Supreme Court declares CCPC search warrant ultra vires and in breach of privacy rights under Article 8 ECHR.

THE SUPREME COURT

Denham C.J.

MacMenamin J.

Laffoy J.

Dunne J.

Charleton J.

[Appeal No. AP:IE:2016:00065]

BETWEEN:

CRH PLC., IRISH CEMENT LIMITED AND SEAMUS LYNCH

RESPONDENTS/PLAINTIFFS

V. COMPETITION & CONSUMER PROTECTION COMMISSION

APPELLANT/DEFENDANT

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

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 or part thereof, and any vehicle, whether mechanically propelled or not), comprising the premises of Irish

Cement Limited at Platin, Drogheda, County Meath, using reasonable force where necessary, and exercise all or any of

the powers conferred on an authorised officer under s.37 of the Competition & Consumer Protection Act, 2014, in the

course of that entry and search.

Date (and signature)” (Emphasis added)

As will be explained in more detail later, searches under this Act are, to a large extent, sui generis. The procedures considered here

differ from other search warrant procedures, inter alia, by reason of the relatively narrow scope of the investigation, ease in

identifying irrelevant material, methodology of search, involving electronic data, which is often susceptible to keyword search, and the

specific nature of the offences under investigation. The context and considerations at issue differ, therefore, from other categories of

criminal offence, where an investigation may occur in quite different circumstances, as to time, urgency, necessity and

proportionality. By contrast, searches under this Act can be much more focused. It is in this context that this Court must consider

whether this incursion into constitutional and ECHR rights was justified and proportionate. A search warrant is a document which

permits the legal incursion into the property, privacy or personal rights of a citizen, or business entity, as defined by law. This warrant

did not convey any information about the nature, timing, and location of the offences alleged or suspected. It did not identify any

person as being involved in such activities, or disclose any basis for a reasonable suspicion that a criminal offence had been

committed. The warrant simply stated, on its face, that there were reasonable grounds for believing that there was information

necessary for the CCPC officials to exercise “functions” and “all or any of their powers” as conferred on them under the Act of 2014.

These were not simply technical deficiencies, but went to the core of the jurisdiction involved. The purpose of such a warrant is to

require a person, who is the subject matter of the search, to do something they would not otherwise be obliged to do. But, the

recipient is entitled to know what the warrant actually entails. A reader of this warrant would be unable to know what actual

limitations were placed on the scope of the warrant. It was, in that sense, free of any limits, or any identification as to what might be

searched for, or which employees’ data or material might be searched. The ICL’s lawyers were placed at a significant disadvantage as

a result.

The “Dawn Raid”

8. The request for the “home drives” of the five ICL employees was made at 10.20 a.m. The only reasonable inference is that the

“persons of interest” had been identified beforehand, although they were not named in the search warrant. During the search, ICL’s

I.T. Manager, Mr. Dary Philips, was warned that he was under a legal duty to provide any information lawfully requested for the

purpose of the search. Mr. Philips told the officials he could not directly access this email data, as it was stored on an offsite facility

operated by Fujitsu. ICL made a data access request to that firm.

9. During the day-long search, it was agreed that Arthur Cox would write to the CCPC’s in-house counsel regarding their invocation of

legal privilege, and the CCPC officials undertook that the material which was, by then, being forensically extracted, would not be

viewed or accessed until there had been further communication between the lawyers and the CCPC’s in-house counsel. There were

similar arrangements regarding books and papers which had also been seized. The lawyers made no objection in principle to the

downloaded material being taken away to the CCPC’s offices for later perusal, subject to agreement being reached on what might be

reviewed.

The Third Named Respondent’s Employment Status

10. In fact, it transpired that, at the time of the raid, Mr. Seamus Lynch was no longer an ICL employee. Between the 3rd June, 2008

and the 6th June, 2011, and from the 1st June, 2013, he had indeed been ICL’s Managing Director. But by the time of the search, he

was, strictly speaking, he was no longer an ICL officer, as he had been appointed Managing Director for Ireland and Spain of what is

called CRH’s ‘Heavy Side West’ Division. An issue arose during the search as to whether the scope of the search allowed the CCPC to

seize any electronic data which went beyond the time parameters of Mr. Lynch’s employment as Managing Director of ICL.

11. The relevant provisions of the Act of 2014 will be set out in greater detail later in this judgment. However, I am satisfied that,

prima facie, the wording of s.34 which sets out the “activity” and “place” which may be searched, and s.37(2) of the Act, which

deals with ‘activities’ and the category of persons who may be searched, when viewed in isolation, would permit the search of any

premises occupied by a former director, manager or staff member of an undertaking under investigation. (See paras. 41 and 42 of this

judgment). Insofar as ICL’s lawyers argued to the contrary, both at the time of the search and later in these proceedings, I would

reject that submission as having no substance. But there are antecedent questions. These relate to whether, even from its very

inception, the entry, search, seizure and retention procedures were lawful. The sworn information was not disclosed to the lawyers.

The search warrant was unspecific, and did not allow the lawyers to make any other meaningful observations about the scope of the

search and seizure on the day. But there were further difficulties.

A Central Issue

12. One central issue in this case is quite simple. It is whether the search-procedure, particularly the seizure of the entirety of Mr.

Lynch’s email account, was conducted in a manner not only consistent with the words of s.37 of the Act, but also the respondents’

constitutional and Convention rights? The actual wording of s.37, (set out in para. 42 of this judgment) is not the only test of

legality. The procedure adopted must be measured against the constitutional rights at stake, especially that of privacy. The material

seized only belonged to the respondents. It also belonged to other persons or business entities. It contained information private to

them. The CCPC officials were entitled to operate within s.37 of the Act - if they acted in a proportionate manner, having regard to

the constitutional and Convention rights involved. As relevance will not always be obvious, there will always be a degree of latitude in

such a search. But, the CCPC itself later accepted that it was “highly probable” that non-relevant data and material were seized. It is

entirely unsurprising, therefore, that, when the entirety of Mr. Lynch’s mailbox was downloaded, it contained much material which the

CCPC later conceded in its defence to the proceedings was, to quote the CCPC’s own later words “to a high degree of probability”,

irrelevant to its investigation. Yet, the appellant took no steps, either prior to or during the search, to prevent this happening. The

vast amount of material seized is described later.

13. The CCPC’s officers made archive copies of the entirety of Mr. Lynch’s email files, and associated network files. This included

correspondence with CRH subsidiaries in Spain, The Netherlands and Belgium. The CCPC do not make any claim that these CRH

subsidiaries, or CRH Plc. itself, were involved in these complaints regarding ICL’s alleged anti-competitive activities. It is not

suggested that the activities under investigation involved cross-border anti-competitive activities, or affected other member states of

the E.U.

Correspondence

14. I preface the analysis which follows with an observation, lest it be thought I am critical of the CCPC’s lawyers. This would be an

entirely wrong perception. It is clear that the CCPC had access to legal advice and representation of the highest calibre throughout

these proceedings. After the search, there was detailed correspondence between the parties’ lawyers. As well as making proposals

regarding review of the legally privileged material, ICL’s solicitors suggested a review process, whereby irrelevant data, which the

CCPC retained, should be identified and returned. The lawyers proposed that all the material seized should be reviewed by an

independent third party lawyer. Such a procedure is, in fact, provided for by s.33 of the Act of 2014, but only the case where legal

privilege is claimed. The Act does not make any similar provision for a timely segregation or return of “third party”, as opposed to

legally privileged, material. Relying on its reading of the Act of 2014, the CCPC refused to engage with ICL’s lawyers on their proposal.

In fact, in a letter dated the 10th September, 2015, it continued to maintain that, apart from documentation over which legal

privilege might be claimed, it was entitled to, and would, review all materials which had been seized at ICL’s premises. This rigid

stance was subsequently refined on a number of occasions, but only, one might surmise, after receiving prudent legal advice, at or

before the time these proceedings were initiated.

The Scope of the Seizure and Retention

15. On the day of the search, ICL lawyers were given a memory-stick containing all the material downloaded. This allowed them to

set out some proposed parameters for addressing the question of legal privilege. But they did not then have the sworn information.

Thus, the exchange was somewhat unsatisfactory and inconclusive. But the correspondence reveals something else; that is, the

sheer extent of the material seized. ICL’s lawyers asserted in one letter that what was actually downloaded and taken away

amounted to 96 gigabytes, or, in other words, 380,000 computer files. The CCPC did not dispute this estimate. It will be recollected

that this was in a context where there were just three complainants concerning these alleged anti-competitive activities concerning

the sale of bagged cement in Ireland. The CCPC’s rationale for taking such an extraordinarily large quantity of material remains unclear

and contradictory.

16. In suggesting a process for sifting through the material for legal privilege, the lawyers (and it appears the CCPC), envisaged that

the rate of progress for that process would be 50,000 files every three weeks. A simple act of multiplication, were it appropriate,

might indicate that this process, even for dealing with legal privilege alone, might take many months. How long any further third party

“relevance” sorting process might take, is open to speculation. It is hard to avoid the conclusion that such a review might take years,

rather than months.

Legal Proceedings

17. The negotiations by correspondence were inconclusive. The respondents’ legal proceedings were launched on the 12th November,

2015. There was an interlocutory legal application during that month, which, one assumes, led to a court direction that there was to

be an early trial. The CCPC, properly, provided an undertaking to Court not to examine Mr. Seamus Lynch’s email account, in the

meantime. The sworn information was provided on the 24th November, 2015. The appellant had refused to provide this earlier, citing

“policy reasons”. This step was the first of a number of subsequent refinements of the CCPC’s stance. In the legal proceedings, the

respondents sought declarations to the effect that the CCPC had acted ultra vires s.37 of the Act, claiming that there had been an

unwarranted invasion of the respondents’ privacy rights under the Constitution and Article 8 ECHR.

A Nuance

18. As a next step, the CCPC’s Defence, served on the 14th December, 2015, contained a slight nuancing of its legal position. It was

there that the CCPC accepted that “as a matter of high probability” not all of Mr. Lynch’s emails related to the activity under

consideration.

19. The High Court hearing was conducted largely on the basis of affidavit evidence, although Mr. Lynch was briefly examined and

cross-examined. Some of the material elicited in cross-examination involved matters which had no relevance at all to the allegations

and complaints. Counsel for the respondents criticise the fact that some of the material which emerged at the High Court hearing was

confidential. In fairness, I think this emanated naturally in the course of the cross-examination, and for no other reason. What

emerged was of little consequence commercially.

