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Judgment
Title:
CRH Plc, Irish Cement Ltd & ors -v- The Competition and Consumer Protection Commission
Neutral Citation:
[2017] IESC 34
Supreme Court Record Number:
65/2016
High Court Record Number:
2015 9210 P
Date of Delivery:
05/29/2017
Court:
Supreme Court
Composition of Court:
Denham C.J., MacMenamin J., Laffoy J., Dunne J., Charleton J.
Judgment by:
Charleton J.
Status:
Approved
Result:
Appeal dismissed
Judgments by
Link to Judgment
Concurring
MacMenamin J.
Laffoy J.
Denham C.J., Dunne J., Charleton J.
Charleton J.
Denham C.J., Laffoy J., Dunne J.


Judgment

An Chúirt Uachtarach

The Supreme Court


Denham CJ
MacMenamin J
Laffoy J
Dunne J
Charleton J
Supreme Court appeal number: 2016 no 65

[2017] IESC 34

High Court record number: 2015 9210 P

      Between
CRH PLC, Irish Cement Limited and Séamus Lynch
Plaintiffs/Respondents
- and -

The Competition and Consumer Protection Commission

Defendant/Appellant

Judgment of Mr Justice Peter Charleton, delivered on Monday, May 29th 2017

1. A search into breaches of competition law occurred on 14th May 2015. At issue on this appeal are the statutory powers specific to the defendant appellant, the Competition and Consumer Protection Commission, to search business premises under warrant and what may be taken, copied, retained and later analysed. It is asserted by the plaintiffs/respondents, the parties searched, CRH, Irish Cement Limited and Séamus Lynch, that the Commission has no power to take or copy material and later scrutinise it. The extent to which a corporation or an individual may assert rights which endure notwithstanding a valid taking or copying of material is at issue in arguments made on behalf of the plaintiffs. They assert that scrutiny by the Commission of taken or copied material from a search must be on notice to them, must happen while they are present, must be subject to judicial determination if argued to be outside the scope of relevance to the investigation and, finally, must be returned or destroyed where not directly relevant. Correspondence between the parties raised unresolved issues and led to a plenary summons dated 10th November 2015. The matter was heard speedily by the High Court, which found in favour of the plaintiffs, injuncting any scrutiny of materials copied in the search. By leave, this appeal was then taken directly from the decision of Barrett J of 5th April 2016 under Article 34.5.4º of the Constitution; [2016] IESCDET 86.

Background
2. In May 2014, the Competition Authority, which is now the Commission, commenced an investigation into price-fixing of bagged cement. While this was expressed to relate to activities within the jurisdiction, the scope of the sales by Irish Cement Limited (ICL) may be wider. In her affidavit in these proceedings, Haiyan Wang of the Commission states that the investigation is concerned with suspected breaches of sections 4 and 5 of the Competition Act 2002 and of Articles 101 and 102 of the Treaty on the Functioning of the European Union. Under s. 4(1) of the 2002 Act “all agreements between” firms and individuals and all “concerted practices which have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services in the State or in any part of the State are prohibited and void”. Examples given within the sub section include actions which:

      (a) directly or indirectly fix purchase or selling prices or any other trading conditions,

      (b) limit or control production, markets, technical development or investment,

      (c) share markets or sources of supply,

      (d) apply dissimilar conditions to equivalent transactions with other trading parties thereby placing them at a competitive disadvantage,

      (e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which by their nature or according to commercial usage have no connection with the subject of such contracts.

3. In addition, it is alleged that ICL and, it is to be inferred, associated companies are in a dominant position in the market for bagged cement which they are abusing. Examples of such illegal action given in s. 5(2) of the 2002 Act embrace:
      (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions,

      (b) limiting production, markets or technical development to the prejudice of consumers,

      (c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage,

      (d) making the conclusion of contracts subject to the acceptance by other parties of supplementary obligations which by their nature or according to commercial usage have no connection with the subject of such contracts.

4. Breaches of sections 4 and 5 are serious criminal offences carrying, under s. 8, fines of up to 10% of turnover for a firm and up to 10 years imprisonment for an individual. According to Ms Wang, the Commission received a complaint in May 2014 that ICL had “entered into exclusive purchasing arrangements” with distributors of bagged cement. This had the result of “potentially foreclosing, or otherwise having an exclusionary effect on, other competing producers of bagged cement.” On investigation it appeared that evidence in relation to the commission of such alleged offences might date back to January 2011. The methodology is alleged to have involved exclusive rebate arrangements; target rebate arrangements; and practices such as the offering of inducements by way of credit notes or free stock in order to prevent or deter the stocking of competitive products.

5. The search warrant issued by Judge William Hamill on 12th May 2015 authorised William Fahy of the Commission to enter the premises of “Irish Cement Ltd”, and to “exercise all or any of the powers conferred on an authorised officer under section 37 of the Competition and Consumer Protection Act 2014 in the course of that entry and search.” This was supported by an appropriate information on oath; but the point of that is neither here nor there since it is not possible to bring judicial review proceedings for the purpose of condemning searches prior to a criminal trial; Byrne v Grey [1988] IR 31, Berkeley v Edwards [1988] IR 217. The criminal trial must retain its unitary character. The methodology of the search was to target a number of individuals in a number of locations at the same time. One particular individual, Séamus Lynch, the plaintiff respondent, was of interest in relation to emails exchanged by him from the date of search back to when the suspected arrangements are said to have been initiated. In consequence, on that day, the database of his emails was restored from a server in another location, downloaded to a particular computer and was then copied in its entirety by officers of the Commission. All of these emails were received on a server @crh.com. At para. 1 of the defence to these proceedings, the Commission accepts “that as a matter of high probability, not all of the emails … will relate to the activity” under investigation. This sensible concession should be read together with an equally reasonable statement on affidavit by Richard Ryan, solicitor for the plaintiffs ICL, regarding the possibility of remaining on the site and sifting through the data, perhaps over weeks. He says that it “would have been impractical to carry out a review of the data for the purpose of identifying the documentation concerned during the search”. Some documents from the company’s lawyers may have been taken in the trawl. Since solicitors were present on behalf of CRH and others during the search, it was confirmed that the Commission would not “review any of the seized documentation pending resolution of the issue of legal privilege” and that therefore any issue in relation to the data of Séamus Lynch would be raised “in further detail in correspondence with the [Commission] rather than during the search.”

6. The focus on this appeal has been on the email account of Séamus Lynch. More than 100,000 individual email communications were taken. In his affidavit in these proceedings, he raises the distinction between the un-relatedness of the business activities of ICL and CRH. He avers that the Commission has seized documents “which do not relate to an activity in connection with the business of supplying or distributing goods or providing a service at the premises of [ICL]” and therefore fall outside the scope of the search warrant. He claims that there is “a serious issue to be tried that the taking of documents the property of other companies and unrelated to the business activity of ICL is not in accordance with law.” He avers that the trawling through such emails is outside the scope of the search warrant and outside the scope of the 2014 Act, and that in consequence he had “no option but to make this application due to the blanket and unreasoned refusal by the [Commission] to agree to a workable process… whereby non-ICL related documents could be a identified and excluded from review by agreement between the parties.” His affidavit goes into considerable detail as to his roles and this is, indeed, the focus of the vast majority of the affidavit. This claim of the unrelatedness of ICL and CRH looms large in the judgment in the High Court. Mr Lynch also claims that the taking of the documents “is an interference with the private life, correspondence and/or home of the company (sic) and insofar as documents of other companies are seized, and my personal emails or emails unrelated to business activity of ICL, my private life as well as the private life, correspondence and/or home of those CRH companies (sic) is unlawfully interfered with”. This is argued to be a breach of Article 8 of the European Convention on Human Rights, Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and Article 40.3 of the Constitution.

