The Supreme Court has ruled that the Garda Commissioner may use information lawfully discovered on Garda Patrick Hyland's mobile phone to pursue a disciplinary investigation, while confirming that the phone itself should have been returned once the criminal investigation ended.
Hyland's phone was seized in May 2019 under a warrant obtained during an investigation into suspected child pornography offences. The investigation followed the circulation of a WhatsApp video. Hyland denied wrongdoing and the Director of Public Prosecutions decided in May 2020 that there would be no prosecution.
A separate Garda disciplinary investigation was subsequently initiated concerning other material identified on the phone, including images alleged to be racist, misogynistic, anti-homosexual, antisemitic, supportive of Nazi ideology or "rape culture", as well as images relating to Garda systems, documents and stations.
The Court of Appeal had held that material incidentally found during the criminal search could not be retained and used in Garda disciplinary proceedings. The Commissioner appealed.
Mr Justice Brian Murray, delivering judgment in the Supreme Court, held that section 9 of the Criminal Law Act 1976 regulates the seizure and retention of physical items but does not itself prohibit the use of information lawfully learned during a search.
The Commissioner therefore could not retain Hyland's phone simply for disciplinary purposes after the criminal investigation ended. However, Gardaí who had lawfully examined the phone did not have to disregard what they had learned. The Commissioner was entitled to use that knowledge to initiate and conduct the disciplinary investigation because Garda disciplinary regulations imposed a statutory duty to investigate possible breaches.
The court held that Hyland's privacy rights remained engaged, but use of the information in this way was proportionate to the public interest in Garda discipline and confidence in the force.
The Supreme Court did not finally decide whether copies or downloads made from the phone could themselves be used, because the evidence did not establish what had been copied, when or under what authority. The appeal was allowed in part.