Supreme Court allows appeal in part, lifting Garda disciplinary investigation stay while rejecting derivative data use declaration.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Supreme Court Appeal Number: S:AP:IE:2024:000017

[2025] IESC 54

O’Donnell C.J. Dunne J. Woulfe J. Hogan J. Murray J.

BETWEEN/

PATRICK HYLAND

APPLICANT/RESPONDENT

– AND –

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENT/APPELLANT

Ruling of the Court delivered electronically on this 12th day of December 2025 (costs and form of Order)

1. Two matters now arise from the decision of the Court on the substantive issues in this appeal. One relates to the Order that should now be made by the Court, the other to the question of costs. The background is fully outlined in the judgments, [2025] IESC 43 (Murray J., with whom O’Donnell CJ and Dunne J. agreed; Hogan and Woulfe JJ dissenting).

2. While there is agreement between the parties that the stay on the disciplinary investigations commenced by way of notices of investigation dated 30 August 2019 (Superintendent Costello) and 17 July 2020 (Superintendent Creighton) should be lifted (and the Court will so order), the parties differ on two matters arising from the Order. First, the Commissioner asks the Court to make a declaration to the following effect:

‘A Declaration that in circumstances where, as a consequence of the lawful execution of a search warrant, the Commissioner has become aware that the Applicant’s phone contains information, and that knowledge was acquired lawfully, it is permissible for the Commissioner (and others exercising a statutory obligation to whom the information is lawfully transmitted) to make derivative or indirect use of that information for the purposes of discharging their statutory obligations, so long as such use is lawful, not in breach of the Applicant’s right to privacy and proportionate to the objective of enforcing Garda discipline.’

3. The Court will not accede to the Commissioner’s application for this relief. There is no reason to reduce the finding in the case to a declaratory order. The judgment speaks for itself. The Commissioner, indeed, acknowledges that a declaration is not necessary (para. 3 of his submissions). The Court will, accordingly (and as recorded in the final paragraph of its judgment) record simply in its Order that the appeal from the decision of the Court of Appeal is allowed in part, insofar as the Court of Appeal did not address what it termed the ‘derivative’ or ‘indirect’ use of information from the applicant’s phone arising from the execution of the search warrant and which is, as is clear from the judgment of Murray J., permissible.

4. The second issue arises as to what should now happen to the applicant’s phone in the light of the findings of the Court. To understand the positions of the parties on this question it is necessary to retrace some of the history of the case.

5. Before the High Court the applicant sought orders restraining both sets of disciplinary proceedings, orders for the return of his phone, and orders preventing the Commissioner from ‘utilising’ material obtained on foot of the search for purposes other than criminal investigations or prosecutions. In the course of the proceedings the applicant limited his complaints to the second set of disciplinary proceedings (the ‘Creighton’ investigation). The High Court made three declarations – (i) that the Commissioner could use the material in disciplinary proceedings, (ii) that the Commissioner could not retain material seized during a search conducted as part of the criminal investigation on the grounds the material was relevant to a disciplinary proceeding and (iii) that a person is entitled to the return of their property once criminal proceedings have been concluded but that before they could obtain that return they had to establish ownership or at least the right to possession of all the material on the phone and that this was a matter for the District Court in police property proceedings. The terms of the second and third parts of the order of Barr J. were as follows:

‘2. 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.

3. 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 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)’.

6. It is important to stress that the appeal to the Court of Appeal was brought by the applicant, and that the Commissioner neither filed a cross appeal, nor any notice to vary the High Court Order. The applicant appealed only parts of the decision of the High Court. The parts so appealed were identified in the Notice of Appeal as follows:

‘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;

Other than as outlined herein, the court refuses all of the other reliefs sought by the applicant in his notice of motion;

The Appellant was awarded 66% of his costs in the High Court. He will seek all his costs if successful.’

7. The part of the Respondent’s Notice addressing additional grounds on which the

decision of the High Court should be affirmed, contained only arguments addressed to the data protection issues raised by the applicant. The response to the question in that Notice as to whether the Commissioner intended to ask the Court of Appeal to vary or substitute the order of the High Court was responded to as ‘[n]ot applicable’.

8. The applicant won his appeal, insofar as the Court of Appeal found that the material uncovered in the search of the phone could not itself be directly used in the disciplinary proceedings, but the Court at the same time expressed no view as to whether it could be used in an ‘indirect’ manner. The Court of Appeal made a simple order setting aside that part of the High Court order, but leaving the remainder of the High Court order in place.

9. While the Commissioner’s application for leave to appeal to this Court contained a number of grounds, they are all variants of the first ground: ‘[t]he Court of Appeal erred in law in holding that it not is [sic] 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.’ The Commissioner sought an Order setting aside the Court of Appeal order (thereby leaving the other parts of the Order of Barr J. unaffected). The applicant did not lodge any cross appeal or seek to raise any new grounds.