7. In the affidavit of James Plunkett, a technology manager with the Commission, he states that the copying of the emails and taking them off site is justified. He says that hidden text would need to be examined, relating to when emails were sent, deleted text would need to be retrieved and that a considerable amount of time and resources are required to conduct a proper forensic examination within a non-Internet-linked digital laboratory. This is what he describes as “best practice”. As the investigation develops, a “proportionate approach to digital forensic [investigation]” is applied. This involves the targeting of “persons of interest who the case team deem relevant to the investigation.” This will involve the extraction of “very specific electronic data relating to a person of interest”. James Plunkett says that “the most proportionate approach is used where practicable”, but that in some instances this cannot be applied “due to technical reasons, such as in cases where the Commission wishes to seize backup tapes, where hard drives have failed or where encrypted files may exist and need to be decrypted.” This is a job for laboratory applications.

8. Detective Sergeant Joseph McLoughlin is an experienced policeman who was trained in the Garda Bureau of Fraud Investigation and in general detective work but secunded to the Commission. He points out that the duty of investigating authorities is to “search out and retain all relevant evidence whether it supports guilt or innocence”; citing Braddish v DPP [2001] 3 IR 127. He asserts this is “particularly relevant in the context of white collar and regulatory investigations where there is every possibility that enforcement proceedings, be they criminal or civil, may well issue against individuals and corporate persons who may, at trial, have competing and adverse interests.” He avers that “the initial assessment as to relevance that is made on-site” is done with a view to giving further consideration of the material off-site. The analogy he draws is that if an officer “were to come across a lever arch folder containing documents or records that appeared to be of relevance to the investigation” he or she “would seize the folder rather than attempting to separate out those documents which were of strict relevance and likely to feature as exhibits in any subsequent proceedings.” Detective Sergeant McLoughlin states that “the context and sequence of the records may be significant” and that the “relevance of a particular record may only emerge or crystallise later by reference to consideration of other records and documents”. He says that in this regard, digital searches and seizures or copying is similar to ordinary criminal investigations, for instance in relation to fraud or sexual violence. The kind of search necessary here he claims “could potentially take months depending on the amount of documentation” and that there is a serious risk of digital alteration were such a search to be conducted on site. Therefore he favours that material be “copied with a view to being scrutinised off-site later on.” Any such analysis would be conducted “in a controlled fashion in which the relevant steps are documented in accordance with best practice.”

9. Harry O’Rahilly, a case officer with the Commission, avers that “only documents falling within” selected search terms will be reviewed of those copied. He says that this means that such documents that are “responsive to a particular keyword search are made visible to the authorised officers.”

Unrelatedness
10. It is clear that the focus of any complaint by the solicitors on behalf of ICL, CRH and Séamus Lynch prior to this appeal was on the issue of the unrelatedness of the roles of the individual whose email account was copied in respect of the period relevant to the investigation. In this regard, it should be emphasised that legal personnel take instructions, firstly, and make representations or allege facts, secondly, that potentially arise on that fact base. The letter of 31st August 2015 alleges that there was a breach of the Act and makes specific reference to four periods when it is said that Séamus Lynch had roles outside of ICL. These are divided into four distinct tranches. A proposal is made that ICL would consider the documents and set out a schedule of what “it considers to be Non-ICL Documents”, allowing the Commission to review “documents relating to Mr Lynch’s ICL roles.” It is then proposed that the solicitor for ICL, CRH and Séamus Lynch and a solicitor for the Commission would meet and take a “cursory look” at disputed documentation, including documentation which contains “commercially sensitive information”. Where a dispute might emerge on these specific issues, and these are the only ones mentioned and that nothing to do with the privacy rights of Séamus Lynch is advocated, a sealed envelope would contain any disputed documents to be reviewed by “the ‘Independent Lawyer’ (sic)” within seven days. In the event that both parties “still cannot reach agreement on whether one or more of the documents is a Non-ICL Document, the document(s) would be referred to the High Court for determination pursuant to an application by ICL/CRH”, while the Commission “would undertake not to review any of the documents referred to in the Schedule pending resolution of this matter (and subject to claims of legal privilege applying to any of these documents).”

11. In the reply of 10th September 2015, the Commission identify Séamus Lynch as “a person of interest given that he was Managing Director of ICL at times material to the … investigation and has been a director of ICL from 2001 to date.” The Commission assert that the seizure of the material was lawful. Correctly, it is said that the Commission is subject to a duty of confidentiality under s. 25 of the 2014 Act and an assurance is given that “[c]ommercially sensitive information is routinely taken up in the course of such searches”, but that it will be subject “to the same considerations in terms of its commercial sensitivity and confidentiality.” The Commission do not intend to depart from their existing practices, the letter asserts. In a comment on s. 25, Barrett J worried that what might be involved in the sharing of information by the Commission was “a leaky sieve”. It is not to be doubted, however, that the commission takes its duties of confidentiality seriously.

12. It should be recalled here that it is presumed that any party who is the subject of an investigation is presumed innocent at all times until there is sufficient proof, within the context of a trial in due course of law in accordance with Article 38.1 of the Constitution. In effect, the proposition put forward by the solicitors on behalf of ICL and CRH and Séamus Lynch is that a person who moves from a role in a company under investigation to a related company within the group, and moves from having a responsibility in relation to Ireland to having a different geographical remit in terms of business could not commit a crime on behalf of the company under investigation. That proposition is utterly untenable. The essence of a competition offence is that a person organises a scheme whereby the market is unlawfully distorted. In the case of an individual, the fixing of prices or the preferment of unequal terms to equivalent transactions, for example, is done with a view to ensuring that other individuals or firms which are capable of competitively offering goods and services are deprived of the natural effect of the marketplace to move towards economy and efficiency. It is the same in the case of an undertaking, or a firm. In order to promote the interests of a firm, individuals may act unlawfully by unfairly retaining business or may draw business to that firm by, for instance, predatory pricing which may result in profit loss over a short period of time with a view to removing a competitor and enforcing a strong, dominant, or even monopoly position over the longer term. This can be done through meetings, through correspondence, through emails or by designating other individuals to make appropriate arrangements by word-of-mouth. Whether any of this happened or not, or whether there was any abuse of a dominant position by ICL, if it occurred, and it is unproven as of this moment, it was done by human interaction which is possibly evidenced in diary entries, in correspondence, in emails and may be recovered from such or may be the subject of further investigation with a view to obtaining the evidence of alleged accomplices.

13. None of that is dependent on where an individual works at any particular time, who that individual works for, the nature of the geographic responsibility devolved and that person’s role in the workplace. A contract killer, to take an unrelated but pertinent example, who murders someone in a large food company may have no connection to the business of that firm but may be paid through an individual account or a corporate or corporate subsidiary account. Once the suspicion may reasonably be held, the investigation may proceed down such lines, subject to appropriate legal authorisation where searches or arrests are to be made. His motivation may be money but motivation to commit a crime may exist either within or without a precise corporate structure or designation of responsibilities.

