Garda Powers Bill has puzzling treatment of journalistic privilege

Surely the minister for justice wants the best protections for the rights of journalists in fulfilling their essential democratic role, writes Cian Ó Concubhair

Once the police are given access to journalistic materials, the risk of improper disclosure of confidential information is very high. Picture: iStock

Journalists across the globe have long refused to name their confidential sources when pressed by police or courts. Their asserted right to resist such disclosure is usually called “journalistic privilege”.

Confidential sources often have very good reasons for wishing to remain anonymous.

For example, those who publicly leak details about wrongdoing in their workplace can experience severe victimisation from their employer.

Journalists’ rationale for maintaining confidentiality is that, if their sources are named, then others may not trust journalists with sensitive information about wrongdoing. This, in turn, has a chilling effect on accountability.

Journalists’ reliance on journalistic privilege has sometimes resulted in the imprisonment of journalists.

Before 2009, Irish courts did not recognise journalistic privilege.

This changed when the Mahon Tribunal tried to force The Irish Times to hand over leaked documents in order to identify the source of the leak. In that case, the Supreme Court finally recognised the privilege in Irish law. However, that decision left no practical guidance on what the privilege entailed for subsequent courts or, crucially, gardaí who may wish to conduct searches on journalists.

The new Garda Síochána (Powers) Bill 2026, released without any media campaign over Christmas, attempts to address the protection of rights relating to confidential journalistic source material. I have previously written about the failure of the 2021 version of the bill to address this issue.

Along with the general stop and search powers it recodifies, the bill also seeks to regulate how gardaí go about searching premises where journalists live and work.

It will also regulate the seizing of materials that may contain confidential journalistic source information.

Over the past two decades, the question of journalistic privilege has been litigated in numerous cases before the Irish courts.

These cases have established stronger protections for journalistic privilege in Irish law, and they have repeatedly affirmed the critical importance of journalistic privilege in journalism’s essential role in Irish democracy.

Since 2009, the Supreme Court has twice affirmed that use of confidential sources is an essential tool for many journalists.

The court recognised that Article 10 of the European Convention on Human Rights gives journalists a right to resist identifying their sources, and that right is a part of Irish law.

Since the release of the updated bill in December, there has been criticism of the provisions dealing with journalistic privilege.

The National Union of Journalists (NUJ) and some politicians have, in particular, highlighted the absence of inter-partes hearings when courts are deciding whether to grant search warrants against journalists.

A Northern Irish precedent

Understanding this particular issue requires a look back at the case law.

In 2022, the High Court of Northern Ireland gave judgment in Fine Point Films.

The production team behind No Stone Unturned — a documentary about police collusion in the Loughinisland massacre — challenged how the police sought search warrants against the documentary makers.

Northern Ireland’s 1989 Police and Criminal Evidence Law contains special provisions where police are seeking search warrants against journalists.

If police want such a warrant, they are required to apply for one in inter-partes hearings. These hearings require that the journalist is present in court, and that they are given an opportunity to challenge the police request.

The police in the Fine Point Films case had not done so, instead seeking the warrant in what is called an ex-parte hearing — where only one side (ie the police) were in court. The filmmakers did not know about the warrant until police arrived at their homes.

In that case, the police did not explain to the judge the significant legal protections afforded to journalistic privilege under Article 10 of the European Convention of Human Rights.

On appeal, the Northern Ireland High Court found that the granting of the search warrant in these circumstances had breached the filmmaker’s rights. The court found that the search was unlawful and invalid.

In particular, the Northern Ireland High Court stated that ex-parte hearings should only take place in exceptional circumstances.

If, and when, such circumstances arose, the police were required to highlight the strong legal protections attaching to journalistic privilege

It is clear from the judgment that the Northern Ireland High Court viewed inter-partes hearings as an essential procedure to vindicate journalistic privilege under Article 10 of the convention.

In 2023, the Irish Supreme Court endorsed the Fine Point Films case as applicable in Irish law. However, it is not clear from that case whether the Supreme Court believes that Article 10 of the convention required an inter-partes hearing or merely an ex-parte hearing with appropriate warnings to the district court judge.

Irish law currently only provides for ex-parte hearings, and the bill maintains that approach. It is not clear whether the Irish Supreme Court will find this to be a breach of Article 10, but I suggest there is a reasonable prospect that it may do given its recent endorsement of Fine Point Films. This possibility should inform how the bill is designed.

Yet, even if ex-parte hearings alone are not a breach of Article 10, it is strange that the minister for justice would design an inferior warrant-granting process to that provided for in Northern Ireland. The Northern Irish High Court clearly stated that inter-partes hearings were extremely important in vindicating the Article 10 rights of journalists. If journalists and their legal counsel are present at the warrant application hearing, they have an interest in making the best arguments for protecting journalistic privilege.

Police on their own, even if making good faith efforts, will inevitably have an interest in not making the most forceful case for the other side.

Surely the minister wants the best protections for the rights of journalists in fulfilling their essential democratic role?

O’Callaghan’s confusion

In response to the criticisms from the NUJ and his Oireachtas colleagues, justice minister Jim O’Callaghan has sought to address what he terms “confusion” around the bill.

Here, the minister states that the bill would move Irish law from a status quo of no special procedures to protect journalistic privilege to a position where there are specific protective provisions.

However, his response here confuses the procedural protections journalistic privilege actually requires.

In particular, he claimed inter-partes hearings will be facilitated through the High Court.

He is referring here to the privilege screening process provided for under the bill, where both sides can go before the High Court to contest what information should and should not be disclosed.

However, this screening process only kicks in after search warrants have already been issued against journalists.

The Article 10 case law is clear that the protections afforded by journalistic privilege apply most powerfully to resist search and seizure

Once the police are given access to journalistic materials, the risk of improper disclosure of confidential information is very high.

This risk is particularly acute where police misconduct is the subject of the journalists’ reporting, as was the case in Fine Point Films.

While provision for privilege screening in the bill is certainly welcome, it does not address the concerns raised by the NUJ or members of the Oireachtas.

It is puzzling, given the extensive litigation the State has faced for its lack of proper procedures in protecting journalistic privilege, that the minister would design a procedure well understood to be legally sub-optimal.

The best way to safeguard journalistic privilege in Irish law is to amend the bill to require inter-partes hearings for search warrant applications against journalists.

• Cian Ó Concubhair is conducting a Research Ireland-funded study on the role of crime and security journalism in Irish democracy, in partnership with the Irish Council for Civil Liberties