Hyland v The Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Ní Raifeartaigh J.
• Judgment Date: 14 November 2023
• Neutral Citation: [2023] IECA 278
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2022/87

Between/

Patrick Hyland

Applicant/Appellant

and

The Commissioner of An Garda Síochána

Respondent

[2023] IECA 278

Noonan J.

Ní Raifeartaigh J.

Allen J.

Appeal Number: 2022/87

THE COURT OF APPEAL

UNAPPROVED

Judgment delivered byNí Raifeartaigh J.on the 14 ^th day of November 2023

Introduction

1 . Is it permissible for the Commissioner of An Garda Síochána to use material in disciplinary proceedings in respect of a member of An Garda Síochána where the material was found on the member's mobile phone, in circumstances where the phone was seized pursuant to a search warrant issued in the course of a criminal investigation? That is the key question raised in this appeal.

2 . The appellant, a serving member of An Garda Síochána, is facing charges pursuant to the Garda Síochána (Discipline) Regulations, 2007 (S.I. No. 214 of 2007 ( “the Regulations”). The following is a broad outline of events. Concerns were raised as a result of a video clip that the appellant sent to colleagues in a WhatsApp group. Two search warrants were obtained pursuant to the Child Trafficking and Pornography Act 1998(“the 1998 Act”), and the appellant, his station locker, and his home were searched. His mobile phone was taken and examined. A file was sent to the DPP, who ultimately directed that no charges should be brought. A disciplinary investigation commenced on the basis of the material found during the search of the appellant's phone. His complaint is that it is not lawful to deploy evidence obtained in the criminal investigation in the proposed disciplinary proceedings, specifically the material which was obtained pursuant to a search warrant issued under the 1998 Act.

More detailed chronology of events

3 . The following account of events is set out in the appellant's Statement of Grounds. In April 2019, he was attached to the Regional Traffic Unit of An Garda Síochána, based in Dublin Castle. He was a member of a WhatsApp chat group which was mainly used to forward humorous video clips and images. It seems that he was added to the WhatsApp group sometime during that month.

4 . He says that on the 28 ^th April 2019 he received a WhatsApp message containing a video clip which he forwarded without viewing. Later that day, he checked his phone and saw a message posted to the chat group from the group administrator advising all members to leave the group and wipe the chat group from their phones due to a post made earlier that day. He then realised that the post in question might have been the one he had sent out. He says he viewed it for the first time at this stage and realised that the clip featured what appears to be a fully clothed male teenager and another person in a position potentially suggestive of interaction of a sexual nature. There was no sound or audio on the clip. He says that on the next day he arrived into work and from then on he was ostracised by other people at work and was not detailed with any members of the chat group for work purposes.

The Searches pursuant to warrant

5 . On 14 ^th May 2019, Garda officers from the Garda National Child Protection Services arrived at the appellant's place of work and informed him that they had a search warrant. He was searched in the office. He provided his personal phone and access code upon request. He says that he asked if he could see a copy of the warrant and ring someone for advice but was told that “he knew the score” and was not shown a copy of the warrant. The warrant was issued pursuant to s. 7 of the Child Trafficking Pornography Act, 1998. It may be noted that the issue as to whether he was shown the warrant was not pursed in the court below or in this Court.

6 . The appellant was then brought to his locker in the station and this was also searched pursuant to the warrant. During that search a bottle of methadone was found in his locker. He points out that there is no designated drug storage locker in Dublin Castle Garda Station. Following the search of his locker, he was directed to identify his car which was searched and a Kindle e-book reader was seized.

7 . He subsequently spoke with Superintendent Murphy and Inspector Peter Woods who advised him not to enter any Garda Station or to access the Garda Pulse System. He says he was not informed at this point that he was suspended from duty. It seems he was suspended on the 17 ^th May 2019.

8 . When he returned home on the 14 ^th May, the appellant learned that his home had been searched under warrant and that a number of electronic devices including his wife's work computer had been seized. A picture of the warrant was taken by the appellant's wife and showed that the warrant had been issued by a Judge of the District Court on 14 ^th May 2019 pursuant to s. 7 of the Child Trafficking and Pornography Act, 1988. The suspicion grounding the warrant related to offences under ss. 3, 5 and 6 of the Act. Nothing material to the present proceedings was found during that search. What is in issue is material found during the search of his own phone.

