Arama Kararı ile Elde Edilen Materyalin Disiplin Soruşturmasında Kullanımı

The facts

4. In April 2019 the applicant was attached to the Regional Traffic Unit of An Garda Síochána, based in Dublin Castle.  He was, together with other Gardaí, a member of a WhatsApp group.  That group was used to forward and exchange images and videos.  On 28 April 2019 the applicant says that he received a WhatsApp message containing a video clip which he forwarded to the other members of the group.  He says that he forwarded the message without viewing it. The group administrator subsequently sent a message advising all members to wipe the group from their phones.  This was said to be due to a post made into the group earlier that day. The applicant says that after reading that message he realised that the post referred to by the group administrator might have been the one he had forwarded and that he thereupon viewed it for the first time.  Upon doing so, he saw that the clip featured what appeared to be a fully clothed male teenager and another person in a position suggestive of a sexual interaction.

5. On 14 May 2019, two search warrants were obtained pursuant to s. 7 of the Child Trafficking and Pornography Act 1998 ("the 1998 Act").  These authorised the Gardaí to search the applicant, his place of work, his car and his family home.  The suspicion grounding the warrants related to offences under ss. 3, 5 and 6 of the 1998 Act. The applicant was searched in his office and provided his personal phone and access code upon request.  He alleges that he was not shown a copy of the warrant (an issue which while pleaded in his case, was not pursued in the High Court).  The applicant's locker in the station was also searched and a bottle of methadone was found.  Following the search of his locker he was directed to identify his car which was then searched, and an e-book reader was seized.  Upon returning home on 14 May, the applicant learned that his dwelling had also been searched under one of the warrants and that a number of electronic devices had been seized.

6. The applicant was suspended from duty on 17 May 2019, and the following month he was arrested and detained.  He was questioned in relation to alleged possession of child pornography and alleged possession of methadone. He thereafter attended at Finglas Garda Station and provided a voluntary, cautioned statement. He denied any wrongdoing.  He accepted that he had been naïve to have forwarded a video which he had not reviewed but denied that he had ever knowingly accessed or distributed child pornography.  On 5 May 2020 the applicant was informed that the Director of Public Prosecutions ("the DPP") had determined that there should be no criminal prosecution arising from these events.

7. Meanwhile, in September 2019, the applicant had been served with papers informing him that he was the subject of a disciplinary investigation pursuant to Regulation 24 of the Garda Síochána (Discipline) Regulations 2007 (S.I. 214/2007) ("the 2007 Regulations").  This was signed by Superintendent Costello and dated 30 August 2019.  The breach of discipline alleged was that he had utilised a WhatsApp group to distribute images that included what appeared to be two minors engaged in a form of sexual activity.

8. The applicant's suspension from duty had been lifted on 1 June 2019 and he was transferred to immigration duties in Dublin Port and attached to Store Street Garda Station. He appealed that transfer and was assigned to the Fines Office pending the determination of the disciplinary matter.

9. By a second notice of investigation signed by Superintendent Creighton and dated 17 July 2020, the applicant was advised that he was the subject of a further disciplinary investigation pursuant to Regulation 24.  This notice identified additional matters which it recorded may constitute breach of discipline, the first two of which derived from material on his mobile devices:

(a)               Possession in or around May 2019 on mobile devices of images 'which appear to be racist, misogynistic, anti-homosexual, antisemitic, supporters of Nazi ideology or "rape culture".'

(b)               Possession in or around 2019 on mobile devices of 'images which appear to be of CCTV images relating to Garda investigations and practices; images which appear to be Garda computers, including images of suspects, PULSE incidents and Command and Control incidents; images which appear to show Garda related documents, Garda members, or Garda station interiors.'

(c)               Failure to adhere to proper protocols relating to the storage of controlled substances, namely a bottle of methadone.

10. Throughout these events the applicant's solicitors engaged in detailed correspondence with officers of An Garda Síochána.  On foot of this, all seized property with the exception of the applicant's mobile phone was returned to him on 14 July 2020.  Thereafter the applicant's advisors sought the return of the applicant's mobile phone or an explanation as to why it was being retained.  In the course of that correspondence, they initially indicated they had no objection to the WhatsApp video being saved to a Garda computer ('[t]he whatsapp video clip the subject matter of these disciplinary proceedings can be saved to a An Garda Siochana [sic] laptop which will enable the return of our client's mobile phone forthwith').  However, following receipt of the second disciplinary notice, the applicant's solicitors contended in correspondence that the material found on his phone could not be used for disciplinary purposes and, on 19 November 2020, Chief Superintendent Nugent replied asserting that there was '...no general rule preventing the use of material obtained in the course of a criminal investigation being utilised in a subsequent disciplinary hearing', referring to s. 71(5) of the Data Protection Act 2018 ("the 2018 Act").  Further correspondence on this matter ensued in the following months, the relevant officers confirming that the phone had been retained 'by Detective Superintendent Martin Creighton for the lawful purpose of a subsequent disciplinary inquiry'.

11. On 8 March 2021 the applicant obtained leave by way of judicial review to seek the relief giving rise to this appeal.  He sought a number of declarations to the effect that as the criminal investigation into the video clip has been completed, the respondent has no entitlement to retain his mobile phone; that while the respondent was entitled, on foot of the search warrants, to search the content of his phone for evidence relating to child pornography, he is not entitled to use the fruits of that search as part of a separate disciplinary inquiry; that as the second disciplinary charge was only commenced after the end of the criminal investigation, the respondent probably carried out a search subsequent to the directions of the DPP, which was therefore unlawful and accordingly any evidence obtained as a result of it is inadmissible against the applicant at any disciplinary hearing before a Board of Inquiry; and that the use of material seized by the Gardaí from his phone constitutes a breach of his right to privacy and a breach of the 2018 Act.  He sought various orders of prohibition, essentially preventing the use of any material obtained from his phone other than in the course of a criminal investigation and prosecution and preventing any disciplinary proceedings being brought in relation to either set of alleged breaches of the 2007 Regulations.  He also sought orders mandating the return of his phone.

12. In the course of oral argument before this Court, counsel for the applicant indicated that 'the Costello inquiry' was not in question in these proceedings and that the Court was dealing solely with 'the Creighton inquiry'.  This was explained by reference to the fact that it was only on the basis of this latter investigation that the phone was retained.  However, both disciplinary processes have been stayed pending the outcome of this case.

The disciplinary provisions

13. The disciplinary investigation in issue is regulated by Regulations 23 and 24 of the 2007 Regulations.  These were made pursuant to the provisions of the Garda Síochána Act 2005. [1]  Regulation 23 imposes a statutory duty on the Commissioner, providing that the Commissioner 'shall' appoint an investigating officer where 'it appears that a member may be in breach of discipline and subject to one of the disciplinary actions specified in Regulation 22'. Regulation 24 is as follows:

'24. (1) As soon as practicable after his or her appointment, an investigating officer shall inform the member concerned in writing -

(a) of the grounds on which it appears that the member may have been in breach of discipline, and

(b) that the investigating officer has been appointed to carry out an investigation into the alleged breach.

(2) The investigating officer shall carry out the investigation either alone or with the assistance of such other member or members, as he or she may determine, with the approval of the Commissioner.

(3) Unless with the approval of the Commissioner, any other such member or members shall not be of the same rank as, or of a lower rank than, the member concerned.

(4) The investigating officer shall inform the member that he or she may seek advice from his or her representative association and may be accompanied at any interview with the investigating officer by an official of that association, by another member of his or her choice or by a solicitor or barrister at the member's expense.

(5) Within 7 days after the investigation has been completed, the investigating officer shall submit to the Commissioner a written report of the investigation containing his or her recommendation as to whether the facts disclosed warrant the establishment of a board of inquiry, together with copies of any written statements made during it and details of any information, document or thing which the investigating officer was made aware of during the investigation.'

14. Regulation 25 provides that if it appears from such a report that the member concerned may have committed a serious breach of discipline, the Commissioner shall establish a Board of Inquiry to determine if such a breach has been committed and, if so, to recommend to the Commissioner the disciplinary action to be taken.  It is of importance that up to this point in the process, neither the Commissioner nor the investigating officer has the power to require the provision by the member, or for that matter anyone else, of information, documents or things.  If, however, a Board of Inquiry is established in accordance with Regulation 25, the Board of Inquiry has such a power.  This is conferred by Regulation 28.  While Regulation 28 does not attach any express sanction for a failure to comply with such a direction, counsel advised the Court that a failure to comply with such a direction would itself be viewed as a breach of discipline.

The search and seizure provisions 

15. Section 7(1) of the 1998 Act provides for the entry, search and seizure of a place and any persons found at that place.  It is operative in respect of suspected offences of accessing, possessing or distributing child pornography.  The provision authorises the seizure of anything that is evidence of, or related to, an offence under s. 3, 4, 5 or 6 of the 1998 Act. The section does not authorise the use of the seized material in any other context. Section 7(1) provides as follows:

'7.—(1) Where, on the sworn information of a member of the Garda Síochána not below the rank of sergeant, a judge of the District Court is satisfied that there are reasonable grounds for suspecting that evidence of or relating to an offence under section 3, 4, 5 or 6 is to be found at a place specified in the information, the judge may issue a warrant for the search of that place and any persons found at that place.'

16. Section 9 of the Criminal Law Act 1976 ("the 1976 Act") refers, generally, to the use to which things seized under any power may be applied, and the purposes for they may be retained:

'9.—(1) Where in the course of exercising any powers under this Act or in the course of a search carried out under any other power, a member of the Garda Síochána, a prison officer or a member of the Defence Forces finds or comes into possession of anything which he believes to be evidence of any offence or suspected offence, it may be seized and retained for use as evidence in any criminal proceedings, or in any proceedings in relation to a breach of prison discipline, for such period from the date of seizure as is reasonable or, if proceedings are commenced in which the thing so seized is required for use in evidence, until the conclusion of the proceedings, and thereafter the Police (Property) Act, 1897, shall apply to the thing so seized in the same manner as that Act applies to property which has come into the possession of the Garda Síochána in the circumstances mentioned in that Act.

(2) If it is represented or appears to a person proposing to seize or retain a document under this section that the document was, or may have been, made for the purpose of obtaining, giving or communicating legal advice from or by a barrister or solicitor, that person shall not seize or retain the document unless he suspects with reasonable cause that the document was not made, or is not intended, solely for any of the purposes aforesaid.'

17. The power to seize and retain evidence is also addressed by s. 7 of the Criminal Justice Act 2006 ("the 2006 Act").  It operates in parallel with the 1976 Act:

'7.— (1) Where a member of the Garda Síochána who is in—

(a) a public place, or

(b) any other place under a power of entry authorised by law or to which or in which he or she was expressly or impliedly invited or permitted to be,

finds or comes into possession of any thing, and he or she has reasonable grounds for believing that it is evidence of, or relating to, the commission of an arrestable offence, he or she may seize and retain the thing for use as evidence in any criminal proceedings for such period from the date of seizure as is reasonable or, if proceedings are commenced in which the thing so seized is required for use in evidence, until the conclusion of the proceedings, and thereafter the Police (Property) Act 1897 shall apply to the thing so seized in the same manner as that Act applies to property which has come into the possession of the Garda Síochána in the circumstances mentioned in that Act.

(2) If it is represented or appears to a member of the Garda Síochána proposing to seize or retain a document under this section that the document was, or may have been, made for the purpose of obtaining, giving or communicating legal advice from or by a barrister or solicitor, the member shall not seize or retain the document unless he or she suspects with reasonable cause that the document was not made, or is not intended, solely for any of the purposes aforesaid.

(3) The power under this section to seize and retain evidence is without prejudice to any other power conferred by statute or otherwise exercisable by a member of the Garda Síochána to seize and retain evidence of, or relating to, the commission or attempted commission of an offence.'

18. Because s. 9 of the 1976 Act is the broader of these two provisions (at least in respect of the grounds on which material can be retained for use) I will concentrate on it in the analysis that follows.  It will be noted that each of these sections states that the Police (Property) Act 1897 will govern the disposition of things seized.  Section 1(1) of that Act provides:

'Where any property has come into the possession of the police in connexion with any criminal charge or under section sixty-six of the Metropolitan Police Act, 1839, section forty-eight of the Act of the session of the second and third years of Her present Majesty, chapter ninety-four (local), for regulating the police in the city of London, section one hundred and three of the Larceny Act, 1861, or section thirty-four of the Pawnbrokers Act, 1872, a court of summary jurisdiction may, on application, either by an officer of police or by a claimant of the property, make an order for the delivery of the property to the person appearing to the magistrate or court to be the owner thereof, or, if the owner cannot be ascertained, make such order with respect to the property as to the magistrate or court may seem meet.'

The High Court

19. While it was contended that the second notice of investigation was improperly based on information obtained after the DPP had indicated that the circulation of the WhatsApp message would not give rise to a criminal prosecution, there was no issue raised around the legality of the search or search warrant.  Nor was it contended that there was an absence of any required judicial sanction for the interrogation of the mobile phone as envisaged by the principles discussed in the decision of the Court in The People (DPP) v. Quirke [2023] IESC 5, [2004] 2 IR 1 ("Quirke").  Quirke post-dated the issue of these proceedings, but submissions addressing the case were received by the Court of Appeal, the judgment of which records the applicant as acknowledging that the warrants in the instant case did not suffer from the same defects as identified there. While the Court was not furnished with copies of the information on foot of which the warrants were granted, the warrant issued in respect of the applicant's place of work expressly referred to there being reasonable grounds for believing that there was at that location evidence of or relating to an offence under ss. 3, 5 and 6 of the 1998 Act comprising inter alia '[c]omputer equipment ... electronic storage media, mobile telephones ...'.  It seems reasonable to conclude that there had, thus, been direct judicial authorisation for the interrogation of the device, and at no point was it otherwise suggested.

