Patrick Hyland v The Commissioner for an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 18 February 2022
• Neutral Citation: [2022] IEHC 106
• Docket Number: [Record No. 2021/163 JR]
• Year: 2022
• Court: High Court

Between

Patrick Hyland

Applicant

and

The Commissioner for an Garda Síochána

Respondent

[2022] IEHC 106

[Record No. 2021/163 JR]

THE HIGH COURT

Declaratory relief – Disciplinary investigations – Retention of property – Applicant seeking declaratory relief – Whether a person is entitled to return of their property once criminal proceedings have been concluded

Facts: The applicant, Garda Hyland, was a serving member of An Garda Síochána. He faced two sets of charges of having acted in breach of the Garda Síochána (Discipline) Regulations 2007 as contained in S.I. 214/2007. The charges of breach of discipline arose out of an incident that occurred on 28th April, 2019, when the applicant sent a video clip to friends in a Garda WhatsApp group. An opinion was reached by An Garda Síochána that the video constituted child pornography. The respondent, the Commissioner for An Garda Síochána, refused to return the applicant’s mobile phone pending the finalisation of the two disciplinary investigations. The applicant applied to the High Court seeking a number of reliefs. He sought a number of declarations to the effect that as the criminal investigation into the video clip had been completed, the respondent had no entitlement to retain his mobile phone; that while the respondent was entitled, on foot of the search warrants, to search the content of his phone for evidence relating to child pornography, he was not entitled to use the fruits of that search as part of a separate disciplinary enquiry, which was a civil law matter between employer and employee; that as the second disciplinary charge was only commenced after the end of the criminal investigation, the respondent probably carried out a search subsequent to the directions of the Director of Public Prosecutions, which was therefore unlawful and accordingly any evidence obtained as a result of it was inadmissible against the applicant at any disciplinary hearing before a Board of Inquiry; that the use of material seized by the Gardaí from his phone constituted a breach of his right to privacy and a breach of the Data Protection Act 2018. The applicant also sought an order prohibiting any further investigation against him for alleged breach of discipline.

Held by Barr J that the court proposed making an order providing for the following: a declaration that the respondent is entitled to use the material found by the Gardaí as a result of the execution of the search warrants issued on 14th May, 2019 in any disciplinary investigations that may be brought into the conduct of the applicant; a declaration that the respondent is not entitled to retain property seized during a search conducted as part of a criminal investigation, after the conclusion of that investigation, on the grounds that such material would be of relevance to an ongoing disciplinary investigation against the Garda who owns the property; a declaration that, in general, a person is entitled to return of their property once criminal proceedings have been concluded, subject to the proviso that where material is on a computer or a mobile phone, the applicant must be in a position to establish ownership or at the least, a right to possession of all the material on the computer, or phone, prior to it being returned to them; any application for return of property seized in this case can be made to the District Court in the ordinary way pursuant to s. 1 of the Police Property Act 1897 (as amended).

Barr J refused all of the other reliefs sought by the applicant in his notice of motion. The court lifted the stay on the disciplinary investigations on foot of the notice of investigation served on the applicant on 30th August, 2019 and 27th July, 2020.

Reliefs granted in part.

JUDGMENT of Mr. Justice Barr delivered electronically on the 18th day of February 2022.

Introduction

1 The applicant is a serving member of An Garda Síochána. He is facing two sets of charges of having acted in breach of the Garda Síochána (Discipline) Regulations 2007 as contained in S.I. 214/2007 (hereinafter ‘the regulations’).

2 The charges of breach of discipline arise out of an incident that occurred on 28th April, 2019, when the applicant sent a video clip to friends in a Garda WhatsApp group. An opinion was reached by An Garda Síochána that the video constituted child pornography. Two search warrants, pursuant to s.7 of the Child Trafficking and Pornography Act 1997, were obtained. They permitted members of the Gardaí to search the applicant's person and his locker at the Garda station where he worked and also his family home. The search warrants were executed on 14th May, 2019.

