Ostade Blade have an obvious resonance here and it may well be that, as a matter of principle, a compelling case can be made that Mr Corcoran’s claim to “journalistic privilege”, whether derived from Article 10 ECHR or otherwise, must in the circumstances here yield to the compelling public interest in the effective investigation of the events of the 16 December 2018, such that Mr. Corcoran might properly be compelled to identify the “sources” that led him to be present at the scene.

 

8.                  That was, indeed, the view taken by Simons J in the High Court: paras 90 - 102 (no constitutional source protection in the circumstances here) and paras 103 - 116 (no source protection under Article 10 ECHR either). A difficulty with the High Court’s decision is that, in the name of judicially reviewing the Search Warrants, the Court undertook an exercise that, on its own analysis, it was not open to the District Judge to carry out under Section 10. Furthermore, having evidently found that the Search Warrants were properly issued, and dismissing the application for judicial review on that basis, it is not entirely clear what jurisdiction the High Court had to make the Order of 4 January 2021.

 

9.                   Furthermore, and fundamentally, in common with Hogan J and with the Court of Appeal, I differ from the High Court Judge as to the proper scope of the District Judge’s functions and duties under Section 10. The Search Warrants here were issued without any evident regard to Mr Corcoran’s status as an active journalist or any consideration of the fact that execution of the Search Warrants would potentially result not just in the disclosure of the identity of the sources that led Mr Corcoran to attend at Strokestown on the night of 16 December 2018 but of other sources, and other journalistic material, relating to Mr Corcoran’s activities as a journalist which were unrelated to that incident. In my opinion, these were matters to which the judge could - and should - have had regard in determining whether or not to grant the Search Warrants. They were matters which ought to have been - but were not - specifically drawn to the judge’s notice by the Gardaí involved. That omission is, in my view, fatal to the validity of the Search Warrants here.

 

SECTION 10 OF THE 1997 ACT

 

10.              Section 10 is set out in the judgment of Hogan J. The section was the subject of close examination in the recent decision of this Court in People (DPP) v Quirke [2023] IESC 5 (per Charleton J; O’ Donnell CJ. Dunne, O’ Malley, Baker, Woulfe & Murray JJ concurring). As Charleton J noted in his judgment, Section 10 does not make any reference to the searching of computers or mobile phones (in contrast to many other search warrant provisions on the statute-book) and does not include any of the ancillary/consequential provisions that have also been provided for by statute, including the power to require the provision of any passwords necessary to gain access to and/or to operate such computers or phones. Section 48 of the Criminal Justice (Theft and Fraud Offences) Act 2001, which is referred to in Quirke, provides an example of such a provision. Similar provisions may be found (inter alia) in section 14 of the Criminal Assets Bureau Act 1996 (as amended), section 908C of the Taxes Consolidation Act 1997 (as amended) and section 17A of the Sea-Fisheries and Maritime Jurisdiction Act 2006 (as amended).

 

11.              For the reasons explained by Charleton J in Quirke, the search of a personal computer or phone may intrude upon privacy interests to a more significant extent than the search of a physical location, even of a dwelling-house: at para 73 and following, citing (inter alia) R v Vu [2013] SCC 60, [2013] 3 SCR 657 and R v Fearon [2014] SCC 77, [2014] 3 SCR 621 (decisions of the Supreme Court of Canada), Riley v California 573 US 373 (2014) (a decision of the United States Supreme Court) and Dotcom v Attorney General [2014] NZSC 199 (a decision of the Supreme Court of New Zealand). The absence from Section 10 of any requirement for the specific authorisation of such a search is wholly unsatisfactory.

 

12.              There is, of course, a further and significant omission from Section 10, namely the absence of any reference to the position of privileged or protected material. Items “subject to legal privilege” are excluded from seizure under section 48 of the Criminal Justice (Theft and Fraud Offences) Act 2001. Other search and seizure provisions, such as section 9 of the Criminal Law Act 1976 and section 17A of the Sea-Fisheries and Maritime Jurisdiction Act 2007, have similar exclusions. Section 15 of the Criminal Justice Act 2011 (which empowers judges of the District Court to make orders for the production of documents and/or the provision of information for the purposes of the investigation of certain offences relation to banking, fund investment and other financial activities) also excludes any right to production of, or access to, any document subject to legal professional privilege. Similarly, section 33 of the Competition and Consumer Protection Act 2014 excludes the compelled disclosure of legally privileged material (and also provides a procedure for determining disputes as to the existence or scope of the privilege while preserving the confidentiality of the material).

 

13.              Section 10 is similarly silent as to the position of material held by journalists. In fact, the statute-book generally is mute on that issue. That is so notwithstanding many decades of Strasbourg case-law - going back to, and beyond, Goodwin v United Kingdom (1996) 22 EHRR 123 - from which it is evident that the compulsory disclosure of such material raises significant issues requiring specific assessment within the framework of Article 10 ECHR. In stark contrast to the position in this jurisdiction, provisions have been in place in England and Wales since the enactment of the Police and Criminal Evidence Act 1984 (“PACE”) restricting access to “journalistic material” (as defined) - and also to legally privileged material - on foot of an order or search warrant. Specific access conditions must be satisfied before an order may issue authorizing the obtaining of such material and, in general, an application for such an order for such material must be made inter partes: PACE, sections 8-16 and Schedule 1 (Special Procedures). There is also a qualified statutory protection against the disclosure of sources in the United Kingdom, in the form of section 10 of the Contempt of Court Act 1981, which has no counterpart in this jurisdiction. [2] The provisions of PACE apply in Northern Ireland by virtue of the Police and Criminal Evidence (Northern Ireland) Order 1989 (“the PACE Order”) and it was considered by the High Court of Justice of Northern Ireland in Fine Point Films and Birney [2020] NIQB 55 to which extensive reference was made by Costello J in her judgment in the Court of Appeal (Donnelly and Murray JJ agreeing) and which I also discuss below. [3]

 

14.              Section 10 has some other notable features. A warrant issued under the section operates to authorise a named Garda to enter the place named in the warrant – if necessary, by force – to search that place and any persons found at it and “to seize anything at that place … that the member reasonably believes to be evidence of, or relating to, the commission of an arrestable offence” (my emphasis). That extends to anything that is reasonably believed to be evidence of, or relating to, the commission of a different arrestable offence(s) to the offence(s) identified in the Information. There is nothing in Section 10 to suggest that the judge has power to restrict the scope of a warrant issued under the section, such as by authorising only the seizure of specified items or categories of items. Again, that appears to differ from the position under PACE (see PACE, section 8(2)). Nor is there anything in Section 10 that appears to permit the judge to attach conditions to a warrant, such as a condition prohibiting access to journalistic material or deferring access to it, so as to allow the issue of access to be litigated. Section 10 itself does not appear to permit a judge to review a warrant that has been issued or to hear objections to it, whether at the time of the application for it or post hoc.

 

15.              Even so, a judge asked to issue a Section 10 warrant is far from being a cipher or rubber-stamp. The importance of their function as an independent and impartial decision-maker is emphasised by this Court’s decision in Damache v DPP [2012] IESC 11, [2012] 2 IR 266 and its recent decisions in People (DPP) v Behan [2022] IESC 23 and in Quirke.

 

16.              In Damache, the Court struck down section 29(1) of the Offences Against the State Act 1939 (as inserted by section 5 of the Criminal Law Act 1939) precisely because it permitted a search warrant for a building or place, including a dwelling, to be issued by a Senior Garda Officer who was not independent of the investigation. Speaking for the Court, Denham CJ expressly accepted that the issuing of a search warrant was an administrative act, that did not constitute the administration of justice and which therefore did not have to be done by a judge (though it was a function required to be exercised judicially) (at para 34). She cited with approval the observations of Keane J in Simple Imports Ltd. v Revenue Commissioners  [2000] 2 IR 243 (at page 251), which concerned a challenge to the validity of search warrants issued by District Judges under various Customs statutes, to the effect that the judge was “no doubt performing a purely ministerial act in issuing the warrant ”, in that he or she did not “purport to adjudicate on any lis in issuing the warrant”. [4] But whether the power to issue a warrant was vested in a judge or in some other person, that person had to be independent and the process had to be “meaningful”, which in this context meant that it was:

 

“.. necessary for the person authorising the search to be able to assess the conflicting interests of the State and the individual in an impartial manner. Thus, the person should be independent of the issue and act judicially. Also, there should be reasonable grounds established that an offence has been committed and that there may be evidence to be found at the place of the search” (at para 51).

 

17.              Although the Court in Damache did not go so far as to hold that the power to issue a search warrant must be vested in a judge, it nevertheless quoted with apparent approval a passage from the Report of the Morris Tribunal which recommended that the power to issue a warrant under section 29 should be vested in a judge:

 

“The judge can then make an independent decision. Such a decision as to whether to grant the warrant would involve a balancing of the interests of An Garda Síochána and the investigation of the criminal offence and the constitutional or legal rights of the person whose premises is to be the subject of the warrant. There are very limited occasions upon which time would be so pressing as to make it impossible to follow such a procedure. In any event, a residual power for such eventuality could, perhaps, still be vested in a senior officer of the Garda Síochána to be used in exceptional circumstances.”

 

18.              In response to Damache, the Oireachtas enacted the Criminal Justice (Search Warrants) Act 2012. Section 1 of that Act re-enacted section 29 of the Offences of the State Act 1939 in significantly modified form. The power to issue warrants under the section is now vested in a judge of the District Court. However, a member of the Gardaí not below the rank of Superintendent may issue a warrant in circumstances of urgency, provided that such member “is independent of the investigation” (section 29(5)). That requirement was the focus of Behan, in which the majority of the Court (per O’ Malley J; Dunne and Baker JJ agreeing) gave a strict construction to section 29(5), on the basis that the section was intended to respect the nemo iudex in causa sua principle (at para 64).

 

19.              Quirke was concerned directly with Section 10. Charleton J’s judgment discusses the common law authorities on the power to search, which emphasise “the intervention of a judicial mind; the need for a statutory power; the conformance with the parameters of such power; the need to specify what is in reality sought; and the duty to use a power only for the purpose for which it is granted by statute. Such an approach is necessary to ensure that the manner in which a warrant is obtained, a significant but proportionate and necessary infringement on privacy rights, remains a legitimate balancing exercise carried out by the issuing judge” (at para 89).