20. In that context, Barr J. concluded as follows:

·         There was no difference between a subsequent criminal prosecution on different charges based on material found in the course of a lawful search, and a subsequent disciplinary charge arising out of material found in the course of a lawful search; material so seized could be used in either type of proceeding (paras. 51 and 52).  Once material came into the possession of the Commissioner as a result of the execution of a search warrant that suggested a possible breach of the discipline regulations he was required to act on it and could not have ignored the material found on the phone due to the fact that the search had been carried out to look for evidence of accessing, possessing or distributing child pornography (para. 54).  To do otherwise would have constituted a breach of the respondent's duty as Commissioner of An Garda Síochána and discipline within the force would have been adversely affected (para. 55).

·         Once the search warrant was obtained, those members of An Garda Síochána who executed the warrant had to look at all the material on the phone, and therefore acted lawfully in so doing (para. 59).  To that extent, this case was distinguishable from CRH plc. v.  Competition and Consumer Protection Authority [2017] IESC 34, [2018] 1 IR 521 ("CRH"), where this Court found that those executing a search warrant were corralled within the four walls of the warrant as to the material that could be viewed and thereafter used (para. 56).

·         Accordingly, as material in relation to the alleged breaches of discipline was obtained on foot of a valid search warrant, the respondent was entitled to use that material in any disciplinary investigation regarding the applicant's conduct, and that as the material that was found on the applicant's mobile phone was obtained lawfully, there was no reason why it should be excluded as evidence in any disciplinary inquiry (paras. 60 and 61).

·         In general, the respondent is not entitled to retain property seized pursuant to such a warrant for the purposes of a disciplinary investigation once the criminal investigation has come to an end (para. 67).  However, that did not mean that the applicant was entitled to the return of all material on the phone (para. 68).  Insofar as it was alleged by the respondent that the applicant had a number of photographs of the interior of Garda stations, copies of Garda documents and copies of entries on the Garda PULSE system, the respondent would be entitled to object to the return of those items to the applicant (para. 69). The implications of any difficulties encountered in deleting those items from the mobile phone would have to be determined in the course of a police property application in the District Court (para. 71).

·         Therefore, insofar as any of the material on the phone is Garda documentation or data which the applicant was not authorised to have on his mobile phone, then he is not entitled to the return of such documentation or data (para. 71).  Moreover, Barr J. emphasised that once material was found on the phone, even if the phone was returned to the applicant, those who conducted the search of the phone were entitled to give evidence of what they found on the phone (para. 72).

·         While the applicant had asserted breaches of his constitutional right to privacy, of Article 8 of the European Convention on Human Rights ("ECHR") and Articles 7 and 8 of the Charter of Fundamental Rights ("CFR"), Barr J. found that there was no actionable breach of the applicant's right to privacy arising from the foregoing: the material was obtained on foot of valid search warrants which were not challenged. Insofar as there was an invasion of the applicant's privacy by the search of the mobile phone, this was an invasion that was authorised on foot of the search warrant (para. 74).

·         Insofar as the applicant had contended that in using material that had been found on foot of the searches conducted under the search warrants the respondent was processing the applicant's personal data in an unlawful manner contrary to the provisions of the 2018 Act, the Court was not satisfied that any of the material the subject matter of either of the disciplinary charges constituted 'personal data' within the meaning of either the Data Protection Act 1988 or the 2018 Act (para. 75).

21. Some other questions agitated before Barr J. are not in issue in this appeal.  The applicant had contended that because the disciplinary investigation arising from the second set of allegations against the applicant (levelled against him on 17 July 2020) commenced after the conclusion of the criminal investigation (which ended with the direction from the Director of Public Prosecutions in May 2020), the search which led to the uncovering of the material the subject matter of that disciplinary charge was likely to have been conducted after the conclusion of the criminal investigation.  On the balance of probabilities Barr J. was satisfied that a complete search of the content of the mobile phone was probably carried out prior to the arrest of the applicant in June 2019, having regard to the extent of the search and the time when it was carried out. Accordingly, this ground of challenge was rejected.  Similarly, with regard to the question of the return of the bottle of methadone that had been seized, Barr J. decided that in the absence of any assertion of ownership of the methadone by the applicant, that there would appear to be no basis for directing its return (para. 77).

22. Barr J. noted that the applicant's main reason for requesting the return of his mobile phone was to enable him to conduct his own technical examination of the phone and the material on it in order to prepare his defence for the disciplinary hearing.  The Court accepted that the applicant was entitled to carry out his own examination of the phone in order to properly defend himself at any hearing before a Board of Inquiry, noting in that regard that the applicant should be afforded inspection facilities to ensure that he will be able to properly defend himself at any subsequent disciplinary hearing.  In those circumstances, Barr J. proposed making an order providing for: a declaration that the Commissioner is entitled to use the material found in any disciplinary investigation; a declaration that the Commissioner is not entitled to retain property seized during a search conducted as part of a criminal investigation after its conclusion on the grounds that such material would be of relevance to an ongoing disciplinary investigation; and a declaration that a person is entitled to the return of their property once criminal proceedings have been concluded subject to the proviso that where material is on a computer or mobile phone, the applicant must be able to establish ownership or assert a right to possession of the material (with any application for return of the property capable of being made in the ordinary way before the District Court).  Barr J. refused all other reliefs which were sought by the applicant and lifted the stay on the disciplinary investigations.

23. The applicant's appeal against that decision proceeded without the Commissioner seeking to cross appeal or to vary the High Court decision.  Thus, the finding of the High Court Judge that the Commissioner was 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 owned the property, stands unchallenged.

The Court of Appeal

24. The Court of Appeal framed the issue before it not by reference to the right of the applicant to the return of the phone, or that of the Commissioner to retain it, but instead focused on 'material' taken from the phone (para. 1):

'Is it 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?'

25. The judgment of the Court of Appeal was delivered by Ní Raifeartaigh J. (Noonan and Allen JJ. concurring).  Noting that the case did not involve a challenge to the warrant but that it did involve issues relating to the search of a digital device (and noting that the disciplinary charge relating to possession of a bottle of methadone did not feature in the arguments of the parties before the Court of Appeal), she framed the two key issues arising thus:

i.        First, whether the material found on the phone which led to the second set of disciplinary charges was obtained unlawfully because it was found on foot of a search of a phone conducted after the criminal investigation had concluded; and

ii.      Whether, even if it was lawfully obtained, the Commissioner is entitled to use it for a purpose other than a criminal prosecution, namely in disciplinary proceedings. [2]

26. Ní Raifeartaigh J. disposed of the first question by holding that the applicant had failed to establish on the balance of probabilities that there was a second search of his phone after the criminal investigation had concluded, and that the second set of charges was based on material found during that second search.  The Court therefore proceeded on the basis that the material was lawfully obtained as having been obtained during a criminal investigation on foot of a lawful seizure of the applicant's phone.  As I have already noted, this issue is not before this Court.

27. As to the second question - whether the Commissioner was entitled to use the material in question in disciplinary proceedings in respect of the applicant - Ní Raifeartaigh J. suggested that the argument of the Commissioner that it would be absurd if the right to privacy were interpreted so as to prevent the Gardaí from having the phone available for a disciplinary inquiry in circumstances where it was lawfully obtained, did have some attraction. However, Ní Raifeartaigh J. was of the opinion that the question that arose was whether evidence seized in a criminal investigation is even prima facie admissible in the police disciplinary context having regard to what was described as the general principle that materials gathered pursuant to a compulsory power conferred for one purpose must not generally be deployed for another purpose. Ní Raifeartaigh J. did not accept the assumption in the Commissioner's argument that an individual's privacy right is spent or exhausted once their phone has been lawfully seized. In her view, there is a continuing privacy interest in how the material can be deployed thereafter, albeit that the precise balance to be struck when material has been lawfully seized may be different to that needed at the time of the seizure itself.

28. Examining the text of s. 7(1) of the 1998 Act, Ní Raifeartaigh J. noted that the provision only authorises the seizure of anything that may be evidence of, or related to, an offence under the Act of child trafficking or child pornography, and that in the case of a physical search of a person or premises the member conducting the search would not be entitled to seize, for example, racist, misogynistic or antisemitic images. While the applicant's phone was lawfully seized, the issue was characterised by Ní Raifeartaigh J. in practical terms as whether the Commissioner was entitled to use material which could not have been seized in a physical form.

29. Ní Raifeartaigh J. then turned to s. 9 of the 1976 Act noting the argument of the applicant that the provision, by explicitly mentioning criminal proceeding and proceedings for breach of prison discipline thereby implicitly precludes the use of seized materials in other forms of disciplinary proceedings. Ní Raifeartaigh J. suggested that while s. 9 of the 1976 Act is primarily directed at the seizure of materials pursuant to a search power, s. 7 of the 2006 Act is primarily directed to the seizure of materials where the Garda is in a public place or lawfully on premises because of the owner's consent or having exercised some power of entry. Both provide for the use of the materials seized in any criminal proceedings, but s. 9 alone refers to prison discipline.

30. After considering a number of Irish, United Kingdom and Australian authorities (to some of which I return) Ní Raifeartaigh J. came to the following conclusions:

i.                    That there is a general principle that material obtained pursuant to a compulsory power - including search warrants -  may only be deployed for the purpose for which the power was exercised or for purposes reasonably incidental to it.

ii.                  That this general principle nevertheless admits of certain public interest exceptions which allow for the sharing of material compulsorily obtained with at least some public bodies in at least some circumstances. Furthermore, it is not clear whether specific examples of police information-sharing which were regarded as legitimate in the authorities necessarily include materials obtained pursuant to compulsory powers.

iii.                The importance of the public interest in inter-agency sharing of material was emphasised in the judgments of Desmond v. Glackin (No. 2) [1993] 3 IR 67 ("Desmond") and Gama v. Minister for Enterprise [2010] 2 IR 85 ("Gama") yet, she noted, these cases did not concern materials which had been procured on foot of search warrants or other compulsory powers, and there is therefore no Irish authority in which the point arising here has been decided.

iv.                When considering the extent to which material obtained pursuant to a compulsory power may be shared with others or deployed for a non-primary purpose, it is important to examine the precise terms of any relevant legislation which may be relevant.

31. As a result of the foregoing, Ní Raifeartaigh J. was of the opinion that the issue netted itself down to whether the relevant statutory provisions should be interpreted as implicitly excluding the use of materials seized pursuant to a search warrant in any proceedings other than criminal proceedings or prison disciplinary proceedings, or whether they are to be construed as being silent on the issue, leaving the general principles to govern the situation, thereby permitting of a public interest exception to the general prohibition on using the material outside of a criminal prosecution.

32. Ní Raifeartaigh J. noted that she did not consider a Garda disciplinary proceeding to be a purpose 'reasonably incidental' to a criminal prosecution, and that the purposes of each are separate and distinct. However, Ní Raifeartaigh J. noted that there is undoubtedly a public interest of the highest order in ensuring the integrity of An Garda Síochána which would fulfil the type of public interest criteria identified in the cited authorities, and that she would have no hesitation in concluding that this public interest would justify the use of the information by the Commissioner in the disciplinary proceedings.

33. Turning to the relevant statutory provisions, Ní Raifeartaigh J. noted the underlying constitutional and Convention status of the right to privacy, the far-reaching nature of digital searches, and stressed the fact that the framework for Garda disciplinary investigations does not currently confer any power for material to be produced compulsorily during the investigation stage.  This, she said, sat uneasily with the idea that a Garda disciplinary investigation could use material from a person's mobile phone on the happenstance that the material was compulsorily acquired during a criminal investigation in relation to an entirely different matter.  She continued:

i.                    Section 9 of the 1976 Act is to be interpreted as not merely authorising the use of certain materials (i.e. those suspected at the time of seizure to be evidence of any criminal offence(s)) in certain contexts other than those in respect of which the search warrant was issued in the first place, but also as limiting the use of any additional materials seized to the two forms of proceedings explicitly listed: criminal proceedings and prison discipline.

ii.                  If this is true of materials which could be lawfully seized pursuant to the expanded power conferred by s. 9, it follows a fortiori that where material seized likely did not even fall within that expanded seizure power, it cannot be retained and used outside those criminal prosecutions or prison discipline proceedings.

34. Accordingly, Ní Raifeartaigh J. was of the opinion that the Court was not at large to apply common law principles with public interest exceptions, but instead must defer to the intention of the Oireachtas as expressed in the legislation and bearing in mind the nature of the privacy interest at stake and the far-reaching nature of digital searches of smartphones. As a result, it was held that the material which 'incidentally came into the possession of the Commissioner in this case by reason of a search of the applicant's phone pursuant to a search warrant issued under s. 7 of the 1998 Act cannot be retained and used in Garda disciplinary proceedings'.  The reference to material coming 'incidentally' into the possession of the Commissioner is a reference to material which was not, in itself, capable of being evidence of the commission of a criminal offence.

35. In the course of reaching that conclusion, the Court noted that having expressly referred in s. 9 of the 1976 Act to proceedings for a breach of 'prison discipline' there was considerable force to the argument that the Oireachtas had, necessarily, impliedly out-ruled the use of seized material in any other type of disciplinary proceeding.  However, Ní Raifeartaigh did not base her conclusions on this ground, noting also that it might be said that the Oireachtas had merely included 'prison discipline' out of an abundance of caution and by reason of the specific subject matter of the 1976 Act.

36. As to the claim based on the Data Protection regime, Ní Raifeartaigh J. said she was less certain of the conclusion reached by Barr J. that the material did not constitute 'personal data' of the applicant. Having regard to the general description given as to the material found on the applicant's phone as set forth in the disciplinary charges Ní Raifeartaigh J. suggested that it seemed entirely possible, if not likely, that at least some of the material proposed to be used consisted of personal data. If this conclusion had been crucial to the determination of the Court of Appeal, then Ní Raifeartaigh J. suggested that it may have been necessary to seek further information from the Commissioner as to what was found or to refer the matter to the CJEU for consideration as to whether the material constituted 'personal data'. However, Ní Raifeartaigh J. ultimately concluded that neither course of action was appropriate in a situation where the Court had already decided that the applicant succeeded on the first ground of appeal. Accordingly, the Court declined to rule on the second ground of appeal, while expressing reservations about the High Court's conclusions on the matter.