14. Further, even on the set of affairs as set out in the correspondence advanced by the solicitors on behalf of ICL, CRH and Séamus Lynch, nothing establishes any distance from the matter under investigation which would render the email traffic entirely irrelevant and the context within which it occurred, such as dates, servers used, those addressed or copied, unimportant. Barrett J, in the course of his judgment in the High Court at para. 27, dealt appropriately with this argument:

      Returning to the four-period break-down of Mr Lynch’s history, it emerged during the course of cross-examination of Mr Lynch, at the hearing of the within application, that the neat division of roles which that break-down purports to establish is not quite as needs in reality. However, the fact that this is so does not seem to the court to advance matters greatly, if at all. It merely suggests that identifying Mr Lynch’s Irish Cement and non-Irish Cement activities is more complicated than the statement of claim would have one believe – and it would not be the first statement of claim which posits a state of reality that, on examination before or by the court, sits somewhat askance with reality.
15. As to the precise structure of the companies as between ICL and CRH, no specific information has been forthcoming beyond the fact that these are related companies and are not denied to operate in some way within a group. The precise circumstances under which assets may be transferred from one company to another within a series of companies and the particular relationships which might justify what is in effect the diminution of one company’s assets in favour of another company remains to be decided. It may be that the ordinary rule established by the maxim that “there are to be no cakes and ale save for the benefit of the company” applies to each company as an entity, isolated as each company is and regulated in that regard by law, or it may be that the transfer of assets is lawful. A reliable text, Pennington’s Company Law, (7th edition, London, 1995) at page 993 cites Charterbridge Corporation Ltd v Lloyd’s Bank Ltd [1970] Ch 62 in support of the following assertion:
      [I]f a subsidiary company enters into a transaction, not for its own objects, but in order to assist its parent or holding company or a fellow subsidiary...the transaction may be a misuse of the power of its directors....This is not so, however, if the directors of the subsidiary act to promote or safeguard the common interests of the subsidiary and its holding company....
16. It is unnecessary now to decide that specific issue; it may be subject to argument on the traditional adage sometimes expressed as “there may be no cakes or ale from company funds, save for the good of the company.” The statement of the general principle underlines, however, the ordinary good sense of the proposition that a person working for company A within the Y group may do something to benefit company B within that same group. Whether that activity is criminal, or otherwise, does not matter for these purposes. The fact that the individual does not work for a company, or works for an unrelated company, does not stop that person acting on behalf of, or for the advantage of, another individual or another firm. In that regard, the finding of the High Court accords with a proper legal analysis and should be upheld on this appeal. The issue of powers under the search warrant and the proper approach to the later examination of the copied emails should now be considered.

Balance
17. What is empowered by a search warrant is a matter of the proper construction of the legislation. At issue on any challenge is what the legislation permits in terms of an intrusion into the privacy of an individual or of a firm. In this particular situation, competition law searches, as mandated by Articles 101 and 102 of the Treaty on the Functioning of the European Union, require a balance to be struck between the nature of the private interests involved and the requirement for searches to be thorough so as to fulfil “the principle of sincere cooperation” required in “carrying out tasks which flow from the Treaties”; Article 4(3) of the Treaty of the European Union. This is a context apart from the general criminal law and of the various powers therein mandated. It calls into the question the nature of the privacy rights properly to be considered and the scope of searches lawfully enabled by legislation. The balance to be established in this particular competition law context can include the scope of an examination away from the scene of a search in order to determine irrelevant material and the disposal of what is unnecessary for the legitimate aim of pursuing administrative measures for breach of competition law or a criminal prosecution.

Search warrant powers
18. There is no general power for investigating authorities to enter and search business premises, much less the dwelling of a citizen which, under Article 40.5 of the Constitution, is “inviolable and shall not be forcibly entered save in accordance with law.” Since the decision in Entick v Carrington (1765) 19 State Tr 1001, an entry onto private property must be justified either at common law or be within the specific terms of the statute authorising the intrusion. Since entry must be justified “upon some rule of positive law”, actions such as sorting through documents or emails, copying material or taking it away for analysis, which involve what is ordinarily a trespass to property or a breach of copyright, also require statutory or common law authority. Here, that is said by the defendant Commission to be founded on s. 37 of the Competition and Consumer Protection Act 2014. Such seizure and copying as occurred was outside the scope of that statutory permission, claim the plaintiffs as the parties searched, and furthermore the execution of the process of search, seizure, copying and analysis must be conducted so as to protect them from any breach of privacy and enable their full participation so as to uphold their constitutional rights and Convention rights guaranteed by the European Convention on Human Rights under the European Convention on Human Rights Act 2003, s. 3.

19. The extent of the powers available on a warrant is a matter of construction of the statute under the authority of which it is issued. Such legislative authority is to be construed from the plain words enacted, read in the light of any other relevant provision, within the statutory context as a whole. When addressing the conferring of powers of search or arrest, it is desirable that “broad, plain, intelligible principles” should be stated. Those tasked with the temporary deprivation of liberty that arrest involves or the intrusion into home or business which a warrant authorises, as well as those who are the subject of same, need plain guidance and clear boundaries; see the remarks of Best J in R v Weir (1823) 107 ER 108 at 117. This principle is echoed in the judgment of the Court of Justice of the European Union in Case C-37/13P in Nexans SA v Commission [2014] 5CMLR 13 which refers at para 34 to the need for specific reasons on search application to show proportionality and to “put the undertakings” concerned “in a position to understand the scope of their duty to co-operate”.

20. Here, the statutory authority is a unique one apart from general criminal law. Section 37 of the Competition and Consumer Protection Act 2014 mandates a search in particular terms and, hence, the relevant portions of that section should be quoted:

      (1) For the purpose of obtaining any information which may be required in relation to a matter under investigation under the Act of 2002 an authorised officer may, on production of a warrant issued under subsection (3) authorising him or her to exercise one or more specified powers under subsection (2), exercise that power or those powers.

      (2) The powers mentioned in subsection (1) are the following:

      (a) to enter, if necessary by reasonable force, and search any place at which any activity in connection with the business of supplying or distributing goods or providing a service, or in connection with the organisation or assistance of persons engaged in any such business, is carried on;

      (b) to enter, if necessary by reasonable force, and search any place occupied by a director, manager or any member of staff of an undertaking that carries on an activity or of an association of undertakings that carry on activities, being, in either case, a place in respect of which there are reasonable grounds to believe books, documents or records relating to the carrying on of that activity or those activities are being kept in it;

      (c) to seize and retain any books, documents or records relating to an activity found at any place referred to in paragraph (a) or (b) and take any other steps which appear to the officer to be necessary for preserving, or preventing interference with, such books, documents or records;

      (d) to require any person who carries on an activity referred to in paragraph (a) and any person employed in connection therewith to—

      (i) give to the authorised officer his or her name, home address and occupation, and

      (ii) provide to the authorised officer any books, documents or records relating to that activity which are in that person’s power or control, and to give to the officer such information as he or she may reasonably require in regard to any entries in such books, documents or records, and where such books, documents or records are kept in a non-legible form to reproduce them in a legible form;

      (e) to inspect and take copies of or extracts from any such books, documents or records, including in the case of information in a non-legible form, copies of or extracts from such information in a permanent legible form;

      (f) to require a person mentioned in paragraph (d) to give to the authorised officer any information he or she may require in regard to the persons carrying on the activity referred to in paragraph (a) (including in particular, in the case of an unincorporated body of persons, information in regard to the membership thereof and its committee of management or other controlling authority) or employed in connection therewith;

      (g) to require a person mentioned in paragraph (d) to give to the authorised officer any other information which the officer may reasonably require in regard to the activity referred to in paragraph (a).

      (3) If a judge of the District Court is satisfied by information on oath of an authorised officer that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an offence under the Act of 2002 is to be found in any place, the judge may issue a warrant authorising an authorised officer (accompanied by such other authorised officers or members of An Garda Síochána or both as provided for in subsection (5) of section 35 ) at any time or times within one month from the date of issue of the warrant, on production if so requested of the warrant, to enter and search the place using reasonable force where necessary, and exercise all or any of the powers conferred on an authorised officer under this section.

      (4) The reference in subsection (3) to an offence under the Act of 2002 shall, for the purposes of this section, be deemed to include a reference to the taking by the Commission of proceedings (whether civil or criminal), and the taking of proceedings by the Director of Public Prosecutions, in relation to any contravention of an enactment repealed by section 48 of the Act of 2002 that the Commission suspects has occurred.

21. Subsections (5) to (14) deal with the questioning and recording of interviews by members of An Garda Síochána accompanied, as may happen, by officers of the Commission. On this appeal, the emphasis was not on the lawfulness of the search, indeed that was conceded, but rather on: taking away material by copying; the later analysis of same; and the need for disposal of unrelated material caught in the search net.