A Further Adjustment of the CCPC’s Position

20. The High Court hearing took place on the 8th, 9th and 15th March, 2016. Mr. Harry O’Rahilly, one of the CCPC case officers

assigned to the investigation, swore one of the replying affidavits. This referred to hard-copy material seized during the course of the

search. This first affidavit, obviously, pre-dated the hearing itself. But, on the last day of the High Court hearing, that is the 15th

March, 2016, Mr. O’Rahilly swore a second affidavit, which, in hindsight, is very significant. It contained a further adjustment in the

CCPC’s position. There, for the first time, the appellant conceded that the non-legally privileged data it had seized and retained would

not be subject to a document-by-document review; but rather that the CCPC itself would arrange a keyword search, to ensure that

only such documents falling within the identified search terms would be reviewed. On this basis, only documents which were

responsive to the keywords would to be made “visible” to the authorised officers. This significant change to the CCPC’s legal position

came 10 months after the dawn raid. Even then, there was no indication as to what the actual keywords would be. There was no

suggestion that ICL’s lawyers could either attend at, observe, or engage in the process. Any decision as to the relevance of the

documentation was to be made only by the CCPC itself. It is interesting to contrast this proposal in the light of the near-

contemporaneously developing ECtHR jurisprudence. In these ECHR decisions, outlined later in this judgment, there is discussion of

what is meant by what is called “tangible” judicial supervision of documents and data, designed to assess whether such material was

privileged or irrelevant. The Convention case law envisages that a supervisory judge should himself/herself be assured, if necessary by

way of systematic check, to ensure that there has been a proper safeguarding of the Article 8 Convention privacy rights involved.

The process the CCPC proposed, even late in the day, certainly did not involve an independent “tangible”, or item by item, process

under independent judicial supervision.

The High Court Judgment and this Appeal

21. In the High Court judgment, [2016] IEHC 162 ( Unreported, High Court, 5th April, 2016), Barrett J. found that the CCPC had acted

ultra vires in seizing Mr. Lynch’s entire email account, containing material unrelated to the investigation. He held this conduct was

contrary to s.37 of the Act, 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 court

also made findings under s.8 of the Data Protection Act, which are briefly dealt with later in this judgment.

22. The CCPC applied for leave to appeal directly to this Court without proceeding to the Court of Appeal. Such ‘leap frog’ appeals are

permitted on matters of general public importance, or in the interests of justice, when there are circumstances of urgency. This Court

acceded to the application. The appellant’s written application-form is 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 again 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.

An Additional Alteration of the CCPC’s Position

23. The CCPC’s position was further clarified in another way during the appeal before this Court. On inquiry, its counsel told the Court

that the appellant was still in the process of devising a code or protocol, regarding disposal of irrelevant material. This appeal was

heard in February, 2017, some years after the enactment of the Act of 2014. By inference, therefore, it seems no protocol had by

then been devised, or implemented. Whether the appellant’s predecessor, the Competition Authority, had such a protocol is not

known. Counsel informed this Court that the CCPC would engage in a process of rendering irrelevant material “invisible” on computer

screens, by resorting to the keyword search. But, it follows from this that there was no code of practice in being at the time of the

raid; and, therefore, no laid-down procedure for dealing with irrelevant, non-legally privileged, data. In fact, the Act of 2014 does not

provide for any such statutory safeguards after search and seizure. Nor does it make provision for any ‘tangible’, supervised process

to identify irrelevant material. The Act does not provide for a set time limit for the return of such documentation either.

24. A further point arises in the application for leave. There, the CCPC took exception to the fact that one of the consequences of

the High Court judgment was that it would “erroneously” require it to put in place a system for the review of information by a party,

other than itself, to deal with irrelevant materials. The Act of 2014 contains no such provision. Thus, the CCPC said, then, that to

carry out such a review would be ultra vires the Act of 2014. It is not easy to reconcile this statement, relying strictly on vires, with

the subsequent adjustments in the CCPC’s stance, when the remedial procedure it ultimately proposed through Mr. O’Rahilly were not

provided for in the Act of 2014 either.

25. All the alterations in the CCPC’s stance are significant. They are to be seen in the context of the constitutional and Convention

issues which fall to be decided. Taken together, they carry with them a question as to whether the prior conduct of the CCPC was

constitutionally proportionate and lawful in executing the search. When viewed together and cumulatively, the alterations, while

perhaps not determinative on the issue of proportionally, are, at least, clear signposts. The concessions are to be seen in light of the

respondents’ submissions in the High Court, relying, inter alia, on the evolving jurisprudence of the European Court of Human Rights.

As indicated earlier, Chambers of that Court have closely analysed and precisely identified the nature of the safeguards which are

required in this field to protect the ECHR Article 8 rights to privacy and defence in this area. These rights belong both to individuals

and corporate entities.

26. Mr. O’Rahilly’s second affidavit is particularly important, as it particularly touches on a number of issues raised both in the ECtHR

and also ECJ jurisprudence. Among these contrasts are: the absence of prior arrangements for an on-site keyword search; and the

delay of 10 months in making any proposal regarding such a search. In fact, the keyword concession is impossible to reconcile with

one of the earlier main planks in the Defence, which was the strong assertion that a very broad form of search and seizure is always

required in cases of this type. This took the form of an affidavit from Detective Sergeant Joseph McLoughlin, to the effect that the

process is to be compared to the search in an ‘ordinary’ criminal investigation. This analogy is unconvincing. In the case now under

consideration, much of the material was contained in digital form, which is readily susceptible to a keyword search. The circumstances

of the Convention case law, recorded later in this judgment, shows this directly. Mr. O’Rahilly’s second affidavit also undermines the

proposition that such a vast quantity of material had to be seized, as it could not possibly all have been within the scope of the

investigation. A focused keyword search is not hard to organise by those suitably qualified. The affidavit is, frankly, entirely

inconsistent with the CCPC’s earlier testimony, which sought to compare the search procedure with what are said to be

“commonplace” police procedures. In police searches, the distinction between what is of patent relevance, and latent relevance to an

investigation will often be less clear. Such other investigators, by their very nature, must enjoy a significantly wider latitude,

especially in circumstances where relevance of material, of whatever form, may not be immediately apparent.

An Additional Consequence

27. In filing Mr. O’Rahilly’s affidavit, the CCPC also tacitly accepted, for the first time, that there was an onus upon it to engage in a

process of sifting through the data and destroying that which was not relevant. But, critically, the statutory body reserved to itself

the role of arbiter as to relevance or irrelevance. How the CCPC proposal was to be implemented is unclear; it would be difficult for

CCPC officials, charged with such a task, to disregard, and then entirely forget, everything that they reviewed. The CCPC did not

propose any “tangible” process to be carried out, either independently, or under judicial supervision.

28. The officials, obviously, did not use a keyword procedure at that time of this search. The CCPC correctly point out the ICL

lawyers did not object to the downloaded material being taken away, subject to conditions regarding legal privilege. But the lawyers

were not to know, then, that there would be a total refusal to engage with them in relation to the other, ‘non-relevant’ material. The

pre-search procedure was not, therefore, a focused one, in the sense of identifying any specific email data by reference to the time,

place or identity of the writers, or addressees. Neither was there any such post-search procedure. The search was obviously pre-

planned. This is all in marked contrast to the incremental and proportionate approach adopted in this category of case under E.U. law

by the European Commission’s inspectors, also outlined later in this judgment, (see Para. 92, et seq and para. 109 to 111). It also

differs from that adopted by other Competition authorities, in other member states such as Portugal, as also described below. (see

paras. 101 - 103).

The Vires Questions

29. By the time of Mr. O’Rahilly’s supplemental affidavit, sworn and filed on the 15th March, 2016, the CCPC had been in possession of

all this material for 10 months. The facts of this case, therefore, raise significant issues as to the legality of the retention of the

material, and whether, on any basis, the very large quantity of downloaded material seized could, even potentially, have come within

the scope of the investigation. This, in turn, raises the question of proportionality, both in the context of constitutional and

Convention rights. The question of whether the procedures adopted by the CCPC were disproportionate is to be determined by the

Court having regarding to whether rational, necessary, means were adopted to achieve the statutory objectives in question. It is also

necessary to consider whether any ‘retrospective’ court orders can now remedy an excessive use of statutory powers, if so found.

The CCPC justify the downloading and removal they carried out on the basis that it was not opposed, and that it was administratively

convenient. But these considerations are not apt criteria for determining legality.

Inapt Comparisons

30. The comparison with other forms of search is worth considering in more detail. In this appeal, counsel for the appellant lay

emphasis on the wording of s.37, and, as outlined, sought to make comparisons to separate forms of search and seizure used in other

areas of criminal law. But there the investigating gardaí are not in a position to immediately determine relevance. What is latently

relevant may later become patently relevant for example, by assessing whether the material seized and analysed corroborates or

contradicts a suspect’s account of events.

31. But what is in question here is not the seizure, in some emergency circumstance or otherwise, of documentation or a personal

computer, an iphone, or a gun or explosives, used in the planning or commission of a serious crime, whether it be, for example, child

pornography, murder or terrorism. There, the scope of legitimate seizure will obviously be much wider, especially, but not confined to,

events proximate to the crime. Such wider scope is necessary under the Constitution to protect public rights, the common good, and

the investigation of crime. This case does not concern the search of a house, or a warehouse, where the police suspect stolen

property, or a murder weapon, are to be found. It does not involve, either, the form of analysis which may be necessary in an

investigation of crimes where evidence is come across by happenstance. On occasion the gardaí may simply come across material by

chance in the course of investigating another matter, or have a suspicion of the whereabouts of evidence, but no means of more

precise identification of where the evidence may be found. There, a broader form of search will be legitimate. There is a balance

between the necessity to vindicate the common good, and the principle that all organs of the State are presumed to, and must act in

accordance with the Constitution.

32. By contrast, what is in question here is much more confined; that is, allegations that on some occasion, or occasions, within

identified time-parameters, certain, presumably identified, individuals allegedly engaged in anti-competitive activities. Analogies with

more serious types of crime where the scope must be broader or where this is an urgent or pressing need for other searches are not

appropriate. One cannot, either therefore, convincingly rely on comparisons with situations where DNA evidence is found on long

‘retained’ evidence, or the possibility that, by analysing some material long-held in garda custody, some new forensic technique may

emerge to solve an old case, or show inconsistencies between suspects’ verbal statements, and other evidence drawn from seized

material. The situation is not comparable, therefore, with one where there may be inconsistencies between where a suspect says he

was located, and where his phone records show him to have actually been. This was not that type of investigation. The context is

different. The evidential scope in a prosecution for anti-competitive activity is more precise and focused, as can be seen from Mr.

O’Rahilly’s second affidavit. Such evidence might consist of whether person ‘A’ acted with person ‘B’, so as to fix prices, or engage in

unlawful marketing or rebate arrangements; evidence as to market conditions; and, thereafter, expert testimony analysing the

potential effect of impugned activities on the relevant market. Here, the CCPC had before it material, some of it subsequently reduced

to writing in the sworn information placed before the District Court. As the sworn information sets out, the CCPC had been provided

with emails from complainants, and other material allowing for a focused investigation of the type described earlier. From the

information received, the time-parameters, beginning at the earliest in 2011, and continuing up to 2015, were clear. The ‘broad

search’ contention has been undermined by the Mr. O’Rahilly’s own subsequent affidavit evidence. When the CCPC seized all of Mr.

