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Supreme Court to hear Garda Commissioner’s appeal over ban on using WhatsApp video in disciplinary inquiry

Appeal court had ruled that materials seized under search warrant could not be used in disciplinary process absent legislation

WhatsApp: The Garda Commissioner sought to have its appeal determined by the Supreme Court on the grounds the case raised a matter of general public importance. Photograph: Yui Mok/PA

Aodhan O'Faolain
Tue May 7 2024 - 21:06

The Supreme Court has agreed to hear the Garda Commissioner’s appeal against a lower court’s refusal to allow a video clip posted in a WhatsApp group that allegedly contained pornographic material to be used in disciplinary investigation against a garda.

Last year, the Court of Appeal ruled that material allegedly found on the phone of Dublin-based Garda Patrick Hyland, who denies any wrongdoing, could not be used in disciplinary proceedings against him.

The court held that, in the absence of appropriate legislation to enable materials seized under a search warrant to be used in a Garda disciplinary process, any material uncovered in the search of a phone could not be used directly in a disciplinary investigation.

The Court of Appeal’s decision reversed an earlier High Court decision allowing the disciplinary proceedings against the garda to proceed on the basis that the Garda Commissioner was entitled to use material taken during a criminal investigation in an internal Garda disciplinary probe.

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The Garda Commissioner sought to have its appeal determined by the Supreme Court on the grounds that the case raises a matter of general public importance, and will have implications in other cases regarding the use of evidence obtained under a search warrant.

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The Garda opposed the commissioner’s application and disagreed that material obtained from a lawful search warrant may be used in anything other than a criminal prosecution.

No further appeal should be allowed as no criminal wrongdoing was disclosed, it was submitted.

In its determination, the three-judge panel, comprising Ms Justice Iseult O’Malley, Mr Justice Brian Murray and Ms Justice Aileen Donnelly, agreed to hear the appeal.

The panel agreed the issue raised is a novel point on which there is no previous authority in this jurisdiction.

In this case, there was an issue that “has consequences that transcend the facts of the case” and would have an impact on other disciplinary proceedings brought by the Garda Commissioner, the panel said.

There are also implications for the use of lawfully obtained evidence in hearings before other regulatory bodies, the panel added.

Garda Hyland had brought proceedings over a clip posted by the garda to friends in a Garda WhatsApp group called Non-back Breakers on April 28th, 2019.

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They exchanged humorous video clips and images, but work-related material was not permitted in the group.

Garda Hyland claims he forwarded a video to the group, which he received from another garda, believing it to be a humorous clip, without viewing it.

Arising out of the post, the group administrator, another garda, advised all the members to leave the group and wipe the chat from their phones.

Garda Hyland claims he then viewed the video and realised the clip was not what he had originally thought it was.

It was a clip of a male teenager and a female who were both fully clothed.

The female was in a position that was potentially suggestive of being engaged in a sex act.

There was a Garda investigation into the clip, during which Garda Hyland’s home was searched and several items, including phones, laptops and a tablet, were taken on foot of search warrants.

Following that probe, the Director of Public Prosecutions (DPP) directed that the garda should not be prosecuted over the clip.

He was suspended from duty but his suspension was later lifted.

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However, internal disciplinary proceedings were brought against the garda in 2020.

It is alleged in that action that he possessed material on a mobile device that was inappropriate.

In judicial review proceedings against the Garda Commissioner, Garda Hyland sought various reliefs, including an order prohibiting any further investigation against him for any alleged breach of discipline.

While the Garda Commissioner was entitled to search the content of the phone, there was no entitlement to use the fruits of that search as part of a disciplinary inquiry, which he claims is a civil matter between an employee and an employer, he claimed.

He claimed that the use of the material obtained from the search of the phone was inadmissible at any internal Garda disciplinary hearing and the use of such material breaches his right to privacy and the 2018 Data Protection Act.

The Garda Commissioner rejected the arguments and argued that he was obliged to investigate any alleged breaches of discipline that came to light following what were lawful searches.

It was argued that the Garda Commissioner was entitled to retain the garda’s phones until the disciplinary procedure has been completed.

The Garda Commissioner also denied that the garda’s rights had been breached.

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