 

20.              The difficulty in Quirke was that, while a warrant had been sought and obtained under Section 10 authorising the search of the suspect’s home, the issuing judge was not told that the Gardaí wished to examine a computer located there. The Court took the view that the lawful seizure of a computer (or a device such as a mobile phone) required express judicial authorisation in accordance with Damache because the seizure of such a device for the purpose of searching through its “contents” (as opposed to examining it for the presence of physical evidence such as fingerprints or DNA material) “involves the automatic loss of privacy rights on a vast scale” and “[w]ithout judicial scrutiny, seizure for the purpose of a non-physical search into mobile phones and other computer devices of vast memory and carrying the private dimensions of a human life over years or months no balancing of rights can be undertaken whereby a court may authorise such a search and seizure.” (para 97). It follows that where the Gardaí wish to seize a computer on foot of a Section 10 warrant, that “must be brought to the judge’s attention on applying for legal authority to authorise such an invasion of privacy” (para 101)

 

21.              In the circumstances, the Court in Quirke held that, while the warrant was valid and the search lawful, the seizure of the computer was unauthorised.

 

22.              Accordingly, a judge asked to issue a warrant under Section 10 is obliged to scrutinize the application rigorously and assess it independently and impartially. That is the essential rationale of entrusting the function to an independent judge in the first place. That function cannot properly be discharged unless the applicant for the warrant ensures that all material information is before the judge. That was the issue in Quirke. If the judge is not satisfied that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an arrestable offence is to be found in the place that is sought to be searched, the warrant must be refused. But even where the judge is satisfied that that statutory threshold is met, it may still be appropriate to refuse to issue the warrant. That follows clearly from the language of Section 10 (providing as it does that, if satisfied that there are reasonable grounds for suspicion, “the judge may issue a warrant” (my emphasis)) but that position is in any event strongly reinforced by the constitutional imperative for an independent decision maker who must consider whether the issue of a search warrant under Section 10 appears to be a proportionate and necessary infringement of the rights of the intended subject(s) of the search. If not, the warrant must be refused. Any assessment of proportionality in this context necessarily involves consideration of whether some less intrusive measure might be sufficient to protect the interests of the State.

 

THE SEARCH WARRANT APPLICATIONS HERE

 

23.              Here, Mr Corcoran was interviewed under caution by the Gardaí on 19 December 2018 and made a statement in which he described himself as the editor and owner of the Democrat Newspaper. Asked whether he was a “registered journalist”, Mr Corcoran indicated that he was a “published journalist” who had supplied copy to the national newspapers. Asked how he had heard about the fire on 16 December 2018, he indicated that, in order to protect his journalistic integrity, he would have to make no comment and, while stating that he was more than happy to assist, he could not compromise his journalistic integrity or his sources. He denied having anything to do with the events. Asked whether the video footage he had uploaded to Facebook and to the Democrat website was “all the footage” he had captured, he confirmed that it was. He declined to identify the “device” he used to upload the video footage. While he was not asked in explicit terms to hand over the “device”, at this point in the interview his solicitor (who was also co-owner of The Democrat) intervened to state that it “might compromise the source that brought his client to the site and therefore he is obviously declining to give information regarding it.” Asked what he had done with the photos he had taken at the scene, Mr Corcoran again declined to comment but confirmed that he would be happy to provide copies of all such photos to the Gardaí. At the conclusion of the interview, Mr Corcoran emphasised that he did not know what had happened until he arrived at the scene and that any information that was in the subsequent article he had written was “obtained subsequently from confidential sources”.

 

24.              It appears that, on 20 December 2018, Mr Corcoran gave the Gardaí a USB stick containing video footage and photos recorded by him on the night of 16 December 2018.

 

25.              A considerable period of time then elapsed. That is significant in itself, suggesting as it does that the Gardaí did not consider that there was any pressing urgency about obtaining access to Mr Corcoran’s phone and/or other material in his possession. In any event, on 2 April 2019 – some 10 weeks after the incident – the Gardaí applied for the issue of the two Search Warrants pursuant to Section 10. The information sworn for each application was in substance identical. It referred to the incident on 16 December 2018, referred to the fact that footage of the “immediate aftermath of the attack” had been recorded by Mr Corcoran and explained that a USB drive had been voluntarily handed over to Gardaí by Mr Corcoran on 20 December 2018 which, on examination, indicated that the video footage had been downloaded from an iPhone 6 between 5.34 and 5.40 on 16 December 2018. The information referred to the posting of video footage on the Facebook page of the Democrat and on Democrat.ie and stated that articles published on both sites contained information that was not in the public domain and suggested that the author had been present at the scene (that, of course, was not in dispute). The information then recited that the informant believed that there were reasonable grounds to believe that Mr Corcoran had been present at the attack and “I believe an iphone 6 and further video footage which may identify other suspects sought in the investigation may be found on an iphone 6 or other computer or media device applied for at Democrat.ie Newspaper … and the home of Emmet Corcoran at ….”.

 

26.              There is no suggestion that any additional information was before the judge when he was asked to issue the Search Warrants. Therefore, we must proceed on the basis that the applications were made, and the Search Warrants granted, in reliance on the sworn information and not on any other basis.

 

27.              I agree with Hogan J, and with the Court of Appeal, that, in the circumstances here, the sworn information was not adequate to enable the judge to discharge his functions under Section 10 properly. It failed to disclose clearly that Mr Corcoran was a working journalist and editor of the Democrat newspaper. It may be said that that could be gleaned, at least in part, from what was said in the information. In my view, however, it required to be brought specifically to the notice of the judge. The information failed to disclose that Mr Corcoran had given a voluntary interview to the Gardaí, during which he had accepted that he had been present at the scene of the incident. It failed to disclose that Mr Corcoran had voluntarily provided what he said was all of the footage and photos he had taken. That is particularly significant given that the thrust of the information seems to have been directed at the possibility that a search would yield further video footage. Notably, the information said nothing about examining Mr Corcoran’s iPhone or other devices for the purpose of accessing call or message data or accessing his contacts. It also failed to disclose that Mr Corcoran had clearly indicated that he regarded the identity of his sources as confidential and that he was concerned that if the Gardaí had access to the “device” he had used to take the video footage and photos, that could compromise those sources.

 

28.              That information was, in my view, clearly material to the question presented to the judge here, namely whether warrants should be granted under Section 10 for the search of Mr Corcoran’s home, as well as of the offices of the Democrat. The grant of such warrants would manifestly engage Article 10 ECHR. The ECtHR has characterised such measures as “drastic”: Nagla v Latvia (2013) (Application no. 73469/10), § 95. That characterisation appears wholly apt here given the breadth of the powers conferred by a Section 10 warrant once granted. Such a warrant is far more intrusive than an order directing the identification of a source, such as was at issue in Goodwin. [5]

 

29.              Article 10 is not, as such, part of Irish law: McD v L [2009] IESC 81, [2010] 2 IR 199. But section 3 of the European Convention on Human Rights Act 2003 (“the 2003 Act”) imposes a general duty on every “organ of the State” to “perform its functions in a manner compatible with the State's obligations under the Convention provisions” (which include Article 10). “Organ of the State” does not include “a court” (section 1(1) of the 2003 Act). But if, as Simple Imports and Damache suggest, a judge exercising the functions conferred by Section 10 is not exercising a judicial function – is not acting as “a court” but is acting as a designated person with appropriate independence and expertise – that exclusion would appear to have no application. It is not, however, necessary to decide that point. Even if a judge when acting pursuant to Section 10 is not an “organ of the State”, and thus is not subject to the section 3 duty, it does not follow that he or she is mandated to disregard Article 10. An Garda Síochána is undoubtedly an “organ of the State” and is thus clearly within the scope of section 3. The Garda Síochána Act 2005 (as amended) also makes it clear respect for human rights is a fundamental principle of policing in the State. [6] Persons in the position of Mr Corcoran here are undoubtedly entitled to rely on Article 10 vis a vis the exercise by the Gardaí of their powers and functions and a judge assessing an application for a warrant under Section 10 must be able to have regard to it in appropriate cases. To suggest otherwise would be to suggest that Section 10 compels the issue of a search warrant even where a District Judge is satisfied that the execution of such a warrant would inevitably involve a breach of Article 10 by the Gardaí (and by the State). That is not the law as I conceive it.

 

30.              In any event, the interpretative obligation imposed by section 2 of the 2003 Act clearly requires that Section 10 be interpreted as entitling a judge to have regard to Article 10 in exercising his or her functions under Section 10. That proposition follows inevitably from the terms of section 2 itself, as well as the ECtHR’s Article 10 jurisprudence (of which judicial notice is to be taken by virtue of section 4 of the 2003 Act). This Court, like the High Court and the Court of Appeal, is duty bound to interpret Section 10 in a manner compatible with the ECHR: see this Court’s decision in Mahon v Keena [2009] IESC 64 and 78, [2010] 1 IR 336, to which further reference is made below. The interpretive obligation imposed by section 2 is not unlimited and does not permit the court to act as legislator: see the decision of this Court in Ryan v Clare County Council  [2014] IESC 67, [2015] 1 ILRM 81, per McMenamin J (Laffoy and Dunne JJ) at para 55 as well as the decision of the High Court (McKechnie J) in Foy v An tArd-Chláraitheoir [2007] IEHC 470, [2012] 2 IR 1, at paras 75 - 76. Significant questions arise as to whether Section 10 is capable of being interpreted in a manner that would comply fully with the requirements of Article 10. But the immediate issue here is more straightforward: it is whether a judge exercising the functions conferred by Section 10 can, in that context, have regard to Article 10 and the interests protected by it. That appears to me to be the irreducible minimum if Section 10 is to be capable of operating in a manner compatible with the State’s ECHR obligations. Of course, Section 10 makes no reference to Article 10. Equally, however, it makes no reference to the protection of the dwelling-house or to rights of privacy but it is clear that such interests must be taken into account where relevant in assessing whether to issue a search warrant (Damache; Quirke).

