Garda wins appeal over use of phone content which appeared to be racist and supportive of Nazis in hearing

A garda has won an appeal against a decision that material on his phone which appeared to be racist, misogynistic, anti-homosexual, anti-Semitic, and supportive of either Nazi ideology or “rape culture” could be used in disciplinary proceedings against him.

The Court of Appeal (CoA) overturned a High Court decision that the Garda Commissioner was entitled to use the material found on the phone when it was seized as a result of a WhatsApp group message appearing to show child pornography which was sent in April 2019.

The message consisted of a soundless video that showed what appeared to be a fully clothed male teenager and another person in a position potentially suggestive of interaction of a sexual nature. The garda said he had forwarded it to friends in a WhatsApp group without viewing it.

He said he viewed it after the group administrator advised all members to leave the group and wipe the chat group from their phones due to the garda’s post made earlier that day.

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When he arrived at work in his Garda station the next day, he said he was ostracised and was not detailed to work with any members of the WhatsApp group.

Around two weeks later, officers from the Garda National Child Protection Services arrived at his Garda station and informed him that they had a search warrant issued under the Child Trafficking Pornography Act. He was searched in the office and provided his personal phone and access code upon request.

He arrived home later that day to find his house had also been searched under warrant and a number of electronic devices, including his wife’s work computer, had been seized. He later made a voluntary cautioned statement.

He was suspended from duty in May 2019 but it was a year later before the Director of Public Prosecutions said there should be no prosecution against him.

He returned to work and was assigned office duties but a disciplinary process had got under way. He was accused of breaches of discipline by having the allegedly offensive material on his phone.

He brought High Court proceedings claiming the material seized on his phone as part of a criminal investigation, which came to nothing, could not now be used in the disciplinary proceedings. He also sought an order that the disciplinary process be halted. The Commissioner opposed the action.

The High Court ruled the Commissioner was entitled to use the material found on the phone in the disciplinary process which should continue.

The garda appealed arguing the High Court had erred on a number of grounds including by finding that non-criminal material on the phone, and examined for a criminal investigation purpose, could be used in a non-criminal internal disciplinary inquiry. The Commissioner opposed the appeal.

In a judgment on behalf of the three-judge appeal court, Ms Justice Una Ní Raifeartaigh allowed the garda’s appeal.

She found the material, which incidentally came into the possession of the Garda Commissioner in this case, by reason of a search of the officer’s phone under a search warrant relating to child pornography, cannot be retained and used in the garda disciplinary proceedings.