22. In terms of the ordinary construction of the powers of search, a warrant is issuable by the District Court on reasonable suspicion that “evidence of, or relating to” an offence under the 2002 Act “is to be found in any place”; thereafter the officers of the Commission have a month to “enter and search the place” and to “exercise all or any of the powers conferred on an authorised officer under this section.” A reasonable suspicion is one founded on some ground which, if subsequently challenged, will show that the person arresting, issuing the warrant or extending the detention of the accused acted reasonably; see Glanville Williams, “Arrest for Felony at Common Law” [1954] Crim LR 408. A reasonable suspicion can be based on hearsay evidence or the discovery of a false alibi; Hussein v Chong Fook Kam [1970] AC 942: or on information offered by an informer who is adjudged reliable; Lister v Perryman [1870] LR 4 HL 521, Isaacs v Brand (1817) 2 Stark 167, The People (DPP) v Reddan [1995] 3 IR 560. A suspicion communicated to a garda by a superior can be sufficient to constitute a reasonable suspicion, as may a suspicion communicated from one official to another, which is enough to leave that other individual in a state of reasonably suspecting; The People (DPP) v McCaffrey [1986] ILRM 687. The fact that a suspect is later acquitted does not mean that there was not a reasonable suspicion to ground either an arrest or a search. It is accepted by the European Court of Human Rights that “the existence of a reasonable suspicion is to be assessed at the time of issuing the search warrant”; Robathin v Austria [2012] ECHR 30457/06 at para. 46. Having information before a judge of the District Court whereby he or she may reasonably suspect the potential presence of information on a premises founds the warrant. The standard being applied here is such as might be familiar from civil or criminal practice. But issuing a search warrant is not to be confounded with any analogy with the criminal trial process. That is not the task. Facts are not being found: facts are being gathered. It necessarily follows that what is involved is an exercise in the pursuit of what is potential, essentially an exercise which may yield no information or limited information. It is of the nature of a criminal enquiry that a warrant may authorise an intrusion into someone’s privacy to little or no effect. This is of the nature of what is required in the course of information gathering and a negative result does not upset the validity of what was done if, after the event, information that may serve towards displacing the presumption of innocence happens not to have been gleaned. The power to issue the search warrant, therefore, does not in this instance inform the nature of the powers that may be exercised pursuant to it.

23. Potentiality carries through into the exercise of powers under the warrant. All of the powers of entry, search, copying, questioning and gathering of material in s. 37 are premised on this being for “the purpose of obtaining any information”. That is not cast in terms of certainty, necessity, probability or even of reasonable suspicion, since all that is required for the exercise of s. 37 powers is targeted at that “which may be required in relation to a matter under investigation under the Act of 2002”. Whereas, in argument on this appeal, there was a canvassing of other powers of search, these, while of interest, do not inform the construction of this section. Instead, other statutory models equip those authorised to search with definite powers based upon the possibility that something will be found that could turn out to be of assistance to an investigation. The wording is the touchstone. It may be possible following the scrutiny of an object, for example an axe as a potential murder weapon, that it is not the cause of the wounds on a victim’s body, yet a statutory model cast in terms of what may be required for an investigation excludes relevance as the criterion where the power of gathering material is concerned with what may be relevant, not just to the marks on the body of the deceased, but instead to the wider investigation into the crime. This may include motive or absence of motive, the personality of any potential suspect in relation to their capability to commit the offence and the object as a potential lead to where other weapons were obtained. This is the kind of thing that police work involves. It is through gathering potential leads and clues, the following of lines of consequent enquiry and the elimination of avenues for the resolution of what may be merely suspected, that a case is built. Barrett J, in his judgment in the High Court, rightly refers to what may be known or potentially known. It has also always been the position at common law, and this was not challenged on this appeal, that a valid search in respect of one crime which uncovers evidence relating to another crime remains valid and that such material may be seized and later analysed. An example is where a mobile telephone seized validly in relation to a particular murder investigation yields evidence on analysis of a different homicide or thereby child pornography is uncovered.

24. This statutory model is argued by the plaintiffs to be unfit and unsound for the gathering of anything other than what is directly relevant to price-fixing of bagged cement or the abuse of a dominant position in the market. In that regard, however, the wording gives the widest possible ambit for enquiry to the Commission. It is also to be noted that nowhere in the affidavits, or in the argument before the High Court, was it ever alleged by the plaintiffs that the officers of the Commission went about their task other than in good faith and in pursuit of the purposes of their enquiry. Nor, on the state of the evidence, could that be alleged. If a test of relevance were to be imposed on the Commission, which is not the statutory test set out in this specific legislation, even then that test would surely not differ from the test for civil discovery of documents which requires the disclosure and potential copying of documents, including computer files, diaries, text records and emails set out in Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55 at 63. There the solemn duty, pursuant to court order and subject to the penalty of criminal contempt, is to reveal material which may advance your case or damages your opponent’s or “may … either directly or indirectly enable the party requiring [discovery] either to advance his own case or to damage the case of his adversary.” That is not, however, the test. The test to be applied is the one set out in the 2014 Act. It may also be remarked that Article 20 of Regulation No 1/2003, which provides for the powers of inspection of the European Commission as to breaches of Articles 101 and 102 of the Treaty on the Functioning of the European Union, while enabling searches not mandated by judicial authority, also enables entry, examination, copying and seeking explanations. It is within the terms of such authorisation that examination take place away from the searched premises; see Case C-583/13 P Deutsche Bahn AG v Commission, judgment of 18 June 2015 and see the separate judgment of Laffoy J on this, with which this judgment concurs.

25. Central to the argument of the plaintiffs was that everything that was required to be done in terms of scrutiny of materials under this legislative model had to be done on the premises of the plaintiff ICL and completed there; in other words, that only material shown to be directly relevant to the matter under investigation could be removed from the premises or copied. In the first instance, such an interpretation would be contrary to the express wording of the statutory power. Secondly, in terms of the ordinary investigative process that is conducted every day in dozens of searches in criminal cases, items of potential interest are commonly seized in the course of searches so that later examination can focus in on whatever direct or potential assistance such items may be, in terms of the prospect of direct proof or of initiating a line of enquiry of a possibly promising avenue. On cursory examination, a notebook may contain only three or four pages which jump out as relevant. The context, however, is important, as it is with diary entries, only some of which may ostensibly relate to the commission of a crime, but where context is of vital importance. Where was a person on a particular day? Who was he with? Who are his associates? What is the ordinary pattern of behaviour demonstrated or suggested by the context? These types of questions are part and parcel of mobile phone analysis as to the time, the place where a mast transmitted a call, the length of the call, the person or persons contacted and the people with whom a suspect associates by habitually ringing or texting them. Again, a concrete example helps to focus the mind. If a woman alleges that she was the victim of sexual violence, the perpetrator may often be someone with whom she has had some contact. His clothing may only be identified in relation to the day the alleged offence was committed, by giving a general description such as jeans and a T-shirt. All such clothing may lead to a discovery, as may underwear or, as those experienced in the area will be all too familiar, the contents of a washing machine. If the perpetrator is unknown, then any item that may yield hair samples consistent with the alleged victim, supposing her hair was dyed and thus allowing a match to be made, or fibres from a jumper she was wearing need necessarily be searched for. Investigators know what they are doing because that is what they are trained to do. Later, under microscopic examination, the clothing may reveal signs of distress, potentially relevant to consent, in the first instance, or of the transfer or fibres or DNA in the second instance as to prior contact. No one will actually know, or even be able to shrewdly predict, possible relevance, until the item is taken away and scrutinised under controlled circumstances. Sometimes a cold case review will yield the very evidence that even dry-cleaning has not removed, hidden within the inner seam of a garment or on a button thread; see for instance the facts of Nash v DPP [2015] IESC 32 at paras. 6-11. This was an instance of where evidence in relation to a murder in 1997 was discovered 12 years later upon the development of more sophisticated DNA techniques.