37. It should be emphasised that the decision of the Court of Appeal was based squarely on the conclusions that the Court drew from the provisions of s. 9 of the 1976 Act.  Ní Raifeartaigh J. said as follows (para. 147):

'There is without doubt a public interest of the highest order in ensuring the integrity of the Garda Síochána, which depends as a collective body upon the integrity of its individual members.  There can be no doubt but that it fulfils the type of public interest criteria identified in cases such as Desmond ... Gama, or in Marcel.  Having regard to this public interest, and were it not for the relevant statutory provisions, I would have no hesitation in concluding that this public interest would justify the use of the information by the Commissioner in the Garda disciplinary proceedings and that such use would fall within the area of exceptionality the existence of which was identified in Marcel.'

The legal and factual background

38. Ní Raifeartaigh J. (at para. 77) isolated the material contained on the applicant's mobile phone that was in issue in the proceedings, being images (a) 'which appear to be racist, misogynistic, anti-homosexual, anti-Semitic, supporters of Nazi ideology or 'rape culture' and (b) 'which appear to be CCTV images relating to garda investigations and practices; images which appear to be garda computers, including images of suspects, PULSE incidents and Command and Control incidents; images showing garda documents, garda members and of garda station interiors'.  Six particular features of the factual and legal context have clouded the resolution of the question of whether the Commissioner is entitled to 'use' this material for the purposes of the disciplinary investigation.

39. First, it is entirely unclear what, exactly, the information in issue comprises.  As the description I have just quoted shows, the Court knows that there is material comprising 'images' of the general nature described by Ní Raifeartaigh J.  However, it is not known whether these are simply private photographs or records of the applicant's own personal opinions, whether they comprise matter downloaded by the applicant for his own use, or whether they are images of messages sent or received by the applicant to and from others and, if so, whether those others were members of the Gardaí.  One can fully understand why, in an action that has at its heart the applicant's own privacy rights, his advisors might have decided that to require production of and to deploy this material in open court would destroy the privacy he was seeking to protect, and indeed why the Commissioner might have deemed it proper not to introduce into the public arena the material over which the applicant was asserting privacy rights.  Those concerns, however, could have been met by the information being sealed or considered by the Court in a manner that protected those privacy rights.

40. Second, this has generated an issue around an important nuance in the Court of Appeal judgment.  While some of the reasoning of the Court of Appeal would suggest that once it was decided that there should be no criminal prosecution none of the material seen on or taken from the applicant's phone could be used in the disciplinary investigation, on one view the actual finding of the Court of Appeal was narrower: it was addressed only to material that 'incidentally' came into the possession of the Commissioner by reason of the search of the phone (para. 155).  This was distinguished from 'materials which could be lawfully seized pursuant to the expanded power in s. 9', the point of difference being that the material in issue here 'did not constitute evidence of any offence at all'.  That can be said with some confidence of the first category of information identified in the Court of Appeal decision, but perhaps not quite so confidently of all of the second (records of internal Garda documentation).  The Court was not addressed on this issue.

41. Third, the context is further complicated by the practical reality that there is a difference between information (with which this case is now primarily concerned), and personal property or 'things', and that there are various different ways in which it can be said that information is 'used', ranging from the indirect use of knowledge derived from that information, to the direct disclosure or deployment of documents or records in the course of legal proceedings.  Necessarily, those differences are reflected in the law.  The interests of the owner of a chattel are protected by the torts of trespass to goods and detinue.  Interests in information (where not otherwise protected by specific laws governing intellectual property) are protected at common law by the action for breach of confidence or, if such a cause of action is basically ineffective to protect the rights involved, actions for violation of constitutional privacy rights.  Where information comprises personal data, the 2018 Act establishes its own regime of rights and obligations.  And, to complicate matters further (as this case shows) somewhere between 'things' and 'information' there are 'things' that record 'information', in the form of documents or electronic devices owned by a person, and copies of those documents or downloads from those devices.  While the applicant is recorded in the Court of Appeal judgment as asserting that all the information on the phone was his 'property' (para. 47) it is by no means clear that this is, in fact, the case nor on what basis he so claimed.  It depends on the nature of the information, the form in which it is now retained and the legal authority pursuant to which (and reason that) it was reduced to that form. [3]

42. Fourth, while the applicant has throughout his arguments invoked the language of 'use', or 'utilisation' or 'deployment' the High Court and Court of Appeal do not appear to have been entirely clear how the relief claimed by him was to be interpreted: whether his objection extended no further than the deployment of the material or downloads from it before the investigator, or whether those who have seen the material should be prevented from recounting what they viewed on the phone, or for that matter whether the entire investigation should be halted because it is based on information obtained from the phone. [4]  Counsel for the Commissioner expressed the view in oral submissions that the Court of Appeal judgment prevented Gardaí who had seen the material from using that information to contact other members of the WhatsApp group to ascertain from them what information was exchanged with the applicant, and that the judgment prevented the establishment of a Board of Inquiry at all.  The Court of Appeal in its judgment drew a distinction in this regard which counsel for the Commissioner - I think both fairly and correctly - described as 'slightly ambiguous' between 'direct' use of the information 'in the disciplinary investigation' and what Ní Raifeartaigh J.  termed use 'in an indirect manner, such as using it to ground an application to obtain the phone from the appellant on foot of some other compulsory power' (para. 157).  The first of these was prohibited by the Court of Appeal, while it reserved its position on the second.  As I explain later, I do not believe that these can be so readily distinguished from each other.  The applicant's claim was directed to 'use', and both of these were 'uses'.

43. Fifth, it is similarly unclear how, exactly, the Commissioner says he obtained the information he wishes to so use.  The affidavit of Superintendent Creighton refers to the mobile phone as 'the actual exhibit which contains the allegedly offending material and is the best evidence of that material'.  The same affidavit refers to USB flash drives, and while not so stated in evidence by the Commissioner, this suggests that copies of at least some of the relevant material have been downloaded from the phone [5] and that, upon the return to the applicant of his phone, it is these copies which it is proposed to use in the disciplinary process.  At no point in the Commissioner's evidence has it been explained when these downloads (if this is what they are) were made, nor how the downloads might relate to any criminal investigation into the applicant, or anyone else.

44. In highlighting these deficiencies in the material before the Court I am not to be understood as being unduly critical of anyone.  At least some of these difficulties are the result of the fact that the case began as one in which the applicant's primary concern was with obtaining the return of his phone, and that the High Court having declared that the respondent was not entitled to retain seized property for the purposes of a criminal investigation the focus has shifted from the 'use' of the phone to the 'use' by the Commissioner of (as the Court of Appeal framed the issue before it) 'material ... found on the ... phone.'  There was, as I have explained, perhaps also an understandable sensitivity on the part of both parties about disclosing material where the object of the proceedings was to assert privacy rights over that material.

45. Sixth and finally, in the course of their submissions addressing that issue, the parties referred to a wide range of authorities, including the decisions in Marcel v. Commissioner of Police of the Metropolis [1992] Ch. 225 ("Marcel"), Desmond, Morris and ors v. Director of the Serious Fraud Office and ors. [1993] 3 WLR 1 ("Morris"), Johns v. Australian Securities Commission and ors. (1993) 31 ALD 417, ("Johns"), Gama, Woolgar v. Chief Constable of Sussex Police [2000] 1 WLR 25 ("Woolgar"), R. (Nakash) v. Metropolitan Police Service [2014] EWHC 3810 (Admin) ("Nakash"), Flori v. Commissioner of Police and anor. [2014] QSC 284 ("Flori"), McLean v. Racing Victoria Ltd. [2020] VSCA 234 ("McLean") and BC and ors v. Chief Constable, Police Service of Scotland and ors [2019] CSOH 48 and [2020] CSIH 61 (the decision of the Inner House is reported at [2021] SC 265) ("BC").  These cases reveal, to put it mildly, a noisy legal background. 

46. The decisions (none of which addressed the law governing the retention of 'things' seized in the course of a search, instead looking directly to information derived from such chattels) show that controls on the use of material seized on foot of a warrant have been derived from both private and public law and have been variously located in a combination of statute, common law and the Constitution.  Some of the cases thus apply a test first formulated in Marcel that is addressed to whether information derived from a search is being used for the purpose for which the powers of search were granted.  This was described by the Court of Appeal in the instant case as a 'general principle' which it fixed as a starting point in its analysis.  Others focus on whether there is statutory authority for the proposed use.  Some view the issues as governed by the law of breach of confidence, this being the cause of action engaged where, in certain circumstances, confidential information belonging to one person is obtained by another.  In that connection, some judges have decided these cases on the basis of public interest considerations, which afford a well-established defence to such a claim.  The decision in Desmond addresses the constitutional privacy interests arising where State authorities seek to disclose information obtained by them through the use of their legal powers, while the more recent decisions of courts in the United Kingdom also ground their analysis in the rights of privacy guaranteed by Article 8 of the ECHR.

47. I have found that the analysis of the question of the limits of the use of the material by the Commissioner can be simplified and clarified if the legality of the use of that material is reduced to three questions.  The first is whether (as the Court of Appeal found) s. 9 of the 1976 Act operates to prohibit the utilisation of the information derived from the phone for the purposes of the disciplinary investigation.  If so, that is the end of the matter.  If not, the second question - whether the use of that information for this purpose would be in breach of the applicant's constitutionally protected right of privacy – arises for consideration.  Rolled into that second question, necessarily, is the issue of whether the information is lawfully obtained by the Commissioner, and whether its use for that purpose would constitute an interference  with the applicant's privacy rights.   Finally, the issue arises as to whether the proposed use by the Commissioner of the information in question is compatible with the 2018 Act and Regulation (EU) 2016/679 ("GDPR").

Section 9: context

48. The judgment of Charleton J. in Quirke  records an informative history of the development of the law governing the extent of the power of seizure upon arrest or the execution of a search warrant, placing s. 9 in that context.  It is quoted in extenso by the Court of Appeal at paras. 99-102 of the judgment of Ní Raifeartaigh J.  What is relevant for present purposes is that in Ireland the case law culminated with the decision of this Court in Jennings v. Quinn [1968] IR 305.  There, it was decided that the police when effecting a lawful arrest, may seize, without a search warrant, (a) property in the possession or custody of the person arrested when they believe it necessary to do so to avoid the abstraction or destruction of that property, (b) property that is evidence in support of the criminal charge upon which the arrest is made, (c) evidence in support of any other criminal charge against that person then in contemplation, or (d) property that is reasonably believed to be stolen property or to be property unlawfully in the possession of that person.  The Court in that case allowed the retention of material so seized where the property was material evidence on a charge laid in another jurisdiction and countenanced the transmission of the property to that jurisdiction, at least in cases where the lawful arrest of the person was made in aid of the jurisdiction of the State in which the charge had been so laid.  However, O'Keefe J. (as he then was) also said that the police:

' ...may retain such property for use at the trial of the person arrested, or of any other person or persons, on any criminal charge in which the property is to be used as evidence in support of the charge or charges; and that thereafter they should return the property to the person from whom it was seized, unless the disposal of the property otherwise has been directed by a court of competent jurisdiction.'

49. This statement (which has been repeatedly adopted in the case law, most recently by Charleton J. in The People (DPP) v. Noonan [2025] IESC 22 at para. 30) relied upon, and completed, a line of authority beginning with Dillon v. O'Brien (1887) 20 L.R. Ir. 300, all of which cases came in the form of actions for detinue or trespass to goods.  The authorities discussed in that decision also show that property taken from a person so arrested that was not evidence of that offence had to be returned to the prisoner (see R v. Barnett (1829) 3 C & P 600, R v. Frost (1839) 9 C & P 131), and the decisions since have been consistent in requiring that if it is decided not to proceed with a prosecution or as soon as any prosecution has concluded, the property should, if the owner is known, be returned, at least when its return is demanded and the property can be lawfully possessed by the owner (Ghani v. Jones [1970] 1 QB 693, 709).  Although some of the common law cases were concerned with seizure upon arrest, the later cases suggested that the same right of retention and obligation of return governed material seized pursuant to a duly executed search warrant.  This reflected the owner's property interest in the seized chattel, the seizure and retention pending use in criminal proceedings affording a defence of lawful authority to an action for trespass or detinue (see McMahon and Binchy, The Law of Torts (4th edn, Bloomsbury, 2013) paras. 28.14-28.18).

50. What is, however, important is that these various formulations of why and how material seized on foot of police powers could be retained and used were rooted in judicial implementations of various interpretations of the public interest.  The right of the person to possession of their property was suspended on the basis of a supervening exigency derived from the due administration of justice.  In Dillon v. O'Brien itself Palles CB explained that the reason for the right of a constable in cases of treason and felony, upon a lawful arrest, to take and detain property of the person arrested which would form material evidence was simply derived from the interest of the State in a prosecution once commenced being determined 'in due course of law' (at p. 317); the interest of the State in the person charged being brought to trial in due course of law necessarily extended to the preservation of material evidence of his guilt and innocence (id.).  It was what Diplock LJ in Chic Fashions Ltd. v. Jones [1968] 2 QB 299 described (at p. 317) as 'the robust common sense of the reasoning of Palles CB' that prompted this Court in Jennings v. Quinn to root its formulation of powers of retention of seized evidence in that same 'public interest' (at p. 309) and indeed to extend those powers to circumstances in which there had been an arrest in aid of a prosecution in another jurisdiction.  That justification thus both afforded a defence in private law to an action in trespass, and in so doing provided legal authority for the resulting rule that seized goods could be retained for use in a subsequent criminal prosecution.

51. As of 1976, the combined effect of the English cases of Elias v. Passmore [1934] 2 KB 164, Chic Fashions Ltd. v. Jones and Ghani v. Jones, when viewed in the light of the decision of this Court in Jennings v. Quinn, had cast some doubt over the precise scope of the power of seizure of evidence in the course of searches conducted with and without warrants, and in particular as to the offences and persons that could be prosecuted on foot of such evidence, to the extent of prompting demands in the neighbouring jurisdictions for urgent legislative reform (see L. H. Leigh, 'Recent Developments in The Law of Search and Seizure' (1970) 33 MLR 268, 280).  Indeed, members of this Court have recently questioned whether, in particular, some aspects of Ghani v. Jones ever represented the law in this jurisdiction (see the judgment of Hogan J. in The People (DPP) v. Noonan (at para. 8)).