 

31.              That Section 10 can and should be interpreted so as to enable – and, in appropriate circumstances, require – a judge to whom an application for a search warrant is made to have regard to Article 10 was not, as I understand it, contested at the hearing of the appeal. While disputing that Section 10 could properly be read as the Court of Appeal had read it (an issue to which I will return) Counsel for the Director accepted that, having regard to Damache, the judge here was entitled to have some regard to Article 10 and the protection afforded to journalistic material in considering whether it was proportionate to issue a warrant. But irrespective of the stance taken by the Director, the legal position is, in my view, clear.

 

32.              The difficulty here is that the material presented to the judge did not adequately disclose the position so as to enable him to make a properly informed assessment as to whether it was appropriate to issue the Search Warrants. At a minimum, the judge ought to have been told, in unambiguous terms, that Mr Corcoran was a journalist and that one of the purposes of the intended searches - if not indeed the principal purpose – was to identify Mr Corcoran’s sources, which he had made clear were confidential and which he had made clear he felt unable to disclose because of his obligations as a journalist. These were clearly material considerations which required to be disclosed to the judge. If such disclosure had been made, the judge might nonetheless have proceeded to grant the Search Warrants (though whether, in that event, the Warrants would have been compatible with Article 10 is another matter). But that was not inevitable: the judge might instead have concluded that granting the Search Warrants would, in the particular circumstances, be disproportionate and/or incompatible with Article 10 ECHR, particularly in circumstances where the execution of the Search Warrants might result in the seizure of, and access being obtained to, journalistic material unconnected to the incident being investigated. The failure to disclose these essential matters to the judge is, of itself, fatal to the validity of the two Search Warrants in my view.

 

 

THE DECISION OF THE COURT OF APPEAL

 

33.              The Court of Appeal also held that the Search Warrants should be quashed. At para 154 of her judgment, Costello J summarised her conclusions as follows:

 

“It is open to a member of An Garda Síochána to apply in at least some circumstances ex parte to a District Court judge for a search warrant of a journalist's home or place of work under s. 10 of the 1997 Act provided that the minimum safeguards identified are observed. The District Court judge must be informed that the application engages or potentially engages journalistic privilege, that this privilege is protected by the Constitution and the Convention, that it may be overridden, that the judge may only issue the warrant if the applicant convincingly establishes that there is an overriding requirement in the public interest that justifies such an order. The applicant is under an obligation to make full disclosure in order that the District Court judge may properly balance the competing rights of the public interest in the investigation and prevention of crime and the rights of journalists, their sources and the general public in the protection of journalistic sources from disclosure. A warrant issued where these minimum requirements are not met may be quashed. A review and ex post facto balancing of the rights after a warrant has issued and after it has been executed is not compliant with the requirements of the Constitution. The very fact of the issuing of the warrant to search the home or place of business of a journalist, even if it is not executed or no journalistic material is seized on foot of it, may in some circumstances amount to a breach of the rights of journalists, and their sources, under the Constitution. Accordingly, the warrant that issued in this case ought to be quashed.”

 

Mahon v Keena

 

34.              The issue of whether “journalistic privilege” enjoys (or ought to enjoy) constitutional protection is discussed later in this judgment. As I shall explain, I do not consider it necessary or appropriate for the Court to decide that issue in this appeal. However, there is no question but that Article 10 ECHR applies and that Section 10 must, so far as is permissible, be interpreted in a manner compatible with it. For that purpose, the Court must take the Article 10 ECHR jurisprudence essentially as it finds it. As already mentioned, Mahon v Keena provides an illustration of the operation of the section 2 interpretative obligation in this context. It was the subject of close consideration by Costello J in her judgment. The proceedings in Mahon v Keena arose from an order made by the Planning Tribunal pursuant to section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979 directing the defendants (both well-known journalists working for the Irish Times) to produce to it all documents relating to confidential Tribunal correspondence which had been leaked anonymously to them and which had been published in the Irish Times. The Tribunal wished to identify the source of the leak. The defendants informed the Tribunal that the document had been destroyed by them and declined to give any information that might assist in the identification of the source of the leak (while the document had been provided anonymously, the defendants were in a position to confirm whether it appeared to be an original letter, on the letterhead of the Tribunal, or a copy, which - so the Tribunal suggested – could serve to narrow the potential sources and perhaps exclude the Tribunal itself as the source). The Tribunal then applied to the High Court pursuant to section 4 of the Tribunal of Inquiries (Evidence) (Amendment) Act 1997 for an order compelling the defendants to answer questions relating to the source of the leaked document. An order to that effect was made by the High Court but that order was set aside by this Court on appeal.

 

35.              The Court (per Fennelly J; Murray CJ, Geoghegan, Macken and Finnegan JJ agreeing) upheld the conclusions of the High Court to the effect that the leaked document was confidential and that the Tribunal was competent to conduct an inquiry into the source of its unauthorized disclosure. The appeal therefore turned on the balance struck by the High Court between the power of the Tribunal to investigate and the right of the defendants to refuse to disclose any information about their sources (para 58). In that context, Fennelly J noted that the combined effect of sections 2 - 4 of the 2003 Act was that the relevant provisions of the Tribunals of Inquiry Acts had to be interpreted in a manner compatible with the State’s obligations under the ECHR (para 65). He then considered some of the Article 10 jurisprudence, particularly Lingens v Austria (1986) 8 EHRR 407, Fressoz and Roire v France (2001) 31 EHRR 28 and Goodwin. He also considered the treatment of journalistic privilege in the United States, referring to the US Supreme Court’s decision in Branzburg v Hayes (1972) 408 US 665, to which I refer later.

 

36.              Referring to the judgment of the High Court, Fennelly J expressed his agreement with its view that the exercise of deciding between competing interests in a democratic society based on the rule of law is reserved to courts established by law. The courts “cannot and should not abdicate their responsibility to decide when a journalist to disclose his or her source” and “cannot shirk their duty to penalize journalists who refuse to answer questions legitimately and lawfully put to them” (para 91). In the event “of a conflict, whether in a civil or criminal context, the courts must adjudicate and decide, while allowing all due respect to the principle of journalistic privilege”, with no citizen having “the right to claim immunity from the processes of the law” (para 92).

 

37.              In Fennelly J’s view, the High Court had erred in giving the weight it had to the fact that the defendants had deliberately destroyed the very document that was at the core of the inquiry. Furthermore, the benefit in making the order was “speculative at best” (para 98). Noting the Tribunal’s submission that, where the source was anonymous, the relationship of trust and confidence between journalist and source which is the basis for the journalist’s privilege was absent, Fennelly J observed that the ECtHR case law had not addressed the issue of whether the privilege was there to protect the source or the journalist. [7] Rather, it appeared to proceed on a “functional theory: is there a pressing social need for the imposition of the restriction.” (also at para 98).

 

38.              Fennelly J expressed his ultimate conclusion thus:

 

 

 

39.              As will be evident from the discussion above, the focus of this Court’s analysis in Mahon v Keena was on the balancing exercise to be carried out by the High Court (and this Court on appeal) under section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1997. That had been the focus of the High Court also. That is unsurprising. The order sought was an order under that section. The earlier order made by the Tribunal under section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979 was not directly at issue. Both the High Court and this Court appeared to proceed on the basis that an order could properly be made under section 4 of the 1997 Act if, and only if, such an order would be compatible with Article 10 ECHR. The High Court considered that there was such a “pressing social need” to preserve public confidence in the Tribunal and as there was no other means by which that could be done other than by making the order sought by the Tribunal, such an order satisfied the Article 10(2) threshold requirement of being “necessary in a democratic society” ([2007] IEHC 348, pages 36-37). This Court, in contrast, clearly concluded that there was no “overriding requirement in the public interest” capable of justifying the order sought. In other words, there was no “pressing social need” for imposing an obligation of disclosure on the defendants in the circumstances presented.

 

40.              Cornec v Morrice [2012] IEHC 376, [2012] 1 IR 804, which was also referred to by the Court of Appeal in its judgment, was decided primarily by reference to the provisions of Article 40.6.1.i of the Constitution. I discuss that aspect of the decision in detail later. However, it is implicit in the judgment of Hogan J that, had it been necessary to do so, he would have interpreted the provisions of the Foreign Tribunals Evidence Act 1856 in a manner which rendered them compatible with Article 10 ECHR by reading section 5 of that Act (which provides that any person examined on foot of an order made under the Act has the same right to refuse to answer as they would have in domestic proceedings) as encompassing the Article 10 protection against compelled disclosure of a source: see at para 64.

 

Fine Point Films and Birney

 

41.              Before returning to the Court of Appeal’s analysis, I should refer to a further decision that significantly influenced its analysis, namely Fine Point Films and Birney. Fine Point Films was a well-known documentary film producer. Mr Birney, its CEO, had a significant track-record in documentary journalism. The third applicant, Mr McCaffrey, was an investigative journalist, also with a distinguished track-record, who was employed by an online investigative news platform related to Fine Point Films. He was a member of the NUJ (that fact was significant in the Divisional Court’s assessment). In 2017, after a lengthy investigation, Fine Point Films released a documentary about the murder of six men by the UVF at Loughinisland in 1994 and the subsequent RUC investigation. The documentary named 4 suspects that had been identified by the RUC after the attack. It also referred to sensitive documentary material relating to an investigation carried out by the Police Ombudsman into complaints that had been made to the Ombudsman as to the adequacy of the RUC investigation. Subsequently, an investigation by an external Police force was commissioned for the purpose of establishing how the production team obtained access to the Ombudsman material, whether by theft of the material or by some other unauthorised disclosure.

 

42.              As already mentioned, the PACE Order governs access to “journalistic material” in Northern Ireland (other than under the Terrorism Act 2000). “Journalistic material” means “material acquired or created for the purposes of journalism” (Article 16). Where such material consists of documents or other records which are held in confidence (that is to say, subject to an express or implied undertaking to hold it in confidence or a restriction on disclosure or an obligation of secrecy contained in any statutory provision), then it is deemed to be “excluded material” for the purposes of PACE (Article 13). Otherwise, “journalistic material” is categorised as “special procedure material” (Article 15). Applications for access to “excluded material” and “special procedure material” must be made in accordance with Schedule 1 (Article 11). Schedule 1 sets out two sets of access conditions. Access to “excluded material” requires the second set of access conditions to be satisfied (access to “special procedure material” can be permitted once either set of conditions is satisfied). The conditions governing access to “excluded material” are that (i) that there are reasonable grounds for believing that such material is at the specified premises; (ii) that but for Article 11(2), a search of such premises could have been authorised by the issue of a warrant under some other statutory provision and (iii) the issue of such a warrant “would have been appropriate”. Applications for an order in respect of “excluded material” or “special procedure material” are made inter partes and once an application is served on a person, he or she must not conceal, destroy, alter or dispose of the material to which the application relates without leave of the court or the permission of the police until the application is determined. An order, if made, does not authorise a general search but rather requires the person in possession of the material to produce it to the police or allow them access to it.

