Dr Cian Ó Concubhair

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.

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.

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.

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 NUI Maynooth Department of Law. This article was originally published by TheJournal.ie.