10. While the judgement of this Court was therefore strictly speaking only concerned with the correctness of the Court of Appeal’s judgment on use of the material, the judgment explains that it was not possible to address this without understanding (a) the law governing the retention of the phone and (b) a distinction between copies of material taken from the phone, and knowledge obtained as a result of the execution of the warrant. In that connection, the judgment of Murray J. (with which in this respect all members of the Court agreed) explained that the Commissioner was not entitled to retain the phone for the purposes of disciplinary investigations, while caveating this (as the High Court Judge had done) by reference to the applicant being the owner of the phone, and by reference to the fact that he was not entitled to insist on the return to him of material which it was not lawful for him to possess.

11. It is in the light of the foregoing that the applicant now seeks an Order to be made for the return of his phone. The Commissioner says two things in response. First, he says that this is unnecessary as part of the High Court orders stand and were not appealed, and that the effect of Orders 2 and 3 made by the High Court judge (and quoted above at para. 5) is to require the return of the phone subject to the proviso appearing in Order 3, that being that where material is on a computer or a phone the applicant must be in a position to establish ownership or at least a right to possession of all the material on the computer or phone prior to it being returned to them.

12. Second, the Commissioner also now says that he accepts that he has never made the case that that there is unlawful material on the phone which cannot be removed from the phone, which would therefore entirely preclude him from ever returning the phone. However, he now says that there is material on the phone which he believes may be considered to constitute child pornography, that this is not material which it is lawful for the applicant to possess and (as it is put) ‘it would be a matter of considerable concern to the Commissioner if he were obliged to return the phone before that material can be removed from it.’ It will be recalled that the Director of Public Prosecutions has decided that there will not be a prosecution arising from the applicant’s possession of this material.

13. In that connection the Commissioner refers to a number of complicating factors, including the fact that removal of this material is not a straightforward process, that he is concerned with what will happen if there is a dispute as to whether possession of material on the phone is or is not unlawful, saying that these issues ‘must be worked through before the device is returned.’ It is in that context that the Commissioner requests a reasonable period of time within which to remove the material in question from the phone, offering to swear an affidavit outlining the technical and practical issues involved. He also says, however, ‘insofar as issues may arise relating to the procedure for removing unlawful material from the phone and subsequently returning it to the Applicant, … any such matters might more appropriately be addressed in evidence in the High Court, where the Court could hear evidence in relation to any technical issues which arise’. This, he says, is the appropriate place to address the technical issues that arise.

14. There is, one would have thought, a practical aspect to this which should not be overlooked. While of course fully accepting the force of the Commissioner’s concerns having regard to the nature of the material said to be on the phone, the original judgment posits an entitlement – but not an obligation – on the part of the Commissioner to remove material the possession of which he believes to be unlawful from the phone before returning it. The applicant has a corresponding interest in not asserting ownership over an article which the Commissioner is contending it is unlawful for him to possess. One might have thought that between those realities, the parties could agree a modality that protects the interests of each. But whether or not that is so, it appears to the Court that the proper way of proceeding is to adopt the first course of action proposed by the Commissioner and to make no order regarding the return of the phone.

15. If the High Court orders are left to stand, it is a matter either for the parties to agree on how to deal with the phone or, in default of that, for the applicant to proceed to the District Court under the Police Property Act 1897, or to institute such other proceedings for the return of the phone as he is advised to bring. This should allow the Commissioner enough time to do what he needs to do with the phone (and given that the relevant part of the High Court order has never been appealed, he has had plenty of time already). It is not appropriate for this Court to open a new inquiry into what are essentially factual matters that could have been, but were not, brought before the Court in this appeal.

16. Insofar as the costs of these proceedings are concerned, the principles are set out in the

decision of this Court in Little v. Chief Appeals Officer [2024] IESC 53. In this case, the issues before the Court were not merely novel and involved, but were in the view of the Court, of considerable importance. They engaged significant issues of public and private law. The applicant succeeded in part before the High Court (where the judge awarded him 66% of his costs), and succeeded entirely before the Court of Appeal (where he was awarded all of his costs before both Courts). In this Court, the appellant failed to obtain the absolute order he sought precluding any utilisation of the material obtained from his phone, but the Commissioner failed to establish an entitlement to use material downloaded or copied from the phone. In those circumstances, it is the view of the Court that the applicant should be awarded 50% of his costs in each Court.

17. Finally, the Court notes a typographical error at footnote 5 of the judgment of Murray

J. where the word ‘lawful’ should read ‘unlawful’. This will be corrected and an amended version of the judgment posted on the courts.ie website.

18. The order of the Court shall accordingly be one allowing the appeal of the Commissioner in part to the extent identified at para. 132 of the judgment of Murray J. and referred to above, lifting the stay on the two investigations the subject of the proceedings, and that the applicant recover from the Commissioner 50% of his costs in each court.