Garda Síochána (Powers) Bill 2026: Committee Stage (Resumed) Seanad Éireann — 2026-05-26 ============================================================ Michael McDowell (IND), National University of Ireland I first want to remind myself and put on the record that the Emmett Corcoran case to which the Minister referred was one in which I was personally involved as Mr. Corcoran's counsel. I respect the rules of my profession that I am not supposed to comment on cases in which I appeared. Nothing I say now is supposed to compromise in any sense that perfectly sensible rule. I have a few questions for the Minister. As I understand it, the particulars of the Corcoran case, as outlined to the House by the Minister, appear to be correct. However, there is a slightly wider issue, and I ask the Minister to consider it. Let us suppose the information subject to journalistic privilege is not on a phone. Let us take that case and suppose it is a notebook, a file or something like that. Let us also suppose for a moment that we are dealing with the search of a person or of a vehicle where a member of An Garda Síochána stops a car that belongs to a journalist in which the garda believes documents that could be evidence related to a criminal offence are located. Let us suppose a search takes place under Part 2 of the Act, which does not deal with searches of premises under warrant but with searches carried out of persons and vehicles done without warrant under, say, section 10. That section provides for circumstances in which a member of An Garda Síochána is in a public place or any other place to which power of entry by law is implicitly or explicitly provided, and has reasonable grounds to believe that an offence in Schedule 1 has been, or is about to be, committed. Let us take it that he has reasonable grounds to believe an offence has been committed. The garda: May require a person to stop a vehicle for the purposes of enabling the member to ascertain whether ... any person in ... the vehicle has committed, is committing or is about to commit [an] offence, or evidence relating to the commission or intended commission of the offence by any person is in or on the vehicle or on any person [occupying] it. Let us suppose we are dealing with material here like a journalist's notebook or documents given to an investigative journalist relating to the commission of an offence, or which could be so related. Let us suppose a garda suspects that such documentation is in a car, stops the car and finds the file on the back seat or passenger seat of the car. I would like the Minister to explain to me if the journalist can tell the garda that they may not seize a document in his or her possession because it contains material that is the subject of qualified journalistic privilege. The Minister is correct. The jurisprudence of the Irish courts is that journalistic privilege, however defined, is not as absolute as the kind of privilege I have, as a Member speaking in this House, or a witness has in a court case. What happens then? Part 3 deals with searches of premises under warrant issued by a district judge. Suppose we are dealing with the deployment of a member of An Garda Síochána's powers under Part 2. What happens then to the material that is taken from the journalist's possession, effectively, because it is evidence in the eyes of a garda which relates to the commission of an offence? Unlike electronically stored material, there probably will not be a code encrypting the information temporarily from third-party observation. Is the journalist in those circumstances entitled to refuse to hand the garda the file? One the garda reads it, he cannot unknow what he has seen. If a journalist has notes saying that such-and-such an offence was committed by such-and-such a person, of whatever kind, a garda who opens the file and reads it is not in the same position as somebody staring at a phone in which this material may or may not be there and in respect of which a claim of privilege is made. He is looking at actual documents which are the subject of the same kind of journalistic privilege as would be the case for those stored on an electronic device. He is staring at it in written form in front of him and does not have to take any further step, once he opens the file, to know and to invade the journalist's privilege. Are we dealing with such a scenario adequately or at all? I agree with the Minister that the two members of the Supreme Court in the Emmett Corcoran case said that as a matter of urgency the law should be changed to deal with the protection of invasion of journalistic privilege under warrant, and that section 10 needs reform in that respect. I fully accept that is a fair summation of the recommendations made by the members of the court. However, we are also dealing with searches unauthorised by warrant, say, of a car in which an member of An Garda Síochána believes there is evidence of the commission of an offence of some kind. How does the journalist driver resist handing over his material to the Garda? I do believe that a member of An Garda Síochána did in fact deploy search powers under Part 2 in respect of a car where he thought that there was documentary evidence of the commission of an offence, be it photographs, confessional material, inculpatory material, or statements by somebody who was a witnesses to a crime which indicates somebody's particular involvement in it. That situation is worthy of protection under the ECHR jurisprudence, in like manner to material stored on a journalist's phone, which requires further interference to access it other than simply using one's eyes. Section 23 deals with treatment of materials seized under search warrant and section 24 deals with privilege. Section 24(1), for instance, provides: This subsection applies where— (a) material has been the subject of a privilege screening analysis or an examination (including a digital forensic examination), (b) it is considered that the material concerned may be privileged material, and (c) the authorised member wishes to have access to the material on the grounds that he or she considers that the material is evidence of or relating to the commission of an offence. That kind of scenario is dealt with under Parts 3 and 4. The particular scenario that I am putting forward, however, is in respect of material which is privileged, like a journalist's notebook. This seems to have no protection at all under the provisions of this Bill. A garda can in good faith say they believe that so-and-so - a crime correspondent - has just had a meeting with a baddie, and that they are going to search his car and find out if there are any written documents in his possession or evidence of the commission of the indictable offence by the baddie. I wonder what the law would be in such circumstances. Would it be lawful for a garda to deploy his or her power of search of a vehicle to obtain sight of the journalist's notebook in a way which invades a journalist's protected status? In the alternative scenario dealt with in the Emmett Corcoran case, the material would be available to the Garda after opening electronically a phone, computer or other device in the possession of a journalist in respect of whose premises a warrant had issued. I would like the Minister to deal with this issue. Are we dealing satisfactorily with the deployment of search of individuals and vehicles belonging to individuals in a manner which protects journalistic privilege to the same extent as would be required, if this legislation is passed, in respect of material which is stored electronically and which is not immediately visible on a search to members of An Garda Síochána? --- 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