 

43.              That is the general position under the PACE Order. Exceptionally, however, provision is made for the issue of a search warrant ex parte in certain specified circumstances, Those circumstances include where the material sought is subject to a statutory restriction on disclosure and is likely to be disclosed in breach of such restriction in the event that a warrant is not issued or where service of notice of an application “may seriously prejudice the investigation for the purpose of which the application is sought, or other investigations”.

 

44.              The warrant at issue in Fine Point Films and Birney was issued ex parte. A transcript of the application was before the High Court and is referred to extensively in the judgment. There is, of course, no transcript of the application here. [8] In any event, the application for a warrant was said to be justified because of a concern that if an application for a production order had been served, steps might have been taken to frustrate the securing of the Police Ombudsman material (which, it was suggested, had been stolen from the Ombudsman). That rationale - which was based entirely on the fact that Mr McCaffrey had declined to voluntarily provide the police with material about a source in an earlier investigation, in reliance on his obligations as a journalist under the NUJ Code of Practice – was the subject of scathing analysis by the court, as was the basis for seeking the warrant in the first place in terms of compliance with the applicable access conditions. [9] It is perfectly clear from the court’s judgment that it was not persuaded that there was any proper basis for proceeding ex parte. Nevertheless, the court made important observations as to how the ex parte hearing ought properly to have proceeded. It was a fundamental principle that such a hearing should be fair (para 41). There was a “heavy onus” on those seeking to pursue ex parte proceedings to take all reasonable steps to ensure that they were fair and part of that obligation was that the applicant should put on “a defence hat” and bring to the judge’s notice those matters that someone representing the defendant or interested party would rely on it if present (para 42).

 

45.              As for Article 10 ECHR, the court had earlier referred to Goodwin and Roemen & Schmit v Luxembourg. Although there had been some acknowledgement of the importance of journalists in a democratic society in the course of the ex parte hearing:

 

“ the judge was not advised that Article 10 Convention rights were engaged, nor was he provided with any of the relevant jurisprudence nor was it made clear to him that a warrant such as this sought could only be justified by an overriding requirement in the public interest. This issue was absolutely fundamental to whether or not a warrant should be issued and the failure to address it means that we can have no confidence that the trial judge applied the right test.”

 

46.              The statutory context in which Fine Point Films and Birney was decided differs significantly from the statutory context here. There is no statutory equivalent in this jurisdiction to section 10 of the Contempt of Court Act 1981 or the PACE Order. That the Court of Appeal was alive to those differences is evident from the judgment of Costello J (at para 96). Nonetheless, she did not consider those differences to be material to the central holding in Fine Point Films and Birney, which she identified as “the requirement that before an ex parte warrant of the kind in issue in these proceedings may issue, the authorities must at the very least ensure that the judge is aware of the potential engagement of journalistic privilege and that he or she has directed his or her mind to the balancing exercise envisaged by the ECtHR case law” (also at para 96). These are amongst the “minimum safeguards” that, in the Court of Appeal’s view, must be read into Section 10 in order to make it capable of operating in a manner compatible with Article 10 ECHR. Another is that a warrant which would or might result in the disclosure of a source should not issue unless justified by an overriding requirement in the public interest or a pressing social need that is “convincingly established” (para 110). All information relevant to the balancing exercise required by Article 10 should be put before the judge (para 112) though the Court of Appeal also emphasised that the ex parte application should not be converted into a full-blown trial (para 113).

 

47.              Costello J did not in terms endorse the suggestion in Fine Point Films and Birney that, where a search warrant is sought ex parte, the applicant is obliged to put on “a defence hat”. It is clear from Quirke that there “is a duty on investigators to be conscious of the need for the presentation of a fair summary of the facts and of their interest to whatever judge is engaged in issuing a search warrant” (para 86). Quirke also makes it clear that, on an ex parte application, there is a duty on the Gardaí “to address the issue with appropriate care as to that person’s rights” (para 88). Relevant information must not be deliberately withheld (paras 94-95). However, the Court in Quirke did not go so far as to hold that applicants for search warrants are subject to a duty of candour equivalent to that applicable on an application for a mareva injunction or Anton Piller order. That issue does not arise on this appeal and, in my view, it should be left over for consideration in an appeal in which it arises in a concrete way.

 

ECtHR Jurisprudence

 

48.              The Court of Appeal considered that it was necessary to interpret Section 10 in this way because, in its view, compliance with Article 10 ECHR had to be assessed prior to the issuing of a warrant. Any ex post facto review - at least a review that took place only after disclosure – would not satisfy the requirements of Article 10: per Costello J at paras 72-79, citing Sanoma Uitgevers BV v Netherlands (2010) (Application 38224/03).

 

49.              The Grand Chamber’s decision in Sanoma Uitgevers certainly indicates that one of the legal procedural safeguards required by Article 10 - described by the court as “first and foremost” among such safeguards - is “the guarantee of review by a judge or other independent and impartial decision-making body” that is “invested with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists prior to the handing over of such material and to prevent unnecessary access to information capable of disclosing the source’s identity if it does not” (para 90). That “independent review” must be carried out “at the very least prior to the access and use of the obtained materials” because any review that “takes place subsequently to the handing over of material capable of revealing such sources would undermine the very essence of the right to confidentiality” (para 91). Given the “preventative nature” of such review, the weighing of potential risks and respective interests must be carried out “prior to any disclosure and with reference to the material that it is sought to have disclosed so that the arguments of the authorities seeking the disclosure can be properly assessed” (para 91). [10]

 

50.              In light of what was said in Sanoma Uitgevers – which was substantially repeated in Sorokin v Russia (2022) (Application 52808/09) - it is not clear that Article 10 necessarily requires that the “preventative review” that it mandates must take place prior to the issue of a search warrant. Furthermore, the ECtHR’s decision in Nagla v Latvia (which post-dates Sanoma Uitgevers), on which the Commissioner and the Director relied in this context, suggests that, in some circumstances at least, an “immediate post factum review” by an independent investigating judge is capable of satisfying the procedural requirements (“ ..prescribed by law …”) in Article 10(2) (paras 89-91). In Nagla, the applicant - a TV journalist - had received information from an anonymous source (“Neo”) to the effect that there were serious security flaws in the database maintained by the Latvian revenue service, making it possible for third parties to access highly confidential taxpayer information held in the database, including information relating to the income received, and tax paid, by public officials. “Neo” did not reveal his identity to the applicant at any point and made it clear that he did not wish to do so. The applicant took steps to verify the information and, having done so, she informed the revenue service of a possible security breach. A few days later she announced during a TV broadcast that there had been a massive data leak from the revenue service. Shortly afterwards, the applicant was interviewed as part of a criminal investigation that had been opened into the data leak. She declined to permit access to her email correspondence with “Neo” or to provide any information that could lead to the disclosure of his identity. Some months later, a warrant issued for the search of the applicant’s home which was executed immediately. During the search, a personal laptop, external hard drive and other data storage devices, containing a large body of personal data as well as most of the applicant’s work-related material, were seized. In the ordinary way, a search warrant had to be authorised by the investigating judge or court after examination of the case file. However, under the urgent procedure - which was the procedure followed in Nagla – where a delay could allow the relevant documents or objects to be destroyed, the warrant could be issued by the investigating authority and authorised by a public prosecutor. That was the procedure followed here. A warrant issued under the urgent procedure had to be submitted on the following day to the investigating judge who then examined the lawfulness of and the grounds for the search. The investigating judge had power to declare the search unlawful and to declare evidence gathered by it inadmissible in the criminal proceedings and could also decide on further action in relation to the evidence, including directing withholding the disclosure of journalistic sources.

 

51.              In Nagla, the investigating judge had approved the search warrant on the day after its issue and execution. No reasons were given. The following month, following complaint by the applicant, the court president upheld the decision of the investigating judge and held that the evidence obtained on the search was admissible in the criminal proceedings. No hearing was held but the president examined the applicant’s written complaint, the case file and the investigator’s written explanation. The ombudsman also carried out an inquiry into the search. In his non-binding report, he concluded that the search had violated the freedom of expression and the right not to disclose journalistic sources enshrined in the Latvian Constitution and binding international treaties.

 

52.              Against this background, the applicant relied on Sanoma Uitgevers to submit that her Article 10 rights had been interfered with in a manner not “prescribed by law”. However, the court (Fourth Section) held that the power of the investigating judge to declare the search unlawful, to declare evidence inadmissible and to withhold the disclosure of the identity of the sources was sufficient to differentiate the case from Sanoma Uitgevers (para 90). While the report is not entirely clear on this point, it must have been the case that the investigators were not permitted to access the material seized during the search prior to the search being approved by the investigating judge. That would explain the emphasis placed by the court on the power of the investigating judge to direct the withholding of the disclosure of journalistic sources. Such a power would appear to be nihil ad rem if the sources had already been disclosed prior to the investigating judge’s review. It would also explain the court’s reference to Telegraaf Media Nederland v Netherlands (2012) (Application 39315/06), where the court held that an interference with Article 10 was “prescribed by law” in circumstances where, without any prior judicial or independent review, a “surrender order” had been made pursuant to Dutch law requiring the production of documents which could reveal journalistic sources but where the documents when produced were placed into a sealed container by a notary and given into the custody of an investigation judge pending the determination of a challenge to the lawfulness of the surrender order (para 120). More fundamentally, if Latvian law actually permitted access to be obtained to journalistic material potentially disclosing the identity of a source without any form of prior judicial/independent assessment, it would have been wholly at odds with the Grand Chamber’s decision in Sanoma Uitgevers to hold that such interference was compatible with Article 10(2).

