The Supreme Court has dismissed the Competition and Consumer Protection Commission’s appeal against orders protecting electronic material seized during an inspection at Irish Cement Limited’s Platin premises. The Court upheld the orders on a limited question under Article 8 of the European Convention on Human Rights: whether the Commission could review material that was probably outside the scope of its search warrant.
The dispute followed an inspection on 14 May 2015. The Commission copied electronic files, including Seamus Lynch’s email account. CRH plc, Irish Cement Limited (ICL) and Lynch said the material included emails unrelated to ICL’s business and within Lynch’s work for CRH or his private correspondence. The Commission accepted for the proceedings that, as a matter of high probability, not all of Lynch’s emails related to the activity under investigation.
The High Court did not declare that the Commission had already breached Article 8. It ruled that reviewing material outside the warrant’s scope would breach the right to privacy and restrained the Commission from accessing, reviewing or using the electronic documents. The Commission appealed that part of the order. The respondents did not appeal the High Court’s refusal to grant a declaration concerning the EU Charter.
In a judgment delivered by Ms Justice Laffoy on 29 May 2017, the Supreme Court upheld the relevant High Court orders and dismissed the appeal insofar as it concerned Article 8. It considered that the Commission had no statutory mechanism to separate unrelated electronic material from material it was entitled to seize, and that the respondents had no effective statutory process for obtaining a court review of the seizure after it occurred. The Commission had also rejected a proposed procedure for identifying and protecting material said to be outside scope.
The ruling addressed the Commission’s proposed continued inspection of the seized data, not a finding that the original inspection as a whole was unlawful. The Court noted that the orders did not resolve how the Commission could identify and review material within the warrant’s scope. It said the legislature could fill the statutory gap, while the parties could agree a process—potentially involving keyword searches or a procedure modelled on the Act’s protections for legally privileged material. The Court said it was for the Commission to take steps to resolve the difficulty in this case.