A detective garda has launched a High Court action aimed at preventing internal disciplinary proceedings continuing against him over various communications allegedly found on his electronic devices.
The action has been brought by Det Gda Robert Fitzharris, who was suspended from duty after members of An Garda Síochána entered his home and seized two mobile phones and a laptop computer in October 2021. Based on an examination of those devices the detective has been made the subject of internal Garda disciplinary proceedings.
It is alleged that the detective communicated messages on a phone to another person, including about secret and sensitive information about an ongoing Garda investigation and the details of an investigation that had resulted in the arrest and detention of another person.
It is further alleged that other messages contained material that was explicit, derogatory and degrading.
Gda Fitzharris and another member of An Garda Síochána, who also had his phone seized, were investigated over the material.
In 2022 the Director Public Prosecutions (DPP) directed no prosecution of the detective.
However, the detective has remained suspended from duty and the subject of an internal Garda disciplinary process for alleged discreditable conduct and breach of confidence. If findings are made against him, this could result in his dismissal.
The detective denies any wrongdoing claims and claims the Commissioner is not entitled to rely on or use any material obtained from the seized devices in any ongoing disciplinary process against him.
The allegations against him are based on an unlawful trawl of his devices, he claims. The retention of those devices is unlawful and a breach of his rights, he says.
He has sought the return of the devices taken from him 2021 but says that they have not been returned. He says this amounts to an unlawful and unreasonable action by the Commissioner.
The detective also claims that his ongoing suspension is unlawful.
As a result he has brought judicial review proceedings against the Commissioner seeking orders including one restraining the respondent from continuing disciplinary proceedings against him.
He also seeks orders restraining the Commissioner from retaining the detectives electronic devices for disciplinary purposes, that said items be returned to him, and that his suspension be lifted.
He also seeks an order restraining the Commissioner from using any material taken from the phone of the other Garda for any purposes others than for those for which it was seized.
He further seeks declarations that the commissioner is acting contrary to law by using material that belongs to the detective as evidence in the disciplinary proceedings and that the use of information recovered from the detective’s equipment other than for a criminal investigation is in breach of the 2018 Data Protection Act.
Permission to bring the challenge was granted, on an ex parte basis, by Ms Justice Niamh Hyland on Monday.
The matter will return before the High Court next month.
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