On 29 May 2017, the Supreme Court upheld a High Court judgment identifying legal breaches arising from a dawn raid carried out by the Competition and Consumer Protection Commission (CCPC).
The dawn raid was carried out by the CCPC at Irish Cement Ltd as part of an investigation into suspected competition law infringements in 2015. During the dawn raid the CCPC obtained the entire email account of one of the Irish Cement directors.
Irish Cement sought to engage with the CCPC on the treatment the large amounts of irrelevant material in the director’s email account, which it argued fell outside the scope of the CCPC’s powers and, as such, should not be reviewed. The CCPC refused to engage with Irish Cement. The CCPC accepted that they held some information which was not relevant to their investigation but maintained that they were still entitled to trawl through all the material in their possession, apart from legally privileged material, to establish what material was relevant or not.
Irish Cement then issued High Court proceedings seeking to prevent the CCPC from viewing any of the material which was not of relevance to the investigation on the basis that this would constitute a breach of privacy under the Constitution and European Convention on Human Rights.
The High Court agreed. It held that if the CCPC was entitled to access to all the material, the director’s fundamental right to privacy could be contravened and granted an injunction restraining the CCPC from accessing or reviewing all of the material in question pending any agreement which may be reached between the parties.
The CCPC appealed this decision to the Supreme Court. The CCPC submitted that they alone have the power to engage in the sorting and the decision as to relevance of documents, without any input from anyone else, and that any other procedure would be contrary to the Competition Acts. The Supreme Court rejected the appeal and upheld the decision of the High Court. In doing so it held that the CCPC’s proposed approach to the review of seized material was in breach of the right of privacy under the Irish Constitution and the ECHR.
This decision highlights the absence of a regulatory protocol or Irish legislation dealing with the treatment of irrelevant material seized at a dawn raid. The Supreme Court, in its judgment, has recommended that this lacuna be filled.
This is a welcome judgment as it recognises that a regulator’s right of search and seizure is limited by proportionality and an individual’s right to privacy.