Hyland v The Commissioner of An Garda Siochana (Approved)

Factual and Procedural Background

This ruling of the Supreme Court concerns costs and the precise form of the final order following an earlier substantive judgment in the same appeal, reported as [2025] IESC 43. In that earlier judgment, the Court addressed the legality of using information obtained from the Applicant’s mobile phone in disciplinary investigations against the Applicant, a member of the police service.

The Applicant’s phone had been seized pursuant to search warrants issued in the course of a criminal investigation. Subsequently, two internal disciplinary investigations were commenced by senior officers (referred to as “the Costello investigation” and “the Creighton investigation”), and a stay was placed on those investigations pending the litigation.

Before the High Court, the Applicant sought (i) to restrain both sets of disciplinary proceedings, (ii) the return of his phone, and (iii) orders preventing the Commissioner from using material obtained on foot of the search for purposes other than criminal investigations or prosecutions. In the course of those proceedings, the Applicant limited his complaints to the second disciplinary investigation.

The High Court made three declarations, including that (i) the Commissioner could use the material in disciplinary proceedings, (ii) the Commissioner was not entitled to retain property seized during a criminal investigation after that investigation concluded merely because it was relevant to an ongoing disciplinary investigation, and (iii) a person is generally entitled to the return of their property once criminal proceedings have concluded, but where material is on a computer or mobile phone the person must establish ownership or a right to possession of all material on the device, with any application for return to be made to the District Court under the Police Property Act 1897 (as amended).

The Applicant appealed only certain parts of the High Court decision to the Court of Appeal, including the declaration that the Commissioner was entitled to use the material in disciplinary investigations, and indicated he would seek all his costs if successful. The Commissioner did not lodge a cross-appeal or a notice to vary the High Court order, and specifically indicated that it was “not applicable” for him to seek a variation or substitution of that order. The part of the Commissioner’s notice dealing with additional grounds to affirm the High Court decision was confined to data protection issues.

The Court of Appeal allowed the Applicant’s appeal in part by holding that the material uncovered on the phone could not be used directly in disciplinary proceedings, though it expressed no view on whether such material could be used in an “indirect” or “derivative” manner. It set aside that part of the High Court order yet left the remainder, including the orders on retention and return of the phone, in place. The Applicant was awarded all his costs in both the High Court and Court of Appeal.

The Commissioner then obtained leave to appeal to the Supreme Court. The grounds of appeal were variants of a single core contention: that the Court of Appeal erred in law in holding that it was impermissible for the Commissioner to use material found on the Applicant’s phone in disciplinary proceedings where the phone had been lawfully seized during a criminal investigation. The Commissioner sought an order setting aside the Court of Appeal’s decision, thereby restoring the relevant part of the High Court order while leaving the remainder of that order unaffected. The Applicant did not cross-appeal or seek to raise new grounds.

In its substantive judgment in this appeal ([2025] IESC 43), the Supreme Court concluded that while the Commissioner could not retain the phone for disciplinary purposes, derivative or indirect use of lawfully acquired information from the phone was permissible, subject to lawful and proportionate use and respect for the Applicant’s privacy rights. The Court distinguished between (i) copies of material taken from the phone and (ii) knowledge obtained through execution of the warrant.

The present ruling addresses two matters arising after the substantive decision: (1) the exact form of the final order (including whether to grant a specific declaration sought by the Commissioner and the status of the stay on the disciplinary investigations), and (2) the allocation of costs.

Legal Issues Presented

1. Whether the Supreme Court should incorporate into its order a formal declaration, requested by the Commissioner, stating that derivative or indirect use of lawfully obtained information from the Applicant’s phone for disciplinary purposes is permissible, provided such use is lawful, proportionate, and respects the Applicant’s right to privacy.
2. Whether the Supreme Court should make a specific order directing the return of the Applicant’s phone, in light of the High Court’s unappealed orders regarding retention and return of seized property and the Commissioner’s concerns about allegedly unlawful material (including suspected child pornography) on the device.
3. How the costs of the proceedings at all three levels (High Court, Court of Appeal, and Supreme Court) should be allocated, given the mixed outcome and the importance and novelty of the legal issues.
4. What overall form the final order of the Supreme Court should take, particularly in relation to the partial success of the Commissioner’s appeal and the lifting of the stay on the two disciplinary investigations.

