CRH Plc, Irish Cement Ltd v Competition and Consumer Protection Commission

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice John MacMenamin,Ms. Justice Laffoy,Mr Justice Peter Charleton
• Judgment Date: 29 May 2017
• Neutral Citation: [2017] IESC 34
• Docket Number: [S.C. No. 65 of 2016],[Appeal No. AP:IE:2006:00065] Supreme Court appeal number: 2016 no 65 [2017] IESC 000 High Court record number: 2015 9210 P
• Date: 29 May 2017

Between

CRH PLC, Irish Cement Limited

and

Séamus Lynch

Plaintiffs/Respondents

- and -

The Competition and Consumer Protection Commission

Defendant/Appellant

[2017] IESC 34

MacMenamin J.

Laffoy J.

Charleton J.

Denham C.J.

MacMenamin J.

Laffoy J.

Dunne J.

Charleton J.

[Appeal No. AP:IE:2006:00065]

[Appeal No. 65/16]

Supreme Court appeal number: 2016 no 65

[2017] IESC 000

High Court record number: 2015 9210 P

THE SUPREME COURT

An Chuirt Uachtarach

Unlawful search – Right to privacy – Search warrant – Appellant seeking to review seized data and material – Whether appellant acted ultra vires Competition & Consumer Protection Act 2014 in breach of the respondents' constitutional right to privacy

Facts: In a High Court judgment, [2016] IEHC 162 ( Unreported, High Court, 5th April, 2016), Barrett J found that the defendant/appellant, the Competition and Consumer Protection Commission (CCPC), had acted ultra vires in seizing the entire email account of the third plaintiff/respondent, Mr Lynch, containing material unrelated to the investigation. He held this conduct was contrary to s. 37 of the Competition & Consumer Protection Act 2014, and outside the scope of the search warrant. The court found that, were the CCPC to engage in a review of all the material, it would not only constitute a breach of the respondents' right to privacy, as recognised by the Constitution, but would also contravene s. 3 of the ECHR Act 2003, because it constituted a contravention of the respondents' Article 8 ECHR privacy rights. The trial court granted declarations to that effect, as well as an injunction restraining such review. The CCPC applied for leave to appeal directly to the Supreme Court. The Court acceded to the application. The appellant's written application-form was significant in light of its previous stance that it was entitled to review all the seized data and material. In the application for leave, the CCPC slightly nuanced its stance by accepting that all such search warrants are limited in their scope to the seizure of material that is relevant to matters under investigation.

Held by MacMenamin J, Denham CJ and Dunne J concurring, that the nature of the procedure, and the subsequent timing of the various alterations in the CCPC's position shows the extent of the original incursion. MacMenamin J held that the procedures were, are, and remain, ultra vires. MacMenamin J held that what was obtained, in purported compliance with the words of s. 37 of the 2014 Act, was in breach of the respondents' constitutional and ECHR right to privacy; it was not compatible with the precise requirements of Article 8 ECHR, as applied in the jurisprudence, even having regard to the margin of appreciation to be applied. MacMenamin J held that the facts and circumstances were very different from those which might apply in other categories of case.

MacMenamin J held that he would dismiss the CCPC's appeal and would grant a declaration that the appellant acted ultra vires s. 37 of the 2014 Act, in breach of the respondents' constitutional right to privacy, and in breach of their rights, under Article 8 ECHR; it follows that the appellants did not act in accordance with s. 3(1) of the 2003 Act, which provides that organs of the State shall perform their functions under s. 37 "in a manner compatible with the State's obligations under the Convention provisions". MacMenamin J held that he would grant an injunction restraining the appellants from reviewing or examining any of the material, or any of the data, which were the fruits of the unlawful search. Laffoy J and Charleton J also handed down judgments.

Appeal dismissed.

Judgment of Mr. Justice John MacMenamin dated the 29th day of May, 2017

1 1. For the reasons set out in this decision, I would affirm the decision of the High Court and dismiss this appeal.

Facts

2 A little after 10 a.m. on the 14th May, 2015, three officials from the Competition & Consumer Protection Commission (CCPC), and two members of An Garda Siochana, arrived unannounced at the second named respondent's headquarters at Platin, County Meath. That respondent, Irish Cement Limited (ICL), is itself a large company, associated with the first named respondent, CRH Plc. ('CRH'), which is the largest home-based enterprise based in Ireland. Both companies operate in the building, construction and materials sector. CRH's activities are worldwide however.