52. As Charleton J. explained in the course of his judgment in Quirke, the effect of s. 9 of the 1976 Act was to permit seizure of material relevant to any offence committed by any person.  It did so in a context in which the common law may have enabled only the seizure of materials relevant to the offence under investigation (paras. 61 and 62).  Thus viewed, it seems clear to me that the principal focus of the provision was not use, but retention and seizure.  The section confirmed the power of seizure of anything that might be evidence of an offence but extended what had been said in Jennings v. Quinn of retention, to any criminal proceedings (not just to criminal proceedings against the person from whom they were seized).  Having conferred that power of seizure, the power to hold the material was (necessarily) limited: retention for use as evidence.  It followed that the property had to be returned to its owner once that purpose was exhausted, the question of ownership (if controversial) being resolved by an application under the Police (Property) Act 1897.

53.  Section 9 falls to be construed in the light of s. 29(4) of the Offences Against the State Act 1939 ("the 1939 Act"). Section 29(1) of that Act (as subsequently amended by s. 5 of the 1976 Act) was declared invalid having regard to the provisions of the Constitution by the decision of this Court in Damache v. The Director of Public Prosecutions [2012] IESC 11, [2012] 2 IR 266.  As originally enacted, [6] it conferred a power upon an officer not below the rank of Chief Superintendent of An Garda Síochána to issue a warrant authorising the search of a building or other place where it was believed that there was documentary evidence at that place of the commission of an offence under that Act, or of treason.  Section 29(2) provided that a warrant issued under the provision authorised the seizure of documents or things that were reasonably believed by the officers executing it to be evidence of an offence under any section of the 1939 Act or of the offence of treason.  Section 29(4) provided:

'Any document seized under this section may be removed and retained for so long as the Minister for Justice thinks proper, and any other thing so seized may be removed and retained for a period of one month from the date of its seizure, or, if proceedings are commenced within such period for an offence under any section or sub-section of this Act or for treason, until the conclusion of such proceedings, and thereafter the provisions of the Police (Property) Act, 1897, shall, subject to the provisions of this Act in relation to the forfeiture of certain property, apply to the thing so seized in the same manner as that Act applies to property which has come into the possession of the Garda Síochána in the circumstances mentioned in that Act.'

54. Section 29(4) did not address 'use' at all.  The assumption was that seized material once retained in accordance with this provision could be 'used' as evidence in a prosecution for any offence under the 1939 Act, or for the offence of treason.  'Use' in other words was governed by the pre-existing common law.  A new s. 29 was substituted by s. 5 of the 1976 Act.  The terms of s. 29(4) as enacted were removed, the obvious intention being that the power of retention provided for in the original s. 29(4) would be transferred to s. 9 of that Act, which was to operate generally and not just in relation to offences under the Offences Against the State Act and treason.

55. Apart from that difference of scope, there are other differences between the two provisions. Section 9 referred to 'things' without making separate provision for the treatment of 'documents', it referred to searches by members of the Defence Forces and by prison officers and it enabled retention of seized material for use as evidence in proceedings in relation to a breach of prison discipline.  However, insofar as the issues in this appeal are concerned, the critical difference between the two provisions was the removal of the limitation that 'things' seized could only be retained for one month unless a prosecution was commenced within that period, and its replacement with a power of retention framed by reference to a proposed use, the duration of the permitted retention being a 'reasonable' period or until the conclusion of a prosecution or, as the case may be, prison disciplinary proceedings.

Section 9: analysis

56. I have referred earlier to the fact that in explaining the scope of her judgment Ní Raifeartaigh J. suggested that her conclusion was limited to material that had 'incidentally' come into the possession of the Gardaí by reason of a search of the applicant's phone (para. 155).  This was a reference to material that did not fall within the seizure power conferred by s. 9 because it was not evidence of any offence at all.  However, she also suggested that s. 9 limited the use of materials seized to criminal proceedings or proceedings for breach of prison discipline and that preclusion that extended to anything so seized.

57. While one cannot but be impressed by the careful analysis conducted by the Court of Appeal of s. 9 of the 1976 Act (and the extensive survey of the relevant authorities addressing the relevant common law principles), I respectfully disagree with two aspects of the judgment of Ní Raifeartaigh J. The first arises from her construction of s. 9, and her conclusion that this provision limited the use to which seized goods could be applied.  There are, certainly, significant limitations on the use to which the authorities can put material seized on foot of powers of search and seizure.  Those restrictions, however, do not derive directly from s. 9 in the manner suggested by the Court of Appeal.  The second is the suggestion that s. 9 affects in any way the 'use' of information derived from the execution of a search warrant.  Section 9 is not concerned with the 'use' of information at all, a fact that becomes clear from a consideration of the various ways and circumstances in which information derived from the execution of a search warrant might fall to be 'used'.  It is, instead, necessary to look elsewhere to identify the nature and extent of restrictions on the 'use' of that information.

58. While the first of these may not be critical to the disposition of this case, I will take the liberty of explaining the proper operation of the provision as I see it.   Section 9 does not state in those terms that seized materials can be 'used' for any particular purpose. The entitlement to 'use' such material is, instead, the logical consequence of the words 'retained for use'.  The conclusion that because the section allows seized material to be retained for use for a particular purpose, it can be used for that purpose is an obvious and unimpeachable one, but the proposition that that this deduction from 'retained for use' entailed the implication of a statutory preclusion on any other use of any kind was to put too much on these words and to imply into s. 9 something that could have been but was not, expressly provided in the section.  It was to treat s. 9 as, effectively, positing a complete code governing the retention and use in any way of material derived from the exercise of any power of search.  This, it appears to me, the section did not do.  Instead, the provision envisages some uses that were not authorised by the common law, but does not purport itself to exhaustively describe either all permitted or all impermissible uses of material seized in the course of a search.

59.  To take one example, the logic of the conclusion that s. 9 impliedly limited the use of seized materials to those identified in the provision would appear to have implied that the Oireachtas was overruling the finding of this Court in Jennings v. Quinn only a decade earlier that material seized on arrest could be retained for use in a prosecution in another jurisdiction and provided to foreign prosecuting authorities for that purpose.  It is hard to see that this was either the intention behind, or effect of, s. 9, not least of all having regard to the reasons the suite of legislation of which it was part was enacted. [7]  But whether or not this is so, had the provision been intended to have the effect contended for by the applicant, the Oireachtas would have made it clear that by referring to certain 'uses' as affording a basis for 'retention' it was thereby precluding all other retentions and uses.  The section certainly does not say this.

60. Section 9 was, instead, I think intended to condition and in certain respects expand a pre-existing legal regime governing the seizure by the police of evidence, and the use of that evidence.  By expanding the grounds on which evidence thus seized could be retained and used, the defence of lawful authority for what would otherwise have been a trespass to goods was extended, but the principal source of regulation of the right of the person who owned seized goods to their return remained the law of trespass, not s. 9.  Section 9 says nothing about the remedies available to a person whose goods have been lawfully seized but improperly retained, beyond enabling the procedure provided for in the Police (Property) Act 1897 (which itself provides for a summary procedure allowing the return to the owner of goods unless that person cannot be found).  Similarly, it is the general law rather than s. 9 that drives the legal restrictions on use.  If a police officer lawfully seizes a motor vehicle, and while lawfully retaining it pending a prosecution in which it is to be evidence, uses it for his own private purposes, he acts unlawfully.  But that is not because of anything in s. 9; the remedy provided to the owner arises from the law of trespass.  The section is relevant only insofar as it does not provide any authorisation for such a use which is therefore actionable.

61. Either way, there is no question of the Commissioner being permitted to retain the phone seized from the applicant for the purposes of Garda disciplinary proceedings.  The phone is the applicant's property, s. 9 does not permit its retention for Garda disciplinary proceedings and there is no authority and no version of the common law of trespass that allows the retention of a person's property for the purposes of Garda disciplinary proceedings.  Thus, I agree with Woulfe and Hogan JJ. when they say that s. 9 of the 1976 Act does not apply to allow the retention of property for the purposes of Garda disciplinary proceedings, and insofar as they posit that it would not be appropriate to extend it to such proceedings by judicial decision, I think their analysis is wholly correct. For the same reason, I agree with their conclusion that this case cannot be resolved on the basis of an 'implied powers' argument as advanced by the Commissioner.

62. The applicant is therefore entitled to the return of the chattel.  That the applicant is entitled in principle to the return of his phone, as I have earlier said, is not an issue in this appeal. [8]  But the applicant's entitlement to the return of the phone is only indirectly because of the reference in s. 9 to 'use' of the phone; it is because the law of trespass entitles him to recover possession of his property, and because the statutory defence to such a claim provided for in s. 9 is limited to circumstances in which there may be a prosecution or a prison disciplinary proceeding.

63. More importantly, even if s. 9 imposes a direct restriction on the 'use' of seized materials, the provision is not directed at all to the distinct question of the use or application of information obtained in the course of  a search or from possession of the retained chattels.  That issue was, simply, not in view at the time the provision was enacted.  It is thus to be expected that the language of s. 9 makes clear that it is concerned with seized property and not knowledge or information derived from same. The critical words in s. 9 refer to 'anything' believed to be evidence of any offence, the provision continuing 'it may be seized and retained for use as evidence in any criminal proceedings, or in any proceedings in relation to a breach of prison discipline'.  What is seized is, of course, a thing ('it'), and it is that thing that must be retained only for use as evidence.  However, information cannot be 'retained for use' or at least cannot be retained in the same way as a 'thing' because upon return, the authorities will continue to "possess" any of the information their agents can recall, and they will continue to "possess" any of the information the authority has lawfully copied or downloaded that does not in law belong to the owner of the device from which it was taken and that the authorities are not otherwise required by law to relinquish or destroy.  Information cannot be the subject of an application under the Police (Property) Act 1897, and indeed, in some cases it will not be 'property' as that term is ordinarily understood.

64. Not only does the language of the provision not fit with a restriction on the use of 'information' or 'knowledge' derived from a search, but the section simply cannot apply in the same way to information recorded on or derived from a 'thing' so seized as to the thing itself.  If a police officer when executing a search warrant on a premises reads information recorded on a sheet of paper but does not seize it, the section does not apply to the information on that paper (although the law of breach of confidence and, if not adequate, the constitutional tort of invasion of privacy would obviously limit its user).  It would be strange if by seizing the material, the Gardaí were in a worse position.  Conversely, if a document is seized and there is a prosecution and information contained on that document becomes public, the Gardaí must return the original document containing the information to the accused at the conclusion of the criminal proceedings, but there is nothing stopping them (or anyone else) from using the now public information for purposes that have nothing to do with the search.  Yet it is the end point of the applicant's argument that s. 9 in fact prohibits the 'use' of the information because the criminal prosecution has concluded.  The correct analysis is that use of the information is governed by the law of breach of confidence or privacy, and that because there is no confidence or privacy in public information, there is no preclusion on its use at the conclusion of such a trial.  The limitations, however, derive from the general law, not s. 9.

65. All of this is demonstrated by one example suggested by Woulfe and Hogan JJ. in the course of their judgment.  If, they observe, the Gardaí seize a notebook in the course of a search, the contents of that notebook could be deployed in the course of a subsequent criminal trial.  This shows, they say, that s. 9 extends to the information in the notebook.  But the reason the notebook can be deployed in the subsequent trial is not directly because of s. 9: it is because the Gardaí lawfully possess the notebook, because it is relevant to the issues in the trial and because it is the best evidence of its contents.  If the notebook were by happenstance destroyed before the trial, a police officer who had read its contents might be permitted to give evidence of what it contained, but that is not a result of anything in s. 9 but because of the general law.  And, if the notebook were not destroyed but produced in evidence - at the risk of repeating the point - at the conclusion of the trial it would have to be given back to its owner, but anyone who heard the evidence of its contents can 'use' that information for any purpose.  The logic of the dissent is that that information could not be used for any purpose, because s. 9 applies to the 'use' of information, because it exhaustively describes what use seized 'things' can be put to, and because it does not permit such a use at the conclusion of the criminal proceedings.  The dissent, in other words, assumes that information and the material on which it is recorded are indivisible: commonsense and experience shows that it sometimes happens that they are not.

66. Finally, in this regard, there is no logical reason why - if the provision were to apply to restrict the use of information derived by the Gardaí from seized material – the Commissioner would not similarly be precluded from using information derived from the search in any way.  The inquiry was initiated because and only because the Commissioner obtained information from the seized phone.  By initiating the inquiry, he was therefore 'using' information obtained from the phone, just as any Board of Inquiry that was established that proceeded to make a lawful demand for production of the phone would be 'using' the knowledge and information derived from the phone to advance its inquiries. Moreover, the logic of the applicant's case is that not only must the Gardaí not 'use' the physical material obtained on foot of the search in the course of the disciplinary investigation, but it must also follow that the Commissioner or his agents could not receive evidence from the officers who had read that material recounting what they had seen, nor could they use information obtained from the phone to contact other Gardaí who had received these messages.  Barr J. correctly observed this (at para. 72 of his judgment), but the Court of Appeal reserved at least some aspects of that issue (at para. 157 it was stated that the judgment 'does not speak to the question of using that information in an indirect manner').  However, if the construction of s. 9 urged by the Court of Appeal were correct, all of this would also have been prohibited because it involved 'use' of information obtained from the phone in precisely the same way as would production of copies of any material downloaded from the phone.  The suggestion in the Court of Appeal judgment that there might be a different rule for 'derivative' use was, with respect, misplaced.  That distinction has been drawn in cases of unlawfully obtained evidence, but here the 'tree' is not 'poisonous' but benign; all arguments in the case have proceeded on the basis that the Commissioner's access to the information in question was entirely lawful.