26. Under s. 37 of the 2014 Act, powers of copying and later examination are provided for. It is usually a past activity that is under investigation by the Commission. That activity may well be a continuing conspiracy or may be one that has ceased on fulfilment or failure of its object. Activity is defined in s. 34 as including “any activity in connection with the business of supplying or distributing goods or providing a service, or in connection with the organisation or assistance of persons engaged in any such business”. Since what was copied here was part of an email account, the definition of a record under the same section is relevant. This is defined as including “discs, tapes, sound-tracks or other devices in which information, sounds or signals are embodied” and significantly qualifies that by stating that such records embodies same “so as to be capable (with or without the aid of some other instrument) of being reproduced in legible or audible form”. The capacity to conduct an in-depth analysis of records may not emerge at the time of search, but information as to deletion, times of sending and receipt of an email, who is copied to the email under cc or bcc (which is not revealed on the face of an email on receipt), are clearly contemplated by the statutory scheme as facts which may emerge in the course of a forensic or laboratory analysis. This, again, accords with the ordinary approach to search and analysis in criminal law. This unique competition law context does not differ in respect of the powers conferred by the legislation.

27. Section 37(2)(c) empowers authorised officers “to seize and retain any book, documents or records relating to an activity” found at the place of the search. Of itself, this substantial power to take and keep material encompasses the ability to later scrutinise the material; that is what retention means. But, officers are also mandated to “take any other steps which appear to the officer to be necessary for preserving, or preventing interference with” that material. If material is copied from a hard drive onto disc, this ensures its original nature for the purpose of examination and trial. What is necessary for a proper scrutiny is empowered by the section. In addition, s. 37(2)(e) empowers such officials of the Commission to “inspect and take copies of or extracts from any such books, documents or records”. In terms of the plain use of language, copying can only mean that it is done within the sense of the subsection which contemplates that later scrutiny be brought to bear on the material. Material in non-legible form may be extracted into “a permanent legible form” and this, again, can only be for the purpose of later scrutiny. The statutory wording does not disenable scrutiny of the material, but it does reasonably inform and limit it. Nothing in the exercise of the powers under s. 37 has in any way disenabled search and scrutiny off the premises. The argument that this material could not be taken off site must therefore be rejected.

The commonplace nature of this process
28. While the Byrne and Berkeley cases, cited above, emphasise the unitary nature of the criminal trial, there have been court applications over decades in relation to the seizure of property during searches. These applications have been necessarily rare since other powers of search and seizure tend also to be ample in the authority which they give to gardaí or other authorised personnel. Central to the commencement of such an application is the writing of a letter setting out in detail the nature of the property, the retention of which is claimed to no longer be of any potential assistance to an investigation. Experience shows that such a letter would set out, for instance, that gardaí had taken some item of personal sensitivity during the course of a search, for instance a photograph album of no potential relevance to the investigation, or that an item needed for work, such as a car, should be returned following inspection and testing. That was not done in this case.

29. This is not a case where the subject of the search, effectively the plaintiff Séamus Lynch, was in any way potentially disadvantaged. The entire email file was within his control. It had been copied by the Commission. It was noticeable how, with the dismissal of the argument by Barrett J in the High Court that a formal position in a particular company outruled criminal activity in the context of ICL, the attention on this appeal has shifted to privacy rights. Counsel for the plaintiffs correctly did not specify any particular concerns; these had not been articulated at all in correspondence and only mentioned in the briefest possible way on affidavit – effectively through quoting Article 8 of the European Convention on Human Rights without adding any meaningful detail as to why it might apply. No case has been made through the sworn assertion of fact that the subject of the search is concerned with any particular aspect of his non-business activities. While medical records, the infirmity of elderly relatives and family photographs were mentioned in argument, this was entirely by way of giving examples which counsel were careful to state were not based on sworn evidence or even on instructions.

30. While this was a business email address, not a private or family email address, the separate judgment of MacMenamin J rightly emphasises the extraordinary scope of what was seized. It was every single email from a particular person. That may be justified within the general context of criminal searches under warrant, depending on the suspicion validly held; as with the necessity to research the activities of someone suspected of terrorist activity or of organised crime or money laundering. The problem which emerges is due to the scope of the seizure which the Commission decided to effect and the absence of justification. This may be a part of the uneasy intersection of the investigation of traditional crimes, such as drug dealing or murder, with crimes which of their nature tend to be evidenced not by physical items but by electronic communications. A police officer entering a home occupied by a suspected drug dealer will immediately see what is relevant; the scales, the powder, the paraphernalia of dealing, the wads of cash. The intrusion involved in walking into a home is justified. The breach of privacy in seizing a mobile phone is necessitated by the search. Possibly, as well, it may be necessary to copy a computer hard drive. A police officer investigating terrorism may need to scope the seizure of electronic communications widely because a pattern needs to be established. In those cases, there will be a reason for the search and its ambit and there will be judicial oversight in the issuance of the relevant warrant. Hence, such actions may be amply justified. Here, the problem is in the seizure of an entire email account of many thousands of communications without justification for such an ample and undifferentiated seizure. Nor does the context necessarily, as in the examples just given, provide that justification. This search was done without any relevant dates as target and without the consideration of using target search terms or some other means of limiting the material proportionately to what needed to be taken. That may be justified where the police or investigating authority needs to search out accomplices or co-conspirators to prevent or investigate an atrocity or where the identification or an organised crime or terrorist ring requires a complete analysis of all information available as to their communications. Such a necessity, however, has not been identified here by the Commission.

The nature of privacy
31. Mc Mahon and Binchy in their Law of Torts (4th edition, Dublin, 2013) comment at para. 37.100 on the “ongoing uncertainty as to the source, extent and character of a generic right to privacy in Irish law”. This, the authors state, is in part due to the “fact-specific” nature of the case examples which render “generalisations both difficult and dangerous.” Such a right has been recognised as an unenumerated right within the Constitution in Kennedy v Ireland [1987] IR 587 by Hamilton P and subsequently approved. That was a case of deliberate, conscious and unjustifiable telephone eavesdropping by agents of the State. The authors give an illuminating narrative of how the private space may become public through movement from that zone into more open spheres at paras. 37.06-37.07.

32. Various jurisdictions have struggled with an appropriate definition of a tort of privacy, in particular in setting out the circumstances in which privacy is to be protected and in delineating such boundaries against the competing entitlement of media enquiry, or even entertainment, within the public space; see for instance Campbell v MGN Ltd [2004] 2 AC 457. The reasonable expectation of privacy test has been used as a working model in other jurisdictions and perhaps displays the necessary flexibility whereby the legitimate resort away from the public space may be considered within an appropriate context. As Fleming comments in Law of Torts (10th edition by Sappideen and Vines, New South Wales, 2011) at para. 26.10, no “simple answer can be given to the question of how contemporary law affords protection for what is compendiously called the “right of privacy”.” Resort to a private space, it must also be recognised, may be for illegal and even criminal purposes. There are some spaces into which the law has no entitlement to intrude, even though it may disapprove of actions which in themselves are an aspect of human expression; see the dissenting judgment of Henchy J in Norris v Ireland [1984] IR 36 at 71-72. Circumstances may dictate where a right to privacy may be asserted, as where a couple converse in their own bedroom, and where the assertion of such a right is not to be met with favour, as where people meet in a public forum, and this is recorded as a fact, or engage with newspapers or television or the Internet as to their life or opinions in such a way as to make themselves an aspect of wide interest. The nature of the conduct may also have a bearing on whether any right to be left alone is engaged. Criminal conduct is not planned publicly and nor do conspirators generally give advance notice of their actions. Hence, to organise a crime, resort is had to what may be otherwise described as the private space. The Constitution, in contemplating the attainment of “true social order”, as recognised in the Preamble, could hardly extend to the planning of crime the protection of a specific right that is recognised because of the legitimacy of people being enabled to retreat from public notice. That there may be legal rights attached to communications through telecommunications is undoubted, legislation provides for this, and their general application is necessitated by the need to protect the public. But, there is no constitutional right of privacy that inures to the organisation of a crime.