Lynch’s email account, it must have been aware that it would, inevitably, take large quantities of material well outside the scope of

its investigation. Yet, it did not take any sufficient steps to avoid such an event.

The Background

33. It can be safely said that the respondents to this appeal do not fall within the description of many other complainants in the

corpus of ‘search and seizure’ jurisprudence. The respondents are rather unlikely avatars in the human rights field. But, in fact, what

is in question here is a matter of legal principle, which, potentially, touches on the rights of more people or entities than simply the

respondents.

34. Since the 17th Century, the common law courts have played an important role in the supervision of powers of search and seizure

by the executive. In the past, in Britain, Ireland, and elsewhere, agents of the executive arm of the crown sought to deploy sweeping

powers of “general search”, in the pursuit of felons, in the retrieval of stolen property, and in the collection of revenues and taxes.

These powers were also sometimes used to suppress political dissent, or hostile press commentary. The exercise of such draconian

powers in British Colonial North America was one of the triggers, or ‘sparks’, of the Revolution of 1776. Having listened to James Otis’

fiery submission in Paxton’s case, against “writs of assistance”, which permitted customs officers to enter and search any premises

they wished, John Adams wrote “There and then the child independence was born.” The Fourth Amendment to the United States

Constitution, against this historical background, prohibits unreasonable searches and seizures, unless by warrant, identifying the

persons to be searched, and the things to be seized.

35. This Court has been referred to the landmark English decision of Entick v. Carrington [1766] 19 St Tr 1030, (1765) 95 ER 807. The

case contains echoes of the issues raised in this appeal. John Entick was suspected by the British government of involvement in

publishing what was then perceived as seditious material. Halifax, the Secretary of State, himself issued a search warrant and sent

King’s Messengers to search for such material at Entick’s London home. In the subsequent civil claim for damages inflicted on his home

and property, Entick’s lawyers pleaded that the messengers “read over”, “pried into”, and “examined”, all his papers, and without any

regard to the potential relevance to the investigation, then carried them away, removing a vast amount of material and property, and

causing John Entick substantial pecuniary damage. He sued. In the Court of Common Pleas the Messengers claimed that they had

acted “within the statute”. Camden, Chief Justice of the Common Pleas, held against Carrington, the leader of these Messengers. He

found that the warrant itself was illegal and void. It had not been issued on lawful authority. There was no power in the common law

to carry out a search of this type. The judge commented on the right to privacy of one’s papers. Then, the law report, at p. 814, par

286, describes Camden C.J. interrupting counsel’s address by posing an important rhetorical question, as relevant to the instant case

as to Entick’s:

“… suppose a justice of peace issues a warrant to search a house for stolen goods, and directs it to four of his servants,

who search and find no stolen goods, but seize all the books and papers of the owners of the house, whether in such a

case would the justice of the peace, his officers, or servants, be within the statute?”. (Emphasis added)

It is necessary to emphasise the judge referred to “all” the books and papers. He was not only looking to what was permitted by the

statute. As we would now see it, he was asking what was permitted under the Constitution. In Entick the court held the search was

illegal by virtue of excessive use of powers. Not even a search warrant, even if it had purportedly been issued reflecting the words of

a statutory power, could render the search process lawful, because of the arbitrary and indiscriminate nature of its execution, which

was not permitted by the common law, or indeed by the statute.

36. Precisely the same themes underlie our own jurisprudence in this area; that of other countries governed by the rule of law; and by

decisions of the Court of Justice of the European Union; and those of the European Court of Human Rights.

37. The constitutional and ECHR right to privacy is of central importance in the digital age in which we now live. The Charter of

Fundamental Rights contains protection for private and family life and personal data. (Articles 7 and 8). It so happens that the

allegations here concern what is called “white collar crime”. Large companies such as ICL and CRH plc do not easily attract public

sympathy. They make vast sums of money, and make some people very wealthy. But, just as in Entick, the issue here is, precisely,

whether the CCPC officers can rely “on the words of the statute” in intruding upon the respondents’ rights to privacy in this way.

These questions are to be tested now by resort to proportionality, and against the protections of the Constitution and Article 8 ECHR.

The financial circumstances or social status of the respondents are not a relevant consideration. It is appropriate now to consider the

context of the statute.

The Legislation

38. The Act of 2014 supplements, and in some areas replaces, earlier legislative provisions. A conviction based on a breach of the Act

of 2002, which defines the relevant anti-competitive offences, has serious consequences. That Act has both a civil and criminal

dimension. As to the latter, individuals convicted on indictment are liable to a fine not exceeding €5 million, or 10% of the turnover of

the individual in the financial year ending in the 12 months prior to conviction, as well as imprisonment not exceeding 10 years. (See

s.8(1)(b)(ii) Competition Act, 2002; as amended by s.2(b)(i) & (ii) of the Competition (Amendment) Act, 2012). The Act of 2014, and

its parent legislation, therefore, are not simply, “administrative measures”, as described in some of the ECtHR jurisprudence, but,

rather, provide for serious criminal sanctions on conviction. (See, by contrast, Bernh Larsen Holding A.S. & Others v. Norway (App.

No. 24117/08 [2013] ECHR, and para. 102 of this judgment).

The CCPC’s Powers and Functions

39. It is now necessary to analyse the relevant provisions of the Act, and the backdrop against which it should be interpreted. The

CCPC was brought into existence pursuant to s.9 of the Act of 2014. The Act merged the Competition Authority with other consumer

bodies. The new CCPC was empowered to carry out investigations under s.18. Under s.25(1) of the Act, individual persons who are

members of the CCPC, or those engaged in any other capacity by it, were prohibited from disclosing confidential information obtained

in the course of investigations. An official or other person found to be in contravention of this provision is punishable by a fine, or

imprisonment for a period not exceeding 6 months. However, the section does allow for authorised disclosures to be made to a range

of bodies, including An Garda Siochana, the Revenue Commissioners, or any other prescribed person, including any other Minister of

the Government, after consultation with the relevant Minister. The High Court judge considered this provision as providing for a rather

“leaky” duty of confidentiality ([2016] IEHC 162 at pars 22-38). I think this is somewhat unfair. But, he went on to emphasise ICL’s

main concern, which was that the CCPC had, by then, had in its possession, for some considerable time, material to which it had no

legal entitlement, and which it had no right to consider. This is the main issue to be determined later, in the light of the statute,

properly construed.

Section 33 of the Act of 2014: The Proposal for an Analogous Procedure

40. There is no doubt that parts of the Act of 2014, especially s.33, are intended to reflect decisions of the ECtHR on the issue of the

rights of a defence under Article 6 ECHR, and privacy rights under Article 8 ECHR. One must bear in mind that there is a significant

distinction as to how criminal investigations are carried out in the diverse civil and common law jurisdictions which constitute the

membership of the Council of Europe. Among these distinctions lie the questions of how and when judicial supervision of investigations

takes place. It is an area where approaches diverge very significantly. Section 33 of the Act of 2014 deals with legal privilege. It

provides that nothing in the Act, or in the legislation generally, shall compel the disclosure of privileged material by any person, or

authorise the unlawful taking of such material. Section 33(2) and (3) arose in the correspondence from the solicitors in this case.

Section 33(2) provides that the disclosure of information may be compelled, and possession of it taken, pursuant to the Act,

notwithstanding an apprehension that the legal information may be legally privileged. However, the section then provides that the

confidentiality of the information may be maintained, pending a determination of the High Court as to whether the information is,

actually, privileged. The provision provides for an innovative procedure in Irish law, whereby, under judicial supervision, potentially

legally privileged material may be assessed or considered by an independent person with suitable legal qualifications, possessing both

the requisite level of experience and independence from any interests falling to be determined. Such individual may examine the

information, and then prepare a report for the High Court, with a view to assisting or facilitating the court in determining whether or

not the information is privileged. (See s.33(1) to (5) of the Act). This allows for a form of, what is called, “tangible examination”. (See

Goffinet & Bontinck, “The Tangible Examination of Inspections and Seizures after the ECHR Vinci Judgment, 2016, Journal of Economic

Competition Law and Practice, (2016) 7 (4): 243-253). As indicated earlier, ICL’s lawyers proposed an analogous procedure for

assessing third party, or irrelevant correspondence. The CCPC refused, and made the point that such a procedure was not provided

for in the Act. The High Court judge proposed an analogous procedure in the case of non-legally privileged third party data. At one

level, one cannot argue with the attractions of the proposal; but the Act of 2014 does not allow for any such procedure. The CCPC

said, correctly, such a procedure would be ultra vires. While a court may seek to interpret legislation in a manner consistent with the

Constitution, or the ECHR, it cannot legislate. That is a matter for the Oireachtas.

Section 34 of the Act

41. Section 34 of the Act defines “activity” 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”. The

term “place” has the same meaning as contained in s.29 of the Offences Against the State Act, 1939, as inserted by s.1 of the

Criminal Justice (Search Warrants) Act, 2012. Thus, “place” includes:

“(a) A dwelling or part thereof;

(b) A building or a part thereof …”

The term “records” includes not only records in writing, but:

“(a) Discs, tapes, sound-tracks, or other devices in which information, sounds or signals are embodies, so as to be

capable (with or without the aid of some other instrument) of being reproduced in legible or audible form;

(b) Films, tapes, or other devices in which visual images are embodied so as to be capable, with or without the aid of

some other instrument) of being reproduced in visual form. …”

The term “tape” includes a disc, magnetic tape, or soundtrack.

Thus, taken in isolation from the other issues discussed in this judgment, a lawfully focused search in the building and of the relevant

parts of Mr. Lynch’s email data would have been permissible. But this is not what occurred.

Section 37 of the Act

42. The application of the statutory powers of entry, search, seizure and retention are fundamental issues in this case. All legislation

must be interpreted in accordance with the Constitution and the rights therein contained. Section 37 of the Act sets out powers of

authorised officers acting in relation to investigations under the parent Act of 2002, which, in turn, sets out the substantive offences.

When considered in its entirety, and having regard to its context, the section is broad in its scope. Insofar as directly relevant to this

case, it provides:

“37(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.” (Emphasis added)

43. While it is unnecessary to set out the remainder of this section in full, suffice it to say, it contains further investigative powers.

These allow for the arrest and detention of persons under investigation, the recording of interviews with suspects, the utilisation of

such recordings at trial of an accused, and may limit access to such recordings to the person interviewed, or his lawyer, unless

authorised by a court. The provision also sets out a series of protections for authorised officers in conducting interviews of suspects,

the intent of which is, apparently, to render such officers immune from prosecution, even if they are in breach of regulations which

would govern members of An Garda Siochana conducting similar types of interview in other types of criminal investigation. The section

provides that the breach of such regulations shall not affect the admissibility of evidence obtained thereby. It contains provisions

regarding the admissibility of evidence. It is unnecessary to consider them further for this appeal.