67. In short, to deduce prohibitions on any of this from the terms of s. 9 is to attribute to the legislature an intention to impose by the most oblique language a prohibition of remarkable breadth and moment on the use of information that was obtained entirely lawfully.  Without in any sense finally deciding the issue here, even in the case of an unlawful search, the decision of this Court in Curtin v. Dáil Eireann [2006] IESC 14, [2006] 2 IR 556 suggests that this is not the law - or at least not the law in every situation - and the same conclusion has been reached in England in Nakash in the context of Article 8 of the ECHR  The resolution of the issue presented in this appeal, accordingly, does not lie in s. 9 of the 1976 Act.  Instead, it must be determined by reference to the privacy rights enjoyed by the plaintiff in his phone, and in the information derived from it. [9]

Section 9: Conclusions

68. Two clear conclusions relevant to the relief claimed by the applicant in these proceedings can be taken from this analysis of s. 9.  First, once a decision was made by the DPP that there was to be no criminal prosecution of the applicant, he was entitled to the return of his phone.  Section 9 did not afford legal authority for its retention, and there is no common law authority for the proposition that seized goods may be retained for disciplinary purposes of the kind in issue here. [10]

69. Second, s. 9 does not impose any preclusion on the 'use' of information derived from the lawful exercise of the powers of search to which it refers. Therefore, the section does not prevent the Commissioner from acting on knowledge lawfully obtained by him or his agents from their perusal of the contents of the phone.  This is the case irrespective of whether the information was itself potentially relevant to a criminal investigation.  The use of that information to initiate the investigation, to contact witnesses, or to issue an Order for the production of the phone will engage the applicant's constitutional right to privacy, and there may well be a distinction in the application of that right between information relevant to an offence and information that may not be relevant to an offence.  None of these restrictions, however, arise from the limitations on retention provided for in s. 9.  I consider next the controls on the use of such information arising from the applicant's privacy rights.

70. What is unclear - and cannot be resolved by reference to the evidential record before the Court - is how copies or downloads of material from the applicant's phone should be treated.  There are two ways of looking at this.  On one view, those downloads are the applicant's property and should be treated in the same way as the phone from which they were copied.  That conclusion may lie in the law of personal property, or indeed the circumstances might justify a pragmatic response to the fact that the material copied from the phone cannot and should not be separated from the physical object from which it was taken.  This was the approach adopted in McLean (at para. 125) (an approach which did not preclude the use of knowledge derived from analysis of a seized item, as this could be kept 'conceptually and physically separate' from dealing with the seized goods).  The intervention of constitutional rights of privacy or property may well point the law in that direction and, in particular, may mandate the conclusion urged by the applicant in his submissions that in the absence of a precise statutory power permitting retention of non-criminal material, destruction of that material is the appropriate course of action (referring to Re iPhone 4 27 F. Supp. 3d 74, 80 (D. D. C. 2014)).

71. On another view, however, if any downloads were lawfully made, and if upon being generated they were the property of the Commissioner, or perhaps if the downloads were copies of material that the applicant had unlawfully on his phone, neither s. 9 nor the law of trespass govern the copies.  As I have suggested earlier, there may be common law authority that supports this view and, if that were the conclusion reached on the evidence, the use of such downloads and documents would fall to be addressed via the controls I consider next.  At a practical level, it might be said to make little sense that an officer who reviewed the phone can give evidence of what he saw and happened to memorise but could not produce lawfully made copies of same.

72. However, it is not known when or why any downloads (if that is what they are) were actually made.  If they were made after the phone ought to have been returned, the Commissioner should not have made them.  Irrespective of when they were made, if the material contained in any copies or downloads was not copied for the purpose of any criminal investigation but only for the purpose of disciplinary proceedings, there would be a significant issue as to whether copies should ever have been made. One would have thought that the power to copy materials cannot be any greater than the power to seize the materials in the first place.  It is possible that some of the information (in particular the first of the two categories identified by Ní Raifeartaigh J.) could not have been downloaded in aid of any criminal inquiry, but that the second category (dealing with police information), could.  The Commissioner may well wish to say that even though he should not have the information, he should be permitted to use it and, as I have observed, there is also authority that might support this in at least some circumstances.  The case, however, has proceeded on the basis that the Commissioner only sought to use information he had lawfully obtained.

73. However, the Court cannot answer any of these questions because it does not know (a) whether in fact the Commissioner has copies or downloads of information from the applicant's phone, (b) if so, what they contain, (c) when they were made, (d) for what purpose they were made (and, in particular, whether the copies were made for the purposes of the criminal investigation) or (e) pursuant to what legal authority, precisely, they were made.

74. Both the High Court judge and the Court of Appeal resolved the question of whether the second set of disciplinary proceedings had been commenced on the basis of information obtained prior to the communication of the DPP's decision through the application of the burden of proof.  They reasoned that it was for the applicant to establish that the information had been obtained unlawfully, and he could have done this by cross-examining the Garda witnesses.   He had, therefore, failed to establish that it was obtained unlawfully.

75. That cuts both ways.  The applicant brought these proceedings seeking to restrain the use of material derived from his phone in the disciplinary proceedings. He has established that he was entitled to the return of his phone.  If the Commissioner wished to assert in response that he had copies of information derived from the phone that he was entitled to deploy in the investigation, it was a matter for him to lay before the Court the facts on the basis of which the Court could so conclude. That meant he had to assert that there were such copies or downloads, and that he had to advise the Court what they comprised with somewhat greater specificity than he did. While, in my view, he should have explained in a clear and forthright way how, why and when those copies were made, if the High Court and Court of Appeal were correct in the manner in which they addressed the onus of proof issue in the case (and I express no view on that), then it may well be that it was a matter for the applicant at that point to use facilities of cross-examination or discovery to establish that the downloads or copies were unlawfully in the possession of the Commissioner, if that is the case he wanted to make.  But at the very least it was incumbent on the Commissioner to state clearly what it was he had and wanted to use.  Here, the Commissioner failed not only to state how and when copies or downloads of information from the applicant's phone were made, he also has never actually said that such copies or downloads have ever been made.

76. In point of fact, in the course of the hearing before this Court it was disclosed that the phone has not been returned to the applicant, the strong suggestion from counsel being that this would not be done until the Commissioner knew what he could extract from the phone first. [11]  The answer to that question, at least, is very simple: the Commissioner should not have the phone and therefore he cannot extract anything from it now - nor should its contents be reviewed for the purposes of the disciplinary investigation.  If he legitimately and lawfully extracted material from the phone as part of the criminal investigation, he may be entitled to use that in the disciplinary investigation, but given that the Commissioner has declined to actually state whether he has done this, the Court cannot resolve whether, if he had done it, he can deploy it.

The applicant's constitutional right to privacy: defining the issue 

77. There can be no doubt but that the applicant enjoyed a privacy right that was engaged when the Commissioner sought to search his mobile phone. Therefore, the Constitution requires a clear legal basis for the search of such a device.  Charleton J. said in Quirke (at para. 73) of a search of any computer device that:

'the nature of computer devices as a portal through which something other than physical space, often located outside the actual device seized, and instead accessed on remote servers or on the cloud .... requires the interposition of the judicial mind before such a virtual search can be authorised'.

While concerned with a personal computer, the issues identified in that judgment apply with perhaps even greater force to a mobile phone, which may not only contain details of internet searches and websites accessed by its owner, but may in addition reveal details of contacts, location, and messages sent or received by that person.  It is indeed, as Woulfe and Hogan JJ. put it in their judgment 'a living diary of the average citizen'.  The obtaining of access to what Cromwell J. in R v. Vu 2013 SCC 60, [2013] 3 SCR 657 at para. 40 (citing A. D. Gold, 'Applying Section 8 in the Digital World: Seizures and Searches' (Law Society of Upper Canada, 7^th Annual Six-Minute Criminal Defence Lawyer (June 9, 2007)) at para. 3) described as that 'multi-faceted instrumentality without precedent in our society' thus requires legal authorisation. That authorisation must generally itself demand that 'the judicial mind could decide in issuing a search warrant that intruded into that space was authorised' (Charleton J. in Quirke at para. 78). As Karakatsanis J. stated in his dissent in R v. Fearon 2014 SCC 77, [2014] 3 SCR 621: '[o]nly judicial pre-authorisation can provide the effective and impartial balancing of the state's law enforcement objectives with the privacy interests in our personal computers ... the police must obtain a warrant before they can search an arrested person's phone or other personal digital communications device'.  Charleton J. further explained in Quirke (at para. 97) that:

'The seizure for entry into the digital space involves the automatic loss of privacy rights on a vast scale.  Without judicial scrutiny, seizure for the purpose of a non-physical search into mobile phones and other computer devices of vast memory and carrying the private dimensions of a human life over years or months no balancing of rights can be undertaken whereby a court may authorise such a search and seizure.'   

78. In this case, there is no question but that the search of the applicant's phone was authorised by judicial warrant.  As I have noted earlier, that occurred in a context in which the judge granting the warrant knew that it was proposed to search computer equipment, electronic storage media and mobile phones.  The decision in Quirke is clear that the grant of such a warrant by a judge who has directed their attention to the proposed search of a digital device is what the law and the Constitution requires.  There is no requirement for search protocols (Quirke at para. 101), nor are the Gardaí limited to searching for evidence of the specific offence for which the warrant was granted.  As Charleton J. explained (at para. 88):

'Where a computer seizure was justified by a sworn information in advance of a search on a particular criminal investigation, thus authorising the access to its contents, that lawful seizure also enables the gardai, in searching that digital space, to uncover evidence of other crimes for which a warrant was not granted because the gardaí were proposing in good faith to search in respect of a different crime.'

79. Not only is it thus evident that the search of the applicant's phone was lawful, but there is no issue before this Court but that the circumstances in which the respondent came upon the information which he proposes to use in the course of the disciplinary investigation was itself lawful.  The assumption that appears to underlie the judgment of Woulfe and Hogan JJ. that 'the Gardaí have clearly trawled the respondent's smartphone in search of material allegedy bearing on his own personal beliefs for use in a disciplinary inquiry' would, were it part of the evidential record before this Court, without doubt raise important issues around the entitlement of the Commissioner to use information so obtained.  That, however, is - respectfully - not a finding that this Court is entitled to make in the absence of any evidence before the Court to that effect, and for that matter in circumstances in which the applicant did not seek to cross-examine the Commissioner's witnesses on their affidavits. [12]  The consequent accusation that this judgment 'casts aside' the rights of privacy and dignity of the individual is, again with respect, founded on a version of the facts and law that does not form part of this decision.  The interrogation of the phone was lawful, the knowledge obtained as a result was lawfully obtained, and clear duties imposed by the express (not the implied) terms of statute law required the Commissioner to act as he did.   

80. Thus, at risk of repetition, the manner in which the applicant's privacy right is engaged is very particular.  The knowledge which the Commissioner wishes to use has been obtained lawfully and the proposed use arises from an express statutory duty imposed to advance a clear and identifiable public interest. There is accordingly no analogy with cases invoked by Woulfe and Hogan JJ. such as Kennedy v. Ireland [1987] IR 587 in which communications were unlawfully intercepted, or cases such as Herrity v. Associated Newspapers (Ireland) Ltd. [2008] IEHC 249, [2009] 1 IR 316 in which personal information was both unlawfully obtained and disclosed by private entities acting only in their own commercial interests.  Even if the applicant could make a case based on confidence or privacy that copies of his information should be returned to him or destroyed, the knowledge of the Commissioner and his agents of information obtained lawfully cannot be unlawful.  He knows that there is material on the applicant's phone which, the Commissioner believes, may disclose disciplinary offences. Even if the Commissioner were to return any copies he has made of the material downloaded from the applicant's phone, the Gardaí who have seen that material cannot divest themselves of that knowledge and, unless there is a rule of law to the contrary, would remain free to advise the investigator of what they had seen.

81. Thus, the question is not whether the applicant's privacy rights have been breached by access being obtained to the information, or by the fact that the information remains 'known' by the Commissioner.  Instead, it is whether the applicant's rights of privacy function to prevent information of the kind identified by the Commissioner being used for the purposes of a disciplinary inquiry in circumstances where that information was obtained by the Commissioner quite lawfully, and in which his knowledge of that information is itself entirely lawful.

Privacy: the framework

82. That falls to be considered in a context in which privacy is not a single right, but - as it was described by Henchy J. in Norris v. Attorney General [1984] IR 36, 71 ("Norris"): 'a complex of rights which vary in nature, purpose and range'.  Gathered together under the unifying description of 'privacy' these rights 'all appear to fall within a secluded area of activity or non-activity which may be claimed as necessary for the expression of individual personality' (id. at p. 72).  Defined by Judge Cooley's famous designation 'the right to be let alone', [13] the various dimensions protected by the concept are usefully categorised as decisional, spatial and informational (see Carolan and Delaney, The Right to Privacy: A Doctrinal and Comparative Analysis (Round Hall 2008) at p. 23-24), functioning as they do to protect disparate and corresponding interests; zones of seclusion, personal autonomy or control, intimacy and personal information,  (see Costello, Privacy Law in Ireland (Bloomsbury 2023) at para. 2.15).  From its earliest expressions, the right to privacy has been defined by reference to the qualifications necessarily built into its reasonable application [14]: it functions to protect those aspects of seclusion 'meriting recognition in circumstances which do not engender considerations such as State security, public order or morality, or other essential components of the common good' (per Henchy J. in Norris at p. 72).  The exigencies meriting interference with those values are 'overwhelming' in the protection of inter alia 'discipline in the armed forces or the security forces' (McCarthy J. in Norris at p. 101).

83. Privacy is thus fairly described as 'a complex of rights'.  Attempts to invoke it without due regard to the specific nature of the interest in play, and the particular justification for an actual or proposed interference with that interest risk an oversimplification of its application.  This is particularly important when - as in this case - the issue is one of informational privacy, and where the strength of the privacy interest in issue may vary depending on the nature of the information in issue.  Any proper analysis must start with an identification of what aspect of privacy is threatened or said to have been violated, what the proper limits of that specific zone of privacy are, whether the asserted basis for an interference with those interests is such as to legally justify it, and, if so, whether the interference is proportionate to that justification.