33. This is not an action for breach of privacy. It is an attempt to stop the examination of material that has been copied in consequence of statutory authority. It is inevitable that in granting a warrant, intrusions into the private space occur. It is certain that matters outside those of even potential relevance to a criminal or regulatory investigation will come to the attention of those authorised to search. Even entering an office, there may be family mementos or other personal items, while a legally-mandated entry into a dwelling is far wider than the access normally granted to any visitor and is revelatory of life choices. Visitors are generally confined to one room, a kitchen or a living room, while those who search must necessarily look at bedrooms and inside cupboards or under floorboards. Hence, the importance of the interposition of judicial scrutiny to authorise such intrusions. That judicial authorisation is only given where the statutory parameters are fulfilled to satisfy with the necessity for the search; most usually that of reasonable suspicion about a crime that has been perpetrated or is in planning. Mirroring the nature of entry into the private space which a judicially authorised search engages, the taking or copying of records, of data or email necessarily moves into the private space. But, it may be necessary and that depends on the nature of what suspicion is held and the nature of the crime. It may be proportionate because of the nature of investigations, conducted as they are for the benefit of society for the detection of crime, with a view to gathering both what will assist a prosecution and what may offer a defence to an accused. An investigation, for example, into child pornography offences will almost invariably require the seizing of a suspect’s computer. That is necessary. As in all criminal investigations, other rights are engaged, most obviously that of the protection of the life and bodily and mental integrity of victims. In addition, there is the duty of all democratic states to have a functioning criminal justice system, founded on reason and on clear rules to which the victims of crime can have recourse. Embedded in that computer will perhaps be material outside the scope of constitutionally mandated privacy, the images that constitute the nature of the charge; that is what the investigators are seeking to establish. Also included will be legitimate and private communications with friends, photographs of social occasions and perhaps documents or literary efforts of the suspects. In due course, only what is relevant and what has the ability to provide assistance to the prosecution or the defence will be focused on, the remaining material will be winnowed out as unimportant. That why the computer was seized in the first place. Its seizure was proportionate and the necessity to examine what is on it is justified by the nature of the investigation. Similarly, with the investigation of a terrorist offence, the nature of what has been done, or what needs to be uncovered where a planned outrage is suspected, may similarly justify such complete scrutiny as requires the copying of an email account or the downloading of the hard drives of multiple computers.

The non-equivalence of legal professional privilege
34. In correspondence, and on this appeal, it has been contended on behalf of the plaintiffs that any material that may eventually be found to not be directly relevant to the investigation should be treated as if it were a legally professionally privileged communication. That contention led to the letter, quoted above, calling for the intervention of some legally qualified person as a decision-maker, prior to resort to litigation should both parties not agree. That is provided for in the 2014 Act as a protection that is available here where legal advice material has been seized. While the absence of an equivalent provision in respect of out of scope material is not present in the Act, as Laffoy J comments, this would have been a useful addition to a legislative scheme which may involve the wide seizure of lawful material. Certainly, it would have required submissions in real terms as to what private material had been intruded upon.

35. Legal professional privilege protects from any disclosure advice given by a lawyer to a client. Legal advice is opposed to legal assistance, such as the drafting of contracts or other documents designed to have legal effect. A client, in order to get advice, may have to make a definite indication of what he or she has done. The advice as to liability or as to a potential defence, which can only be on the basis of facts as revealed by a client, may then follow. Thus a document giving legal advice may contain or reference a complete confession to murder, to rape or to the abuse of a dominant position in the marketplace. A note might be drawn up pursuant to the right of a prisoner to receive legal advice while in custody and prior to questioning by gardaí. This may later be contained on a computer or on a computer server. Nothing could be more relevant to an investigation, or more definitive, yet nothing could be more untouchable. This is not the place to consider the possible obligation of a lawyer that might arise for limited disclosure if the innocence at stake exception of another person were to arise. A legally professionally privileged document may not be waived by the lawyer; the privilege is that of the client alone.

36. Legal professional privilege is an exception at common law to the disclosure of documents in civil and, where it arises, in criminal cases. It is one of the exceptions which is absolute, or almost so, as with the extraordinary instance of innocence of another perhaps enabling limited disclosure. Within its terms it is not subject to interference. That privilege is of immense benefit to society in enabling those accused to have professional assistance under questioning and to assert their right to liberty and to have recourse to the rule of law. It enables non-production of relevant documents. Hence, it is not trammelled or curtailed. Privacy is. Thus it is not surprising that s. 33 of the 2014 Act deals with instances in which the documents found provide legal advice:

      (1) Subject to subsection (2), nothing in this Act, the Act of 2002 or the Act of 2007 shall compel the disclosure by any person of privileged legal material or authorise the taking of privileged legal material.

      (2) The disclosure of information may be compelled, or possession of it taken, pursuant to this Act, notwithstanding that it is apprehended that the information is privileged legal material provided that the compelling of its disclosure or the taking of its possession is done by means whereby the confidentiality of the information can be maintained (as against the person compelling such disclosure or taking such possession) pending the determination by the High Court of the issue as to whether the information is privileged legal material.

      (3) Without prejudice to subsection (4), where, in the circumstances referred to in subsection (2), information has been disclosed or taken possession of pursuant to this Act, the person—

      (a) to whom such information has been so disclosed, or

      (b) who has taken possession of it,

      shall (unless the person has, within the period subsequently mentioned in this subsection, been served with notice of an application under subsection (4) in relation to the matter concerned) apply to the High Court for a determination as to whether the information is privileged legal material and an application under this section shall be made within 30 days after the disclosure or the taking of possession.

      (4) A person who, in the circumstances referred to in subsection (2), is compelled to disclose information, or from whose possession information is taken, pursuant to this Act, may apply to the High Court for a determination as to whether the information is privileged legal material.

      (5) Pending the making of a final determination of an application under subsection (3) or (4), the High Court may give such interim or interlocutory directions as the court considers appropriate including, without prejudice to the generality of the foregoing, directions as to—

      (a) the preservation of the information, in whole or in part, in a safe and secure place in any manner specified by the court,

      (b) the appointment of a person with suitable legal qualifications possessing the level of experience, and the independence from any interest falling to be determined between the parties concerned, that the court considers to be appropriate for the purpose of—

      (i) examining the information, and

      (ii) preparing a report for the court with a view to assisting or facilitating the court in the making by the court of its determination as to whether the information is privileged legal material.

      (6) An application under subsection (3), (4) or (5) shall be by motion and may, if the High Court directs, be heard otherwise than in public.

      (7) In this section—

      “computer” includes a personal organiser or any other electronic means of information storage or retrieval;

      “information” means information contained in a book, document or record, a computer or otherwise;

      “privileged legal material” means information which, in the opinion of the court, a person is entitled to refuse to produce on the grounds of legal professional privilege.

37. This section declares protection in a different context. Nonetheless, on the basis of the analysis of Laffoy J, a situation of the seizure of out of scope material has occurred and what needs to happen now to advance matters is to find a mechanism for the lawful examination of the material while enabling representations as to the nature of what is private to be taken into consideration.

Data protection
38. The argument of the plaintiffs concerning data protection was maintained on this appeal. It is submitted that s. 8 of the Data Protection Act 1988, as amended by the Data Protection (Amendment) Act 2003, does not authorise a search. In particular, it is argued that ICL and CRH had no authority from Séamus Lynch to pass data to him. This argument is equivalent to a person claiming on a search for child pornography that the computer on which such downloads were suspected to be held was in fact the property of another and that that individual had personal data on same. Laffoy J correctly dismisses this contention.