3 The CCPC officials were acting on foot of extensive powers said to be contained in the Competition & Consumer Protection Act, 2014. They demanded access to the home drives of five named ICL employees. They told other ICL employees that lack of co-operation with this demand could result in criminal prosecutions. After telephone conversations with the company's lawyers, the employees indicated they would co-operate, although protecting their rights. One of the five 'persons of interest', Seamus Lynch, was formerly ICL's Managing Director. The officials demanded access to all of Mr. Lynch's email account. ICL's solicitors arrived. There were protracted discussions about the scope of the search. Although ICL's solicitors from Arthur Cox were briefly shown the search warrant, they were not allowed to retain it at that point, and were only given a copy of it at the end of the inspection. The lawyers were not shown the sworn information upon which the warrant was based. The information submitted to the District Court contained a general outline of the nature of the complaints; the warrant did not. In the absence of any specific information regarding the scope of the investigation, the lawyers were unable to make any meaningful observations to the CCPC officials as it took place. A level of agreement was reached in relation to the assertion of legal privilege. 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. But there was no such agreement regarding the tracts of other material also taken. Later, the CCPC asserted that, subject to legal privilege, it was permitted under the law, and would, review all the material it had seized.

The Sworn Information

4 The search took place on foot of sworn information to the District Court, which set out that the CCPC's investigation began in May, 2014, that is, one year before the dawn raid. Three complainants made allegations to the CCPC's statutory predecessor, the Competition Authority, to the effect that ICL was using exclusive purchasing arrangements, rebates, or other inducements to distributors of bagged cement, and that these measures had the effect of excluding competitors from the Irish market. The allegations concerned only ICL's activities within the State, and not elsewhere. One of the CCPC officials centrally involved, Ms. Haiyan Wang, deposed that she herself had been involved in the investigation since July, 2014; other evidence shows that a second official, James Plunkett, a highly qualified I.T. Manager and Consultant with the CCPC was involved in the investigation as and from February, 2015, two or three months before the search. Ms. Wang set out, in the information, that, on her review of witness statements, copy email communications, and other data provided by the third parties, she had formed the opinion that the ICL had engaged in anti-competitive activity in a period between January, 2011 and the 12th May, 2015.

5 Obviously, this search had been long pre-planned. The search and entry on ICL's premises did not arise out of some emergency situation, or at a time there was some threatened or imminent risk of the destruction of evidence. The warrant itself was couched in broad and unspecific terms.

Application for Search Warrant

6 The CCPC applied for the search warrant to the District Court on the 12th May, 2015. The application was made pursuant to the then recently enacted s.37(3) of the Competition & Consumer Protection Act, 2014 ('the Act'). As well as establishing the CCPC as a new statutory agency, this Act granted extended powers of entry, search, seizure and retention of material in the case of premises where, in the view of a District Court judge, there were reasonable grounds for concluding that there was to be found evidence of, or relating to, an offence contrary to the Competition Act of 2002. This, the new Act's parent statute of 2002, defines a series of anti-competitive activities, not only as civil wrongs, but as criminal offences. The District judge granted the application, based on the sworn information.

The Contents of the Search Warrant

7 The salient parts of the search warrant read:

'Whereas from the information on oath and in writing sworn this day before me, a judge of the District Court, by Haiyan Wang , an authorised officer of the Competition & Consumer Protection Commission, I am satisfied that there are reasonable grounds for believing that information necessary for the exercise by the Competition & Consumer Protection Commission of its functions under the Competition & Consumer Protection Act, 2014, is to be found in the place comprising the premises of Irish Cement Limited at Platin, Drogheda, County Meath (the term 'place' to be construed in accordance with s.34 of the Competition & Consumer Protection Act, 2014).

I hereby issue , pursuant to s.37(3) of the Competition & Consumer Protection Act, 2014, a warrant to William Fahy, authorised officer of the Competition & Consumer Protection Commission, authorising him (accompanied by such other authorised officers or members of An Garda Siochana, or both, as provided for in sub-section (5) of s.35 of the Competition & Consumer Protection Act, 2014), at any time or times within one month from this date, being the date of issue of the warrant, on production, if so requested of the warrant, to enter and search the said place (including any building...