44. It is necessary to deal next with one, apparently peripheral, provision in a little more detail. The Act provides, at sub-section

(13), that “Section 9 of the Criminal Law Act, 1976 shall apply in relation to a search carried out by an authorised officer pursuant to

a warrant issued under subsection (3) as it applies to a search carried out by a member of An Garda Síochána in the course of

exercising his or her powers under that Act.” Such powers require careful scrutiny.

45. While during the High Court hearing, counsel on behalf of the CCPC conceded that there was no invocation of s.37(13) in this

case, it is nonetheless relevant to point out that s.9 of the Act of 1976 allows members of An Garda Siochana, prison officers and

members of the defence forces, to seize and retain any material that they believe to be evidence of any criminal offence, while

conducting an investigation into a quite separate offence.

46. The reference to s.9 of the Criminal Law Act, 1976 touches on the issue of the persons on whom the onus lies to segregate

material taken? It provides that, when material is seized, whether or not it is evidence of the offence under investigation, it may be

retained, and thereafter may be subject to the provisions of the Police (Property) Act, 1897. Section 1 of the 1897 Act, in turn,

places an onus on a claimant to make a claim for property held by the police within 6 months of such seizure, absent which, orders

may be made for the disposal of the property. There, the onus is on the “claimant”. Here, the CCPC appears to have accepted a

different onus, that is, one which, to a limited degree, fell on itself. Mr. O’Rahilly’s affidavit has already been considered. The CCPC

proposed they would conduct a keyword search.

47. To summarise the position, therefore, s.33 of the Act does provide for a mechanism whereby, under judicial supervision, there can

be a determination of whether or not material obtained on foot of a search is legally privileged, but in no other relevant situation.

Section 37 provides for a form of judicial procedure prior to entry, search, seizure or retention, in that it is necessary for an

information to be sworn before a District judge. Consequently, there must be appropriate evidence before that judge to allow or

authorise the issuing of a search warrant. But there are distinctions between the systems of investigation in different countries. The

Act, in this distinct area of law, does not contain any statutory provision concerning “tangible” prior judicial supervision, to further

focus the search power, at that stage of an investigation, nor does it provide for any form of judicial supervision requiring a

“tangible”, item-by-item search of materials actually seized, either ex ante or post facto, and thereafter retained, in order to

determine the relevance of that non-privileged material.

48. As pointed out in chapter 2.03 et. seq. of the recent text book “Modern Irish Competition Law”, (Andrews, Gorecki, and

McFadden, Wolters Kluver, 2015), under the Competition Act, 2002, the CCPC’s statutory predecessors could retain documents and

records seized, but only for a period stipulated by law. Section 45(6) of the Competition Act, 2002, provided that such books,

documents or records which had been seized or obtained under that Act might be “retained for a period of 6 months, or such longer

period as may be permitted by a judge of the District Court, or if within that period there are commenced any proceedings to which

those books, documents or records are relevant, until the conclusion of those proceedings.” Section 45(7) of the Act of 2002

provided that, when an officer intended to retain such books, documents, or records for a period longer than 14 days after they were

seized or obtained, such officer was obliged, within that period, or such longer period as might be agreed, to furnish a copy of the

books, documents or records to the person “who it appears to the Authority or officer is, but for the exercise of the powers under

this section, entitled to possession of them”. The 14 day period was subsequently amended to 35 days. (cf. Section 7(1)(a)

Competition Act, 2012). Section 45(6) was then repealed by s.76 of the Investment Funds, Companies & Miscellaneous Provisions

Act, 2005. As a consequence, the CCPC no longer had to seek permission from the District Court, from time to time, to retain

materials seized during a search. Section 45 of the Act of 2002, as amended, was repealed in its entirety by s. 7(1) (c) of the Act of

2014. Now, it would appear that evidence seized can be retained for such a period from the date of seizure as appears “reasonable”.

(s.37(13) of the Act of 2014). But the CCPC submits that it, and it alone, has the power to engage in the sorting, sifting and to

determine relevance, without any input from anyone else. Any other procedure, it contends, is ultra vires.

49. The broad range of these s.37 powers and duties may be contrasted not only with the ”predecessor” legislation of 2002, but also

those powers and duties contained in legislation in the neighbouring jurisdiction. This Court was referred to the United Kingdom

Criminal Justice & Police Act, 2001, as an illustration. In contrast to s.37of the Irish Act of 2014, this U.K. Act contained a number of

provisions regarding duties of those who seize, as to the return or retention of seized property.

50. It is true that the material in the instant case is, in one sense, what is termed “mixed”, in the sense that parts of it emanated

from ICL itself, but other parts of the date originated from other sources, including the foreign-based companies identified. This is not

the respondents’ fault. There was no intention to “intermingle” the sources with those of other companies. (See, by contrast, the

situation described at para. 107 in this judgment). The CCPC’s present submission might suggest that an onus lies upon ICL to sort

through the memory stick provided, and make submissions on what is relevant and what is not. It is hard to reconcile this entirely

with the proposal, albeit narrow, which the CCPC made in Mr. O’Rahilly’s second affidavit. This was to the effect that the officials

would carry out the keyword search. It is certainly not possible to reconcile such a solution with the position which the CCPC adopted

immediately after the seizure, to the effect that it, and it alone, had the right to review all the seized third party material.

The High Court judgment considered in more detail

51. This judgment turns next to a further analysis of the High Court judge’s observations, and then addresses relevant case law. It

must be emphasised that there is no challenge in this appeal to the constitutionality of s.37 of the Act of 2014.

52. The judge described the lacuna in the legislation regarding non-legally privileged material as giving rise to a legal terra incognita.

But, in my view, this lacuna could not be addressed in the creative manner he suggested: this would be to trespass outside the terms

of the Act itself.

53. Having covered much of the factual terrain traversed in this judgment, the High Court found that CCPC’s intention, of itself

segregating relevant from irrelevant material amounted to a contravention of fundamental human rights. But I do not think the judge

was entitled to infer, as I think he did, that the CCPC had exercised all “due care” in conducting the dawn raid within the terms of the

search warrant issued from the District Court; nor was he entitled to infer that the seizure by the CCPC was not the result of some

calculated and deliberate ‘over-reaching grasp’, but rather a near, if not absolute, inevitability arising from any search and seizure

process. This was not a jury trial, nor a full scale plenary hearing. These inferences were drawn only on the basis of a hearing

conducted very largely on the affidavit evidence, where the oral testimony was only from Mr. Seamus Lynch. In my view, the limited

nature of the High Court hearing did not allow for any inference either on these issues, or on the credibility of testimony in these

proceedings heard only on the basis of affidavit evidence.

The Constitutional Right of Privacy

54. The right to privacy is an increasingly important constitutional value in an age where privacy is challenged. The Court is here

dealing with the right of these corporate respondents. What follows is to be seen in that context only. Privacy has a core element,

and a “penumbra”. There are, undoubtedly, areas where the countervailing requirements of the common good will come strongly into

play. A proportionality balance is necessary. In assessing proportionality, there must, of course, be a test against requirements of the

Constitution and the ECHR. But in this, the right is no different from the enumerated fundamental rights elsewhere explicitly

recognised in the Constitution. In other situations, questions of the common good may tilt the balance in another way.

55. This appeal involves a balance of constitutional and legal rights. First, there is the question of whether, in ostensibly acting within

the words of s.37, the CCPC, in fact, acted with due regard to the respondents’ constitutional right to privacy in carrying out this

search and seizure. The un-enumerated constitutional right of privacy, deriving from Article 40.3 of the Constitution, was first

recognised by this Court, in the context of marriage, in McGee v. The Attorney General [1974] I.R. 284. (See the valuable Delaney

and Carolan, The Right to Privacy 2008, Thompson, Round Hall, and the jurisprudence and scholarly writing stretching as far back as

Warren & Brandeis. The Right to Privacy (1890) 4 Harv. L.R. 19. There is a helpful and full footnote in The Law of Torts, 4th Ed.

McMahon & Binchy, Bloomsbury 2013, p.1403). The right is not unqualified. Its exercise is to be harmonised with, and may be

restricted by, the constitutional rights of others, the requirements of the common good, and the requirements of public order and

morality. (Kennedy v. Ireland [1987] I.R. 587). The protection of public order and the common good, require that the crime of anti-

competitive activity, when identified, should be investigated and punished. It is not a victimless crime. It effects the rights of citizens

as consumers, and thereby the common good. This is one of the considerations in the balance to be maintained. What is in issue are

the means to the end.

56. The judgment of O’Higgins C.J. in Norris v. AG [1984] I.R. 36 at 64 recognises the existence of the right, albeit subject to

limitations. It has been developed and further defined in subsequent case law. This has arisen in among other areas, unlawful phone

tapping; journalists watching and besetting a rape victim; the unnecessary disclosure of an individual’s financial circumstances; and a

garda leak to the media about an impending raid on a solicitor’s premises. (Kennedy v. Ireland [1987] I.R. 587; X v. Flynn, 19th May,

1994, High Court, Unreported, Costello J.; In Re Article 26 of the Employment Equality Bill 1996 [1997] 2 I.R. 321; Hanahoe v. Hussey

[1998] 3 I.R. 69).

57. Henchy J. observed in Norris [1984] IR 36 at 71, the right is to be viewed “having regard to the purposive Christian ethos of the

Constitution, particularly as set out in the preamble” and deriving from the democratic nature of the State. It involves a complex of

elements, varying in nature, purpose and range, each necessarily being a facet of the citizen’s core individuality, within the

constitutional order. The degree of protection imparted to the right to privacy may vary, as it bears on a range of human experience

from the most intimate sphere of life to those areas where there is an interaction with others, or areas or spheres where the common

good may be engaged, thereby justifying intrusion by the State, or its organs. (See Bernstein v. Bester [1996] (4) BCLR 449 (S.A.),

quoted in Caldwell v. Mahon [2007] I.R. 542 at 548). But the constitutional right cannot be reduced to nothingness, or submerged

entirely in common good interests or duties.

58. I do not subscribe to the view that the degree of judicial recognition for legal professional privilege is, in some sense, of a higher

‘order’ than that of the constitutional right of privacy. The rights and interests involved are not, in fact, in conflict in this case. What

arises is, rather, the fact that the Act does address and provides procedures for protecting legal privilege, but does not address the

privacy rights of the respondents or others. Legal professional privilege is, of course, at minimum, a fundamental condition on which

the administration of law rests. What follows is in no sense to “downgrade” the concept. But it has not yet been given constitutional

recognition, at the same level as privacy in national law. True, the concept may have its origin in the constitutional right of access to

the courts, or to legal representation. The European Court of Human Rights has observed that an encroachment on professional

secrecy may have repercussions on the administration of justice, and hence on the rights guaranteed by Article 6 ECHR. (S v.