Criminal investigation

9 . The appellant was arrested and detained in June 2019 and questioned in relation to child pornography and possession of methadone.

10 . On 19 ^th July 2019, the appellant attended at Finglas Garda Station and provided a voluntary cautioned statement in which he denied any wrongdoing. He accepted that he had been naïve to have forwarded a video which he had not reviewed but denied that he had ever knowingly accessed or distributed child pornography.

11 . On 5 ^th May 2020, the appellant was informed that the DPP had determined that there should be no prosecution.

Disciplinary investigation

12 . Meanwhile, in September 2019, the appellant had been served with papers informing him that he was the subject of disciplinary investigation pursuant to Regulation 24 of the Regulations. This was signed by Superintendent Paul Costello and dated 30 ^th August 2019. The alleged breach of discipline was that he had utilised a recently set up WhatsApp group to distribute images that included what appeared to be two minors engaged in a form of sexual activity.

13 . As we have seen, the DPP directed no prosecution in May 2020. On 1 ^st June, the appellant's suspension from duty was lifted and he was transferred to immigration duties in Dublin Port and attached to Store Street. He appealed that transfer and was assigned to the Fines Office pending the determination of the disciplinary matter.

14 . By a second notice of investigation dated 17 ^th July 2020, the appellant was advised that he was the subject of a further disciplinary investigation pursuant to Regulation 24 of the Regulations. The Notice was signed by Superintendent Martin Creighton. It identified additional matters which may constitute breaches of discipline:

• • Possession in or around May 2019 on mobile devices of images “which appear to be racist, misogynistic, anti-homosexual, antisemitic, supporters of Nazi ideology or ‘rape culture’.”

• • Possession in or around 2019 on mobile devices of “images which appear to beCCTV images relating to garda investigations and practices; images which appear to be garda computers, including images of suspects, PULSE incidents and Command and Control incidents; images showing garda documents, garda members and of garda station interiors”.

• • Failure to adhere to proper protocols relating to the storage of controlled substances, namely a bottle of methadone.

Pre-proceedings correspondence

15 . The appellant's solicitors engaged in detailed correspondence with various officers of An Garda Síochána. As a result of correspondence in May and June 2020, all property with the exception of the appellant's mobile phone was returned on 14 ^th July 2020. There was then protracted correspondence seeking the return of the appellant's mobile phone or an explanation as to why it was being retained. It was asserted on behalf of the appellant that material found on his phone could not be used for disciplinary purposes.

16 . Ultimately there was a reply dated 19 ^th November 2020 from Chief Superintendent Nugent asserting that there was “…no general rule preventing the use of material obtained in the course of a criminal investigation being utilised in a subsequent disciplinary hearing”. The letter also referred to s. 71(5) of the Data Protection Act 2018. There was further correspondence over the following months, with each side setting out their position on this issue, which correspondence included a letter in broadly similar terms from Chief Superintendent John Gordon and a letter on 19 ^th January 2021 from Inspector Peter Woods confirming that the phone had been further retained for the purpose of disciplinary inquiry.

17 . On the 8 ^th March 2021, the appellant obtained leave to proceed by way of judicial review in relation to the retention of his phone and other matters set out below.

The pleadings, the legal issues, and the evidence

The Statement of Grounds and Statement of Opposition

18 . The appellant brought judicial review proceedings seeking the following reliefs:

• 1. An Order of Prohibition restraining the respondent from utilising any material obtained from the appellant's phone other than in the course of a criminal investigation and prosecution.

• 2. An Order of Prohibition restraining the respondent from continuing disciplinary proceedings pursuant to An Garda Síochána (Discipline) Regulations 2007 in relation to the alleged breaches identified in the Notice of Investigation dated 30 ^th August 2019 identifying Superintendent Paul Costello as the investigating officer.

• 3. An Order of Prohibition restraining the respondent from continuing disciplinary proceedings pursuant to An Garda Síochána (Discipline) Regulations 2007 in relation to the alleged breaches identified in the Notice of Investigation dated 17 ^th July 2000 identifying Superintendent Martin Creighton...