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Sam Boal

Opinion New Garda Powers Bill fails to protect rights of journalists

Dr Cian Ó Concubhair looks at the issue of journalistic privilege and says we should look to Northern Ireland for a better system.

EARLIER THIS MONTH, the Minister for Justice put the Garda Síochána (Powers) Bill 2021 before the Oireachtas.

The proposed law brings some welcome rationalisation and clarification of Garda powers of search, arrest and detention, along with an important statutory right to have a solicitor present during Garda questioning.

It also includes some controversial proposals to expand Garda powers to compel immediate access to electronic devices.

The changes follow recommendations from both the Law Reform Commission and the Commission on the Future of Policing and are part of a recent period of legislative hyperactivity in the areas of crime, justice and policing.

However, despite many welcome (and some unwelcome) changes, the proposed law perpetuates a significant problem with how Irish law protects journalists’ rights to source confidentiality.

This right is often colloquially referred to as ‘journalist privilege’. The right allows journalists to refuse to disclose information that might identify sources who come forward to journalists on condition of anonymity.

The paradigm example of such a source is a whistleblower.

The rights of journalists to assert confidentiality over their sources is protected by both the Irish Constitution and the European Convention on Human Rights. The right can be held by any publisher, but journalists are most inclined to claim it.

The rationale behind this right is rooted in the instrumental role journalism is believed to play in our democracy, as a mechanism of transparency and accountability. ‘Journalist privilege’ is a necessary corollary of this: journalists cannot do their work without confidential sources.

If journalists are forced to reveal sources, future potential sources may not come forward, and serious wrongdoing may not, as a result, come to light: or so the thinking goes.

Tension between judges and journalists over ‘journalist privilege’

Since it was first recognised in an Irish court, there has been tension between judges and journalists about what ‘journalist privilege’ should look like in Irish law.

This tension centres on whether ‘journalist privilege’ is absolute, or whether it can be balanced against other interests, like the need to conduct a criminal investigation.

Journalists think it is absolute, meaning a court can never override source confidentiality. Courts think otherwise. This is a dispute mirrored in other jurisdictions.

This conflict was central to the Irish Supreme Court’s first recognition of ‘journalist privilege’ in 2009. In that case, the Mahon Tribunal sued the Irish Times to recover confidential documents leaked from the Tribunal regarding payments to then-Taoiseach Bertie Ahern.

The newspaper claimed ‘privilege’, and the Supreme Court agreed they could. This victory for Irish journalists was, however, short-lived.

Before the trial had even begun, the Irish Times destroyed the documents sought by the Tribunal. Then editor Geraldine Kennedy was worried the court would not recognise their right to protect their sources, so the Times decided to take matters into their own hands.

Even though the Times won the key legal argument in getting ‘journalist privilege’ recognised by a court, they were punished for pre-empting the courts’ judgment by destroying the documents. This punishment consisted of having substantial legal costs awarded against them: an unprecedented step for the court.

The irritated Supreme Court emphasised it was a judgment for the courts – not journalists – to decide whether or not disclosure of source information should be required. ‘Journalist privilege’ is not absolute, and only the courts can decide if it applies.

Journalists have not, however, accepted the courts’ view on this.

For example, during the Disclosures Tribunal, a number of crime reporters refused to answer Chairman Judge Charleton’s questions about whether Superintendent David Taylor was their confidential source.

Journalists again cited ‘privilege’, and were willing, it seemed, to risk imprisonment for contempt of court, rather than agree to the judge’s requests for disclosure. In the end, Judge Charleton backed down.

Gap in Irish law

Yet, while Irish courts have been adamant that they hold the ultimate authority to decide whether ‘journalist privilege’ applies or not: Irish law does not actually allow some courts to make that decision.

Last year, journalist Emmett Corcoran sued An Garda Síochána for seizing his phone as part of their criminal investigation into violence surrounding a 2018 eviction in Falsk, County Roscommon.

In that case, it emerged that the main law for granting Garda search warrants does not enable the District Court – which authorises searches of journalists’ premises – to consider ‘journalist privilege’.

As ‘journalist privilege’ is a constitutional right, the District Court’s inability to take it into account puts the current law governing search warrants in constitutionally murky waters. A future court may find the law unconstitutional because it does not protect journalists’ rights.

This risk of unconstitutionality continues under the new Garda Powers Bill. Like the current law, the Garda Powers Bill does not allow the District Court to consider ‘journalist privilege’.

Additionally, the Bill’s controversial expansion of Garda powers to require people to give passwords for electronic devices will magnify the existing problems. In the Corcoran case, it became clear that a journalist’s entitlement to refuse to provide such passwords was the only way they might have their constitutional rights vindicated.

Refusing disclosure of passwords to Gardaí gave that journalist time to initiate High Court proceedings. If Gardaí were able to compel immediate access to confidential source information on a digital device, a journalist would have no time to seek High Court protection against an unconstitutional Garda search.

This is not a complicated issue to address

The equivalent warrant-granting power in Northern Ireland enables what is called an inter partes hearing: a court hearing involving both sides of the dispute, in this case, police and journalists.