Switzerland [1992] 14 EEHR 670, App. No.’s 12629/87 and 13965/88; Niemietz v. Germany [1993] 16 EEHR 97, App. No. 13710/88).

But the concept has not been recognised as a fundamental right identified in our Constitution. (See also AM&S Europe Limited v.

Commission [1983] 1 All. ER 705 at 721, Case 155/79). It is very likely to fall within Articles 7, 8 and 11 of the Charter (privacy,

personal data and communication without interference by public authorities). Privacy may be subject to limitation. But, legal

professional privilege may also be limited. There are a number of circumstances which readily come to mind where there may be

limitations upon it. One such situation might be were a lawyer, in ostensibly privileged circumstances, become aware of the imminent

commission of a serious crime.

59. The case law now discussed establishes the appropriateness of the procedures employed in this area; shows that corporate

entities enjoy the right to privacy, sets out that, in appropriate cases, unlawfully obtained evidence can be ruled inadmissible, and

held that, in one case, an action for damages for misfeasance in public office in the execution of a warrant, arose in circumstances

where the circumstances created a “media circus”. (Hanahoe v. Hussey [1998] 3 I.R. 69). The facts of Hanahoe are, of course, very

distinct from those in the instant case and need not be considered.

Collateral Attack?

60. I pause here to draw a distinction; whether, and in what circumstances, a ‘collateral attack’, by declaratory proceeding, on a

criminal conviction, or conviction under appeal, could be possible, or appropriate, is a quite different matter from the factual situation

in this case. So too is the question of any such challenge when a criminal prosecution is actively in train. I reserve my opinion on

these questions to an appropriate case, if one ever arises.

The Right of Corporate Entities to Privacy

61. The fact that a corporate entity is entitled to assert the right to privacy in separate proceedings was recognised by McKechnie J.

in the High Court, on the facts arising in Competition Authority v. Irish Dental Association [2005] 3 I.R. 208. The right itself did not

appear to be seriously in dispute in this case. McKechnie J. held that a warrant authorising a search of a defendant’s premises was

invalid, because it erroneously described the Dental Association as having been engaged in the business of selling, supplying or

distributing “motor vehicles”. Thus, the warrant fundamentally mis-stated the business activity, and was not, therefore, a lawful

justification for the obtaining of documentary evidence. Applying the then current jurisprudence, the High Court held that the search

of the defendant’s premises, on foot of the defective warrant, had constituted a “deliberate and conscious” violation of the

Association’s constitutional right to privacy. As a consequence, the judge held that the court had no discretion to receive the

evidence obtained by the Competition Authority on foot of that search. (See DPP v. O’Brien [1965] I.R. 142; The People (Director of

Public Prosecutions) v. Kenny [1990] 2 I.R. 110). The fact that the exclusionary law on admissibility of evidence may have

subsequently evolved to a limited degree since that decision, does not in any way derogate from the duty of the courts carefully to

examine warrants, and other procedures, to ensure that constitutional rights are fully vindicated. (See DPP v. JC [2015] IESC 31).

Rather, the contrary is true.

62. McKechnie J. ([2005] 3 I.R. 208 at 223-227), referred in the course of his judgment to the authority of Kennedy v. Law Society of

Ireland (No. 3) [2002] 2 I.R. 458), which concerned a search carried out by the Law Society of a solicitor’s premises. He pointed out

the uniqueness of the procedure engaged in that case, involving a solicitor qua member of the Law Society. But, he explained, what

was in question in the Dental Association case was not some administrative or disciplinary matter, but rather (as here) a search

involving potential criminal sanctions, which was quite different from the supervisory role of a professional body over its members who

practiced in the context of the public. In fact, as he explained, no constitutional right was identified in Kennedy. (c.f. pp.223 – 227 of

the Report).

63. In Digital Rights Ireland Limited v. Minister for Communications & Others [2010] 3 I.R. 251, again McKechnie J. drew on E.U. case

law, and held that the right to privacy must extend to a company, as a legal entity, separate and distinct from the members of that

company. Thus, he held, a company was entitled to constitutional rights, where appropriate, including the right to privacy. (c.f.

pp.274-277 of the Report).

64. But against this, there are the public rights to investigate crime and misconduct affecting public interests, and the common good.

(cf., for example, Kane v. Governor of Mountjoy Prison [1988] I.R. 787, and the case law cited in Delaney and Carolan, pp. 62

onwards). In Idah v. DPP [2014] IECCA 3, the Court of Criminal Appeal held that, in the context of electronic surveillance, and in the

context of constitutional and ECHR rights, there could be no doubt that the State might lawfully make incursions into the right to

privacy, and that such incursions may be lawful where the State was seeking to provide evidence regarding arrestable offences, the

prevention of suspected arrestable offences, and the safeguarding of the State against subversive or terrorist threats. However, that

court went on to point out (at par. 37), that such permissive law should be sufficiently clear in its terms, at least insofar as to give

individuals an adequate indication as to the circumstances in which public authorities were entitled to engage in such conduct, and to

say that the State must, by its laws, provide necessary safeguards for the rights of individuals potentially affected; thus an incursion

into a constitutional right by an organ of the State must be sanctioned by law.

65. The gardaí, of course, have a duty to seek out, obtain and preserve all relevant evidence, whether patent or latent, as in

Braddish v. DPP [2001] 3 I.R. 127. This does not diminish the duty of CCPC, however, to act in a proportionate way in gathering

evidence; accepting, as one must, that there must be some latitude, and that, inevitably, extraneous material may be gathered up

and retained in the course of such searches and investigations.

66. But the fact that s.37 is broad in its terms, does not entitle the CCPC to adopt constitutionally disproportionate means in order to

achieve apparently lawful ends. It is necessary, therefore, to assess and balance the aim of the statutory measure against the harm

to the respondents caused by what can only be seen as an extraordinarily over-broad application of the section, seen in the context

of the factors identified earlier in this judgment. (See Heaney v. Ireland [1994] 3 I.R. 593, at 607/608/609).

67. A careful proportionality analysis is necessary of this statutory measure. That is so as to ensure that it does not encroach into a

constitutional right more than is rational, necessary, essential, or proportionate to the lawful objective which it is designed to

achieve. The scrutiny should be more careful still in these circumstances where, on its face, the provisions permitting the impairment

of the right do not allow for any balancing mechanism regarding material seized. Just as in the case of other rights protected under

the Constitution, the duty of the courts is to protect the right in question here from “unjust attack”, and, as also in the case of the

property right, to measure the validity of the application of the measure against the doctrine of proportionality. The State, or its

organs, again exercising their public duties are entitled to a substantial latitude; the extent of such allowance is to be measured in

the light of the extent of the encroachment in the context in which this search and seizure took place, the nature of the alleged

offence, and the factors identified earlier in this judgment.

68. Section 37 cannot be interpreted in such a broad manner so as, in its application, to allow for an unwarranted interference in

rights enjoyed by any individual or corporate entity. To permit a disproportionate interference would constitute, in the words of the

Constitution, an “unjust attack” on the right.

The Extent of Material Seized

69. In the course of lengthy correspondence with the CCPC after the search, the respondents’ solicitors wrote that what was

downloaded amounted to over 380,000 computer files, or 96 gigabytes. The CCPC did not subsequently dispute that estimate. It is

not hard, therefore, to see why counsel for the respondents referred in his submissions to the CCPC’s procedure as being

metaphorically tantamount to “bottom trawling”, that is, the deep-sea fishing procedure involving huge trawl-nets being dragged

along the seabed and capturing all form of marine life in an indiscriminate manner. The potential length and complexity of the

envisaged review procedure of the material is telling on this question.

70. In these circumstances, where the facts are so clear, the doctrine of proportionality must apply to procedures such as those

envisaged by s.37. (cf. the judgments of the majority in Meadows v. MJELR [2010] 2 I.R. 701). The CCPC will have acted ultra vires if

the necessarily implied constitutional limitation of jurisdiction unduly encroached upon the respondents’ rights. (cf. Henchy J. in

Keegan v. Stardust Victims Compensation Tribunal [1986] I.R. 642 at 658). Here the degree of incursion impaired the right far more

than is necessary. The dis-proportionality between means and ends in this search is very marked indeed. It cannot be rationalised by

analogies which do not relate to this case. There is, beyond question, a most substantial disparity between the quantity of material

seized, and the end sought to be achieved. No exceptional circumstances have been cited, or referred to, which might justify the

nature, extent and scope of the CCPC’s actions in this search, seizure and detention. It is necessary to analyse this in more detail.

The Extent and Continuation of the Incursion

71. The function of a warrant is to properly communicate to all the persons concerned what his/her obligations are. (See the obiter

observations of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Jagutis [2013] 2 I.R. 250, at 265). The

warrant here did not assist in limiting the encroachment. (See Walsh on Criminal Procedures, 2nd Edition, Thompson Reuters, 2016,

10-82 et.seq.). Of course, circumstances may arise where, for example, owing to urgency, or pressing need, or the circumstances of

the case, the gardai, or other authorities, must act quickly in order to prevent crime, to apprehend suspects, or to protect evidence.

This is not such a case.

72. As outlined earlier, even by the 8th October, 2015, ICL’s lawyers still did not have access to the sworn information. It was made

available only on 24th November, 2015, after the legal proceedings began. For the reasons outlined earlier, one cannot envisage any

meaningful basis upon which the lawyers representing ICL could, in the interim period, have made any assessment as to the relevance

of the material which had been downloaded and retained. This is true, even having regard to the fact that they had been given a

copy of the data taken. It is impossible, too, to envisage how a third party process could have operated.

73. Concern regarding the extent and continuity of the incursion is rendered still more acute in light of the rigid stance adopted by

the CCPC, when in its Defence it responded to a plea in the Statement of Claim that the warrant had been applied in a

disproportionate manner. The CCPC contended that the proceedings were misconceived, insofar as they are predicated “on the

assumption that the extent or scope of the defendant’s powers of seizure, retention, extraction or copying of data, is limited by the

search warrant”. It then went on to plead “No such limitation is apparent on the face of the said search warrant”. This was

undoubtedly true.

74. The appellants’ various subsequent iterations of legal position represent, in a sense, a skilfully conducted phased retreat into a

form of “ex post facto” proportionality, constitutionality and Convention compliance. To my mind, it cannot be countenanced in this

case. The extent of the unlawfulness does not lend itself to remediation, even by order of a court. The duty of the courts is to prefer

a constitutional construction and application of this section to one which would be unconstitutional. To permit the Act to be applied

in the broad simply “textual” fashion, as now suggested by the CCPC, would, in my view, in fact, be to countenance an

unconstitutional and ultra vires interpretation of the section. (See East Donegal Co-Operative Livestock Mart Limited v. Attorney

General [1970] I.R. 317, at 343). This is because such interpretation and application would permit dis-proportionality, and

arbitrariness. All the facts point to an unnecessary, irrational, incursion which went well beyond what should have been the objective

sought to be achieved. The position is, rather, almost analogous to one where the constitutional rights of a citizen are invaded in a

general search without limitation, or where a citizen’s right to liberty and bodily integrity are the subject matter of unlawful

encroachment by the use of disproportionate force in an arrest.

