The Garda Commissioner has lost an appeal against a decision that he should hand over certain information in his possession relating to alleged defamatory posts about an officer on WhatsApp and Facebook.
Keith Blythe, who was a garda working in the legal department at Garda Headquarters until he resigned in 2019, claimed he became the subject of “grossly defamatory and scandalous comments and photographs” in the postings.
They came, he alleged, as a result of a leak within the gardaí that he was going to bring other proceedings in 2018 in relation to the process for promotion from garda to sergeant.
Mr Blythe claimed in those proceedings that the promotion process was without transparency, probity and fairness and was not based on merit as it was supposed to be. He said he had been asked an inappropriate question about whistleblowers during an interview he attended as part of his application for promotion to sergeant.
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That case, which was also against Garda Commissioner Drew Harris, was ultimately settled.
But, Mr Blythe said, as a result of the defamatory postings he made a formal complaint to the gardaí. He had been sent screenshots of the alleged defamatory material.
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A Garda investigation was launched but went no further as a result of what the Garda Commissioner said was Mr Blythe’s refusal to provide gardaí with his mobile phone so it could be forensically examined.
Mr Blythe said he did not wish to identify the friends in the force who had sent the screenshots to him because of the potential impact on their careers. Those friends did not know the identity of those who posted the messages, he said.
Mr Blythe then brought a second set of proceedings seeking that Mr Drew provide all information in the force’s possession that identified or may assist in identifying those involved in disseminating the defamatory material since September 2018. This was so he could bring defamation proceedings against them.
It was claimed the information was available as a result of what Mr Blythe claimed was a lengthy Garda investigation into his complaint about the material.
The Garda Commissioner opposed the application.
In September 2019, the High Court granted an order that the information be disclosed. The identity of one garda who was allegedly involved in the posting was disclosed and he was later disciplined through a temporary reduction in pay but the Garda Commissioner said it had not been possible to positively identify a second who was allegedly involved.
The Garda Commissioner also appealed the High Court decision. It was claimed, among other things, that clear evidence of wrongdoing was a “necessary proof” for the granting of the disclosure order (Norwich Pharmacal relief as it is called).
It was also argued the High Court erred in finding that the Grada Commissioner was sufficiently “mixed up” in the wrongdoing to permit the making of an order.
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Mr Blythe opposed the appeal although it was accepted at this stage that the Garda Commissioner had disclosed all the material that was available. He claimed however the Garda Commissioner had forced him to take proceedings when he could have simply disclosed the information that was available.
By this time he had resigned from the Garda. He said it was impossible for him to remain because of the events of September 2018 and because of the failure to keep him informed of the progress of the Garda investigation.
On Monday, a three-judge Court of Appeal (CoA) dismissed Mr Drew’s appeal.
Mr Justice Maurice Collins, on behalf of the CoA, said, among other things, that it was his view that the High Court judge was entitled to conclude that the wrongdoing requirement was satisfied on the material before him.
That material disclosed a genuine and plausible cause of action against the authors of the WhatsApp material in terms both of identification of Mr Blythe and the defamatory meaning of that material, he said.
While the High Court order should not have been made in such general terms as it was, it was an academic issue in light of the Garda Commissioner’s response to the order, he said.