 

53.              It should not be overlooked that the court in Nagla went on to find a violation of Article 10 on the basis that the search was not proportionate to the legitimate aims of preventing crime and protecting the rights of others and did not correspond to a “pressing social need.” Therefore, the interference was not necessary in a democratic society. In reaching that conclusion, the court emphasised the sweeping nature of the powers granted by the search warrant to allow the seizure of any information pertaining to the crime under investigation and questioned the basis on which the urgent procedure had been invoked, given the period of time that had elapsed between the initiation of the investigation and the search (a point which can be made here also). That had resulted in the search proceeding “without any judicial authority having properly examined the relationship of proportionality between the public interest of investigation, on the one hand, and the protection of the journalist’s freedom of expression, on the other hand” (para 98). Furthermore, although the investigating judge’s involvement in an immediate post factum review was provided for in law, the assessment actually carried out by the investigating judge did not provide sufficient and adequate safeguards against abuse (para 101).

 

Does the availability of Judicial Review ensure compliance with Article 10 ECHR?

 

54.              Here, of course, Section 10 makes no provision for any post factum review of a warrant issued under that section. Once a warrant issues, it operates without more to authorise a search and the section effectively requires the warrant’s immediate or near-immediate execution (the authority granted by it expires after a week). But, the Commissioner and the Director say, a Section 10 warrant is amenable to judicial review. On their case, it is not necessary to interpret Section 10 as the Court of Appeal did because, in principle, ex post review is adequate and is, in fact, available by way of judicial review. That, it is said, is demonstrated by these very proceedings. They also point to this Court’s decision in CRH plc v Competition and Consumer Protection Commission [2017] IESC 34, [2018] 1 IR 521 as illustrating that ex post facto review may adequately protect and vindicate fundamental rights. The Court of Appeal - so it is said - failed to have adequate regard to the decision in CRH plc v Competition and Consumer Protection Commission.

 

55.              I do not agree. Judicial review is not, in my view, an adequate or practical remedy in the circumstances here. Ordinarily, a person whose premises are to be searched will first learn that a search warrant has issued only at the point when the Gardaí attend at the premises for the purpose of executing the warrant. At that point, the person concerned is required to submit to the search. A refusal to provide access may result in forcible entry being made (Section 10(2)(a) authorising the use of “reasonable force” for that purpose). Any attempt to obstruct the search will constitute an offence (Section 10(4)). I agree with Costello J that the carrying out of a search of a journalist’s home or workplace may, in some circumstances at least, constitute a violation of Article 10 ECHR, regardless of whether material that may disclose a confidential source is seized. A subsequent quashing of the warrant on judicial review will not, of itself, remedy such a violation. More fundamentally, judicial review simply cannot provide a “guarantee of review by a judge or other independent and impartial decision-making body .. prior to the handing over” of material protected by Article 10. Here, it is true, Mr Corcoran managed to institute judicial review proceedings, and obtain a stay, before the Gardaí managed to access his iPhone. But that was exceptional. It was possible only because of the happenstance that the iPhone was password protected and that the Gardaí were unable to access it. No doubt, the fact that Mr Corcoran’s business partner was also a solicitor, who was already aware of the Garda investigation, was also a significant - and exceptional – factor in enabling Mr Corcoran to get to court as quickly as he did. Mr Corcoran refused to disclose his password here: whether that refusal amounted to obstruction of the search was not explored in argument. As we have seen, there are other search provisions on the statute-book that expressly impose an obligation to provide passwords to enable computers and other such devices to be accessed. If Mr Corcoran’s iPhone had not been password protected (or if the Gardaí had managed to bypass the password protection) or if he held confidential journalistic material in hard copy form (such as notes or print-offs of electronic communications), the Gardaí would have obtained access to such material ever before judicial review proceedings could have been initiated. The State’s compliance with Article 10 cannot depend on the contingency of whether the subject of a search can manage to make it to the Four Courts before access takes place.

 

56.              This Court’s decision in CRH plc v Competition and Consumer Protection Commission is undoubtedly a significant one. However, it did not involve any consideration of the requirements of Article 10 ECHR. Nor did it involve any challenge - at least directly - to the validity of the search warrant (issued pursuant to section 37 of the Competition and Consumer Protection Act 2014). That the warrant had been lawfully issued and executed, and that it authorised the seizure of substantial material from the offices of the Irish Cement Limited, was not in dispute. The issue was whether some of the (large volume) of the material seized and, in particular, digital material comprising personal email accounts, fell outside the scope of the warrant as being private/personal material unrelated to the investigation (“out-of-scope” material). In that context, Article 8 ECHR was engaged. It appears that the material had not in fact been accessed by the Competition and Consumer Protection Commission (CCPC) prior to the commencement of proceedings and the High Court had granted declaratory and injunctive relief, declaring that certain of the material seized by the CCPC had been seized without authorisation under section 37 and preventing the CCPC from accessing or reviewing such material on the basis that doing so would breach the Article 8 rights of the plaintiffs. On appeal, those orders were varied but the orders relating to Article 8 were upheld. That did not resolve all of the issues between the parties. In her judgment (with which Denham CJ and Dunne J agreed), Laffoy J noted that there was a lacuna in the 2014 Act in that it did not provide for any mechanism for identifying and excluding out-of-scope material (at para 212). It was a matter for the Oireachtas to fill that lacuna but that did not prevent the parties from reaching an agreement on how to proceed (ibid): see also the judgment of Charleton J (with which Denham CJ and Dunne J also agreed) at para 267.

 

57.              Nothing in CRH plc v Competition and Consumer Protection Commission suggests that the fact that a Section 10 warrant is, in principle, amenable to judicial review means that the availability of judicial review satisfies the procedural requirements of Article 10 ECHR. In my opinion, it clearly does not.

 

Conclusions on Article 10

 

58.              I therefore agree with the foundational premise of the Court of Appeal’s analysis. Where a Section 10 warrant would potentially interfere with the protection of a journalist’s sources - as was unquestionably the case here – Article 10 ECHR requires an independent review of whether the warrant is justified. The only means of ensuring compliance with that requirement is to interpret Section 10 as mandating the judge asked to issue the warrant to address that issue. The section 2 interpretative obligation is not unlimited. It does not permit statutory provisions to be recast or rewritten, even where that is necessary to avoid a violation of the ECHR. Ultimately, however, I am not persuaded that the approach taken by the Court of Appeal strays beyond permissible bounds. Where a Section 10 warrant would potentially interfere with the protection of a journalist’s sources - a fortiori where the warrant is sought for the very purpose of identifying such a source - that must be brought to the notice of the judge and the judge can properly issue the warrant only if he or she is satisfied that the public interest - in this context, the public interest in the prevention and punishment of crime and the protection of public safety - justifies the potential interference with the protection of journalistic sources. Reading Section 10 to that effect is, in my opinion, not materially different to the approach taken to section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1996 that was taken by the High Court and this Court in Mahon v Keena. If the judge is to properly exercise that function, it necessarily follows that the necessary facts and circumstances must be disclosed so as to allow the judge to strike an appropriate balance. That is, in essence, the approach taken by the Court of Appeal and the Commissioner and the Director have, in my opinion, failed to demonstrate any material error in its approach.

 

59.              However, it must be understood that reading Section 10 in this way does not by any means resolve all of the issues that it gives rise to or ensure that the section will, in all circumstances, operate in a manner compatible with Article 10 ECHR. Section 10 is a blunt instrument. It does not permit a judge to make a less intrusive order, such as a production or disclosure order. It does not permit a judge to issue “a limited or qualified” search warrant, or attach conditions to such a warrant for the purpose of protecting Article 10 interests. It is clear from the Grand Chamber’s decision in Sanoma Uitgevers that the absence of such powers is problematic (Judgment, para 92). Section 10 does not contain “clear criteria, including whether a less intrusive measure can suffice” (Ibid). These features of Section 10 are, it seems to me, beyond the reach of any remedial interpretation permissible under section 2 of the 2003 Act. Equally, it is clear that Section 10 does not provide for or permit an inter partes hearing prior to the issuing of a warrant. Again, to interpret Section 10 as permitting such a hearing would be to radically rewrite it. In any event, it is not clear in what circumstances - if any - Article 10 ECHR might require such a hearing. That issue is addressed by Costello J in her judgment but was not really debated on appeal (beyond the bare assertion of Mr McDowell SC, for Mr Corcoran, that an inter partes hearing was required) and I would prefer not to express any view on it here.

 

60.              Interpreted in the manner set out above, Section 10 is capable of operating in a manner compatible with Article 10, at least. in some circumstances A District Judge is entitled to refuse to issue a warrant where it appears that it would violate Article 10 ECHR. A warrant may properly issue where sufficient justification is established. That being so, I do not think that Section 10 can be said to be incompatible with Article 10. A declaration of incompatibility is not in any event sought by Mr Corcoran. In practice, the breadth of the powers conferred by a Section 10 warrant, and the absence of any power to limit or qualify its scope and effect, means that the circumstances in which the section can properly be relied on to search the premises of a journalist are likely be very limited indeed. The sweeping nature of the Section 10 power significantly - and unnecessarily – raises the threshold for justification. A more targeted power - such as a power to make a disclosure or production order - would not give rise to the same difficulties. I share the view expressed by Costello J at para 149 that this issue requires the urgent attention of the Oireachtas.

 

ARTICLE 40.6.1.i OF THE CONSTITUTION

 

61.              As well as relying on Article 10 ECHR, Mr Corcoran relied on Article 40.6.1.i of the Constitution which, he contended, provides equivalent constitutional protection for journalistic privilege. In the High Court, Simons J held that, as a corollary of the express right in Article 40.6.1.i to free expression (including the right of organs of public opinion such as the press to liberty of expression), journalists may, in certain circumstances, have an implied or derived right to protect the identity of their confidential sources, which was “seen as necessary to allow journalists to investigate and report on matters of public interest” (para 60(iii)). The right to protect a source was not absolute or inviolable, particularly in the context of criminal proceedings (para 60(iv)). Any claim to privilege had to be adjudicated on by a court (para 60(v)). Simons J noted that the parties were agreed that any balancing of rights for the purposes of Article 40.6.1.i was not a matter for the District Court under Section 10.