39. Section 8 of the 1988 Act, as amended, bypasses the restrictions under the legislation on the processing of personal data by clearly stating that such restrictions “do not apply” if the processing is, under subsection (b):

      required for the purpose of preventing, detecting or investigating offences, apprehending or prosecuting offenders or assessing or collecting any tax, duty or other moneys owed or payable to the State, a local authority or a health board, in any case in which the application of those restrictions would be likely to prejudice any of the matters aforesaid
40. The plaintiffs also argue that since s. 37 of the 2014 Act does not apply, there can be no retention or processing of data off-site. When legislative provisions are clear, which they are in this instance, such an argument cannot stand. This is an explicit, and not an accidental, alteration of the law. That law is to be construed within the legislative context and also in light of where the legislative scheme fits into the legal order; Bederev v Ireland & Others [2016] IESC 34 at para. 23. The intention in this case was to ensure that arguments concerning data protection did not impede the steps necessary by way of search, seizure and copying required in order to detect serious criminal offences.

Safeguards
41. The plaintiffs argue that in addition to the rights which arise by virtue of the Constitution protecting their asserted corporate, and in the case of Séamus Lynch personal, privacy, the approach of the Commission has infringed its obligation under s. 3(1) of the European Convention on Human Rights Act 2003. That section provides:

      Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State's obligations under the Convention provisions.
42. The rights asserted are those provided for under Article 8, which states that “[e]veryone has the right to respect for his private and family life, his home and his correspondence.” Privacy is both a limited and a qualified right, the exercise of which may be subject to legislative interference for legitimate reason or, from the sensible wording of Article 8, to “interference by a public authority … in accordance with the law” and where same is “necessary in a democratic society” where the interests engaged are “national security, public safety or the economic well-being of the country” or if an intrusion occurs “for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The first part of the test therefore requires that there is a legal basis for the interference with the right to privacy. In this case, s. 37 of the 2014 Act allows such interference. The second requirement is that any interference with the right to privacy must be “necessary in the democratic society”, meaning that any interference must be proportionate to the legitimate aim pursued, which are specifically listed in Article 8(2). Interference with the right to privacy by public authorities is allowed “for the prevention of … crime”, which is directly applicable to this case. Clearly, the detection of crime prevents crime. Crime also interferes with the rights of victims, and while uncompetitive cement pricing may have no immediately obvious victim, it causes disorder within the general economy to the detriment of consumers and undertakings which might otherwise have a competitive edge. Thus, crime interferes “with the rights and freedoms of others.” The scope of what is seized in criminal investigations is, in the first instance, justified by a warrant issued by judicial authority and is, secondly, scoped by the nature of what material the investigators need to examine. Here, the problem is in justifying the examination of many thousands of emails which are accepted by the Commission to be outside the scope of anything that could be said to be relevant. A solution must be found to enable the proportionate scrutiny of that material. Laffoy J rightly suggests that the parties correspond as to this issue. Some suggestions as to the scope of a proper compromise are also within the competence of a court.

43. The plaintiffs assert multiple arguments. Firstly, the right not to be searched is claimed; but since this is authorised by law, the search has taken place in line with the requirement that any interference with the right to privacy under Article 8 is to occur “in accordance with law”. Secondly, they argue that the taking or copying of documents outside what is expressly relevant to a contemplated charge is unlawful; but again this is authorised by law. They claim, thirdly, the entitlement that the scrutiny of the material should now be proportionate to the purpose pursued: that the investigation into the alleged crime should continue but that they should have an input into the exclusion from detailed examination of private family communications. In the extraordinary circumstances of this statutory model, which differs from the powers generally available for searches in criminal law, and in the absence of justification by the Commission for the examination of private communications, a proportionate response, the plaintiffs urge, includes an entitlement to be present when all files are scanned through the use of key search terms, an entitlement to influence the choice of such terms, and an entitlement to be present while any email targeted by the Commission is perused or further examined as to metadata. Any dispute that arises, and in this regard a dispute would easily arise if the proposals of the plaintiffs were to be adopted, is to be treated in an equivalent way to the assertion of legal professional privilege, the absolute right of a client provided for under s. 33 of the 2014 Act. That, in turn, is said to be subject to judicial scrutiny. Finally, it is argued by the plaintiffs that any data found not to be relevant is to be destroyed. What is crucial to this analysis is the obligations arising under European law within this particular context, and in particular as analysed by Laffoy J, and the complete absence of justification for such a wide seizure of hundreds of thousands of emails. Despite not justifying the seizure of an entire email account over several years of an individual, the Commission have not proposed, in the first instance, what is to happen to obviously irrelevant material, in the second instance, how proposed search terms could not have been used on site when the search was conducted, in the third instance, why it was necessary for the plaintiff’s legal representatives to protest before any search terms were even proposed and, finally, that legal representatives having been allowed to attend during the search, why these may not assist in at least attempting to settle the basis for the analysis.

44. Central to the protections afforded to an undertaking or individual searched pursuant to warrant is that there should be judicial authorisation for such an intrusion and that the information grounding the search be sufficiently precise as to the target of the enquiry; Case T-135/09 Nexans France SAS v Commission, judgment of 14 November 2012. As the General Court observed at para. 39:

      The obligation of the Commission to specify the subject-matter and purpose of the inspection is a fundamental requirement in order both to show that the investigation to be carried out at the premises of the undertakings concerned is justified, enabling those undertakings to assess the scope of their duty to cooperate, and to safeguard the rights of the defence.
45. This protection was present in this case, as it is in all criminal law searches in this jurisdiction. As in the Nexans case, the defendant Commission specified the subject matter and purpose of the investigation through the setting out of “essential information” and by stating “the essential characteristics of the suspected infringement, indicating inter alia the market thought to be affected”; see paras. 42 and 44. It has not been demonstrated that what occurred in this case was a hovering up of documents with no regard to a specified subject matter, nor has there been any apparent violation of the entitlement to confidentiality as to legal advice; see Niemitz v Germany (1993) 16 EHRR 97. That issue is, in any event, specifically covered by s. 33 of the 2014 Act. This was not a legal office and in consequence the specific sensibility attaching to professional communications with a lawyer does not arise; Robathin v Austria [2012] ECHR 30457/06.

46. The copying of emails has taken place on a commercial email server run and paid for by one of the plaintiff companies. Where there has been a mixing of materials both relevant and irrelevant to the investigation, due to multiple uses of the server, this may not the fault of the party searching; see Bernh Larsen Holding AS v Norway [2013] ECHR 24117/08, para. 173. Codes of practice, including those employed by An Garda Síochána, may specify that where a computer hard drive is downloaded, three copies on digital devices must be kept; one for the party searched, one kept untouched as a control and one for forensic scrutiny. This, however, is a practice and not a legal requirement. Having protocols, however, makes clear to everyone what should happen. Such may, operate as a guide to circumstances as extreme as in this case where a vast capture of irrelevant material has occurred. The plaintiffs, fortunately, know what has been copied because they have the original material. The individual suspected of complicity in breaches of competition law, who has an entitlement to be presumed innocent, has been specifically targeted. This is not, therefore, a case where material has been taken and where the context enables a court to find that the searched individual or undertaking has no precise knowledge of what has been taken in the search. In such circumstances, the rights of defence may be compromised as it will then be probable that legitimate representations as to what was directly or potentially relevant to the investigation could not precisely be made. Here, such precise representations can be made. The significance of this is made clear by the General Court in Nexans at para. 130:

      As regards the documents copied during the inspection, it must be pointed out that the applicants kept the originals, in either paper or electronic form, and are able to ascertain the nature and the content of those documents. Notwithstanding that fact, the applicants did not identify specific documents or parts of documents which are protected under EU law. The applicants merely maintain that the Commission did not have the right to copy those documents in order to examine them later in its offices. According to the applicants, the documents ought to have been examined at the premises of Nexans France, and the Commission was entitled to take a copy only of those documents relevant for the purposes of the investigation. It must therefore be held that the applicants are not taking issue with the Commission for having consulted or copied certain specific protected documents, but for having examined them in its own offices in Brussels rather that at the premises of Nexans France and for having kept them up until the time of the examination.
47. Consequently, the plaintiffs are not at a disadvantage in seeking to assert that certain documents within the email account of Séamus Lynch relate to genuinely private engagements or concerns. They have the ability to assert that certain precisely defined and described emails bear no relationship to the nature of the investigation, which is amply described in the warrant and in the sworn statement which accompanied it. It is thus incumbent on the plaintiffs to assert the proportionality of the coming scrutiny by making a detailed submission as to what communications on this business email server have been entirely for private or family purposes.

