Neutral Citation No: [2005] IEHC 361
THE HIGH COURT
[2005 No. 521P]
BETWEEN
THE COMPETITION AUTHORITY
PLAINTIFF
AND
THE IRISH DENTAL ASSOCIATION
DEFENDANT
EXTEMPORE JUDGMENT delivered by Mr. Justice William M. McKechnie on the 27th April, 2005.
- The Competition Authority is the statutory body charged with the responsibility of enforcing the provisions of the Competition Act, 2002. In respect of any agreement, decision or concerted practice, which is a breach of s. 4 of that Act or which is prohibited under Article 81 of the E.C. Treaty, the Competition Authority has a statutory cause of action as specified in and provided for under s. 14 of that Act. The defendant is a company limited by guarantee and was incorporated on 23rd June, 1989. It is a representative body which apparently has a membership close on 1200 of the practising dentists in this State. It represents such members in a variety of ways, including in matters such as negotiations with the Government, Health Boards and other such bodies.
- In May, 2004, DeCare, a United States dental insurer, in conjunction with the VHI, launched a private dental insurance product on the Irish market. In the broadest of terms, it is alleged that certain actions taken and/or advises and recommendations given by the defendant, whom I shall refer to as the "I.D.A.," in respect of its members participation with this product, including a recommendation not to complete or sign the relevant claims form, constitute unlawful conduct and thus is a breach of both the section and the article above mentioned.
- On 11th May, 2005, a plenary summons was issued in this case in which the Competition Authority sought certain declarations as well as injunctive relief. The basis upon which such declarations and relief are sought are, as I previously indicated, an allegation that there was a breach, in the manner briefly described above, of s. 4 of the Act and of Article 81 of the E.C. Treaty.
- On the same day, a notice of motion also issued on behalf of the plaintiff seeking a number of prohibitary injunctions as well as a mandatory injunction, all by way of interlocutory orders. Affidavits have been sworn and filed on behalf of both parties to these proceedings and written submissions have been exchanged and lodged in court. Because this judgment deals only with a specific issue, it is unnecessary to outline in any detail many of the facts, matters and circumstances which would be highly germane to a full hearing of the substantive action.
In addition to the above therefore, it is sufficient to say by way of general background, that the negative injunctions sought in the notice of motion seek to restrain the giving of any such advice or the issuing of any such recommendation, and also seek to prohibit the I.D.A. from any coordination of conduct by its members which may have the object or affect of interfering with the business of this particular product or of the development or introduction of similar products in this jurisdiction. The affirmative order sought is to inform its members by way of a communication that each individual dentist is free to decide for himself or herself their particular relationship with the dental insurers above mentioned. The I.D.A. disputes and completely denies the claims made against it by the Competition Authority.
- The specific issue of immediate concern arises in the following manner. Apparently in September, 2004, the Competition Authority received a complaint in the context of the matters above described, upon which it decided to launch an investigation which at the relevant date was in existence for about four weeks. In October of that year, it felt that the obtaining of a search warrant would help to further this ongoing investigation. Such a search warrant is available under the provisions of s. 45 of the Act of 2002. That section deals with a number of matters, including the powers of an authorised officer as well as the powers of the District Court to grant such a warrant. Under s. 45 (2) of the Act, on the production of a warrant issued under subs. (4) thereof, an authorised officer may exercise any of the powers mentioned in subs. (3). These powers include powers to enter, if necessary by force, to search premises and to seize and retain any documents found within, which are covered by that warrant. The premises in question cover not only business premises but also domestic residential units. The subsection therefore is quite substantial in its scope and breadth.
- Under subs. (4), a judge of the District Court may issue a warrant to an authorised officer for the purposes of subs. (2), if the judge is satisfied from information on oath that it is appropriate to so do. Subsection 2(2) as I have just said, authorises that officer, on the production of such a search warrant validly issued and valid at the time of its production, to carry out and exercise any of the powers specified in subs. (3) which are covered by that warrant.
- Ms. Fenton is a solicitor with the Competition Authority and also an authorised officer for the purposes of, inter alia, s. 45. It would appear that under her guidance, the necessary information was drawn up and a draft warrant produced by her office. On the 11th October, another member of the Competition Authority and herself, both attended before the District Court, which at that time was being presided over by Judge Connellan. It would appear unquestionally that the purpose of their presence was to seek the issue of a warrant under s. 45 (4). The hearing lasted somewhere between 7 and 10 minutes. During that time the District Judge was given a copy of the Competition Act and had of course in his possession the information which I have just mentioned and upon which the warrant was sought, and also had the draft warrant. Presumably if he was satisfied on the information produced and otherwise was of the view that it was appropriate to so do, the District Judge would be invited to, and would sign the warrant which had emanated from the offices of the Competition Authority and which had been handed to him by or on behalf of Ms. Fenton. It seems from the oral evidence given to this court by Ms. Fenton, that the District Judge asked some questions about the powers of the Competition Authority under the Act of 2002 but made no inquiry whatsoever either with regard to the information which had been supplied or the draft warrant which had been produced.