This means that if the police wish to obtain a search warrant on a journalists’ home or workplace to recover evidence that might identify a confidential source, the warrant-granting court can (and in most cases should) invite the journalist to make legal arguments against granting of the warrant.

This provision serves to both vindicate the rights of journalists by having that right properly considered, while also protecting the exclusive authority of the courts to decide if the ‘privilege’ should apply.

This provision was crucial in the recent Northern Ireland High Court’s finding that police seizure of journalists’ materials from the Loughinisland massacre documentary No Stone Unturned was illegal.

In order to achieve compliance with both the Constitution and the European Convention on Human Rights, the new Garda Powers Bill should provide for a comparable mechanism to protect journalists and other publishers.

Dr Cian Ó Concubhair is Assistant Professor of Criminal Justice at the Department of Law, NUI Maynooth.

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19 Comments
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    Mute ⚡ Seánie ⚡
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    Jul 1st 2021, 8:19 PM

    So most Journalists will have to ‘fes up to where they copied & pasted the original article from???

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    Mute edward
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    Jul 1st 2021, 9:29 PM

    Not one Irish journalist has ever supported Julian Assange.

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    Mute alan scott
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    Jul 1st 2021, 9:33 PM

    @edward: and for good reason. the guy is a threat to national us security. He was going to sell that information to us adverselys

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    Mute John Considine
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    Jul 1st 2021, 9:55 PM

    @edward: That’s wrong lad. There’s not a lot of them to be sure but just off the top of my head I happen to know that Mick Clifford of the Examiner is an Assange supporter.

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    Mute edward
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    Jul 1st 2021, 11:10 PM

    @alan scott: Rubbish, he exposed a US massacre of civilians by a US helicopter gunship, get your facts right.

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    Mute edward
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    Jul 1st 2021, 11:12 PM

    @John Considine: OK, but no one at RTE, the IT, Indo, etc etc. Clifford must be the only one.

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    Mute John Considine
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    Jul 1st 2021, 11:23 PM

    @edward: There are a few more alright, I’ve read a few pro-Assange articles in the Irish media over the years. But I don’t argue your point, the vast majority have been silent on the matter, at best.

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    Mute Tommy Berry
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    Jul 1st 2021, 11:36 PM

    @alan scott: Like what?

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    Mute Shedonny
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    Jul 2nd 2021, 5:49 AM

    @alan scott:
    You need to go back to school to learn basic English.
    You also need to read about what Julian Assange actually did instead of spouting US/British/Australian propaganda.

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    Mute Brian Lyons
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    Jul 1st 2021, 8:24 PM

    There is no constitutional protection for journalistic privilege….poor research.

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    Mute John Considine
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    Jul 1st 2021, 9:43 PM

    @Brian Lyons: No, you’re wrong, he’s right. There is significant case law going all the way to the ECHR that says journalist privilege must be protected as a vital component of our freedom of expression. If a journalist can be forced to name a source it has a chilling effect in that journalists will have less sources and/or be less likely to publish the information they receive.

    As freedom of expression is protected by the constitution then so is journalistic privilege.

    Still though, a fair pair of liathróidí to call out a law professor on his research. I mean, they gave him a certificate and everything so he probably does know more than you or me.

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    Mute ShaneO'Mac
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    Jul 1st 2021, 11:04 PM

    Journalists protecting sources is essential in having a free press. Having a free press is a cornerstone of democracy. Ireland must ensure journalistic privilege as being an absolute right no matter what. Authoritarian countries put their journalists in jail for spurious reasons. Democratic countries legally protect journalists when they hold those in positions of power and privilege to account. I want Ireland to be as free and democratic as possible so I support any legislation that enshrines journalistic privilege.

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    Mute Contrary Mary
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    Jul 2nd 2021, 3:56 PM

    @ShaneO’Mac: journalistic integrity is a thing of the past. No one should believe anything they read without a given source. Our news has turned into tabloid media and mouthpieces of political parties.

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    Mute Declan Moore
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    Jul 2nd 2021, 12:59 AM

    Can you tell me what is a journalist? Qualifications?
    Or is it now just someone’s published opinion? Why should that be protected?

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    Mute Niall O
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    Jul 2nd 2021, 6:05 AM

    @Declan Moore: Lots of bloggers out there, claiming to be ‘journalists’ but they have no standards, no training, no qualifications and make claims with no sources to back them up.

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    Mute Ciaran Burke
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    Jul 1st 2021, 11:09 PM

    Oh completely unconstitutional if you have the right to remain silent to avoid incriminating yourself then being compelled to give evidence against yourselves under threat of imprisonment there is no way that’s constitutional.

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    Mute Paul Clancy
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    Jul 1st 2021, 11:59 PM

    @Ciaran Burke: then warrants would be unconstitutional. You have to let Gardai search your property to find evidence against you.. not that simple.

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    Mute Gavin Linden
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    Jul 2nd 2021, 1:32 AM

    Bit strange that this publication has a view on protecting sources, its not like they are out under shadowy fire escapes trading information with street wise folk… just right clicking copy and paste from others.
    Funnily enough I’ve seen in the past critics of Catholic priests declaring that what was said in the confines of the confessional was equally protected.

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    Mute David McGuigan
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    Jul 1st 2021, 11:19 PM

    What about Joe/Josephine public?

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