84. The need for a search warrant prior to the interrogation of the applicant's telephone arose from his right to privacy, but not simply from his interest in preventing others from seeing what was contained on his phone.  He was entitled to demand judicial intervention prior to permission being granted to search his phone because it allowed access to a wide range of information to the extent that 'the sum of an individual's private life can be reconstructed' from the information contained in it, and for the very reason that it contains 'a digital record of nearly every aspect of their lives' (Riley v. California 573 US 373 (2014) at pp. 18-19 per Roberts CJ).  This is, as Hogan J. put it in Corcoran v. Commissioner of An Garda Síochána [2023] IESC 15, [2023] 2 ILRM 237 at para. 96, 'technology which enables the person having access to learn almost everything about the owner, ranging from one's personal life, medical and financial records, personal interests, political views to knowledge about friends, acquaintances and other contacts'.  That access thus involves interests of seclusion, space and autonomy analogous to those engaged where there is a search of a dwelling (as indeed Woulfe and Hogan JJ. suggest in their judgment), with all of the implications for a person's control over their own zone of private activity and sense of personal security that this entails.

85. In the course of their respective judgments in Cogley v. Radio Telefís Éireann [2005] IEHC 180, [2005] 4 IR 79 and Herrity v. Associated Newspapers (Ireland) Ltd. Clarke and Dunne JJ. both drew a distinction between complaints about how information was obtained, and complaints around its disclosure.  The interests engaged by each may be different.  In this case, a warrant was obtained, and the information is lawfully held.  The issue now is a far narrower one, depending on whether the applicant's rights to privacy give him a right to prevent the use of information obtained lawfully on foot of that warrant.  That is, of course, in no sense to suggest that his privacy rights are not engaged by that use.  They are.  But the interests engaged when supervising access to that information, and those falling for analysis when assessing the permissibility of use of information that has been lawfully accessed are not exactly the same.  Indeed, I do not understand Woulfe and Hogan JJ. to suggest that they are.

86. In examining that question, I will put to one side whether the applicant  has a right of privacy of any substance in the particular information in question, bearing in mind that the information was taken from his phone, the contents of which, generally, he clearly had a reasonable expectation of privacy.  That said, his privacy right in photographs of police stations or of Garda records seems at best highly attenuated.  If some or all of the data comprises information he sent to others, the privacy interest in those messages may be similarly precarious unless he has a reasonable or legitimate expectation of privacy in respect of the messages (see the discussion of this question in the specific context of WhatsApp messages exchanged between police officers in the judgment of the Outer House in BC at paras. 128 and 147).

The privacy right issue: the case law  

87. While very particular issues may arise for consideration in cases where the authorities have obtained information unlawfully, and in which it may be argued that there is a compelling reason for preventing dissemination of information so obtained irrespective of the public interest involved in disclosure, the position is quite different in cases in which the information is lawfully obtained and properly known to the authority.  In that situation, it is unsurprising that domestic constitutional law and cases from other jurisdictions applying limitations derived from both Article 8 of the ECHR and the equitable cause of action for breach of confidence have permitted the use of information obtained by statutory bodies for one purpose, in order to discharge another function in the public interest.

88. The law in this jurisdiction is defined in this regard by the decisions of this Court in Desmond and Gama.  However, these cannot be understood without reference to the decisions of the High Court and Court of Appeal of England and Wales in Marcel which were heavily relied upon by this Court in both decisions.  Marcel appears to have been the first case in which a similar common law jurisdiction has sought to define the limits on the use of information obtained as a consequence of a lawful search.  So, while Marcel is not a case that directly engages the constitutional issues that arise where it is proposed to disclose information in which a party has a privacy interest, it was the immediate precursor to the cases here that did.

89. In Marcel, the Court was concerned with documents seized by the police on foot of powers granted by Part II of the Police and Criminal Evidence Act 1984 ("the 1984 Act").   These powers allowed for the seizure of material without a search warrant.  Section 22 of that Act provided that materials so seized could be retained (i) for use as evidence at trial for an offence, or (ii) for forensic examination or for investigation in connection with an offence, or (iii) for the identification of its rightful owner.  The seized documents were believed to be relevant to civil proceedings, resulting in one of the parties to that action serving a subpoena duces tecum requiring the police to produce the document to the court hearing those proceedings.  The High Court ([1992] Ch 225) set aside the subpoena reasoning, essentially, that the police are authorised to seize, retain and use documents only for public purposes related to the investigation and prosecution of crime and the return of stolen property.  This, the Vice Chancellor said, might also enable the disclosure of information so seized to other public regulatory authorities so as to enable the better performance of public functions by public bodies.  It did not, however, permit disclosure to private individuals for private purposes.

90. The Court of Appeal reversed that finding, the basis of the decision being summarised by Dillon LJ (at p. 257) in terms that 'the powers the police have to use seized documents ... do not ... absolve the police from the duty which police officers share with every other citizen to obey the orders of the courts in civil proceedings and in particular to obey subpoenas duly served upon them.'  While there had been a disclosure of the documents to a solicitor representing one of the parties to the case prior to service of the subpoena, this was found not to justify precluding use of those documents insofar as they were covered by the subpoena, having regard to the lack of clarity around the law.

91. Outside that basic conclusion (which was shared by Dillon and Nolan LJJ), the judgments are not entirely consistent.  Those inconsistencies, at least to some extent, are products of the fact that at different points in their judgments the three members of the Court of Appeal moved between public law duties and private law causes of action.  The public law duty was, in fact, quite diluted: Nolan LJ expressed it as entailing a requirement that 'the powers must be exercised only in the public interest and with due regard to the rights of individuals' (at p. 261).  The notion of a restriction grounded in the purpose of the search was, at least at some points, placed in the contours of the action for breach of confidence - to which there has always been a public interest defence (see Dillon LJ at p. 257 and Nolan LJ at p. 261). That said (and noting that the Court did not relate its analysis to the case law governing the retention of chattels seized in the course of a search) I think that the following points can be deduced from the decision: (1) that the cause of action to control the use of the seized information was that of breach of confidence (Browne-Wilkinson VC at p. 236, that view being shared by all members of the Court of Appeal); (2) that as part of the consideration of any such claim it was necessary to balance the asserted confidentiality against the public interest (Nolan LJ at p. 261 and Sir Christopher Slade at p. 266); (3) that compliance with a court order in itself trumped the asserted claim for breach of confidence (Dillon LJ at p. 258 and Nolan LJ at p.261); (4) that the application of the 'public interest' as a defence to such a claim would depend on the particular circumstances (Nolan LJ at p. 261 and Sir Christopher Slade at p. 265) but would not extend so far as to include 'any purposes which are reasonable from the public point of view' (at p. 263).  Sir Christopher Slade alone extended it to include the right of victims of crime to justice in the civil courts.

92. What is clear from all judgments is that the relationship between the 'public interest' and the interest of the person from whom the information had been seized was framed (but not necessarily exhausted) by the statutory provision pursuant to which the seizure had occurred.  The Vice-Chancellor said that 'subject to any express statutory provisions in other Acts, the police are authorised to seize, retain and use documents only for public purposes relating to the investigation and prosecution of crime and the return of stolen property' (at p. 235).  That was approved by Dillon LJ save where a subpoena requiring production of the information was served (p. 257), while Nolan LJ. thought it went too far, preferring to root the power of disclosure in a broader concept of the public interest (at p. 261).  Sir Christopher Slade felt that the Vice Chancellor's formulation was correct, but that it included purposes reasonably incidental to the purposes for which the powers of search were conferred (at p. 263), also acknowledging a broader public interest derived not from 'police purposes' per se but including the public interest in the due administration of justice.  Ní Raifeartaigh J. correctly observed as follows of the decision in Marcel (at para. 113):

'[W]hile Marcel is usually cited as authority for the proposition that there is a prohibition on (voluntarily) sharing material obtained during a criminal investigation in proceedings with non-police persons or bodies, the prohibition is not stated in absolute terms even by Marcel itself.  Exceptions based on the public interest are clearly envisaged, although it is less clear whether those exceptions encompass materials seized pursuant to warrant or similar compulsory power.'

93. The effect of the decisions in Desmond and Gama is to import into Irish law at least some of these principles, and to clearly establish that the application of the constitutional right of privacy will not necessarily produce a different conclusion.  Neither of these cases was on all fours with the issues presented in this appeal; they did not involve warrantless searches or, for that matter, search warrants, and therefore the terms of s. 9 of the 1976 Act did not fall for consideration. While Desmond viewed the issues from the perspective of the applicants' constitutional privacy rights (which were heavily relied upon by the applicants in that case), the Court in Gama did not expressly address the constitutional right to privacy.  Desmond did not involve seizure of information pursuant to a power of compulsion as that term is ordinarily understood; it was concerned with the disclosure by the Minister for Finance of information to the Minister for Industry and Commerce so that it could be transmitted to an inspector appointed pursuant to the provisions of the Companies Act 1990.  The information had been obtained by the Central Bank as a condition of engagement in certain foreign currency transactions.  Financial transactions could not, under the Exchange Control Act 1954, have been conducted without giving the information required by that legislation.  Gama, on the other hand, was concerned with information, at least some of which was obtained on foot of powers of compulsion conferred by statute upon a labour inspector (at para. 30), but there the overall statutory scheme was found to authorise the provision of that information to other State agencies with powers of prosecution, because the powers of prosecution of the inspector enabled to gather information were heavily circumscribed (see the passage from the judgment of the High Court cited by Kearns J. at para. 28).

94. Both cases were concerned with the circumstances in which information obtained by one state agency could be shared with another and, to that extent, they define the general law governing the issue in this case. Noting that this Court in Desmond approved without qualification the decision of O'Hanlon J. in that case, Desmond and Gama, collectively, establish: (1)  the applicable legal principles governing the common law rights to confidentiality were those considered in Marcel (per O'Hanlon J. in Desmond at p. 101); (2) the protections afforded by the common law of breach of confidence and those arising from the privacy rights guaranteed by the Constitution were 'probably co-extensive' (id.); (3) it was permissible for one public body to communicate information obtained by it in the course of performing its public functions to another public body so as to enable it to discharge its public functions without breaching duties of confidentiality at common law or privacy rights protected by the Constitution (per O'Hanlon J. in Desmond at p. 102); (4) in particular, it was permissible for one public body which obtained information in the course of discharging a statutory power to provide information to another public body which 'may be of assistance' to it 'in carrying out a statutory duty' (per McCarthy J. delivering the judgment of this Court in Desmond at p. 132); (5) this principle extended in its application to information obtained as a result of the exercise of powers of legal compulsion (Gama at p. 106), (6) in determining whether disclosure of information from one public body to another is lawful, it is appropriate to consider whether the purpose of the disclosure is 'reasonably incidental' to the exercise of the statutory powers pursuant to which the information was obtained (Gama at p. 104-105, approving dicta to this effect in Morris at p. 7, per Nicholls VC [15]).

Warrants, privacy and legal authority for disclosure

95. Not only was the Court in this appeal not requested to overrule decisions in either Desmond or Gama, but in Gama itself the principles established in Desmond were emphatically reaffirmed (see p. 106).  These decisions therefore prescribe the law in this jurisdiction.  The end point of each is that where a public body has lawfully obtained information in confidence and/or as a consequence of the discharge by it of its public functions and/or as a consequence of the exercise of powers of legal compulsion, it may disclose that information to third parties to enable them to discharge their statutory powers and duties.  There can be no serious doubt but that at a general level that principle applies even though the information is protected by constitutional rights of privacy, just as there is no doubt but that it applies where the information is obtained as a result of the exercise of legal powers of compulsion.  As I have noted, the Court in Gama made this clear in the course of its judgment (at p. 106).

96. However, while this is the general principle established by these decisions, the application of that principle will depend on the specific features of any given case, and in particular the nature of the information in question, the legal mechanisms by which the relevant authority obtained the information, and the purpose for which the information is to be applied.  Unlike some of the later English cases, Marcel (which was decided prior to the enactment of the Human Rights Act 1998 in the United Kingdom) did not address itself to the requirement arising from Article 8 of the ECHR that the impairment of any privacy rights enjoyed by a person in information obtained by compulsion be proportionate to the objective of that impairment.  In Desmond, the High Court judge said that the public interest in the inspector having all relevant information available to him was not matched by any significant public interest of equal or near-equal weight in denying access to this source of information (at p. 102). That there is such a requirement arising in domestic constitutional law as well as Article 8 of the ECHR cannot be doubted, and I will return to its application later.  It means, however, that the core finding in Desmond and Gama that information obtained compulsorily by one public body may be shared with another to allow it to discharge its functions falls to be viewed in the light of an important, and qualifying, consideration: this is the case only if the public interest served by disclosure is proportionate to the impairment of the privacy right involved.  Today, it also must be viewed in the light of the very considerable restrictions on data processing arising under the GDPR.

97. The question of how, and on what terms, the information was obtained by the authority in question is clearly relevant to that analysis.  Here, the information was obtained as a result of a warrant granted pursuant to a specific statutory power.  The applicant says - and the Court of Appeal agreed on this issue - that for this reason the appropriate inquiry is directed to the purpose for which the power of search was conferred, to the extent that information obtained as a result of that search may be used only for that purpose.  That proposition was derived from statements in Marcel to this effect, indeed the formula is sometimes referred to as 'the Marcel principle'.  It has been repeated in many of the English cases, including the decision in Morris, the relevant extract from the judgment of Nicholls VC to that effect was quoted by Kearns J. in Gama (at p. 104).

98. There is no doubt but that this principle is relevant to the conduct of any proportionality analysis.  However, the proposition that it exhaustively defines the purposes to which information obtained as a consequence of a search may be applied is riddled with problems.  To begin with, it is clear without supplement the principle cannot mean what it says.  The search warrant power conferred by the 1998 Act is conferred for the purpose of obtaining evidence for the investigation and prosecution of offences relating to child pornography. The Gardaí may, however, use material seized in the course of such a search for the purposes of prosecuting any offence.  It cannot be said that the purpose of the 1998 Act warrant issuing power is to obtain evidence for the prosecution of any offence; it is just that as a result of the 1976 Act, this is its effect.  It is, I presume, for this reason that the Vice-Chancellor in Morris extended the principle to include use of seized material for 'such other purposes as may be authorised by statute' (p. 7).