48. In reality, the plaintiffs have, on the facts as laid before the trial judge in the High Court, made an entirely separate and incorrect case as to the incompatibility of executive duties within the cement industry with the pursuit of breaches of competition law. Any taking of or copying of email material in the course of a valid search will capture ordinary day-to-day stuff like conversations about hurling matches or clothes or recipes for Irish stew. It would have assisted the process for genuinely private and sensitive material to be precisely specified by the plaintiffs in their legal submissions to this Court. This has not been done, certainly that is not the fault of counsel, and it should have been done by them in order to assist in this process. It is clearly important to the outcome of a case that such specification be done; that a party the subject of a search and seizure should simply state that particular items of genuinely private concern and of no relevance to the case under investigation have been taken and state clearly what these are. To fail to do that is to undermine any such later case that might be made; Janssen Cilag SAS v. France Application No. 33931/12, European Court of Human Rights. But, of course, the searching authority may display an unwillingness to consider any such submission, as is pointed out in the judgment of Laffoy J.

49. The entitlements contended for by the plaintiff relating to attendance at any examination of documents, exist in some jurisdictions pursuant to protocols where a vast seizure of electronic material has been made and where that input may assist in identifying a proportionate examination of material that is accepted to contain out of scope material. It is to be noted that in some codes of practice concerning the copying of digital material, it is thought that it may be desirable that a representative from the party searched be present for the examination of the documents. The jurisprudence on Article 8 shows that the European Court of Human Rights has not found that there is any general right for the party searched to be present for the opening or scrutiny of copied digital material. The circumstances in which this occurs must be fact-specific. For instance, in a terrorist investigation, it is surely proportionate to conduct an immediate scrutiny in order to head off an impending atrocity or prevent yet another gross breach of human rights which public bombings or assaults with vehicles, or other weapons, represents. A suspect may have fled; or may be required to be kept from material where the legitimate purpose of preventing dissemination as to methods occurs. Any such cases will, in any event, have their own statutory matrix and it is not proposed that any change in the methodology of examination is necessary. Any one believing that more material has been seized than necessary, may of course make a representation as to precisely what that is and the investigating authorities may consider their methodology in the light of it. In competition cases, specific to this legislation, as opposed to any other kind of case, it may be appropriate in order to ensure that out of scope material is excluded that representations are considered from the party searched, as to what is specifically private and as to what search terms may hit on what is sensitive private material, and that a representative should be enabled to attend some part of the necessary initial scrutiny. In the Bernh Larsen case, at para. 61, the Court refers to the fact that the taxation authorities notified the companies suspected of taxation irregularities of “the dates, time and place of the review, its object, certain preparatory processing not involving searching or opening of documents, and the identity of the companies concerned” and invited them “to appoint a common representative” to attend. As Barrett J did not make a specific suggestion as to a way forward, in the context of this case, it is within the scope of this Court’s function on appeal to consider a way forward.

50. There may be some instances where, following precise representations from the party searched, that a response of having a legal or other representative in competition cases present for an initial scoping exercise may meet with good practice. However, there is nothing to establish it as a legal right in itself. Certainly, it is not an entitlement which obtains in criminal cases in general. The foundation for any such presence should be the assertion of particular areas of sensitivity with regard to privacy and these must be specified in a helpful way by letter by the plaintiffs to the Commission. A mischievous assertion may result in some competition cases but that is not necessarily to be expected here. The necessary specification of irrelevant and private material by the plaintiff should be simple in the light of the precise specification of the nature of the investigation by the defendant Commission in this case. De Jong and Wesseling in “EU competition authorities’ powers to gather and inspect digital evidence – striking a new balance” (2016) 37(8) ECLR 325 consider two diverging approaches to investigations of competition law infringements by public authorities, referring to the EU Commission practice which is known as the ‘on-site’ selection model as it “primarily selects the digital evidence to be included in its file during the inspections at the premises of the subject of the investigation”, while the off-site model includes that employed by the Dutch Competition Authority. At page 326, the authors refer to the importance of finding “a balance between ensuring that competition authorities’ powers to investigate business records and books remains effective in a digital era, and safeguarding at the same time the companies’ fundamental rights during these investigations.” This analysis is specific to competition law.

51. The plaintiffs also contend that there is an absence of judicial review of the process. Such a process is specifically provided for in s. 33 of the 2014 Act in relation to claims that particular documents constitute professional advice on legal issues. It has been commonplace in this jurisdiction that those searched may wish to make a precise representation as to property taken in the course of an investigation and seek its return. The possibility of judicial involvement has never been ruled out from this process, nor has the taking of an action for damages should a civil trespass occur through an exercise of bad faith by authorised parties under a search warrant, or through actions outside the scope of legitimacy conferred by a warrant. No judge would validly entertain such a case had not representations of a sensible and precise kind first been made in such a detailed way as to enable the party holding the material after the search to respond. In this case, that has not occurred. Instead, a vague and entirely erroneous case was essayed. Thus it has been necessary to hold that the search was within the scope of the legislation, as was taking material off-site, and that corporate structure is in no way an answer to legitimate suspicions.

52. Finally, in relation to the destruction of copied material, there is no reason for the Commission to hold on to irrelevant material. The Commission, which has been injuncted from its lawful function to date, should first of all be enabled to open and search the material in the precise and targeted way it has indicated. Since potential relevance is the test, and since the context will help to define the nature of any case to be made, once that material has been subject to scrutiny, arrangements can be made by the Commission to destroy material irrelevant to the investigation.

Result
53. In consequence, the order of the High Court was correct in the context in which the case was presented. It should be upheld. As Laffoy J suggests in her judgment, the forward movement of the investigation can easily be effected through the agreement of the parties. To some extent, positions have become entrenched. Thus, a suggestion as to what might now be addressed may be helpful to the concerns expressed and which are ruled on in this judgment and in the separate judgment of Laffoy J, with which this concurs. The Commission is entitled lawfully to proceed with its investigation. In assisting the process, and within the specific context of this legislation, the following might be offered as a suggestion:

      (a) the plaintiffs are entitled to, and might usefully, write a letter to the Commission setting out what private material has been copied in the email server of Séamus Lynch and why there is an especial sensitivity that attaches to it which requires the protection of his privacy rights under Article 8 of the Convention, specifying either dates or the subject matter requiring protection;

      (b) the Commission, in the context of this litigation, has suggested particular forms of electronic search of the material and it may there for assist for the Commission to invite submissions as to word searches and the appropriate analysis to bring to light relevant material and the plaintiffs are entitled to respond to that, bearing in mind that the statutory responsibility for the final decision is that of the Commission;

      (c) for the initial search of the voluminous material here with a view to scoping what is relevant by word-specific search, it may be appropriate in the light of the lack of justification put forward by the Commission, and because of that, that a representative of the plaintiff Séamus Lynch should be enabled to attend at that initial analysis;

      (d) the Commission should endeavour to protect the privacy of the plaintiff Séamus Lynch but may proceed to investigate crime in a proportionate way, and this the steps suggested ought to fulfill;

      (e) context in relation to emails may be important and so the meta data for any relevant material uncovered in the search may be of importance in placing communications in their proper context;

      (f) what is private and not relevant to the breach of competition investigation should be destroyed at the end of the process of identifying what is relevant and the representatives of the plaintiff might usefully assist in consideration of an appropriate methodology;

      (g) it would not be incorrect for the Commission to consider a code of practice, perhaps involving individual protocols, for future cases under this legislative code.









SC Crt Ordr 65-2016 CRH 01-Jun-17.pdf

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