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Public interest in the investigation of serious offences outweighs claim of journalistic privilege

By: Ian Fitzharris BL

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High Court, in judicial review proceedings challenging the invocation by members an Garda Síochána of a conventional search warrant procedure where there is a claim of journalistic privilege on the basis that existing statutory procedures do not allow for the possibility of consideration of a claim of journalistic privilege prior to issuance of a search warrant, dismisses application brought by journalist (the subject of a search warrant in connection with seized property used to record alleged criminal activity of other persons, conducted in his capacity as a journalist) challenging the lawfulness of the actions of an Garda Síochána, on the grounds that: (1) the application for the search warrant under the particular legislative framework invoked was to be made on an 'ex parte' basis only; (2) any restriction on the constitutionally protected right to freedom of expression must be convincingly established; (3) the alleged serious offences being investigated result in the public interest outweighing the protection of journalistic sources; (4) the evidence doesn't establish that the source was motivated by a desire to provide information which the public were entitled to know; and (5) the proposed examination of the mobile telephone seized is limited and proportionate in the circumstances.

Judicial review - challenge to legality of search and seizure of property of journalist following observance and reporting on criminality in that capacity - constitutional right protecting dissemination of information and public debate - 'journalistic privilege' - whether its impermissible for an Garda Síochána to invoke conventional search warrant procedure in any case where there is a prima facie claim of journalistic privilege - background facts of search warrant execution and applicant interviews with an Garda Síochána - constitutional right to freedom of expression - limits - principles concerning journalistic privilege - principles emerging from case law in connection with constitutional right to freedom of expression - implied or derived right to protect identity of confidential sources - public interest - balancing exercise - legislation on foot of which search warrant was sought and executed against applicant - ius terti reliance - double construction rule - inter partes hearing not envisaged by legislation during search warrant application - District Court has no jurisdiction to determine issue in respect of journalistic privilege on a warrant application - whether it is impermissible for an garda síochána to invoke search warrant application procedure where there is a prima facie claim of journalistic privilege - no right to rely on claim of journalistic privilege - balancing exercise - public interest - arrest able offence alleged - public interest overrides claim of journalistic privilege - nature and extent of mobile phone examination is proportionate - motivation of a source relevant to carrying out of balancing exercise - application of European Convention on Human Rights provisions to applicant's claims - allegation of juridical bias towards applicants - execution of search warrant was lawful - evidence fails to establish the journalist's source was motivated by desire to provide information which public were entitled to know - application dismissed.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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