99. Similarly, while the principle that seized material can be used only for the purposes for which the power of search was granted was articulated in Marcel, it was then suggested by the High Court judge and by different members of the Court of Appeal in that case that information seized on foot of the search in question could be used for 'police purposes', for the purposes of regulatory investigations,  and in aid of a civil action.  The end point of the more recent cases in the United Kingdom has been that information so obtained may lawfully be used where the public interest requires it and that use is proportionate in the manner I have explained.  It is, however, hard to see that it can be said that the power of search was conferred in order to achieve any of these purposes. Nor is that conundrum addressed (as the Court of Appeal suggested) by expanding the test so that it focuses on the purpose for which the power of search was granted or for which the material was seized: under the 1976 Act material seized for the purposes of investigating one offence can clearly be used for the purposes of prosecuting another offence altogether.

100. The correct analysis is that the power to seek and to issue a search warrant can only be used for the purpose for which it is granted (usually, the investigation and prosecution of a specified offence or offences), but that the limits of what the material seized on foot of that power can be used for are determined by statute or common  law.  The material can without question be used for the purposes of investigating or prosecuting the offence in respect of which the warrant was granted.  Equally clearly, it can be used for any other purpose allowed by statute (Morris).  That includes the right to use the material for any purpose reasonably incidental to a purpose conferred by such a statute (Gama at para. 54).  But all of the authorities in this jurisdiction, and most of those in the United Kingdom and Australia, also posit that there is a broader power defined by varying theories of 'the public interest'.  There is nothing new or surprising about this. As I have noted the entitlement of the authorities to retain seized evidence articulated in Dillon v. O'Brien was based not on statute, but on a public interest defence to the right of the person from whom the goods had been seized to recover them in private law.  That is how it was interpreted and explained by this Court in Jennings (at pp. 308-309), and it was the same public interest that shaped the theory and limits of retention expressed so clearly by O'Keefe J. (as he then was) in the course of his judgment in that case.  In the case of chattels, that line has been drawn in Jennings v. Quinn, and I do not see any basis in that decision (or any other to which the Court's attention has been drawn) for extending the right of the authorities to deny a person recovery of possession of their own property by reference to a generally drawn 'public interest'.  The terms of s. 9 would make this difficult.  It may be that the same is true of downloads of information taken from a device.  But information in the form of knowledge is different, and its application is not addressed by s. 9.

Private information and public duties

101. In relation to information, there are two important controls on this.  One derives from the GDPR, to which I will return.  The other arises from the application of a proportionality analysis where privacy rights are engaged.  That proportionality analysis will often require that any 'public interest' basis for the use of seized material be carefully tailored. Without doubt there is a significant issue as to whether it is right that the permissible uses of material seized by the police on foot of a search warrant, in particular following the interrogation of a mobile phone or personal computer, should be defined by reference to considerations as broadly drawn as 'the public interest'.  Woulfe and Hogan JJ. present a strong argument as to why such a use is not a proportionate interference with the privacy interests in play.  However, this case is not dependant on such a wide authority.  Here, two particular features of the context are relevant.  First, that unlike many of the other cases that have considered this or similar issues, here the Commissioner does not propose to disclose the information to any third party; it will be used by the Gardaí themselves.  Second, the function for which it is proposed to use the information arises from a statutory duty imposed by the Commissioner.

102. The comments of McCarthy J. in Desmond to which I have earlier referred bear repeating: there is no principle of law or commonsense that would prohibit a public body (a Minister in that case) from providing to another public body 'information which may be of assistance to another Minister for State in carrying out a statutory duty imposed on him'.  Noting the point urged by counsel for the applicant that these comments were directed to the particular position of two members of the Government, with the collective responsibility that this entails, they mean - at the very least - that where a person obtains information for one purpose, that same person may use it to discharge a duty imposed on them.   The statement was made in a context in which the Court in Desmond adopted the analysis of the High Court judge, who in turn both accepted the correctness of the broad reach of public interest suggested in the judgments in Marcel and confirmed that similar considerations governed a claim rooted in constitutional guarantees of privacy.  The tenor of McCarthy J.'s comments in Desmond was echoed by Lord Bingham MR in R v. Chief Constable, North Wales Police and ors ex parte Thorpe [1999] QB 396, 409-410:

'When, in the course of performing its public duties, a public body (such as a police force) comes into possession of information relating to a member of the public, being information not generally available and potentially damaging to that member of the public if disclosed, the body ought not to disclose such information save for the purpose of and to the extent necessary for performance of its public duty or enabling some other public body to perform its public duty'.

(emphasis added)

103. In BC, that rationale was applied in the context of a challenge based on the provisions of Article 8 of the ECHR to the use of information derived from a WhatsApp group in police disciplinary proceedings.  The Outer and Inner House of the Court of Session concluded that the public duty of the authorities in the due and proper investigation of alleged disciplinary infractions by the police provided a clear and accessible legal basis for disclosure and use of those messages.  There, as in this case, there was no issue around the legality of the obtaining by the police of the information in the first place and, as it happens, the tenor of the messages was alleged to have been similar in some respects to those alleged by the Commissioner here to have been located on the applicant's phone.

104. The Court defined the issue thus arising by reference to whether it was sufficiently clear under what circumstances and conditions the police, when they recover information in the course of lawful criminal investigations in respect of a member of the police force, can disclose such information for the purposes of considering the bringing of, and thereafter use in, disciplinary proceedings in respect of other officers (Halford v. UK [1997] ECHR 25, (1997) 24 EHRR 523).  The first instance judge, Lord Bannatyne, explained why this test was met (at para. 188):

'this must be the position in a case such as the present one where the police are referring the information recovered to their own internal disciplinary body. There is a public interest in having a properly regulated police force in order to protect the public and thus it is lawful that information recovered in criminal proceedings by the police can be passed to its own disciplinary body for that strictly limited purpose ...' 

105. That was approved by the Inner House (at para. 108):

'The discretion to use the material is limited by nature of the public interest which the disclosure is to meet.  I should not be taken as suggesting that any amorphous or vague public interest may be sufficient to provide the clear and accessible basis necessary.  On the contrary, in the present case it seems to me that there is a very clear, specific public interest in the maintenance of a properly regulated police force and its importance to the retention of public confidence and the proper discharge of police duties.'

106.  For the purposes of this case, it suffices to relate that legal basis to the particular features of the case.  The information lawfully obtained by the Commissioner is now known to him and his agents.  The Commissioner adopts the view that that information suggests breaches of the relevant disciplinary provisions.  He is therefore under a legal duty to commence the investigation, and thus - subject to the demands of the proportionality analysis I next address - there is a valid basis for his use of the information to that end: prima facie the Commissioner is under a legal duty to do so.  The position is exactly the same as would arise if the Commissioner as a result of a search came upon information suggesting a threat to the welfare of a child.  The law would be absurd if he were to be precluded from using the information he lawfully had, to discharge the legal duty imposed upon him to address that threat, at least absent an identified disproportionate interference with his privacy rights. The same principle applies to the other examples of 'indirect' use in para. 69 above - in particular the use of the information by any Board of Inquiry to demand production of the phone.

107. This is not to imply anything into a provision imposing a statutory duty.  The question is a different one: does the relevant body lawfully have information or knowledge that triggers a statutory duty? The constraints around the implication of powers as correctly formulated by Woulfe and Hogan JJ. thus do not arise for consideration because nothing is being implied into any provision of law.  Instead, the question is whether the duty as expressed in the relevant legislative provision requires that information lawfully known to the party bearing the duty be ignored in discharging it.  If anything, to preclude the Commissioner from acting on foot of that information requires that the provision imposing the duty be read down by reference to factors that are to be implied into, not expressed in, the statute.

108. That being so, and subject to the use of private information for that purpose not constituting a disproportionate interference with the privacy rights of the person from whom the information has been obtained, the body may use the information to comply with its duty.  That, to repeat, does not involve reading anything into the provision imposing the statutory duty.  It is merely to give effect to that duty as it is expressed.

The proportionality of the proposed use of private information

109. In the course of his oral submissions to this Court, counsel for the applicant forcefully contended that the applicant's own private thoughts and opinions was not properly a matter for a Garda disciplinary investigation.   It may well be arguable (without deciding the question) that this is the case if those opinions are expressed only in private diaries, or personal notes.  In this respect also, the evidential record before the Court is less than satisfactory, and the strength of that contention so expressed can only be gauged in a case where the nature of the information in question is clear to the Court.

110. That said, if it is the case that the applicant has chosen to send messages to third parties without any reasonable expectation of confidence or non-disclosure, not only (as I have earlier noted) is his privacy interest in the contents of those messages diminished by the fact that they are by definition in the possession of third parties over which he has no control, the fact that he is expressing to third parties opinions of the kind suggested by the evidence immediately engages the interests of the Commissioner in public confidence in the police force.  The importance of that confidence has been reiterated recently in Hegarty v. Commissioner of An Garda Síochána [2025] IESC 36, and it is necessarily in play in circumstances in which members of groups alleged to have been deprecated in communications from a member of An Garda Síochána must, inevitably, have dealings with, rely upon, be in a position to invest trust in, and expect respect from, members of the police force.  Leaving to one side entirely photographs recording internal Garda documents or places (in which the privacy interest of the applicant is as weak as the exigencies of Garda discipline are strong), and reiterating that the information in question is lawfully in the possession of the Commissioner, any proportionality analysis of the relationship between the interests of the applicant in his privacy and the interests of the Commissioner in ensuring that a disciplinary investigation is conducted with the benefit of the information as it has been described in these proceedings, can lead to only one conclusion.  To be clear (and coming back to the points I have earlier made in relation to the evidential record before the Court) I am referring to the description of that information quoted from the Court of Appeal judgment (at para. 38 above), and doing so in a context in which the applicant has not averred that any of the records were merely personal notes, nor explained whether if the information assumes the form of messages they were sent to him rather than by him, or if by him, in what circumstances.

111. The proper analysis of whether the use of allegedly private messages in the context of disciplinary proceedings into the conduct of police officers in a similar context was comprehensively and, in my view, convincingly addressed in the judgment of the Lord Justice Clerk (Dorrian) in BC.  There the messages had come to the attention of the police when investigating sexual offences alleged against a police officer who was not one of those who initiated the proceedings, and were discovered on that officer's phone.   In the course of her judgment in the Inner House, she records that the messages were 'recovered in the course of criminal investigations'.  The messages were said to have been capable of being characterised as sexist, racist, anti-Semitic, homophobic, mocking of disability and showing a disregard for police procedures.  The petitioning officers sought to enjoin the use of the WhatsApp messages in the course of the disciplinary proceedings against them.  The argument presented on their behalf did not depend on any issue arising from the manner in which the messages had been obtained, being focussed instead on the contention that they had a privacy right in the content of the messages and, consequently, the argument of the parties and analysis of both Courts was directed to whether the petitioners had a reasonable expectation of privacy in the communications in question.   It was held that having regard to the nature of the messages and the manner in which they were circulated, the reclaimers could have had no reasonable expectation of privacy in the messages.

112. The judge at first instance, Lord Bannatyne, had resolved this as follows (at para. 201 of his judgment):

'The importance of public confidence in the police is clearly considerable.  Equally the protection of the public by the police is extremely important.  In order to maintain public confidence and to protect the public it is necessary for the police to be regulated by a proper and efficient disciplinary procedure.  I believe that a necessary part of this regulation is the ability for the police where it lawfully obtains information which can inform the proceedings before such a body that the police should be able to disclose it to such a regulatory body as that set up under the 2014 Regulations.  The information is being disclosed only to that body and only for a limited purpose.  In these circumstances had the petitioners had a legitimate expectation of privacy the foregoing factors would have caused me to consider that the messages could nevertheless have been disclosed to the disciplinary body.  I believe the disclosure would have been proportionate.  The balance I consider is heavily weighted on the side of disclosure.  I am unable to identify a less intrusive measure which could have been used without unacceptably comprising [sic.] the objectives I have identified.'

113. The Inner House concluded likewise stressing (at para. 114) that the objective of public confidence in the police was sufficiently important to justify the restriction on the reclaimer's Article 8 rights, that the information would be disclosed to the regulatory authority for a limited purpose, that the information was not of a personal nature, and that there was a clear rational connection between the aim and the objective. 

114. The same conclusion has been reached in cases involving the provision of information obtained by the police in various different ways to other professional disciplinary bodies.  These have, without exception, determined that the interests of the public in the due regulation of professions outweighed the privacy interests of those from whom that information had been obtained, and that disclosure was proportionate for the purposes of Article 8 of the ECHR.  That was the conclusion reached in Woolgar in respect of the disclosure to the regulator of the nursing profession of information given in confidence to the police under caution by a nurse.  Kennedy LJ explained (at p. 36):

'...where a regulatory body ... operating in the field of public health and safety, seeks access to confidential material in the possession of the police, being material which the police are reasonably persuaded is of some relevance to the subject matter of an inquiry being conducted by the regulatory body, then a countervailing public interest is shown to exist which, as in this case, entitles the police to release the material to the regulatory body on the basis that save in so far as it may be used by the regulatory body for the purposes of its own inquiry, the confidentiality which already attaches to the material will be maintained'.

115.  In Nakash, the provision to the General Medical Council of information seized by the police from a doctor on foot of what was found to be an unlawful search was held not to violate Article 8.  Material seized from the claimant's computer was found to be relevant to an investigation undertaken by the General Medical Council: the disclosure was justified by the legitimate aim of enabling the Council to exercise its statutory functions to protect the health and welfare of the public and was a proportionate response to that important and legitimate aim.

116. These cases were not concerned with information seized on foot of search warrants, but if the essential thesis urged by the applicant in this case was correct, they would all of have been incorrectly decided or, at the very least, could not be followed here because of the restrictions on the use of compulsorily obtained information derived from the applicant's constitutional privacy rights.  In each case the police obtained information in the course of exercising their statutory powers and functions for the investigation and prosecution of crime.  On the applicant's thesis, the information having been obtained for that purpose, it could not be used for any other.