75. I do not accept that the CCPC’s procedure in this case was a necessary and inevitable collateral consequence of carrying out this

search, seizure and retention. It is true that s.37 of the Act is cast in very broad terms. But, the manner in which it was applied in

this case was, to my mind, to encroach unduly on the respondents’ constitutional right to privacy, and, incidentally, their

constitutional rights to private property, and rights to confidentiality. The Act does not contain pre and post-search safeguards of

the constitutional right to privacy or confidentiality. The fact that the section is phrased in broad terms did not require that the

search warrant should be in the form it took. Neither the terms of s.37, nor the contents of the warrant, require that the

constitutional right to privacy should, in some sense, “accommodate” only the statutory provisions regarding legal privilege, which are

to be found present in the Act of 2014; but which contains no protection of the rights of third parties. Rather, the converse must be

true. It is the Act which must be measured against the constitutional right, nor the converse.

76. In my view, this disproportionate 21st Century search and seizure cannot now be given the guise of legality by resort to the

“words of the statute”, any more than a rather similar procedure, with similar defects, in the mid-18th Century. One cannot rely

simply on ‘the words’ of legislation, without some proportionality test, as provided for under the overarching protections provided by

the Constitution. What occurred here was not commonplace police procedure. In certain areas of the law there may be a temptation

or desire for a certain “demonstration effect”, in the interests of deterrence, but all procedures must be governed by law.

77. It would not be surprising, if in the very different circumstances of a search following on serious crime, substantial extraneous and

irrelevant material might be seized. But there comes a point where the elements necessary for comparison with other situations in the

criminal sphere break down. If the principle of proportionality is not applied in this case, even with a significant degree of latitude, the

words of the statute could, under the guise of legality, almost become tantamount to a power of “general search”. The CCPC was

simply never entitled to have in its possession this vast quantity of irrelevant or extraneous material. It was not entitled to engage in

this form of entry, search and seizure and retention, where it was highly probable that such amounts of material would be seized. In

my view, the procedure adopted renders the search, and its fruits, null and void.

Conclusions on the Constitutional Issue

78. Even allowing for every permissible degree of latitude, I am unable to conclude that the deficiencies in the search and seizure

here can be retrospectively validated. To my mind, the search was void from the outset, and in the course of its execution. I

conclude, therefore, that the search warrant, and all that followed it, was ultra vires s.37. An intra vires outcome would have

required that the principle of proportionality be observed. This could have been achieved by a truly focused pre-search procedure

permitting an affected party a clear opportunity to make observations, or, alternatively, an effective post-search procedure for the

same purpose. The orders I would propose are set out in the conclusion of this judgment.

The European Convention on Human Rights

79. The jurisprudence of the European Court of Human Rights in this area is very well developed and focused. The analysis which

follows overlaps to a degree with what Laffoy J. has carefully analysed in her judgment. I agree with her analysis. The jurisprudence

is, of course, to be seen in the context of the diverse systems of national law described in the judgments. But the general principle

which emerges is that, in the circumstances which arise in areas such as competition law, and tax law, the courts must strike a

particular form of balance between the Convention right and State’s competing interests and duties. Particular forms of protection are

deemed necessary for ECHR compliance

80. Article 8 of the European Convention on Human Rights addresses the right to respect for private and family life, in these terms:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.”

The balancing considerations are set out thereafter:

“2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance

with the law and is necessary in a democratic society in the interests of national security, public safety or the

economic well-being of the country, 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.” (Emphasis added)

81. The Article protects the right to be free of unlawful searches. It goes without saying that a lawful search may be necessary in a

democratic society, in the interests of the economic wellbeing of the country, or for the detection or prevention of disorder or crime.

Also, such procedures may be permissible in the protection of the rights and freedoms of others, as the jurisprudence shows. But, an

incursion into the right to privacy, as here, which is arbitrary or disproportionate, and which cannot be justified on any rational

grounds, will breach Article 8. This judgment now sets out ECtHR judgments in this area of the law. The jurisprudence of the Court

has extended Article 8 rights to limited companies and corporations.

82. Our courts, of course recognise the application of the Convention through the established case law of the ECtHR, and the

principles therein, as identified in JMcD v PL [2009] IESC 81, [2010] 2 I.R. 199 (see also JMcD v. L.E [2010] IESC 48). The clear line of

jurisprudence in this area is most helpfully seen in a number of recent decisions cited to this Court. These include Delta Pekarny v.

Czech Republic [2014] ECHR 1014 (App. No. 97/11) (2nd January, 2015), and Vinci Construction & Others v. France (Application No.

63629/10, and 60567/10, 2nd July, 2015). As Chamber judgments, alternative language versions of some of these decisions delivered

in French are not available. However, the unofficial translations, insofar as can be checked, do convey the sense of the judgments,

and the state of the jurisprudence. The decisions now referred to only refer to searches in this area of the law. Other considerations

obviously may arise elsewhere. The attention of the Court has also been drawn to the recent decision of the Court in Janssen Cilag

S.A.S. v. France, Application No. 33931/12.

Delta Pekárny

83. In Delta Pekárny v. Czech Republic (App. No. 97/11, delivered on the 2nd January, 2015), the ECtHR had to deal with an

investigative administrative procedure, initiated by the Czech Competition Authority on the applicant. The applicant company’s claim

was that the authorities had read certain emails that the addressees had marked as private; and that inspecting officers had infringed

the right to respect for private life and correspondence. This search involved “third party” rights therefore. In dealing with the

Convention heading of what is, under Article 8.2, “necessary in a democratic society”, the ECtHR reiterated that legislation and

practice on the subject must offer adequate and sufficient safeguards against abuses (Para. 83). It pointed out that, in

circumstances where domestic law permitted searches of this type without a court warrant, the court must be particularly vigilant,

notwithstanding the margin of appreciation that a contracting state might have. Thus, the court held that in cases that involved the

protection of individuals against arbitrary arrangements by public authorities affecting rights safeguarded by Article 8, the absence of

a search warrant may be compensated for by what it called an effective judicial review carried out ex post facto. The ECtHR noted

that the notification which provided the basis of the search in that case only briefly stated the subject matter of the inspection, and

did not detail the facts, or the items on which the allegations of anti-competitive practices were based. Although the case is not

identical to this appeal, on its facts, the strong thematic resemblances are clear. The ECtHR went on to re-affirm that, in such

circumstances, the absence of a search warrant might be counter-balanced by an ex post facto judicial review of the lawfulness and

necessity of the investigative measure, but that such review would have to be effective in the particular circumstances of the case

in question. The term judicial review is in this context, something of a linguistic “false friend”. It means a great deal more than might

be first understood by the term. The court explained that, in practice, this would mean that the persons in question were able to

obtain an “effective judicial review”, in both fact and law, of the measure in dispute and of its conduct; and that, when an operation

that is judged to be unlawful has already taken place, the available remedies must provide appropriate redress to the person in

question. (cf. Para 87 of the judgment). (See Ravon & Others v. France, No. 18497/03, paragraph 28, 21st February, 2008; Societe

Canal Plus & Others, paragraph 40).

84. The ECtHR went on to point out that, in the circumstances of that case, the effective review of the lawfulness and necessity of

the inspection in question was all the more necessary, because at no point prior to such inspection had the documents that the

authority expected to discover in the applicant’s premises been specified.

85. What is held to be necessary for Convention compliance, therefore, is that, either before or after the search procedure, there be

in place an effective judicial review in both fact and law. Even the existence of a search warrant will not, in itself, be necessarily a

sufficient protection to rule out an adverse finding under Article 8. In Saint Paul Luxembourg SA v Luxembourg [2013] ECHR 340, the

ECtHR had held that there had been a violation of Article 8(1), even where the search warrant was in accordance with law, and

pursued a legitimate aim; but that less intrusive means than that of a search warrant could have been used to establish the identity

of an individual. The pre-search procedure must be practically effective, whether it be judicial or otherwise. The Court held that the

exceptions provided for in Article 8(1) were to be interpreted narrowly. (Posevini v. Bulgaria [2017] ECHR 80, 19th January, 2017). In

Delta Pekarny, therefore, ECtHR was critical of the fact that there was no focus of this type provided for in Czech law. In the instant

case, the Act of 2014 does not provide for any form of judicial review of the type envisaged, in the case of third party privacy rights.

Each of the passages referred to directly touch on the CCPC procedure adopted in this case. The ECtHR emphasised the absence of

any prior specification of the documents sought. The court considered that, without the prior authorisation of a judge, or an effective

ex post facto review, of the need for the measure in dispute and regulation governing the possible destruction of the copies

contained; the procedural safeguards were not sufficient to prevent the risk of abuse of power by the Competition Authority.

86. The court held that the absence of such safeguards was sufficient for it to conclude that the ex post facto judicial review did not

provide the applicant with sufficient safeguards against arbitrariness, so that the interference with its rights could not be considered

to be proportionate to the legitimate purpose sought. (cf. Delta Pekárny v. Czech Republic, para. 93)

Vinci

87. In Vinci, the court’s views on what is needed for Convention compliance are also made clear. Both the applicant company, and

another company, alleged a breach of their right to an effective remedy, and of their right to respect for their home, private life and

secrecy of correspondence, in particular, rights of confidentiality of communications between lawyer and client, as a result of

searches and seizures carried out at their premises.

88. The case is again to be seen against the background of the judicial role in investigations prescribed by French law. In an

application made on the 3rd October, 2007, the French Competition Authorities requested authorisation from a Regional Court of Paris,

to carry out searches and seizures in the premises of several companies, including the applicants’, on the basis of provisions of the

French Commercial Code. This was part of an investigation into anti-competitive agreements and practices, prohibited under that

code. The judge, (juge des libertés et de la détention) (J.L.D.), gave a fifteen page statement of reasons setting out the evidential

elements produced by the applicant authority after the search, and concluded that the documentation had been lawfully obtained. On

the basis of these elements, the JLD found that there were indications of the existence of prohibited practices within the meaning of

the Commercial Code. The judge then limited the scope of the search and seizure warrant to the premises of the targeted companies,

and to their activity within the scope of construction and renovation of health establishments. Pursuant to a letter rogatory, the

regional court of Nanterre was tasked with monitoring the searches of the premises. Police officers were appointed to assist in the

searches carried out by the competition offices. Numerous documents, and computer files, and all the emails of certain employees of

the applicant companies, were seized.