3 In June, 2019, the applicant was arrested pursuant to s.4 of the Criminal Justice Act 1984.

4 On 30th August, 2019 the applicant was served with the first notification of an investigation into an alleged breach of discipline by him arising out of his dissemination of the video clip.

5 On 5th May, 2020, the applicant was informed that the DPP had directed that there should be no prosecution against him in relation to the video clip.

6 On 27th July, 2020 the applicant was served with a second notification of an investigation into an alleged further breach of discipline charge concerning material that had been found on his phone, which was alleged to constitute official Garda documentation and material from the PULSE system, together with a charge in relation to a bottle of methadone, which had been found in his locker in the course of the search carried out on 14th May, 2019.

7 The respondent has refused to return the applicant's mobile phone pending the finalisation of the two disciplinary investigations.

8 The applicant has brought the present proceedings seeking a number of reliefs. These can be summarised in the following way: He seeks a number of declarations to the effect that as the criminal investigation into the video clip has been completed, the respondent has no entitlement to retain his mobile phone; that while the respondent was entitled, on foot of the search warrants, to search the content of his phone for evidence relating to child pornography, he is not entitled to use the fruits of that search as part of a separate disciplinary enquiry, which is a civil law matter between employer and employee; that as the second disciplinary charge was only commenced after the end of the criminal investigation, the respondent probably carried out a search subsequent to the directions of the DPP, which was therefore unlawful and accordingly any evidence obtained as a result of it, is inadmissible against the applicant at any disciplinary hearing before a Board of Inquiry; that the use of material seized by the Gardaí from his phone constitutes a breach of his right to privacy and a breach of the Data Protection Act 2018. The applicant also seeks an order prohibiting any further investigation against him for alleged breach of discipline.

9 In response, the respondent has argued that as the validity of the search warrants had not been challenged, the respondent was entitled, and indeed was obliged, to investigate any breaches of discipline that came to light as a result of these lawful searches. It was submitted that the respondent is entitled to retain the applicant's mobile phone until the investigation into the alleged breaches of discipline has been completed, as the allegations relate to material on the mobile phone, so it is the best evidence in relation to the breach of discipline charges against the applicant.

10 The respondent denied that there was any breach of the applicant's right to privacy, as the material was obtained in the course of a lawful search. It was further denied that there was any breach of the Data Protection Act 2018, as the respondent was entitled to rely on the provisions thereof to process data that had been collected for one purpose even for another purpose within the terms of the Act.

11 The arguments of the parties will be set out in greater detail later in the judgment.

Background

12 The background to the sending of the video clip on 28th April, 2019, was set out in the following way in the applicant's statement of grounds:

“(ii) In or about 19th April, 2019, the applicant was added to a WhatsApp chat group called ‘Non-Back Breakers’ (hereinafter ‘the chat group’). The administrator of this group was Garda Alan Miley, who was in the same working unit as the applicant. The chat group was mainly used to forward humorous video clips and images. On occasion, work related information would be disseminated on the group, but there was a parallel work chat group which carried most of that traffic. There were garda members attached to other units in DMR Roads Policing and other garda stations added in the chat group.

(iii) On 28th April, 2019, the applicant received from another member of An Garda Síochána, a WhatsApp message containing a video clip. He did not watch the video clip at this time. From the still image displayed on his handset, he believed that he recognised the protagonist in the video clip as a person who had featured in numerous other video clips of comedic value, which had been circulated freely and accordingly forwarded this message to the chat group. As a result he forwarded the clip without viewing it.

(iv) Later that day, he checked his phone and saw a message posted to the chat group from the group administrator, advising all members of the group to leave the group and wipe the chat group from their phone. This advice was given due to a post made earlier that day. The applicant then realised that the post in question may have been the one he had sent out. He viewed the clip for the first time at this stage and realised that it was not the person he believed it to be and that the clip featured what appeared to be a fully clothed male teenager and another person. That other person was in a position potentially suggestive of...