The High Court has proposed to rule that the Garda Commissioner may use material found during a lawful search in disciplinary investigations, but cannot retain a serving garda’s phone simply because it may be relevant to those investigations.
The case concerns Patrick Hyland, who faced two sets of alleged disciplinary breaches. The first arose after he forwarded a video clip to a Garda WhatsApp group in April 2019. The Director of Public Prosecutions later directed that there be no prosecution over the clip. The second set of allegations concerned images and Garda material allegedly found on electronic devices, including material said to be from the PULSE system, and a bottle of methadone found in Hyland’s Garda station locker. These remain allegations, not findings of disciplinary guilt.
Gardaí seized Hyland’s phone under search warrants issued in May 2019. The warrants’ validity and execution were not challenged in the judicial review. The court found that the search could lawfully extend to all material on the phone, and that material uncovered could be used in a later disciplinary inquiry. It rejected the argument that the second investigation’s later start proved the relevant search happened after the criminal investigation ended. On the balance of probabilities, it found the phone had probably been fully searched before Hyland’s arrest in June 2019.
The court reached a different conclusion about keeping the phone. It said the Commissioner had no identified power to seize or retain property at the preliminary stage of a disciplinary investigation after the criminal investigation had ended. It proposed a declaration that property should generally be returned after criminal proceedings conclude, subject to an owner establishing ownership or a right to possess all material on a computer or phone. Any application for return could be made to the District Court under the Police Property Act 1897, as amended.
The court said Garda documents or data on the phone that Hyland was not authorised to possess would not be returnable to him. It also said investigators could give evidence about what they found, and that Garda documents and PULSE screenshots could be retained and produced at a later hearing. Because the court heard no technical evidence about removing disputed files, that issue was left to a property application.
The court rejected the privacy and data protection challenges. It also said Hyland should be given supervised, non-invasive inspection access to the phone and its contents, with his legal advisers and technical experts, so he could prepare a defence if a Board of Inquiry is established. It proposed lifting the stays on both disciplinary investigations and refusing the other reliefs sought. The parties were given two weeks to make written submissions on the final order, costs and related matters; the proposed order had not yet been perfected.