 

62.              In her judgment on appeal, Costello J also took the view that “journalistic privilege” had constitutional status and protection under Article 40.6.1.i. (see, eg. paras 35-36 and 50). In her view, it followed from Cornec v Morrice and Mahon v Kenna that the protection afforded under Article 40.6.1.i of the Constitution and under Article 10 ECHR is “substantively the same” (para 97(2); see also para 97(8)).

 

63.              That Article 40.6.i protects journalistic privilege, and that its protection is effectively coterminous with the protection afforded by Article 10 ECHR, was not disputed by the Commissioner and by the Director before this Court. In the absence of dispute, no argument was addressed to these questions.

 

64.              In my view, the Court should reserve its position on these questions to an appropriate appeal in which those questions are live and are the subject of full argument.

 

 

 

66.               Here, there are a number of factors that, in my view, justify a departure from that general approach in this case. The Article 10 ECHR jurisprudence on the protection of journalists’ sources is well developed. It was previously the subject of close consideration by this Court in Mahon v Keena. In contrast, the question of whether Article 40.6.1.i protects journalist’s sources and/or enshrines some form of journalistic privilege has been the subject of only limited judicial consideration and has never been considered by this Court. [12] No argument was addressed to that issue by the parties. In my view, the question of whether Article 40.6.1.i extends to the protection of journalists’ sources and, if so, the parameters and conditions of that protection, are matters which are far too significant to be decided by default. Furthermore, there was no suggestion that, in the circumstances here, Article 40.6.1.i might provide greater protection for Mr Corcoran than Article 10 ECHR does. Had that argument been made, it might have been necessary to engage with the issue in order to determine this appeal. The focus of the appeal was at all times on Article 10 ECHR, as was the case in the Court of Appeal. Having regard to these various matters, I do not think it is necessary or appropriate to seek to determine definitively whether the protection of journalists’ sources is constitutionally mandated for the purposes of this appeal.

 

67.              Even so, some discussion of that issue is, perhaps, unavoidable in light of the approach taken in the Court of Appeal and, in particular, its reliance (and the reliance of the High Court) in this context on the decision of the High Court in Cornec v Morrice. As will appear, I have reservations about the analysis in Cornec v Morrice and, in my view, it is important that the decision should not be understood as foreclosing further debate as to whether the Constitution protects journalistic privilege and, if so, the scope of that protection and the conditions to which it ought to be subject.

 

68.               The starting point for any such discussion is the decision of the Court of Criminal Appeal in In re Kevin O’ Kelly (1974) 108 ILTR 97. Kevin O’ Kelly was a well-known journalist employed by RTÉ. He had interviewed Seán Mac Stíofáin, the IRA Chief of Staff and the interview had subsequently been broadcast. Mr Mac Stíofáin was subsequently prosecuted in the Special Criminal Court on an IRA membership charge. Mr O’ Kelly was called by the prosecution to identify the voice on a recorded interview (during which, according to the prosecution, Mr Mac Stíofáin, made direct or indirect admissions of membership of the IRA). He refused to do so on the basis that to do so would breach a journalistic confidence. As the Court of Criminal Appeal itself observed - and as was also subsequently pointed out by Hogan J in Cornec v Morrice - Mr O’ Kelly’s stance was difficult to understand, given that the broadcast as a whole had clearly identified Mr Mac Stíofáin. In the circumstances, it may well be that, as Hogan J observed in Cornec v Morrice, “the entire argument based on journalistic privilege was entirely misplaced to begin with” (at para 41), at least as regards any question of identification of a confidential source. Mr O’ Kelly appears to have taken the view that his duties as a journalist precluded him from assisting in the prosecution of his interviewee. On that basis, it appears, he had refused to formally identify Mr Mac Stíofáin’s voice and, in the face of that refusal, he had been convicted of contempt of court and sentenced to three months’ imprisonment. All of the actors involved - Mr O’ Kelly, the prosecution, the Special Criminal Court and, on appeal, the Court of Criminal Appeal - seem to have understood that a real issue of journalistic privilege arose. While the Court of Criminal Appeal set aside the prison sentence, it did not doubt the correctness of Mr O’ Kelly’s conviction. In its judgment, it set out to give “assistance to journalists and courts dealing with this matter in the future”. In my view, its observations cannot be lightly dismissed.

 

69.              Giving the judgment of the court, Walsh J stated:

 

“The Court is aware that in general journalists claim the right to refuse to reveal confidences or disclose sources of confidential information. The Constitution, in Article 40 section 6, states that the State shall endeavour to ensure that the organs of public opinion, such as the radio and the press, while preserving their right of liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State. Subject to these restrictions, a journalist has the right to publish news and that right carries with it, of course, as a corollary the right to gather news. No official or governmental approval or consent is required for the gathering of news or the publishing of news. It is also understandable that newsmen may require informants to gather news. It is also obvious that not every newsgathering relationship from the journalist’s point of view requires confidentiality. But even where it does journalists or reporters are not any more constitutionally or legally immune than other citizens from disclosing information received in confidence. The fact that a communication was made under terms of expressed confidence or implied confidence does not create a privilege against disclosure. So far as the administration of justice is concerned the public has a right to every man’s evidence except for those persons protected by a constitutional or other established and recognised privilege. As was pointed out by the Supreme Court in Murphy v. The Dublin Corporation and the Minister for Local Government [1972] I.R. 215; (1973) 107 I.L.T.R. 65, it would be impossible for the judicial power under the Constitution in the proper exercise of its functions to permit any other body or power to decide for it whether or not certain evidence would be disclosed or produced. In the last resort the decision lies with the courts so long as they have seisin of the case. The exercise of the judicial power carries with it the power to compel the attendance of witnesses and the production of evidence and, a fortiori, the answering of questions by witnesses. This is the ultimate safeguard of justice in the State, whether it be in pursuit of the guilty or the vindication of the innocent. As was pointed out in that case, there may be occasions when different aspects of the public interest may require a resolution of a conflict of interests which may be involved in the disclosure or non-disclosure of evidence but if there be such a conflict then the sole power of resolving it resides in the courts. The judgment or the wishes of the witness shall not prevail. This is the law which governs claims for privilege made by the executive organs of State or by their officials or servants and journalists cannot claim any greater privilege. The obligation of all citizens, including journalists, to give relevant testimony with respect to criminal conduct does not constitute a harassment of journalists or other newsmen. If a journalist were to be invited to witness the commission of a crime in his capacity as a journalist and received the invitation only because of that capacity, the courts could not for a moment entertain a claim that he should be privileged from giving evidence of what he had witnessed simply because of the fact that he was there as a journalist. In the present state of the criminal law, in such a case a journalist concealing such knowledge, like any other person in a similar position, might well find himself guilty of misprision of felony where a felony was concerned. In the present case Mr. O’Kelly was in effect being asked to identify the speaker of words which were claimed to constitute an admission of membership of an illegal organisation and therefore the commission of an offence, namely, the offence of being such a member. Even if the question of confidence arose here, which it clearly did not because, for the reasons already stated, the identity of the person being interviewed was an essential part of the publication, the claim of privilege to refuse to answer the question was unsustainable in law although made in good faith. However, Mr. O’Kelly persisted in his attitude when the Court had very patiently explained the position to him. He was, in the opinion of this Court, rightly convicted of contempt of court and in fact has not appealed against that conviction. While this appeal is simply against the sentence imposed, the Court has thought it necessary to go into the position in some detail as it appears that Mr. O’Kelly was somewhat confused about the legal situation generally and the views expressed by the Court may be of assistance to journalists and courts dealing with this matter in the future.”

 

70.              That the interests of the administration of justice generally require that “the public has a right to every man’s evidence” is, of course, a fundamental (though not unqualified) principle. In his judgment in People (DPP) v J.C [2015] IESC 31, [2017] 1 IR 417, O’ Donnell J (as he then was) observed that:

 

“A criminal or civil trial is the administration of justice. A central function of the administration of justice is fact finding, and truth finding. Anything that detracts from the courts’ capacity to find out what occurred in fact, detracts from the truth finding function of the administration of justice.” (para 488, at page 625)

 

71.              JC was concerned with the exclusionary rule rather than any issue of privilege. The fundamental point is, however, the same. All rules that make unavailable potentially probative evidence come at a price. That has been explicitly acknowledged by this Court in the context of legal professional privilege in Smurfit Paribas Bank Ltd v AAB Export Finance Ltd [1990] 1 IR 469, per Finlay CJ at 477. The broader the privilege, the heavier the price to be paid in terms of the loss of potentially probative evidence, with adverse consequences for criminal investigations and for the fair resolution of criminal and civil proceedings (and other forms of investigation/inquiry and adjudication also). That is not an abstract effect - it potentially impacts in a concrete way on victims of crime, accused and civil litigants. Given the fundamental public interest in having access to all potentially probative evidence, any claim to privilege requires careful scrutiny and compelling justification.

 

72.              It appears the issue of journalistic privilege next came before the courts here in Mahon v Keena. As I read the judgment of Fennelly J, this Court did not consider it necessary to examine whether the Constitution might provide protection for journalists’ sources and instead founded its analysis exclusively on Article 10 ECHR. In re Kevin O’ Kelly was not referred to in Mahon v Keena. In his judgment in this appeal, Hogan J suggests that In re Kevin O’ Kelly has been “overtaken” by Mahon v Keena. With respect, I find it difficult to see how that might be so. Apart from the fact that this Court made no reference to In re Kevin O’ Kelly in Mahon v Keena, it was addressing what is, in my view, a quite different question to that addressed in In re Kevin O’ Kelly. The ECHR is a quite different code to the Constitution. It simply does not follow from the fact that Article 10 ECHR protects journalistic privilege that Article 40.6.1.i of the Constitution is to be construed as doing so also; still less does it follow that, if journalistic privilege is indeed protected at constitutional level here, the parameters of that protection are necessarily materially the same as those applicable to Article 10 ECHR. The Constitutional claim must be assessed separately and independently, as is clear from the authorities cited at para [65] above.