- This warrant, which is on the computer system of the Competition Authority, was downloaded in a standard format. The authorisation specified on the face of the warrant permits an authorised officer, namely Vanessa Fenton, to:-
"(a)… enter, if necessary by force, the premises of the Irish Dental Association with the address specified therein and to search those premises or vehicles in or by means of, which any activity in connection with the business of selling, supplying or distributing motor vehicles or in connection with the organisation or assistance of persons engaged in any such business, is carried on."
This is a direct quote from the operative part of the warrant and not from any recital section of it.
- There are a further six sub-paragraphs, again all within the operative part of the warrant, each of which permits the authorised officer to carry out or perform other activities, but each of these sub-paragraphs relates to the purpose or activity of the undertaking in question, namely that as specified in sub-paragraph (a) thereof. In other words, this warrant authorises the entry, search, seizure, take away and retention of documents on the premises of the I.D.A. in connection with the business of selling, supplying or distributing motor vehicles. It is common case that the I.D.A. has no connection whatsoever with such a business and it would appear, again by way of common case, that the reference to such business in the body of the warrant was due to an oversight.
- Having downloaded the warrant in standard form, Ms. Fenton informed this Court that considerable effort had been put into making sure that the address of the Irish Dental Association was correctly specified in the warrant but that the business activity in respect of which the warrant was sought, was not adverted to as being both clearly inappropriate and inapplicable to the activities of the I.D.A. It would appear that the first time at which the Competition Authority became aware that there was an issue with regard to the search warrant, in the manner in which I have described, was on receipt of the legal submissions filed on behalf of the IDA by its solicitor, Mr. Holohan. This occurred some time in mid April, perhaps as recent as seven to ten days ago and certainly no earlier than that. It is clear from the evidence in this case that the "business activity" section of the warrant was not checked or verified prior to the application made in the District Court and neither was it checked or verified at any time thereafter, that is up to the receipt of the legal submissions herein mentioned.
- Before dealing with the substance of this matter, there are a number of issues that I wish to comment on. It was suggested that there was no sufficient evidence before the District judge which would permit him to issue a warrant under s. 45 (4) of the Act of 2002 and that he had not considered the information given to him objectively or in such a way so as to be satisfied as to the requirements of that subsection. Whilst the relevant provisions of the Act of 2002 were read and presumably considered by him, there was, as previously stated, no query raised on the submissions made or on the information supplied or on the search warrant itself. Whilst it remains quite unclear as to how, throughout this process, the error as to the business description of the I.D.A. went unnoticed, nevertheless I am not satisfied to accept the submission made, as I believe there is insufficient evidence to justify this court in making any such finding as is claimed. In any event, in my view this point is not material as the search warrant, and this is not disputed, was and is illegal in respect of the business activity in which the defendant is engaged and consequently could not be a lawful justification for obtaining the documentary evidence relative to this case.
- Secondly the search warrant on its face may or may not be valid to cover the purpose of searching for documents relating to the motor trade, though it would seem highly unlikely that it could be, given what one can infer to have been the information sworn before the District Judge. Equally so, however, this point in my opinion is not of material consideration to any issue on this application.
- Thirdly on attending at the premises of the I.D.A. on the 12th October, it would appear that a copy of the search warrant was given to an employee or officer of that company, though the evidence remains slightly unclear as to whether the copy was retained in the office or simply given and taken back. Also on that occasion, the purpose of the visit was explained to those in the employment of the I.D.A. whom it is said responded in a cordial and courteous manner and were fully cooperative. Needless to say, the error was not spotted by any person on behalf of the I.D.A. at that time. I should immediately say, of course, that I would have expected nothing less than a cordial, courteous and cooperative reaction from the I.D.A. when faced with what appeared to be a warrant, validly obtained by the Competition Authority, enabling it to carry out and exercise the powers contained within it.
- Fourthly, in fairness to the plaintiff, I do not believe that the matters which I have just outlined were highlighted for any reason other than to re-emphasise the most basic of all the submissions advanced on its behalf, namely, that this was purely and totally an accidental error which, of course, is a reference to the business description "of motor vehicles", instead of what it ought to have been in relation to the I.D.A. Nor, however in my view could the circumstances which I have just described be in any other way relied upon as founding any attempt to pass or apportion blame or responsibility onto the defendant. Similarly so, it appears to me that no reliance can be placed on the fact that a copy of the warrant had been given to the solicitors acting on behalf of the defendant or on the fact that this issue was not raised until quite late in the day. There can be nothing akin to acquiescence, estoppel or other similar concepts in the circumstances which I have mentioned. What is quite undisputed, from a factual point of view, is that the entry, research, seizure, retention and use of documentary material including material contained within the computer system of the I.D.A. was not carried out or executed by permission or consent. Accordingly, unless grounded upon some lawful authority this exercise of entering, of searching, of seizing and of retaining documents and their subsequent use is illegal.