Arguments of the Parties

Applicant’s Arguments

• Before the High Court, the Applicant sought to restrain both disciplinary investigations, to obtain the return of his phone, and to prevent the Commissioner from using material obtained pursuant to the search warrants for any purposes other than criminal investigations or prosecutions.
• In the High Court, the Applicant ultimately focused his complaints on the second disciplinary investigation and challenged the Commissioner’s entitlement to use material found on his phone in disciplinary proceedings.
• On appeal to the Court of Appeal, the Applicant contested the declaration that the Commissioner could use the seized material in disciplinary investigations and indicated that, if successful, he would seek all of his costs.
• Following the Supreme Court’s substantive judgment, the Applicant now seeks an express order from the Supreme Court directing the return of his phone, contending that this follows from the Court’s findings on retention and the Commissioner’s lack of entitlement to retain the device for disciplinary purposes.

Commissioner’s Arguments

• The Commissioner requested that the Supreme Court include a declaration in its order to the effect that, where information on the Applicant’s phone was lawfully discovered through the execution of a search warrant, it is permissible for the Commissioner (and others lawfully receiving that information) to make derivative or indirect use of it in discharging their statutory obligations, provided such use is lawful, proportionate, and consistent with the Applicant’s right to privacy.
• The Commissioner accepted that this declaration was “not necessary” for the implementation of the Court’s substantive judgment but nonetheless sought it as part of the final order.
• Regarding the phone, the Commissioner argued that it was unnecessary for the Supreme Court to make a new order for its return, because the relevant High Court orders (in particular Orders 2 and 3) were never appealed and already govern the retention and return of the phone. Those orders entitle a person to the return of property after criminal proceedings, subject to establishing ownership or right to possession of all material on the device, with any dispute to be resolved in District Court proceedings under the Police Property Act 1897 (as amended).
• The Commissioner acknowledged that he has never asserted that allegedly unlawful material on the phone could not be removed, thereby permanently precluding return of the phone. However, he stated that there is material on the phone which he believes may constitute child pornography, that the Applicant is not lawfully entitled to possess such material, and that it would be a matter of “considerable concern” if the phone had to be returned before that material was removed. The Director of Public Prosecutions decided that there would be no criminal prosecution arising from the Applicant’s possession of this material.
• The Commissioner contended that removal of the allegedly unlawful material is technically and practically complex. He expressed concern about how to proceed if there is a dispute as to whether particular material is unlawful and maintained that these issues “must be worked through before the device is returned.” He requested a reasonable period of time to remove such material and offered to swear an affidavit outlining the technical and practical issues.
• The Commissioner further argued that, insofar as questions arise regarding procedures for removing unlawful material and returning the phone, these matters are more appropriately addressed in the High Court, which can receive evidence on the relevant technical issues. He therefore suggested that any detailed resolution of these factual and technical matters should occur in that forum rather than in the Supreme Court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Previous Supreme Court judgment in this case [2025] IESC 43	This earlier judgment contains the full background and substantive reasoning in the present appeal. It distinguishes between (i) direct use of material obtained from the Applicant’s phone, (ii) derivative or indirect use of that information, and (iii) the law governing retention of the phone itself. It holds that the Commissioner may not retain the phone purely for disciplinary purposes (subject to the Applicant’s ownership and the lawfulness of material on the device), but that derivative or indirect use of lawfully obtained information from the phone in disciplinary proceedings is permissible where lawful, proportionate, and consistent with the Applicant’s privacy rights.	The Supreme Court in this ruling relies on the substantive judgment to conclude that there is no need for an additional declaratory order: the judgment “speaks for itself.” Consistent with that judgment, the Court’s order records that the Commissioner’s appeal from the Court of Appeal is allowed in part, insofar as the Court of Appeal did not address the permissibility of derivative or indirect use of information from the Applicant’s phone, which the earlier judgment confirms is permissible. The Court also refers back to that judgment when explaining that the Commissioner is not entitled to retain the phone for disciplinary investigations, subject to issues of ownership and unlawful material, and when characterising the Commissioner’s entitlement (but not obligation) to remove material believed to be unlawful before returning the phone.
Plaintiff v. Chief Appeals Officer [2024] IESC 53	This decision is cited as setting out the principles governing the award of costs in Supreme Court proceedings.	The Court applies the costs principles from this precedent to a case it describes as novel, involved, and of considerable importance, engaging significant issues of public and private law. Taking into account the mixed success of the parties across the High Court, Court of Appeal, and Supreme Court—where the Applicant achieved partial success in the High Court, complete success in the Court of Appeal, and partial success in the Supreme Court—the Court concludes, by reference to this precedent, that the Applicant should recover 50% of his costs in each court.

