The High Court has dismissed a bid to halt internal disciplinary proceedings brought against a garda over a video clip he posted in a WhatsApp group that allegedly contained pornographic material.
The action was brought against the Garda Commissioner by the Dublin-based garda, who denies any wrongdoing.
In his judgement on Tuesday, Mr Justice Anthony Barr ruled the disciplinary proceedings against the garda could proceed on the basis that the Commissioner is entitled to use material taken during a criminal investigation in an internal Garda disciplinary probe.
The judge also lifted the stay on the disciplinary investigation from continuing.
The garda's action, the judge said, centred over a clip posted by him to friends in a garda WhatsApp group called Non-back Breakers on April 28th, 2019.
The judge noted that the group exchanged humorous video clips and images. Work-related material was not permitted in the group.
Video clip
The garda claims he forwarded a video to the group, which he received from another garda, believing it to be a humorous clip, without viewing it.
Arising out of the post the group administrator, another garda, advised all the members to leave the group and wipe the chat from their phones.
The garda claims he then viewed the video and realised the clip was not what he had originally thought it was, the judge said.
It was a clip of a male teenager and a female who were both fully clothed. The female was in a position that was potentially suggestive of being engaged in a sex act.
There was a Garda investigation into the clip, during which the garda's home was searched and several items, including phones, laptops, and a tablet were taken on foot of search warrants, the judge noted.
Following that probe, the Director of Public Prosecutions (DPP) directed that the garda should not be prosecuted over the clip, the judge said.
Suspended from duty
He was suspended from duty, but his suspension was subsequently lifted. However, internal disciplinary proceedings were brought against the garda in 2020.
It is alleged in that action that he possessed material on a mobile device that was inappropriate.
He is also facing a disciplinary charge regarding an allegation that he did not properly manage or store a bottle of methadone, which was found following a search of his Garda locker.
In judicial review proceedings against the Garda Commissioner, the garda had sought various reliefs including an order prohibiting any further investigation against him for any alleged breach of discipline.
He sought declarations to the effect that as the criminal investigation into the video had been completed, the Commissioner had no entitlement to retain the garda's phone.
While the Commissioner was entitled to search the content of the phone, there was no entitlement to use the fruits of that search as part of a disciplinary enquiry, which the garda's lawyers submitted is a civil matter between an employee and an employer, the garda claimed.
He claimed that the use of the material obtained from the search of the phone was inadmissible at any internal Garda disciplinary hearing.
The use of such material, he further submitted, amounted to a breach of his right to privacy and the 2018 Data Protection Act.
Lawful searches
He further argued that the charge regarding the bottle of methadone occurred after the criminal investigation into the phone was completed.
The Commissioner rejected the arguments and argued that he was obliged to investigate any breaches of alleged breaches of discipline that came to light following what were lawful searches.
It was argued that the Commissioner was entitled to retain the garda's phones until the disciplinary procedure has been completed.
The Commissioner also denied that the garda's rights had been breached.
In his judgement, Mr Justice Barr said that he was satisfied that the Commissioner is entitled to use the material found on the phone obtained during the course of a valid search in any disciplinary investigations into the garda's alleged conduct.
However, the court said that the Commissioner was not entitled to retain the garda’s property seized during the search after the conclusion of the criminal investigation.
The judge further agreed that in general, a person is entitled to have any property seized by the gardaí returned to them once criminal proceedings have been concluded.
This was subject to the proviso that where material is on a phone or computer, the applicant must be able to establish ownership of all the material on the device before it is returned to them.
The judge also dismissed all other arguments raised and cleared the way for the disciplinary process, which had been put on hold pending the outcome of the action, to proceed.
