The Garda Commissioner’s request for an appeal against a court’s rejection to permit the use of a video clip allegedly containing explicit content from a WhatsApp group in a Garda disciplinary inquiry has been approved by the Supreme Court. The clip was originally discovered on the mobile device of Patrick Hyland, a Dublin-based Garda who denies any involvement in the case. However, it was ruled last year by the Court of Appeal that there are no sufficient legislative measures that would allow such material, discovered as a result of a search warrant, to be incorporated directly into a disciplinary investigation.
The Court of Appeal overruled a previous High Court decision that permitted disciplinary actions against the Garda member, arguing that evidence collected during a criminal investigation can be used in an internal Garda disciplinary action. The Commissioner appealed this to the Supreme Court stating that the case brings forward an issue of substantial public significance and will set a precedent for handling evidence obtained under a search warrant in future cases.
The Garda, however, opposed this application, asserting that any material obtained through a legal search warrant should not be used in any context other than a criminal trial and if no criminal misconduct has been revealed, no further appeal should be permitted.
This appeal was consented to by a three-judge panel; Ms Justice Iseult O’Malley, Mr Justice Brian Murray, and Ms Justice Aileen Donnelly. The panel conceded that the case presents unique matters without previous jurisprudential authority and will set a benchmark for other disciplinary cases filed by the Garda Commissioner. They further indicated that it would also impact the utilisation of evidence lawfully acquired in regulatory bodies’ hearings.
The proceedings rose due to Garda Hyland’s involvement in a clip that was posted within a Garda-specific WhatsApp group known as Non-back Breakers back on April 28th, 2019.
An amusing video and image exchange occurred amongst a group, with strict limitations against sharing any work-related content. Garda Hyland, involved in these exchanges, mistakenly shared a video he assumed to be light-hearted without watching it beforehand. This video was forwarded from a fellow garda. In response to this post, the group’s administrator (another garda) advised everyone to exit the group and erase all group chats from their mobiles.
After the incident, Garda Hyland watched the video, realising his initial interpretation of its content was incorrect. The video depicted a fully dressed male and female, in a situation possibly alluding to a sexual act. Consequent to this video’s nature, an investigation by the Garda was launched, resulting in a search of Garda Hyland’s residence and the confiscation of several items, including mobile phones, laptops, and a tablet.
Despite the investigation’s intensity, the Director of Public Prosecutions (DPP) decided against prosecuting Garda Hyland regarding this video clip. He was briefly suspended from his duties, though his suspension was lifted at a later stage. However, 2020 saw the initiation of internal disciplinary actions against Garda Hyland, claiming he possessed unsuitable material on a mobile device.
In response to these allegations, Garda Hyland requested multiple injunctions in a judicial review against the Garda Commissioner, including an order to stop further investigations regarding alleged disciplinary breaches. Although Garda Hyland agreed that the Garda Commissioner was authorised to search his phone’s content, he believed that the use of such evidence in a disciplinary inquiry was unauthorised as it was a civil matter between employer and employee. He claimed that using the evidence acquired from the mobile search in an internal Garda disciplinary meeting violated his privacy rights and the 2018 Data Protection Act.
Despite these claims, the Garda Commissioner differed. He asserted that his obligation was to investigate any potential disciplinary breaches exposed following lawful searches. He also contended that he was warranted in retaining Garda Hyland’s phones until the conclusion of the disciplinary procedures. Furthermore, the Garda Commissioner denied any infringement on Garda Hyland’s rights.