Garda Síochána (Powers) Bill 2026: Committee Stage (Resumed)
Seanad Éireann — 2026-05-26
============================================================

Jim O'Callaghan (FF), Dublin Bay South

I thank Senator Sarah O'Reilly for tabling this amendment and I thank the other Senators for their contributions.
Amendment No. 3 seeks to include within the definitions section of the Bill the definition for journalistic privilege. It is important to remember how this part of the legislation comes before the Houses of the Oireachtas because Senator O'Reilly's amendment, although it is in the definitions section, is to a large extent concerned with Part 3 of the Bill, which deals with the search of premises.
The reason, in part, that this section of the legislation is being brought forward is because of the actions of a journalist back in 2018. Emmett Corcoran was a journalist with The Democrat newspaper and doing his job he covered an incident in Strokestown where some violent disorder took place. Subsequent to that, members of An Garda Síochána went to the District Court and availed of the powers available to An Garda Síochána, which are the powers that still exist today, under section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997, to seek a search warrant. They wanted to search Mr. Corcoran's house and his premises. When the gardaí went to the District Court they never told the district judge that the person who they wished to search was a journalist or that the premises they wished to search was the office of The Democrat newspaper. In fairness to the gardaí at the time, there is no requirement on them to do that under section 10 of the 1997 legislation, as it exists at present.
Mr. Corcoran, having been served with the search warrant and information being sought from him by the Garda, refused to provide the information. He said that he wanted to assert his journalistic privilege and he was not going to provide information relating to his sources. He went all the way to the Supreme Court and he won. In the decisions of the Supreme Court that came out in 2023, two of the judges, and obviously there was unanimity among the court, Mr. Justice Collins and Mr. Justice Hogan expressly referred to section 10 as it exists at present. They recognised that section 10 does not provide any recognition of the fact that when a garda is searching a premises or applying to the District Court for a search warrant, there is no statutory obligation on the garda to tell the District Court that by the way, the premises we are searching is the home of a journalist or, indeed, using another type of legal professional privilege, would want to search a solicitor's office. In both judgments of the Supreme Court, Mr. Justice Collins and Mr. Justice Hogan said this is an area that requires urgent legislative intervention by the Oireachtas. I repeat: urgent legislative intervention. Implicit in it, and they did not rule it in that case, is that they are sending a message that there is a serious constitutional question mark over section 10 of the 1997 Act because it does not provide for a mechanism for a District Court to be told that the premises being searched may be that of a journalist, a lawyer or an entity that is exercising privilege, or for the process of that privilege to be assessed statutorily.
The primary reason I am bringing forward Part 3 of this legislation is in response to what the Supreme Court said. I am seeking to provide a legislative remedy for the defects in section 10 that were, in my opinion, correctly identified by the Supreme Court. The purpose of the sections that are contained within Part 3 - search of the premises and Senator Ruane referred to some of the provisions - is to set out a statutory mechanism so that if a garda is going to a District Court and he is looking for a search warrant, and he knows that the person he is going to search is a lawyer or a journalist that he has to notify the District Court judge, at the time of making the application, that he believes there may be journalistic privilege or legal professional privilege arising as a result of the search. What I am doing in the legislation is trying to put in place a statutory scheme that respects that. The purpose of this legislation, in terms of Part 3 and the provision in respect of privilege, is that I am giving greater protections to journalists. They do not have those protections at present under section 10. Lawyers do not have that protection at present under section 10. Obviously members of the Garda are aware of the limitations of section 10 but in recent times what in practical terms happens is the gardaí inform the district judge of the fact, if it is a law firm that is being searched, that that obviously should be brought to the attention of the District Court.
I will deal specifically with the amendment tabled by Senator O'Reilly. As I said, she wants, in amendment No. 3, to insert a definition for journalistic privilege. Section 2(2)(b) of the Bill defines privilege as "other than legal professional privilege", a definition which encompasses journalistic privilege as well as other forms. Journalistic privilege is not defined separately because unlike legal professional privilege, it is not absolute and the broad definition is sufficient. This approach permits other privileges, such as public interest privilege, to be considered without needing to define each type individually since the process for handling them is the same. It is the case in Irish law that journalistic privilege is recognised and protected. People have referred to judgments earlier and there is another judgment by Mr. Justice Hogan, which arises from the Cornec case. It is recognised as a form of privilege. However, like many privileges, it is not absolute.
Journalistic privilege is not defined to reflect the absence of any settled legal definition of "journalist" in either EU or domestic law and the long-standing reluctance of courts and legislatures to treat journalism as a fixed legal status. Regulation No. 1083 of 2024, the European Media Freedom Act, does not provide a stand-alone definition of "journalist" but instead focuses on protections for journalistic activities. Likewise, EU jurisprudence has consistently examined whether conduct falls within journalistic purposes or journalistic activities rather than attempting to define journalism exhaustively.
As I said, in the Corcoran case, the Supreme Court adopted the functional understanding of journalism centred on the gathering and dissemination of information in the public interest. The reasoning of the Supreme Court reflects the risk that rigid statutory definitions could exclude emerging forms of media activity in an evolving communications environment, and I agree with that. For those reasons, I am unable to support Senator O'Reilly's amendment.
I will briefly deal with amendment No. 31 since it is being discussed. Article 10 of the convention undoubtedly affords strong protection to journalistic sources and confidential material. However, Strasbourg jurisprudence does not mandate a single procedural model for member states nor does it require that every stage of a warrant process occur inter partes . For those reasons, I do not consider amendment No. 31 necessary. The Garda powers Bill instead establishes a dedicated High Court process for determining claims of privilege before any examination of the material can occur.
I will pause there. Using the example of Mr. Corcoran from before, in an instance where that were to apply after this legislation is enacted, the gardaí would be required to inform the court that Mr. Corcoran was a journalist. If there were a dispute between the parties as to what constituted journalistic privilege, Mr. Corcoran would be able to say that he wanted his claim to privilege to be determined. The way it is determined is by the High Court looking at the documents if necessary - if the description is not sufficient - and it will determine whether or not it is journalistically privileged. That is the case with legal professional privilege as well. Just because a lawyer says a document is legally professionally privileged does not mean the other side, the adversary in the case, cannot seek to inspect it. In those circumstances, the court may be required to look at it if the definition as to its privileged status is not sufficiently clear.
The framework in the Bill ensures that the balancing exercise required under Article 10 occurs before any substantive access to the material takes place. That is the critical point of interference for convention purposes. The Court of Appeal in Corcoran stressed the importance of judicial oversight prior to access, save in urgent circumstances. Section 24 gives effect to that requirement by making judicial determination a precondition to examination of the material. While the initial warrant application may proceed ex parte, that reflects the long-standing necessity in criminal investigations to prevent the destruction, concealment or interference with evidence. The subsequent High Court process provides the affected party with a full opportunity to assert privilege before any review of the material can occur. Accordingly, the Bill achieves an appropriate balance between investigative necessity and the protections guaranteed by Article 10.
Section 25 further reinforces those safeguards by providing a suspensive period during which the parties may seek agreement on the scope of any potentially privileged material prior to judicial determination. Having regard to those protections, I do not consider the proposed amendment to be required.

---

Source: Houses of the Oireachtas. Licensed under CC BY 4.0 (https://creativecommons.org/licenses/by/4.0/). The Official Report is revised after first publication; the fetch timestamp below identifies the version quoted.

Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2026-05-26/debate/main
Retrieved: 2026-08-14T04:54:59+00:00
Sitting date: 2026-05-26