Flori

117. In the course of his submissions, the applicant heavily relied on the decision of the Supreme Court of Queensland in Flori.  There, evidence was seized by the police pursuant to a search warrant issued by a magistrate in respect of the residence of the applicant, a police officer.  The provision pursuant to which the warrant was issued allowed entry and search for the purposes of obtaining evidence of the commission of an offence, and the offence alleged against the police officer involved the alleged application of his own use of a police CCTV recording with the intent to cause a detriment to another officer.  A copy of the CCTV and various computers were seized in the course of the search.  No criminal charges were laid against the applicant, but a disciplinary procedure was initiated against him.  The question was whether the materials seized from the applicant's residence pursuant to the warrant could be so used.

118. It was held that the material could not be so used.  The Court held that the material obtained pursuant to the compulsion of a search warrant may only be used for the statutory purpose for which the warrant was granted, that is to obtain evidence of the commission of an offence being available to be used in the investigation and prosecution of criminal offences, but not for any other purpose.  The conclusion was based on an absolute application of a strict principle (at para. 27): '[w]here information or material is obtained under compulsion authorised by statute, the use that can be made of that information or material is limited by the statute' (emphasis added). The Order made was far reaching and, if replicated in this case, would have prevented the initiation of any disciplinary investigation and would have precluded the giving of evidence by those who viewed the material on the phone of what they had seen. It was to the effect that the respondent police commissioner was 'not entitled to use, rely on or otherwise take into account' in disciplinary proceedings against the applicant police officer, property seized on foot of a search warrant 'or any data, evidence, or information derived from the seized property' (at para. 42).

119. The decision in Flori was based on the proposition that information seized on foot of a warrant could be used only for the purposes for which the power was conferred.  The Court did not address the cases proposing that such information could be used to enable the discharge of statutory duties.  For both reasons, it does not align with the law in this jurisdiction.  Indeed, the decision in Flori has subsequently been distinguished twice in Australia.  In McLean, it was referenced to the specific provisions under consideration in the case.  There, a provision granting the power to seek and execute search warrants was found to enable the use of seized materials 'according to law' which, it was found, encompassed broader statutory and common law duties imposed on the police. These enabled materials obtained on foot of a search warrant to be given to, and used by, the body charged under the relevant law with enforcement of the Rules of Racing.

120. Were the Commissioner not entitled to use information for the purpose of disciplinary proceedings, he would not have been entitled to initiate the disciplinary inquiry in the first place because the investigation was initiated solely because of the information obtained on foot of the warrant.  For that reason alone, I do not find the decision in Flori persuasive authority to the contrary.  As subsequently noted by Logan J. in Burns v. Chief of Defence Force [2024] FCA 781 when distinguishing Flori (and as I have already observed) this is not a complete statement of the finding in Marcel, which envisages the use of information obtained from material seized on foot of powers of search as being authorised wherever there is statutory authority for so doing.  In this case, there was such authority.

The Data Protection Act 2018

121. The Statement of Grounds made reference to the 2018 Act.  The High Court judgment records the case made by the applicant in short order: that in using the material that had been found on foot of the searches conducted under the search warrants, the Commissioner was processing his personal data in an unlawful manner contrary to that Act.  Barr J. noted s. 71(5) of the 2018 Act, but said it was not necessary to decide whether the Commissioner was entitled to rely upon that provision as the video clip did not constitute personal data of the applicant, and that 'the documentation which is described in the second disciplinary charge, which may be described in general as official Garda documentation, does not constitute personal data of the applicant' (para. 75).

122. The Court of Appeal elaborated on this further.  It recorded the applicant as proposing that the data 'was capable of being his personal data'.  From there the applicant argued that s. 41 of the 2018 Act precluded the processing of personal data for a purpose other than the purpose for which the data had been collected, and that such processing was lawful only to the extent that the processing was necessary or proportionate for the purposes of a threat to national security, defence or public security, of preventing, directing, investigating or prosecuting criminal offences, or for the purposes of legal advice 'or for the purposes of ... or in connection with legal claims, prospective legal claims, legal proceedings or prospective legal proceedings, or ... is otherwise necessary for the purposes of establishing, exercising or defending legal rights' (s. 47 of the 2018 Act).  The disciplinary proceedings, it was contended, did not fall within these descriptions.  The Commissioner disagreed.

123. I have earlier noted that while the High Court was dismissive of the claim that the information in question was 'personal data' for the purposes of the 2018 Act, the Court of Appeal was less confident.  It observed - rightly - that in the context of digital devices, the question of whether information constitutes personal data can be less than straightforward because the metadata associated with the information may itself reveal personal data.

124. In this Court, the parties' submissions on this issue were noticeably brief.  The Commissioner suggested that the issue might require further elaboration if the Court held with him on the other grounds, submitting that a number of different provisions of the Act operated to authorise the processing of data for a purpose other than that for which it was collected; s. 47 was not one of the provisions he relied upon.  The applicant submitted that the material on his phone 'is capable of being ... Personal Data within the meaning of the GDPR', asserting that none of the legislative provisions identified in the Commissioner's submissions permitted the further processing of his personal data.

125. It is important to restate the issue presented by this argument.  There is no doubt but that any personal data on the phone was processed when the applicant's phone was interrogated.  On the evidence, this occurred on foot of the search warrant, and it was granted for purposes that are clearly permitted by the 2018 Act, being undertaken on foot of statutory authority for the purposes of enforcing the criminal law by the agency with that statutory function (see inter alia the authority envisaged for the processing of personal data for the purposes of the prevention and prosecution of criminal offences (Part V, and ss. 38(1), 49 and 70 of the 2018 Act).

126. That, however, was not the applicant's point.  His point was that having been collected for one purpose (the investigation and prosecution of criminal activity), the information could only be processed by the Commissioner for a different purpose (the investigation of alleged disciplinary offences) if this was authorised by s. 41 of the 2018 Act.

127. This only arises, however, if the material to be used by the Commissioner is 'personal data' within the meaning of 2018 Act.  As Ní Rafeartaigh J. observed more than once in the course of her judgment, it is not at all clear what that data is.  There is even a lack of certainty as to whether it encompasses the WhatsApp video - Ní Raifeartaigh J. assumed that this was part of the data in issue (para. 163 of her judgment).  Yet this is relevant only to the first disciplinary notice, said by counsel not to be in issue in these proceedings and which in any event the applicant's advisors had agreed could be downloaded and used by the Commissioner.  On that assumption what is in issue is a record of the messages said to be 'racist, misogynistic, anti-homosexual, antisemitic, supporters of Nazi ideology or "rape culture" and of 'images which appear to be of CCTV images relating to Garda investigations and practices; images which appear to be Garda computers, including images of suspects, PULSE incidents and Command and Control incidents; images which appear to show Garda related documents, garda members or Garda station interiors'.

128. The definition of personal data is contained in Article 4(1) of the GDPR:

'"personal data" means any information relating to an identified or identifiable natural person ('data subject'); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person'.

129. The Court of Appeal was inclined to hypothesise around the possible circumstances in which this information might have been identifying information.  Without knowing exactly what the information was, it was not possible to answer the question of whether it was personal data.  But it was for the applicant to prove this, not for the Court to postulate scenarios in which the information might have been protected by the 2018 Act.

130. Aside from this, while noting that the provision was not relied upon and the point not argued, for my part I would have thought that the investigation of a disciplinary offence falls within the third exception introduced by the reference in s. 41 to s. 47 of the 2018 Act.  The s. 47 exception arises where the processing is necessary and proportionate '...for the purposes of... or in connection with, legal claims, prospective legal claims, legal proceedings or prospective legal proceedings, or ... is otherwise necessary for the purposes of establishing, exercising or defending legal rights.  Recital 52 to the GDPR makes it clear that this definition extends to administrative or out-of-court procedures, and that the focus is upon 'the establishment, exercise or defence of legal claims'.  A charge of breach of discipline pursuant to statute involves the investigation and determination of a set of facts in a formal legal process, and the interpretation of and application to those facts by an independent decision-making body, of a defined set of rules that are promulgated as law.  The end result is a decision within that legal process that determines the rights and liabilities of a member of An Garda Síochána, including the possible termination of his or her office and determination of his or her career.  That decision is subject to appeal, and the appeal to control by way of judicial review.  The Commissioner is, without any question, entitled to assert legal professional privilege (both litigation and legal advice privilege) in connection with the initiation of the process, and throughout the course of any hearings, appeals or reviews (see Ahern v. Mahon [2008] IEHC 119, [2008] 4 IR 704).  So, of course, is any member of An Garda Síochána the subject of such a process. I cannot see how the gathering of information in the course of a disciplinary investigation is other than processing 'for the purposes of ... or in connection with, legal claims, prospective legal claims, legal proceedings or prospective legal proceedings'.  To turn the issue upside down, if the applicant were to seek to deploy the personal data of a third party in the course of the disciplinary investigation it could not, I imagine, be seriously disputed that he was doing so for the purposes of, or in connection with, legal claims, legal proceedings and the defence of his legal rights. If he is involved in legal proceedings or prospective legal proceedings, one would have thought that the Commissioner is also.

Conclusion

131. As I explain in the course of this judgment, the resolution of this case has been complicated by some deficiencies in the evidence before the Court.  As I also explain this is not to unduly criticise the parties; there are explanations for some of these omissions.  While this has not assisted the legal analysis, the following conclusions of law can nonetheless be drawn:

(i)                 Section 9 of the 1976 Act did not authorise the Commissioner to retain the applicant's phone for the purposes of Garda disciplinary proceedings.  Therefore, once it was decided that there was to be no criminal prosecution arising from the contents of the phone, once the applicant demanded the return of his phone, and there being no dispute but that the phone was his property, he was entitled to its return.  This is because the effect of s. 9 of the 1976 Act is to provide the Commissioner with a defence to a claim at the behest of the applicant in trespass or detinue, and because that defence did not extend to retention for the purposes of Garda disciplinary proceedings.

(ii)              The applicant was not entitled to insist on the return of photographs or other      material on the phone if those photographs or other material were unlawfully in his possession.  The Commissioner was accordingly entitled to remove any such material from the phone (if it was being alleged that there was such material on the phone) before returning it to the applicant.  The Commissioner has not established that there was on the phone material the possession of which would have been unlawful or, if there was, that it would have been impossible to return the phone without deleting it.

(iii)            If the Commissioner has made copies of or downloaded material from the phone after the point at which it was decided that there would be no prosecution, and when the applicant demanded the return of the phone, he was not entitled to do this, and in the absence of any argument from the Commissioner that he was entitled to use material unlawfully obtained by him, those copies or downloads should not be physically deployed in the disciplinary investigation or any subsequent inquiry.

(iv)             If the Commissioner made copies or downloads of material from the phone before this point, the question of whether he is entitled to physically deploy such material in such an investigation or inquiry depends on a number of legal issues, themselves dependent on matters of fact.  These include (a) whether the Commissioner has retained copies or downloads of information from the applicant's phone, (b) if so, what they contain, (c) when they were made, (d) for what purpose they were made (and, in particular, whether the copies were made for the purposes of the criminal investigation) and (e) the specific legal basis on which they were made.  In the absence of evidence as to these matters, the Court should not embark upon a consideration of the important question of whether any such copies or downloads should be treated in the same way as the phone from which they were obtained and thus returned to the applicant or destroyed, or whether they should be treated as comprising simply information to be addressed in accordance with the principles arising from the applicant's rights of privacy as explained in the course of this judgment.

(v)               As a consequence of the lawful execution of the warrant, the Commissioner has become aware that the applicant's phone contained certain information. The Commissioner acquired that knowledge lawfully.  Section 9 of the 1976 Act does not impose a restriction on the use of information lawfully obtained in the course of a search (as opposed to referring to the use of 'things' seized on foot of such a search).  The use of that information is controlled by the  applicant's rights of privacy not by s. 9 of the 1976 Act.

(vi)             Based on the foregoing, the Commissioner has formed the view that the fact that the applicant's phone contained that information discloses a possible disciplinary offence by the applicant.  Under Regulation 23 of the 2007 Regulations, the Commissioner was under a legal duty to appoint an investigating officer to investigate that alleged breach.  That the information in question was obtained by the Commissioner in the course of the execution of a search warrant does not displace that duty and, accordingly, he is entitled to use the knowledge so obtained to initiate the inquiry, just as the investigating officer is entitled to use the information thus transmitted to him to discharge his statutory duties (including the identification and questioning of witnesses). Any Board of Inquiry eventually established is entitled to use the same information to ground a demand for production of the phone.

(vii)          The use of the information in this way engages the rights of the applicant to privacy.  Those rights are not exhausted when a decision is lawfully made to allow seizure and interrogation of his phone.  They extend to the use to which information obtained in the course of the execution of the warrant is put.  In the circumstances in issue here, and based on the evidence the Court has been given in relation to the information itself, the use of the information for the purposes to which I have referred was, having regard to the statutory duties in question, lawful and proportionate to the objective of enforcing Garda discipline.

(viii)        It is to be reiterated that the finding in this case extends only to the situation in which information is lawfully obtained by the Commissioner in the course of the execution of a search warrant, and in which that information triggers a statutory duty imposed on the Commissioner to take particular action.  The question of whether the principles applied by the courts in other jurisdictions enabling the disclosure to third parties, or the use, of information seized on foot of search warrants where particular aspects of 'the public interest' so require, and indeed whether any such principles are applicable to information that was not relevant to the investigation of a criminal offence, should be decided only in a case in which those questions arise for necessary decision.

(ix)             The applicant has not furnished sufficient information to enable the Court to engage meaningfully with his complaint that the actions of the Commissioner breached any provisions of the GDPR.  Noting that the issue was not argued before the Court, it appears to me that s. 47 of the 2018 Act may afford a legal basis for using any such data in the manner proposed by the Commissioner.

132. For these reasons I would allow this appeal in part, insofar as the Court of Appeal did not address what it termed the 'derivative' or 'indirect' use of information from the phone arising from the execution of the search warrant and which, as is clear from the foregoing, is permissible.  The Court will receive submissions from the parties as to the form of the Order, and the disposition of costs, in the light of the decision of the Court in Little v. Chief Appeals Officer [2024] IESC 53.