The Court of Appeal has ruled that the Commissioner of An Garda Síochána cannot retain and use material found on a serving Garda’s phone in disciplinary proceedings when it came into Garda possession during a criminal investigation and fell outside the statutory seizure power for that investigation.
The appeal was brought by Patrick Hyland, who was under investigation over images found on his phone. The phone had been seized under a warrant issued pursuant to the Child Trafficking and Pornography Act 1998. The Director of Public Prosecutions directed in May 2020 that no prosecution should be brought. Garda disciplinary investigations continued over alleged material on the phone, including images described in the charges as racist, misogynistic and showing Garda systems or documents.
The Court of Appeal said the evidence before it did not establish when the material behind the later disciplinary charges was found. It rejected Hyland’s argument that the later notice of investigation necessarily proved there had been a second phone search after the criminal investigation ended. Applying the burden of proof in the judicial review proceedings, the court found he had not established that a post-investigation search had occurred. For the purposes of the appeal, it proceeded on the basis that the material was found during the criminal investigation. The judgment stressed that this was a conclusion about what had been proved in those proceedings, not a finding about the true timing.
The court then considered whether material obtained during the criminal investigation could be used for a different purpose. It said there is a general principle that material obtained through compulsory powers may be used for the purpose for which the power was exercised, or purposes reasonably incidental to it, while public-interest exceptions may apply in some circumstances.
But the court found the relevant legislation limited the use of the material. Section 7 of the 1998 Act authorised seizure of items believed to be evidence of offences under that Act. Section 9 of the Criminal Law Act 1976 provides for certain items found during searches to be used in criminal proceedings or prison-discipline proceedings. The Court of Appeal interpreted that provision as limiting use of additional material to those specified proceedings. It ruled that the phone material at issue could not be retained and used directly in Garda disciplinary proceedings.
The court allowed Hyland’s appeal on that ground. It did not rule on his data-protection ground, but expressed reservations about the High Court’s conclusion that the material was not personal data. It left open whether further directions were needed concerning return of the phone and costs, inviting applications to the Registrar by 1 December 2023 if either issue required a further hearing. The judgment said it did not decide whether the information could be used indirectly, for example to support an application under another compulsory power.