89. Before the JLD, the applicants submitted that the searches had been undifferentiated, and mass-seizures carried out, in respect

of several thousand computer documents, and of several employees’ emails; that a large number of the documents seized had no

connection with the investigation, or were protected by the privilege of confidentiality between lawyer and client. They submitted

these seizures were undertaken without a sufficiently precise inventory of the seized documents being drawn up. The applicants

maintained they were unable to take note of the content of the documents before these were seized and, therefore, could not raise

any objections to their seizure. They demanded that the searches and seizure be declared void, and failing that, that the unduly

seized documents be returned. The ‘JLD’ dismissed all these requests. The matter was appealed to the Court of Cassation, which

rejected the applicants’ appeals.

90. On application to it, the ECtHR pointed out (at para. 17), that the jurisprudence of the Court of Cassation was that the seizing

authority may only take documents that related to the act specified in the order authorising home searches and seizures, and

documents that were useful in part in proving the said acts. Otherwise the seized documents must be returned (para. 17).

Discussion of ‘E.U. Procedure’ in Vinci

91. In its decision in Vinci, the ECtHR took the opportunity of considering in detail the European Commission practice on inspections

and seizures, pursuant to Article 20(4) of E.U. Regulation No. 1/2003. It pointed out that E.U. Commission investigators initially check

on-site computer data, and emails, during the inspection, which could last several days. They would point out items of interest as

they went along, and will give a copy of all the seized paper documents to the company that had been searched, following completion

of the inspection. The company representatives could object to the seizure of documents which were likely to be covered by client

and lawyer confidentiality, subject to them providing appropriate proof accompanied by useful elements in support of their claim. It is

true that in the instant case, the ICL lawyers were given a memory stick copy of all the documents. But until they received the sworn

information they had no significant information regarding the scope of the inquiry. There was no indication that any submissions would

be accepted, or considered, in any sense.

92. In Vinci, the ECtHR explained that the EU Commission Competition Authorities investigated in the following manner. First, the

officials extracted the electronic data from any medium, and made a copy which is stored on a server on which files are indexed. At

the inspection site, the investigators then searched for files using keywords on dedicated computers or laptops. The data forming

part of the investigation was finally extracted, and stored in an encrypted medium (such as a USB stick or hard disk), a copy of which

is left with the company, together with a detailed inventory. At the end of the investigation, the inspector’s computer equipment was

completely wiped clean. If the document search has not been completed, the inspectors make a copy of the data which remained to

be investigated, and placed it in a sealed envelope. The company’s representatives then attended the opening of the envelope and

make their objections known at the time. No issue arises in this appeal regarding documents which investigators “came across” in the

investigation. It is unnecessary to address that situation.

93. In relation to Article 8, the ECtHR pointed out, (at paragraph 63), that according to its well established case law, searches and

seizures carried out on business premises infringed the rights protected by Article 8 of the Convention (authorities cited). More

specifically, the search for, and seizure of, electronic data amount to an infringement of the right to respect for “private life” and for

“correspondence” within the meaning of these provisions. (cf. para 63).

94. In dealing with the question of “necessity” in a democratic society, the court noted, just as it did in Societe Canal Plus & Others,

that home searches carried out at the Applicants’ premises were intended to look for evidence of anti-competitive practices of which

the applicants were suspected, and therefore did not, in themselves, appear disproportionate with regard to the requirements of

Article 8 of the Convention. (cf. para. 74). The court repeated its finding that the domestic procedure in question provided certain

safeguards, and on this point referred to what it had said in the judgment in Societe Canal Plus & Others (paragraphs referred to).

But, the court then observed that the question again raised more specifically by this case was whether these safeguards were not

actually and effectively applied, particularly in view of the large number of computer documents and emails that were seized, and of

the greater requirement of respect for the confidentiality of correspondence between lawyer and client. (cf. para. 75).

95. Again, the close similarities to the instant case are obvious. For Article 8 compliance, therefore, “actual and effective”

assessment to protect the rights engaged are necessary. Having pointed out that the ECtHR accepted the government’s submission

that the investigators restricted their searches only to seizing items which had a connection with the subject of their investigations,

the ECtHR did not accept the applicants’ argument that they were unable to identify the documents seized when the operations were

completed. It noted that a detailed inventory had been provided.

96. However, the ECtHR went on to point out that, during the execution of the operations, the applicants were unable to take note of

the content of the seized documents, or discuss the need for them to be seized. However, in the court’s opinion, unless the lawyers

were disadvantaged, that is, unless they were able to prevent the seizure of documents that were unrelated to the investigation, or

those that were, in principle, protected by the confidentiality of the lawyer and client relationship, there was no detriment. The court

held that the applicants had been able to ensure that the lawfulness of the seizures could be actually and effectively reviewed after

they took place. An appeal, such as one available pursuant to Article L.450.4 of the French Commercial Code should, if appropriate,

enable them to obtain restitution of the relevant documents, or the assurance that these have been completely erased in the case of

computer files. Neither s.37 of the Act, nor even the CCPC’s proposals, contained such assurances or independent verification of what

is the ECtHR sees as a judicial task, or, at least, one to be carried out under judicial supervision.

97. The court considered that it was for the judge who is considering the relevancy or confidentiality to determine what will happen

to those documents after reviewing their proportionality and to order the restitution, as appropriate. However, it found, in that

instance, that while the applicants exercised their right of appeal to the JLD, the latter, contemplating the possibility that the

documents retained by the investigators may include correspondence from a lawyer, was content to assess the lawfulness of the

context in which the items were seized without undertaking the necessary examination. The ECtHR found that the seizure carried out

at the applicants’ premises were, in the circumstances of this case, disproportionate to the purpose, and that there had been a

breach of Article 8 of the Convention. (cf. para. 79, 80 and 81).

98. It is hardly necessary to re-emphasise that the similarities between the appeal before this Court, and these two cases are very

marked.

Janssen Cilag v. France

99. Just prior to this Court delivering judgment, the appellant sought leave to refer the decision of the ECtHR in Janssen Cilag v.

France, Application 22931/12. At first sight it might appear that this recent decision might favour the appellant, but I am satisfied this

is not so. In fact, if anything, it make the principles rather more clear, because of the proportionate manner in which the French

courts applied the by then Article 8 compliant applicable law. It is necessary to set out the facts in a little more detail, in order to

identify the important distinguishing features of that decision.

100. The application was brought against France, concerning the administration of competition law in that country. The reference to

a JLD may be seen in the same light of those in the previous decisions. Pursuant to an order of a JLD, agents of the French

Competition Authorities carried inspections of the applicant’s premises. These searches were carried out in pursuance of Article

L.450/4 of the French Commercial Code. The search was carried out by seventeen agents of the French Competition Authority, and

six police officers. The applicant company appointed five representatives for the purposes of the search. Additionally, three lawyers

were appointed by the applicant company to monitor the conduct of that search and investigation. The court judgment records that

“numerous” documents and computer files were seized.

101. The applicant company subsequently challenged the search before the First President of the Court of Appeal of Versailles. Two

employees intervened in that procedure, requesting that all personal information contained in the seized files be deleted.

102. The Deputy First President of that court, applying what can only be now characterised as tangible and effective post-search

procedures, annulled the seizure of three files in respect of which, neither the inventory, nor the report made by the investigation

authorities, provided a means of checking that the files contained documents relating to the authorisation granted by the JLD. It will

be seen, therefore, that the French court considered that an onus lay upon the authorities to justify possession of each item seized

in the light of the JLD’s authority. The Deputy First President found that the balance of the search was lawful.

103. The French court’s decision included findings to the effect that the search included part only of a mailbox containing elements

falling within the search. This was sufficient for the search to be valid in its entirety. The fact of seizure of documents extraneous to

the search did not render the search invalid in its entirety; in that a DVD containing all the documents seized had been placed under

seal, and given to the applicants; and that there was, therefore, an absence of any identification of a protected document. The

ECtHR pointed out that the applicant had not specified the number of protected documents taken in hardcopy, even though this could

have constituted evidence of a failure by the authority, both in the discharge of the duty of loyalty, and the alleged lack of

proportion between the means deployed and the necessary protection of fundamental rights. As such, it was for the applicant and

the interested parties to identify the documents which they considered to be protected by the secrecy of private correspondence,

legal professional privilege, or to be outside the scope of the authorisation, and thereafter request their return from the authorities.

The French judge, therefore, confirmed to the authority his agreement to the return of irrelevant documents.

104. In its decision in Janssen Cilag, the ECtHR held that, like Vinci, the search in question had been “in accordance with law”, that is,

as permitted by French domestic law. Thus, the search was, in accordance with the first limb of Article 8, that is, “necessitated by

law”. In the course of its judgment, the ECtHR emphasised that the search resulted from a “reasoned order by a court”, and that the

judge designated by the First President of the Appeal Court, had not only “effectively” examined the applicant’s allegations, but also

expressly pointed out the absence of any precise identification by the applicant of a protected document, or even an indication as to

the number of protected documents in hardcopy, even though this could have provided an indication of a failing on the part of the

authority in discharging its duty of loyalty, and in the alleged disproportion between the means implemented, and necessary

protection of fundamental rights.

105. In distinguishing the case from Vinci, therefore, the court observed that the domestic judge had declared that the seizure of

three files was invalid, and had undertaken an effective review of proportionality as required by the provisions of Article 8 of the

Convention. It held the applicant had not referred the court to any allegation that documents which it had precisely identified were

wrongly seized. The court noted that it was open to the applicant to identify documents in dispute, in order to then claim their

restitution by the authority, and that the French judge had noted his consent to this.

106. The court also pointed out that the application in question was brought under Article L.450/4 of the French Commercial Code,

which allowed for the restitution, where appropriate, of the relevant documents, or the guarantee that they would be deleted in full in

the case of copies of computer files. Thus, it followed, that the safeguards had been practically and effectively applied, and were not

just theoretical and illusory. I do not read the decision as in any way altering the fundamental principles established in Vinci. These

included: the existence of effective and actual ex ante and post facto review of the material seized by a judge; this was based on

the revised provision of the French Commercial Code, which provided for such safeguards; the courts finding that the protections

afforded under law were not theoretical and illusory; the fact that the applicants had not made any concrete assertion that the

search, taken as a whole, had been disproportionate, despite the opportunity for making such assertion; and the fact that the

lawyers, retained for that purpose by the applicant, had been able to discuss with the authorities the relevance of documentation and

material actually to be seized on site. It is clear that the lawyers had been in a position to engage in meaningful discussions. Each of

these considerations were absent in this appeal.

Sérvulo

107. Although not referred to in argument, it is instructive to consider the summary of a further recent judgment of a chamber of the

Court of Human Rights, where, by contrast, again it held there had been no breach of Article 8. It is to be considered against the

background of the national law, and the system of investigation therein provided for. Again only a summary is available, and there is

no English version of the judgment. In Sérvulo & Associados - Sociedade de Advogados, RI v. Portugal (App. No. 27013/10), the Court

of Human Rights held, by a majority, that there had been no violation of Article 8 in the search of a law firm’s offices, and seizure of

computer files and email messages, during an investigation into suspected corruption, and money laundering.