Court's Reasoning and Analysis

The Court identifies two principal post-judgment issues: (1) the form of the order, including whether to grant the Commissioner’s requested declaration concerning derivative use of information from the Applicant’s phone, and (2) the handling and return of the Applicant’s phone in light of the High Court’s unappealed orders and the Commissioner’s concerns about allegedly unlawful material on the device. A third issue concerns costs.

1. Request for a Declaratory Order on Derivative Use

The Commissioner asked the Court to declare that, where information on the Applicant’s phone was lawfully discovered as a result of executing a search warrant, it is permissible for the Commissioner and others with statutory obligations to make derivative or indirect use of that information for disciplinary purposes, provided such use is lawful, proportionate, and respects the Applicant’s right to privacy.

The Court refuses this request. It reasons that there is no justification for reducing its substantive findings to a separate declaratory order. The earlier judgment already sets out the relevant legal principles and conclusions regarding derivative or indirect use of the phone information. The Court characterises that judgment as speaking for itself and notes that even the Commissioner accepts that a declaration is not strictly necessary. Accordingly, the Court decides simply to record in its order that the appeal from the Court of Appeal is allowed in part insofar as the Court of Appeal did not address derivative or indirect use of information from the phone, which the earlier judgment confirms is permissible.

2. Treatment and Return of the Applicant’s Phone

The second major issue is what should now happen to the Applicant’s phone. To resolve this, the Court retraces the litigation’s history, emphasizing:

• The High Court’s declarations that the Commissioner could not retain property seized in a criminal investigation after that investigation concluded merely because it was relevant to a disciplinary investigation, and that a person is generally entitled to the return of their property once criminal proceedings have concluded, subject to proof of ownership or right to possession of all material on the device, with disputes to be addressed in the District Court under the Police Property Act 1897 (as amended).
• The fact that the Applicant appealed only certain parts of the High Court decision, and the Commissioner neither cross-appealed nor sought to vary or substitute the High Court order, explicitly indicating that variation was “not applicable.”
• The Court of Appeal’s order, which set aside only the part of the High Court order concerning direct use of the material in disciplinary proceedings, while leaving the remainder—including the orders on retention and return of the phone—intact.

The Court notes that its substantive judgment in this appeal required an understanding of (a) the law governing retention of the phone and (b) the distinction between copies of material taken from the phone and knowledge obtained as a result of executing the warrant. In that judgment, all members of the Court agreed that the Commissioner is not entitled to retain the phone for disciplinary investigations, subject to the caveats that (i) the Applicant is the owner of the phone and (ii) the Applicant is not entitled to insist on the return of material it is unlawful for him to possess.

In the present ruling, the Applicant now seeks a specific order for the return of his phone. The Commissioner responds first that such an order is unnecessary because the relevant High Court orders remain in force and already require the return of the phone, subject to the proviso that the Applicant must establish ownership or right to possession of all material on the device.

Second, the Commissioner accepts that he has never contended that there is unlawful material on the phone which cannot be removed, and which would therefore absolutely preclude the phone’s return. Nevertheless, he asserts that the phone contains material that may constitute child pornography, which the Applicant may not lawfully possess. He expresses “considerable concern” about being obliged to return the phone before this material can be removed. He points to technical complexity in removing such material and potential disputes over whether particular content is unlawful, contending that these issues must be resolved before the device is returned. He requests a reasonable time to remove the material and suggests that any factual and technical issues should be addressed in the High Court, where evidence can be heard.

