A Garda Detective has launched a High Court action aimed at restraining the Garda Commissioner from continuing internal disciplinary proceedings against him over various communications allegedly found on the officer's electronic devices.
The action has been taken by Detective Garda Robert Fitzharris, who was suspended from duty after members of An Garda Síochána entered his home and seized two mobile phones and a laptop computer in October 2021.
Based on an examination of those devices, the detective has been made the subject of internal Garda disciplinary proceedings.
It is alleged that the detective communicated messages on the phone to another person, including secret and sensitive information regarding an ongoing Garda investigation, and the details of an investigation that had resulted in the arrest and detention of another person.
It is further alleged that other messages contained material that was explicit, derogatory and degrading.
Gda Fitzharris and another member of Gardaí, who also had his phone seized, were investigated over the material.
In 2022, after reviewing the file on the matter, the Director of Public Prosecutions (DPP) directed that no prosecution of the detective take place.
However, the detective has remained suspended from duty, and the subject of internal Garda disciplinary process for alleged discreditable conduct and breach of confidence, which could result in his dismissal if findings are made against him.
'Unlawful trawl'
The detective, who denies any wrongdoing, claims that as no criminal prosecution is in being undertaken,the Commissioner is not entitled to rely on or use any material obtained from the seized devices in any ongoing disciplinary process against him.
The allegations against him, he claims, are based on an unlawful trawl of his devices.
The retention of those devices, he claims, is unlawful and a breach of his rights.
He has sought the return of the devices taken from him 2021, which he says have not been returned. It is also alleged that this amounts to an unlawful and unreasonable action by the Commissioner.
The detective also claims that his ongoing suspension is unlawful.
As a result, he has brought judicial review proceedings against the Garda Commissioner, in which he seeks orders against the Commissioner, including one restraining the respondent from continuing disciplinary proceedings against him.
He also seeks orders restraining the Commissioner from retaining the detective's electronic devices for disciplinary purposes, that said items be returned to him, and that his suspension be lifted.
He also seeks an order restraining the Commissioner from using any material taken from the phone of the other garda for any purposes othes than for those for which it was seized.
He further seeks declarations that the Commissioner is acting contrary to law by using material that belongs to the detective as evidence in the disciplinary proceedings and that the use of information recovered from the detective's equipment other than for a criminal investigation is in breach of the 2018 Data Protection Act.
Permission to bring the challenge was granted, on an ex-parte basis, by Ms Justice Niamh Hyland on Monday.
The matter will return before the High Court next month.