108. The ECtHR noted that the applicants had been present during the search operation, together with a representative of the Bar

Association. An investigating judge had overseen the operation, and an official report had been drawn up afterwards. The court noted

that the investigating judge had exercised a supervisory role before, during and after the operation. The court found that,

notwithstanding the scope of the search and seizure warrants, the safeguards afforded to the applicants against abuse, arbitrariness,

and breaches of legal professional secrecy, had been adequate and sufficient. Hence, the search and seizure operations had not

amounted to disproportionate interference with the applicants’ right to respect for their private and family life, in view of the

legitimate aim pursued.

109. The ECtHR jurisprudence makes clear that, for Convention compliance, the level of specificity in the warrant may vary from case

to case, depending on the type of offence suspected, the circumstances in which the warrant was issued, the manner and

circumstances in which the warrant was issued, and the question of proportionality to the aim pursued. It is self-evident that the

scales of proportionality required to be calibrated in accordance with a range of criteria, but which vary in accordance with range,

relevance, both patent or latent, scope and purpose.

Earlier Authorities

110. These decisions are cited in detail, because of their direct relevance. They follow on from an earlier line of authorities, including

Niemietz v. Germany [1993] 16 EEHR 97, App. No. 13710/88), where the Court of Human Rights recognised that there was no reason,

in principle, why the understanding of the notion of private life under Article 8 should be taken as excluding activities of a professional

or business nature. (para. 29). While the case concerned the question of legal privilege, it touched directly on this case, in that it

also deals with a search which was excessively broad. Thus, the ECtHR held that the search in question was not “necessary” in a

democratic society, and that the measure complained of was not proportionate to the aims, because it had been in broad terms, and

without limitation.

111. In Société Colas Est v. France, Application No. 37971/97, ,(2004) 39 E.H.R.R. 17 the Court of Human Rights affirmed that the

rights guaranteed by Article 8 might be construed as including the right to respect for a company’s registered offices, branches, or

other business premises (para. 41). While the search carried out therein was for the purpose of detecting anti-competitive activity,

and therefore justifiable on those grounds. But there had been no judicial supervision prior to the search. The procedure itself involved

taking numerous documents, in various company head offices. The court concluded this was an invasion of the company’s “home”.

The court observed that the exceptions provided for in paragraph 2 of Article 8 were to be interpreted narrowly, and the need for

them in a given case must be convincingly established. (See Funke v. France; Cremieux v. France; Miailhe v. France (No. 1) (A-256-

A, 256-B and 256-C); Niemietz v. Germany [1993] 16 EHRR 97 at par 55). The court held that, having regard to the want of prior

judicial supervision, or authorisation, the wide powers enjoyed by the authorities, which gave them exclusive competence to

determine the expediency, number, length and scale of inspections, meant that the impugned operations could not be regarded as

strictly proportionate to the legitimate aims pursued. Here the CCPC claimed a similar exclusive competence in identifying and defining

materiality in this category of material and data. This would not be in accordance with ECtHR jurisprudence.

112. In Robathin v. Austria, App. No. 30457/06, [2012] ECHR 1370 at pars 44 and 47, the Court of Human Rights laid particular

emphasis on the question as to whether the scope of a search warrant had been reasonably limited, and that a search which explored

data extraneous to the investigation, without justification, had gone beyond what was necessary to achieve the legitimate aim, as a

consequence of which there had been a violation of Article 8 of the Convention.

113. It is true that in Bernh Larsen Holding A.S. & Others v. Norway (App. No. 24117/08 [2013] ECHR 220, the court held (at paras.

161 and 174), and in the circumstances of that case, that the impugned Norwegian tax legislation was supported by relevant and

sufficient reasons. The court held that there was no reason to doubt that the tax authorities in Norway had acted within their margin

of appreciation and struck a fair balance between privacy rights and the public interest in ensuring efficiency. However, Bernh Larsen

is to be seen in light of the fact that the search and seizure involved was not carried out under criminal law. (para. 173). The

consequences of the tax subjects’ refusal to co-operate were exclusively “administrative”. Moreover, the measure had, in part, been

made necessary by the applicant company’s own choice to opt for “mixed archives”, a shared server with other companies, making

the task of separation of user areas and identification of documents more difficult. The nature of the mixed archives in this case is

quite different.

114. The dissenting opinion of Judge Laffranque and Judge Berro-Lefevre expresses concern, as in the courts established case law,

regarding “adequate protection against arbitrary interference”. The judges referred to their view as supported in, for example, Petri

Sallinen v. Finland [2005] ECHR 50882/99, 27th September, 2005, at par. 90, in which the ECtHR stated that “Search and seizure

represents a serious interference with private life, home and correspondence, and must accordingly be based on a “law” that is

particularly precise. It is essential to have clear and detailed rules on the subject.”

C.J.E.U. Jurisprudence

115. The jurisprudence of the Court of Justice of the European Union is to be viewed in light of the guarantees contained in the

Charter in Article 7, (respect for private and family life, including one’s communications); Article 8, (the right to protection of personal

data concerning oneself), and the right under Article 17 to private property. I am not convinced, however, that it can be said that

the issues arising here come within the range or scope of E.U. law. (C.f. Articles 51 and 52 of the Charter). Even if they did, resort to

EU laws, it is not necessary for the resolution of this case.

116. Insofar as the jurisprudence is helpfully illustrative, Case C-583/13 P Deutsche Bahn A.G. v. European Commission, 18th June,

2015, set outs the issues well. In that judgment the CJEU points to the presence under E.U. law of post-seizure judicial review, as a

balance, in circumstances where there might be no prior judicial authorisation of search and seizure. (paras. 32 to 33). The court

notes the manner in which E.U. law discounts the use of fortuitously found evidence, although it may be used for further

investigation. (paras. 58 and 59).

117. The judgment of the General Court in Nexans S.A. v. European Commission, referred to by my colleague, Charleton J., merits

consideration on its facts. In the judgment of the General Court delivered on the 14th November, 2012 (Case T135/09), the central

issue was not only the downloading of data, but the absence of any sufficient safeguards. In Nexans, the E.U. Commission’s search

was different from that here. The inspection took place by prior arrangement, in the presence of lawyers. The downloading took place

using software which “indexed that information overnight” (par. 8). The EU Commission inspectors removed data in circumstances

where there had, in fact, been interference with the inspection and where relevant material had been deleted during the search. The

applicants’ legal representatives were present when the clearly identified and focused data was opened from a sealed envelope on

another date. The procedure deployed by the EU inspectors took place in circumstances where to refuse downloading would not have

led to any penalty. (para. 126). The judgment of the Court of Justice on appeal did not alter any of these factual findings. The

marked contrast between the approach adopted by the E.U. inspectors, and the approach in the present instance, does not require

emphasis. It is, of course, important to point out that the principles cited hinge on what was held to be necessary in a democratic

society, the interests of national security, the economic wellbeing of the country, the prevention of disorder or crime, the protection

of health or morals, and the protection of the rights of others. The weight to be placed on each consideration will vary from case to

case and category to category of law. In my view, there is no option but to find there has been a breach of Article 8 ECHR, based on

the principles outlined, and the precise nature of the safeguards stated to be required.

Data Protection

118. I agree with Charleton J., for the reasons set out in his judgment, that the provisions of the Data Protection Act do not arise. I

would uphold the appeal on that ground, and set aside the order of the High Court in that regard. In any event, again, I do not think

that resort to E.U. law is necessary for the proper determination of this case.

Conclusion

119. This was an investigation, where there must be a significant degree of latitude for investigators in the search. The constitutional

proportionality test applicable arises in that context. The evidence of the disproportionate intrusion into the Constitution and ECHR

rights engaged is cogent and clear. It must be accepted that the degree of specificity in a warrant may vary in accordance with the

circumstances in which the warrant is issued, the type of crime involved, the degree of urgency, and the nature of the investigation

required. In this case there are the following: first, the relatively specific nature of the background material available to the CCPC,

some of it apparently for a year pre-search. This was, at least partially, reflected in the sworn information, but not in the search

warrant. There was, then, the unspecific and, apparently unlimited nature of the search warrant itself, including the absence of

identification of any reasonably suspected offence or suspected persons. The ICL employees, or their advisors were not enabled to

ascertain anything useful as to the scope or purpose of the projected entry and search. The sworn information was made available

only on the 24th November, 2015, thereby preventing any meaningful observations from the legal advisors, until after the legal

proceedings commenced. Even then, there was no indication that submissions would be considered or independently adjudicated

upon. There was the acceptance in the Defence as to the “high probability” that the search involved seizure of irrelevant material to

which the CCPC had no entitlement. The important “keyword concession”, on the last day of the High Court hearing, did nothing to

avoid the reasonable inference that such a focused form of search could have been arranged for the day of the search. This

alteration in position was accompanied by an acknowledgement, for the first time, that some partial duty devolved upon the CCPC to

sort through the seized data. But all this is to be seen in the absence of any effective pre or post-search tangible checking process,

for irrelevant documentation, to be conducted under judicial supervision, as set out in ECtHR jurisprudence. There was no evidence of

pressing need, or urgency, or risk that evidence might be destroyed. The dis-proportionality of the procedure in this case is also

confirmed by the extraordinary quantity of material apparently seized, and to be seen in light of the fact that the CCPC has, at all

times, maintained that it alone should be the arbiter of what was relevant to its investigation.

120. The order proposed here is not to be understood as requiring that, in entirely different situations, the identification of any one or

two of these factors, either alone or together, will necessarily render a search warrant null and void by reason of dis-proportionality in

either the constitutional or ECHR sense. Cases must be decided on their own facts. It is the cumulative effect of these many factors

which is critical to the constitutional finding in this case, where the established jurisprudence, although valuable, is not directly on

point with the facts of this case. For a finding of ultra vires under the Constitution, the evidence would have to be very clear, and

measured against the rights, duties and interests engaged, and the degree of latitude which necessarily arises. Here the evidence is

both cogent and clear. 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. I would hold the procedures were, are, and remain, ultra vires. What was obtained, in

purported compliance with the words of s.37 of the Act of 2014, was in breach of the respondents’ constitutional and ECHR right to

privacy. It was not compatible with the precise requirements of Article 8 ECHR, as applied in the jurisprudence, even having regard to

the margin of appreciation to be applied. The facts and circumstances are very different from those which might apply in other

categories of case.

Proposed Order

121. The CCPC have appealed the decision of the High Court. For the reasons set out in this judgment, I would dismiss this appeal. I

would grant a declaration that the appellant acted ultra vires s.37 of the Act of 2014, in breach of the respondents’ constitutional

right to privacy, and in breach of their rights, under Article 8 of the European Convention on Human Rights. It follows that the

appellants did not act in accordance with s.3(1) of the European Convention on Human Rights Act, 2003, which provides that organs

of the State shall perform their functions under s.37 of the Act “in a manner compatible with the State’s obligations under the

Convention provisions”. I 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 this unlawful search.