 

73.              In his judgment, Hogan J takes issue with this analysis. He suggests that, if my understanding of In re Kevin O’ Kelly is correct, then there would be a conflict between the Constitution and the Convention and the approach taken by this Court in Mahon v Keena would have effectively involved giving the Convention a superior status to the Constitution. That, with respect, simply does not follow. In re Kevin O’ Kelly is a decision of the Court of Criminal Appeal. It involved an appeal against sentence only. The remarks made by the court were clearly obiter. Furthermore, I do not read the court’s judgment as suggesting that the Constitution precluded any recognition of journalistic privilege. The court’s insistence that journalists cannot claim “any greater privilege” than the privilege that could be claimed “by the executive organs of State or by their officials or servants” – claims that were to be resolved by the courts, not on the basis of the “judgment or the wishes of the witness” – excludes any such reading of In re Kevin O’ Kelly. Its value is purely persuasive, as an analysis of the implications of recognising any wide-ranging journalistic privilege, particularly if such privilege is afforded constitutional status. Were the Oireachtas to legislate for the protection of journalistic privilege, In re Kevin O’ Kelly would not, in my view, provide a basis for impugning the constitutionality of such legislation. Similarly, it provides no basis for impugning the 2003 Act insofar as that Act gives effect in Irish law to Article 10 ECHR, including its protection of journalistic privilege.

 

74.              The issue of journalistic privilege appears to have next come before the courts herein Walsh v News Group Newspapers [2012] IEHC 353, [2012] 3 IR 136 in the context of an application for discovery, in circumstances where the defendants asserted privilege as an answer to the application, relying (inter alia) “on the provisions of the Constitution, in particular, Article 40.3 and Article 40.6.1 as interpreted in the light of the European Convention on Human Rights Act 2003…” (para 8). The 2003 Act does not, of course, govern the interpretation of the Constitution. In any event, the High Court (O’ Neill J) was satisfied that “[j]ournalistic privilege is now firmly established in our legal jurisprudence largely resulting from [Article 10]” (para 15). The analysis supporting that statement is founded entirely on Article 10 ECHR. Two aspects of the analysis are of particular interest. The first is O’ Neill J’s suggestion that Article 10 may provide only limited protection (if any protection at all) to “improper journalism”, such as where a newspaper or journalist offers financial inducements to a source (para 21). On the facts, it was not necessary for him to reach a concluded view on that issue. The second is the judge’s view that Article 10 protection is a priori excluded where information is disclosed in breach of a criminal prohibition on disclosure, that is to say where the disclosure is, in itself, a criminal offence (para 28). No such issue is presented here and so it is not necessary to consider whether Walsh v News Group Newspapers might have put the matter too far in suggesting that the fact that disclosure involves a criminal offence ipso facto excludes the application of Article 10.

 

75.              We next come to Cornec v Morrice. It concerned an application under section 1 of the Foreign Tribunals Evidence Act 1856 in aid of litigation in Colorado. The facts and issues in the Colorado litigation were complex but one of the issues was whether the plaintiff had breached a non-disparagement clause in a share purchase agreement with the defendant by directly or indirectly providing information to T (a journalist with the Sunday World) and/or G (a blogger and former theologian with a particular interest in investigating religious cults) resulting in articles being published by T in the Sunday World and by G in his blog critical of the defendant, her company INE and another person, Mr Q, closely associated with her (the suggestion being that Mr Q was effectively involved in operating a cult for financial gain). On the application of the defendant, Ms Morrice, an order was made ex parte for the examination of Ms T and Mr G, each of whom then applied to have the order set aside.

 

76.              Having disposed of other objections to the order, Hogan J considered whether, as a matter of Irish law, a journalist would be obliged to disclose her sources in the circumstances presented. Having referred to In re Kevin O’ Kelly, Mahon v Keena and Walsh v Newsgroup Limited, he observed that there is, in strictness, no such thing as journalistic privilege: the protection is, rather, “the high value which the law places on the dissemination of information and public debate”, a process to which journalists were “central”, a point recognised in Article 40.6.1.i of the Constitution in its recognition of the “rightful liberty of expression” of the press. In Hogan J’s view, Article 40.6.1.i (particularly the Irish language version) afforded a “privileged status” to the organs of public opinion (para 42). The constitutional right in question (the right to free expression of the press generally, and its liberty to criticise Government policy especially) “would be meaningless if the law could not (or would not) protect the general right of journalists to protect their sources” (para 43; emphasis in the original). While that right was not absolute or inviolable (thus differing from legal professional privilege), even so

 

“ the public interest in ensuring that journalists can protect their sources remains very high, since journalism is central to the free flow of information which is essential in a free society. This is all underscored and tacitly complemented by the entire constitutional edifice, such as the democratic nature of the State (Article 5); the accountability of the executive branch to the Dáil (Article 28.4.1§) and the provisions in relation to elections and referenda. I may venture here to repeat my comments in Doherty v. Referendum Commission [2012] IEHC 211, (Unreported, High Court, Hogan J., 6th June, 2012) at p. 10 to the effect that the referendum process presupposes that the citizenry will "engage in robust political debate so that the forces of deliberation will prevail over the arbitrary and irrational so that, in this civic democracy, reasoned argument would prevail in this triumph of discourse". If journalism and the media did not enjoy at least a general protection in respect of their sources, that robust political debate - a sine qua non in any democratic society - would be still born. Only the naïve would suggest otherwise. ” (para 47)

 

77.              Noting that while Article 10 ECHR does not “in terms” privilege the media in the same way as Article 40.6, Hogan J observed that the importance of press freedom has been a cornerstone of the ECtHR’s jurisprudence since at least the Sunday Times v United Kingdom and the protection of journalistic sources is regarded as a “core value protected by Article 10” (para 47). The overlap between the Constitution and the ECHR is “virtually a complete one”; each mandates the same approach, namely whether the case for the restriction on or overriding journalistic privilege been convincingly established (para 49).

 

78.              Turning to the position of Mr G, while he was not a “ journalist in the strict sense of the term ”, it was:

 

“ … clear that his activities involve the chronicling of the activities of religious cults. Part of the problem here is that the traditional distinction between journalists and lay people has broken down in recent decades, not least with the rise of social media. It is probably not necessary here to discuss questions such as whether the casual participant on an internet discussion site could invoke Goodwin v. United Kingdom (App. No. 17488/90) (1996) 22 EHRR 123 style privileges, although the issue may not be altogether far removed from the facts of this case.

 

It followed, therefore, that G had a similar interest to that of T in the protection of his sources.

79.                   A notable feature of Cornec v Morrice is that the identity of Ms T’s source was known, or at least appears to have been readily ascertainable (paras 54-56). However, Hogan J did not consider that there was “any ex ante distinction between the protection of the source on the one hand and the contents of what the source disclosed on the other” and in both cases “the public interest in protecting the journalist from compelled disclosure is very high, since the exploration of the contents of any discussions with the source also has the ability significantly to hamper the exercise of freedom by the journalist in question” (at para 61, original emphasis). As regards both T & G, Hogan J concluded that there were no compelling grounds capable of outweighing the public interest against the compelled disclosure of the identity of their sources or the contents of their communications.

 

80.                   The unsuccessful applicant appealed to the Supreme Court but the Colorado proceedings settled before the appeal was heard. Cornec v Morrice appears not to have been considered by this Court or by the Court of Appeal. It has, however, been cited in a number of High Court decisions, principally in the area of discovery, including my decision (sitting in the High Court) in Desmond v Irish Times Ltd [2020] IEHC 95.

 

81.                   In his judgment in this appeal, Hogan J substantially reprises his analysis in Cornec v Morrice. Referring to the judgment of Walsh J in In re Kevin O’ Kelly, he expresses the view that it unrealistic to suggest that the media could discharge its functions of educating public opinion and critiquing Government policy without at least some degree of protection of journalistic sources and asks rhetorically anyone would be prepared to risk their reputation and employment prospects by disclosing sensitive material to a journalist “without an assurance as to confidentiality”. The protection of sources is, in his view, “integral to a free press” without which there is no democracy and the combined effect of Articles 5 and Article 40.6.1. of the Constitution is to give constitutional standing to the protection of journalistic sources, albeit that such protection is not absolute (para 61 and following).

 

82.                   These views clearly deserve to be given great weight. Even so, many aspects of his analysis are, in my view, contestable. Firstly, it seems arguable - at least - that, so far from conferring any form of “privileged status” on the “organs of public opinion, such as the radio, the press, the cinema”, Article 40.6.1.i is concerned with ensuring that such institutions may be subjected to specific regulation - beyond that applicable to citizens generally - where necessary to prevent the undermining of “public order or morality or the authority of the State”. Certainly, there appears to be nothing in the language of Article 40.6.1.i - whether in the English or Irish versions - to indicate an intention that the “organs of public opinion” should enjoy any greater freedom of expression than citizens generally. That would seem to imply that any source protection that might be read into Article 40.6.1.i should apply to all citizens exercising their expressive freedom, rather than being confined to the media (however narrowly or broadly defined). Citizens are, after all, the fundamental actors in our democracy: Article 6. If it does not appear necessary or appropriate to extend such constitutional protection to citizens generally, does that not undermine the case for a constitutionally derived protection for the media? [13]

 

83.                   Secondly, it is not (or at least does not appear to me to be) self-evident that the constitutional rights of the press would be “meaningless” and that “robust political debate .. would be still born” unless Article 40.6.1.i is read as protecting the right of journalists not to disclose their sources. Unless Article 40.6.1.i is read as providing for the absolute protection of sources from disclosure in all circumstances - and that is not suggested here - the fact is that journalists are not, and will not be, in a position to ever offer sources any unqualified “assurance as to confidentiality”. Moreover, it would seem implausible to suggest that there was no “robust political debate” in the State prior to Cornec v Morrice (or prior to the decision of the ECtHR in Goodwin or prior to the enactment of the 2003 Act - the point holds good no matter what the precise cut-off may be). Informed political debate, and criticism of Government policy, does not, in general, depend on the use of confidential sources. By the same token, if it is said that a general constitutionally-located right of journalists to protect their sources is a sine qua non of an effective press, does it follow that there was no effective press in Ireland prior to Cornec v Morrice? Again, any such claim would appear implausible.

