Supreme Court: Competition watchdog restrained from examining material from unlawful search
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The Competition & Consumer Protection Commission has lost their appeal to the Supreme Court regarding the seizure of emails belonging to the former managing director of an Irish company under investigation for anti-competitive behaviour. Upholding the decision of the High Court that the CPCC procedures were ultra vires, the Supreme Court ruled that to examine all emails belonging to the company, including those which the CPCC agreed were irrelevant, would be in breach of constitutional and ECHR rights.
About this case:
- Judgment:
Background
In May 2015, three officials from the Competition & Consumer Protection Commission (CCPC), and two members of An Garda Siochana, arrived unannounced to carry out a ‘dawn raid’ at the headquarters of Irish Cement Limited (ICL), in County Meath. ICL is a large company associated with CRH Plc, which is the largest home-based enterprise based in Ireland. The Court heard that both companies operate in the building, construction and materials sector.
The CCPC officials were acting on foot of extensive powers pursuant to the Competition & Consumer Protection Act 2014. The CPCC demanded access to the home drives of five named ICL employees on foot of a warrant which had been granted in May 2014. One such employee was Mr Seamus Lynch – former managing director of ICL.
Tin response to queries made by ICL’s legal representatives, the CCPC gave an undertaking that it would not review any such matter it seized, unless and until there was a mutual arrangement as to how to sift through the material taken. However, the CCPC subsequently asserted that, subject to legal privilege, it would review all the material it had seized.
Central Issue
The central issue in the case was whether the search-procedure, particularly the seizure of the entirety of Mr Lynch’s email account, was conducted in a manner not only consistent with the words of s.37 of the Competition & Consumer Protection Act 2014, but also the respondents’ constitutional and Convention rights.
The procedure adopted must not only satisfy the test of legality, but it must be measured against the constitutional rights at stake, especially that of privacy.
In this regard, the CPCC conceded that when the entirety of Mr. Lynch’s mailbox was downloaded, it contained much material which was “to a high degree of probability”, irrelevant to its investigation – yet the CPCC took no steps, either prior to or during the search, to prevent this happening.
Given that this raid had been planned for some time, Mr Justice John MacMenamin was satisfied that this was a case in which there were no circumstances owing to urgency or pressing need that the authorities had to act quickly to prevent crime, apprehend suspects, or to protect evidence.
Intrusion into Constitutional Rights
Justice McMenamin found that the evidence of the disproportionate intrusion into the Constitution and ECHR rights engaged was cogent and clear.
The degree of specificity in a warrant may vary in accordance with the circumstances in which the warrant is issued, the type of crime involved, the degree of urgency, and the nature of the investigation required
In deciding the validity of the warrant, the Court had to consider:
Emphasising that the rendering of a search warrant to be null and void due to dis-proportionality in either the constitutional or ECHR sense had to be decided on a case-by-case basis, Justice McMenamin held that the cumulative effect of the many factors considered by the Court, was critical to the constitutional finding in the present case.
In all the circumstances, Justice McMenamin ruled that ‘the procedures were, are, and remain, ultra vires’.
What was obtained, in purported compliance with the Competition & Consumer Protection Act 2014, was in breach of the respondents’ constitutional and ECHR right to privacy. It was not compatible with the precise requirements of Article 8 ECHR, even having regard to the margin of appreciation to be applied.
Proposed Order
Dismissing the appeal, Justice McMenamin held that he would grant a declaration that the CPCC acted ultra vires s.37 of the Competition & Consumer Protection Act 2014, in breach of the respondents’ constitutional right to privacy, and in breach of their rights, under Article 8 of the European Convention on Human Rights.
As such, the CPCC did not act in accordance with s.3(1) of the European Convention on Human Rights Act 2003, which provides that organs of the State shall perform their functions under s.37 of the Competition & Consumer Protection Act 2014 “in a manner compatible with the State’s obligations under the Convention provisions”.
Justice McMenamin therefore proposed granting an injunction restraining the CPCC from reviewing or examining any of the material, or any of the data, which were the fruits of the unlawful search.
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