The High Court has restrained the Competition and Consumer Protection Commission from reviewing or using material copied during a search of Irish Cement’s Platin premises if that material fell outside the search warrant. The restriction applies pending any agreement between the parties on a process to identify material that should not have been seized.
In a judgment delivered on 5 April 2016, Mr Justice Max Barrett said that, on the balance of probabilities, some material taken during the search was not covered by the warrant. The court granted a declaration that this material had been seized without authorisation under section 37 of the Competition and Consumer Protection Act 2014.
The search followed a District Court warrant issued on 12 May 2015 in an investigation into alleged competition law breaches by Irish Cement concerning the supply of bagged cement in Ireland. During the 14 May search, Commission officers copied the entire email mailbox of Seamus Lynch, a senior CRH executive. The plaintiffs accepted that material relating to Lynch’s Irish Cement roles was within the warrant’s scope, but said that material concerning other CRH group roles was not.
The Commission argued that it should be allowed to examine all copied material and separate what the warrant covered from what it did not. The judge held that the law provided no process for screening material seized but not authorised by the warrant. Allowing the Commission itself to review such material would, he concluded, breach privacy rights under Article 8 of the European Convention on Human Rights and Article 40.3 of the Constitution.
The court did not find that the Commission had already breached Article 8 or the constitutional right to privacy. Instead, it said that reviewing the material as the Commission proposed would breach those rights. It also refused the plaintiffs’ requests for declarations that the Commission had breached the EU Charter and the Data Protection Acts. The Charter claim failed because the provision at issue was not implementing EU law. On data protection, the court said the evidence did not support a further conclusion about the Commission’s use of personal data.
The injunction covers material outside the warrant’s scope, as the court interpreted it: records relating to an activity connected with supplying or distributing goods or providing a service, where the information may be required for the investigation. It remains in force pending any mutually satisfactory agreement on a section 33-style or other sifting arrangement. The judgment was confined to the search and seizure regime under the 2014 Act; the court left other reliefs and costs for further argument.