 

84.                   This is not, I emphasise, to question the value of press freedom in the State or to suggest that, leaving aside the 2003 Act and Article 10 ECHR, Irish law does not or should not protect confidential journalistic sources. I agree entirely with the observations of Hogan J as to the importance of a free and independent press for our democracy. But the issue of whether such protection should be afforded constitutional status in my view requires distinct and careful assessment. Furthermore, even if Article 40.6.1.i, on its own or in combination with Article 5, properly gives rise to a constitutional protection, it is not to be assumed that the dimensions of that protection necessarily mimic the approach developed, over many decades, by the Strasbourg Court on the basis of Article 10 ECHR.

 

85.                   In this context, it is notable that in both the United States and Canada - jurisdictions in which the freedom of the press is constitutionally entrenched in clear and unambiguous terms - claims to constitutional protection of journalistic privilege have failed. Thus the US Supreme Court has declined to read the First Amendment of the US Constitution - which is generally regarded as the “gold standard” of expressive freedom and which refers expressly to the freedom of the press - as encompassing any testimonial privilege for reporters: Branzburg v Hayes 408 US 665 (1972).

 

86.                   As Fennelly J noted in Mahon v Keena, Branzburg was a 5-4 decision (with vigorous dissenting opinions from Douglas J and Stewart J (in which Brennan and Marshall JJ joined)) and the decisive fifth vote was provided by Powell J who, in a very brief concurrence, emphasised the limited nature of the Court’s holding and appeared to suggest that some form of qualified privilege might be available on a case-by-case basis (709-710). As a result, there has been much subsequent uncertainty as to the reach and effect of the decision [14] and shifting currents of opinion on that issue within the Federal courts. [15] It was, and remains, controversial.

 

87.                   In a significant decision in 2006, In re Judith Miller (2006) 438 F 3d 1138, the Court of Appeals for the DC Circuit affirmed the District Court’s finding that a number of journalists were guilty of civil contempt of court for refusing to give evidence in response to subpoenas served by a Special Counsel investigating the naming of a CIA officer in the media. The Panel held that the case was governed directly by Branzburg and that Branzburg precluded any claim to a First Amendment privilege. It went on to consider whether any common law privilege might apply. The Panel split on that issue. One judge considered that a common law privilege existed, another that it did not. The third judge considered that it wasn’t necessary to reach that question given that all three judges took the view that, even if a common law privilege existed, it would not avail the appellants. In re Judith Miller provided the Supreme Court an opportunity to revisit Branzburg but it denied the media’s certiorari petition.

 

88.                   The facts in In re Judith Miller might give even the most ardent advocate for a broad constitutional protection of journalists’ sources pause for thought. The Special Counsel’s investigation arose from the disclosure in the media that the wife of a former US Ambassador was a CIA agent. Unauthorised disclosure of the identity of a CIA agent is a violation of federal law. The information was leaked by sources within the administration as an act of political revenge against her husband for publishing a story casting doubt on the Bush administration’s claims that Iraq possessed weapons of mass destruction (WMD). Those sources could hardly have been more remote from those “who volunteer to assist the press in informing the public about matters of public interest” that the ECtHR spoke of Stichting Ostade Blade. [16] One of the journalists involved - Ms Miller - had earlier written a series of articles in the New York Times, planted by unidentified sources within the Bush administration and the Iraqi émigré community which apparently substantiated the WMD claims. That reporting was in turn relied on by the administration to bolster its case for invading Iraq. The WMD claims were wholly false. Following the ruling of the Court of Appeals, Ms Miller maintained her refusal to testify and spent three months in jail before she agreed to give evidence, after being released by her source - Lewis “Scooter” Libby, the Chief of Staff to the Vice President - from any obligations of confidentiality. Libby was subsequently convicted and sentenced to imprisonment. Ms. Miller was lauded for her defiance of a court order (in an editorial, the New York Times declared that “[t]his is a proud but awful moment for The New York Times and its employees”). [17] In contrast, Time was excoriated for obeying the order (in the same editorial, the New York Times professed itself “ deeply disappointed” by Time’s decision). [18]

 

89.              The Canadian Charter of Rights and Freedoms, in Section 2(b), also expressly recognises as a fundamental freedom the “freedom of the press and of other media of communications”. Even so, in R v National Post [2010] 1 SCR 477 the Supreme Court of Canada unanimously rejected efforts to ground a journalist-source privilege in the Charter. Writing for the entire court on this issue, Binnie J made the point (inter alia) that the Charter protection attaching to freedom of expression was not limited to the “traditional media” but was enjoyed by “everyone” who chose to exercise that freedom, whether by blogging, tweeting or shouting on a street corner and “to throw a constitutional immunity around the interactions of such a heterogeneous and ill-defined group of writers and speakers and whichever ‘sources’ they deem worthy of a promise of confidentiality and on whatever terms they much choose to offer it .. would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy” (para [40]).

 

90.              The Supreme Court went on to consider whether a sub-Charter privilege should be recognised. While rejecting any “class privilege” based on the relationship between journalist and source, the court went on to consider and adopt a case-by-case privilege model, based on the so-called “Wigmore criteria” but informed also by Charter values (para [50]). The court gave further guidance on the operation of this privilege in Globe & Mail v Canada (AG) [2010] 2 SCR 592. A detailed discussion of the Wigmore criteria is beyond the scope of this judgment but it may be noted that they have been recognised and applied in this jurisdiction (though not in the context of journalistic privilege): Cook v Carroll [1945] IR 515 and ER v JR [1981] ILRM 125.

 

91.              In 2017, the Canadian Parliament legislated to enhance the protection of journalistic sources, effectively adopting the four-stage Wigmore test applied in R v National Post but reversing the onus of proof so that the person seeking disclosure now has the burden of showing that disclosure is necessary: see the discussion by the Supreme Court of Canada in Denis v Côté [2019] 3 SCR 482. No Federal “shield law” has been enacted in the United States. However, shield laws - in varying terms - have been enacted in a large majority of States and in DC.

 

92.                   My purpose in referring to these developments in the United States and Canada is not to suggest that the approach taken in those jurisdictions should necessarily be followed here. But the decisions of the US and Canadian Supreme Courts referred to above certainly seem to undermine the argument that explicit constitutional protection of the freedom of the press must inevitably lead to the recognition of a constitutional protection against the compelled disclosure of sources by journalists.

 

93.                   Many difficult issues need to be addressed in this context. The first is one of basic definition - to whom should any privilege apply? Who is a journalist in this context? If it encompasses the “lonely pamphleteer” referred to by White J in Branzburg or the blogger in Cornec v Morrice, then that would appear to have very significant implications for law enforcement and the administration of justice generally. On the other hand, any attempt to restrict the privilege would raise significant issues, both of principle and practicality. One commentator has suggested that, for the purposes of source protection, “classification as a journalist must be reserved for diligent, responsible attempts to inform the public of verified information that they have a genuine interest in receiving” [19] Similarly, Carolan suggests that the presumptive disclosure exemption “should be confined to situations where an exemption is sought in respect of material obtained by a journalist in good faith, the disclosure of which would undermine responsible newsgathering practices”. [20] There may be merit in such suggestions but they do not readily lend themselves to articulation as constitutional standards of general application. Further the application of such quasi-qualitative criteria by courts would likely be extremely controversial. [21] Further - and challenging - issues arise as to whether any privilege should be limited to situations where an express undertaking of confidentiality is given to the source (as appears to be the position under the Canadian legislation referred to above) or whether it should apply even in the absence of any assurance of confidentiality (no assurance of confidentiality was, of course, given in Mahon v Keena). A further significant issue is whether the privilege applies only to the identity of the source or whether (as Hogan J held in Cornec v Morrice) it is capable of protecting the content of communications between journalist and source from disclosure (the protection of communications, even where the identity of the source is known, appears to me to raise significant issues). There is then the issue, already flagged, of whose privilege it is and by whom it may be waived. Finally - and perhaps most significantly - the threshold for compelled disclosure, and the factors to be considered in making that assessment, would have to be identified.

 

94.                   These issues must, in my view, be addressed prior to any decision being made as to the existence of any form of journalistic privilege, whether that is to be located in the provisions of Article 40.6.1.i (and/or Article 5) or in the common-law. In my view, it would not be appropriate to declare a privilege in principle, leaving its fundamental contours to be delineated later. Neither would it be appropriate, in my view, to proceed on the basis that Article 40.6.1.i should be read as embodying such a privilege because Article 10 ECHR has been held to do so or to proceed on the assumption that any constitutional privilege should necessarily be of the same scope as the protection under Article 10. That that is not an appropriate approach is clear from this Court’s decision in Simpson.

 

95.                   Even if this Court were to hold that journalist-source privilege ought to be protected as a matter of Irish law - and nothing in this judgment should be read as precluding such an outcome being reached in an appropriate case, after full argument - it would not necessarily follow that the Court should recognise a constitutional privilege. The existence of a properly functioning press undoubtedly has constitutional value. However, legal professional privilege undoubtedly serves constitutional values (enabling effective access to the courts and vindication of constitutional rights, including the right to a criminal trial in due course of law) but it has not, to date at least, been held by this Court to be a constitutional privilege. In any event, legal professional privilege presents few, if any, of the definitional challenges that journalistic privilege does. It applies only in defined circumstances and within defined relationships. The actors are readily identifiable. It applies only to legal practitioners (and not to other professionals, even if they give legal advice) [22] and their clients. Litigation privilege applies only to communications made for the dominant purpose of court proceedings, actual or contemplated proceedings and is time-limited. [23] There is clarity as whose privilege it is (the client’s) and by whom it may be waived. The (limited) circumstances in which the privilege may be lost are clear in principle. It was the absence of these limitations that led the Supreme Court of Canada to conclude that journalistic privilege should be recognised on a case-by-case basis rather than as a class privilege.

 

96.                   In the absence of any debate about the issues identified above, it would in my view be inappropriate for this Court to express any concluded view on whether Irish law, and in particular the provisions of Article 40.6.1.i of the Constitution, provides a privilege or protection against the compelled disclosure of journalists’ sources and, if so, what the nature and scope of such privilege or protection may be. These important issues should be decided only after full adversarial argument.

 

97.                   In the result, and for the reasons set out earlier in this judgment, I would dismiss the appeal and affirm the order made by the Court of Appeal.

Result:     Dismiss Appeal