The Court acknowledges the seriousness of the Commissioner’s concerns, given the nature of the material alleged to be on the phone, while also noting that the Director of Public Prosecutions has decided not to bring any prosecution arising from the Applicant’s possession of that material. The Court observes that its earlier judgment conceptualised the Commissioner’s role in relation to such material as having an entitlement—but not an obligation—to remove material believed to be unlawful before returning the phone. Correspondingly, the Applicant has an interest in not asserting ownership of material which the Commissioner contends it is unlawful for him to possess.

The Court comments that, in light of these mutual interests, one might have expected the parties to agree a practical modality that protects both sides. However, regardless of whether agreement can be reached, the Court concludes that the correct course is to adopt the Commissioner’s first suggested approach: to make no new order regarding the return of the phone and to leave the existing High Court orders in place.

The Court reasons that, if the High Court orders stand unaltered, it is for the parties either (i) to reach agreement on how to deal with the phone or, failing that, (ii) for the Applicant to proceed to the District Court under the Police Property Act 1897 or to bring such other proceedings for return of the phone as he is advised. This approach allows the Commissioner sufficient time to address any necessary steps concerning the phone; the Court remarks that, given that the relevant part of the High Court order was never appealed, the Commissioner has already had ample time. The Supreme Court emphasises that it is not appropriate for it to initiate a new inquiry into essentially factual matters that could have been—but were not—raised in this appeal.

3. Costs

On costs, the Court applies the principles set out in the precedent Plaintiff v. Chief Appeals Officer [2024] IESC 53. It notes that the issues in this case were not merely novel and involved but also of considerable importance, engaging significant questions of both public and private law.

The Court reviews the parties’ relative success across the three levels of adjudication:

• In the High Court, the Applicant succeeded in part and was awarded 66% of his costs.
• In the Court of Appeal, the Applicant succeeded entirely and was awarded all of his costs in both the High Court and Court of Appeal.
• In the Supreme Court, the Applicant did not obtain an absolute order precluding any utilisation of material from his phone, but the Commissioner failed to secure a right to use material downloaded or copied directly from the phone.

In light of this mixed outcome, and guided by the costs principles in the cited precedent, the Court determines that the fair order is to award the Applicant 50% of his costs in each court.

4. Correction of Typographical Error

The Court notes a typographical error in footnote 5 of the substantive judgment, where the word “lawful” should read “unlawful.” It directs that this be corrected and that an amended version of the judgment be posted on the official website.

Holding and Implications

The Supreme Court’s final order is that the Commissioner’s appeal is ALLOWED IN PART, to the extent identified in the earlier substantive judgment (in particular, paragraph 132 of that judgment). The stay on the two disciplinary investigations which were the subject of these proceedings is LIFTED.

The Court REFUSES to grant the Commissioner the requested declaratory order concerning derivative or indirect use of information obtained from the Applicant’s phone, holding that the prior judgment adequately sets out the governing principles and that no declaratory relief is required. The Court also makes NO ORDER about the return of the Applicant’s phone, leaving intact the unappealed High Court orders governing retention and return of seized property and indicating that any further factual or technical disputes about allegedly unlawful material should be resolved in appropriate lower-court proceedings or by agreement between the parties.

On costs, the Court orders that the Applicant recover 50% of his costs in each court (High Court, Court of Appeal, and Supreme Court), reflecting the mixed success of the parties and the importance and complexity of the issues, in line with established costs principles.

The immediate implications for the parties are that the disciplinary investigations against the Applicant may now proceed, subject to the constraints identified in the substantive judgment regarding direct and derivative use of material from the phone. The existing High Court framework continues to govern the eventual return of the phone and the handling of any allegedly unlawful material on it. The ruling does not purport to establish new legal principles beyond implementing the Court’s prior substantive decision and applying existing costs jurisprudence; its primary effect is to clarify the form of the final order and to allocate costs between the parties.