The Supreme Court has overturned a decision that alleged pornographic material found on the phone of a Dublin-based garda could not be used in disciplinary proceedings against him.
Garda Patrick Hyland, who was attached to the regional traffic unit in Dublin Castle, had denied any wrongdoing.
The Director of Public Prosecutions (DPP) decided he should not be prosecuted in relation to the material following a Garda investigation.
It was alleged that in April 2019, as a member of a WhatsApp group of gardaí, he received a video clip which he forwarded to other group members.
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He said he did so without viewing it and the group administrator subsequently sent a message advising all members to wipe the group from their phones.
Gda Hyland said he only then viewed the video for the first time and he saw it featured what appeared to be a fully clothed male teenager and another person in a position suggestive of a sexual interaction.
Gardaí obtained a warrant to search his office, home and car and he handed over his phone and its passcode. In his station locker, a bottle of methadone was found. His home was also searched and electronic devices were seized.
In May 2020, the DPP decided there should be no criminal prosecution against him.
However, a disciplinary process against him was opened and it was alleged he had utilised a WhatsApp group to distribute images that included what appeared to be two minors engaged in a form of sexual activity.
A suspension from duty was lifted and he was transferred to immigration duties at Dublin Port.
In July 2020, a second disciplinary investigation was opened up against him alleging there were images on his mobile devices of what appeared to racist, misogynistic, anti-homosexual, anti-Semitic, supporters of Nazi ideology or “rape culture”.
He was also alleged to have on the devices CCTV images relating to Garda investigations and images of what appear to be Garda computers, including images of suspects, incidents recorded on the force’s Pulse system and command and control incidents.
He was further alleged to have failed to adhere to proper protocols by keeping the bottle of methadone in his locker.
Gda Hyland brought a High Court challenge claiming gardaí were not entitled to use material obtained in the search in the disciplinary inquiry and he sought the return of the phone.
The High Court found against him, but the Court of Appeal (CoA) held that the lower court was wrong. The Garda Commissioner then appealed to the Supreme Court.
On Thursday, Chief Justice Donal O’Donnell and Ms Justice Elizabeth Dunne agreed with a judgment given by Mr Justice Brian Murray overturning the CoA decision.
Mr Justice Séamus Woulfe and Mr Justice Gerard Hogan gave a joint dissenting judgment.
Mr Justice Murray ruled Gda Hyland was not entitled to insist on the return of photographs or other material on the phone if these were unlawfully in his possession and the commissioner was entitled to remove that material before returning the phone.
If the commissioner made copies of or downloaded material after the point at which it was decided that there would be no prosecution, and when Garda Hyland had demanded the return of the phone, the commissioner was not entitled to do this and the material should not be deployed in the disciplinary investigation, the judge said.
If the material was copied by the commissioner before this point, the question of whether he is entitled to physically deploy such material in such an investigation or inquiry depends on a number of legal issues and matters of fact, he said.
The commissioner was entitled to use the knowledge obtained to initiate the disciplinary inquiry, the judge said.
Mr Justice Murray noted Gda Hyland’s privacy rights were not exhausted when a decision was made lawfully to allow seizure and interrogation of his phone.
Based on the evidence before the court, the use of the information, having regard to statutory duties, was lawful and proportionate to the objective of enforcing garda discipline, he said.
The dissenting judgments said there was no lawful basis by which the material on the phone, obtained under a search warrant, could be used for an internal Garda investigation.
These further said the constitutional right to privacy in this case required that any such search be authorised by a judicial body or some other independent agency.
