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Supreme Court of Ireland Decisions S34 [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] Supreme Court of Ireland Decisions You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> CRH Plc, Irish Cement Ltd & ors -v- The Competition and Consumer Protection Commission [2017] IESC 34 (29 May 2017) URL: http://www.bailii.org/ie/cases/IESC/2017/S34.html Cite as: [2017] IESC 34 [New search] [Help] Judgment Title: CRH Plc, Irish Cement Ltd & ors -v- The Competition and Consumer Protection Commission Neutral Citation: [2017] IESC 34 Supreme Court Record Number: 65/2016 High Court Record Number: 2015 9210 P Date of Delivery: 29/05/2017 Court: Supreme Court Composition of Court: Denham C.J., MacMenamin J., Laffoy J., Dunne J., Charleton J. Judgment by: MacMenamin J. Status: Approved Result: Appeal dismissed Judgments by Link to Concurring Judgment MacMenamin J. Link Denham C.J., Dunne J. Laffoy J. Link Denham C.J., Dunne J. Charleton J. Link Denham C.J., Dunne J. THE SUPREME COURT Denham C.J. MacMenamin J. Laffoy J. Dunne J. Charleton J. [Appeal No. AP:IE:2006:00065] 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.
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