- Fifthly, the fact that the search warrant was not exhibited in the grounding affidavit filed on behalf of the Competition Authority is not in any way to agitate a concern that this was deliberately done. Indeed I am perfectly satisfied that this was not the case. Apparently it is somehow or other not the standard or normal practice to do so, which comes as a bit of a surprise to me. I have to say that in my humble opinion the very foundation of the legal authority bestowed upon the Competition Authority, when entering or searching premises is the search warrant. And as a result I would have thought that as the most basic document, it ought as a matter of routine be placed before the court whether or not an issue is raised about its legal validity. As I have said, and I wish to repeat, there is nothing whatsoever sinister about the failure to so exhibit it in this case.
- Mr. Shane Murphy S.C. made a number of submissions on behalf of the I.D.A. In broad terms he said that given the invalidity of the search warrant the question which must be determined is what this court ought to do with the documentary material obtained in the premises, which material, the Competition Authority now wishes to use in this case. How are these documents to be treated by this court? He claims that there was a breach of the defendant's constitutional rights which he identified as being the right of association, the right of expression and also the right to privacy. He said that the circumstances of this case merits a conclusion that there was a conscious and deliberate breach of such constitutional rights, and that given the situation there were no extraordinary or excusing circumstances. Consequently as a matter of law in respect of which principles there is no dispute, this court has no discretion about the reception of such evidence as it must declare the same to be inadmissible.
- In addition and as an alternative to this primary submission, counsel also alleges that the material in question had been obtained in breach of the defendant's legal rights. In such circumstances, however, the court has a discretion whether to receive the documents or not. This discretion must be exercised on the grounds of, and having regard to, public policy considerations. Having carried out this exercise the court could either admit the documents or else could exclude them.
- In support of these submissions Mr. Murphy S.C. referred to and opened before this court a number of authorities. Included were The People (Attorney General) v. O'Brien [1965] I.R. 142, People (Director of Public Prosecutions) v. Kenny [1990] 2 I.R. 110, Universal City Studios v. Mulligan (No. 2) [1999] 3 IR 392, Kennedy v. Law Society (No. 3) [2002] 2 IR 458 and Simple Imports v. Revenue Commissioners [2000] 2 I.R. 243. As a result he invited this court to arrive at the conclusions which he argued for, and consequently by reason of either one or other of his submissions, to exclude from its consideration the evidence in question.
- Mr. Hogan S.C. appeared on behalf of the Competition Authority and in his submissions made what he described as a number of "key points". The first was that this was purely and utterly an accidental infringement and consequently, however regrettable this might be, it was purely that. There was nothing deliberate about the mis-description. There was nothing involving forethought or the like. There was no conscious decision to create or perpetuate this error. Therefore the same falls into a particular category on account of these undisputed facts. Secondly, he denied that there were any constitutional rights involved in this case or that there was a breach of such rights on the part of the defendant. This case was therefore quite unlike, say O'Brien where the constitutional right in question was readily identifiable, namely, the inviolability of one's dwelling under Article 40.5 of the Constitution.
- Counsel said that the principles outlined in Kennedy v. the Law Society (No. 3) were supportive of the view that a search of business premises did not involve a constitutional right, or more to the point, an unlawful search did not involve a violation of any such rights. He relied upon a passage from the judgment of
Fennelly J. in that regard.
- Whilst agreeing that the I.D.A. did possess and was entitled to exercise constitutional rights, such as those of association and expression, he argued that these rights were far too remote and therefore for the purposes of this action could not be relied upon, as a basis for establishing a breach of such rights, so that this court could invoke the principles which were outlined in Mr. Murphy's submissions. However, even if such rights were applicable to and breached in this case, counsel went on to suggest that there was 'no conscious and deliberate act' in violation thereof, as that phrase, which emanated from the O'Brien decision, should be understood in its proper context. He repeated that there was an honest and bona fide error and nothing more. He agreed, which seems to be undoubtedly correct, that if, contrary to those submissions, there was a breach of constitutional rights and if that breach was conscious and deliberate, then as the facts of this case do not demonstrate any extraordinary or excusing circumstances, there is no discretion in this court and accordingly in the absence of any other possible defence, I would be bound to disentitle the Competition Authority from relying upon the material in question.
- The next major point he made was that unlike O'Brien and unlike Kenny, these proceedings were civil in nature. Whilst the exclusionary rule can be relevant to such proceedings, its application must, by the nature of this case, be heavily circumscribed in comparison to a situation say, where the subject proceedings were criminal in nature. Even within similar proceedings, the mistake or error in this case was at the very opposite end of the spectrum when one considers it, in comparison to the facts which formed the subject matter of the Kennedy decision. In that case the solicitor plaintiff took an action against the Law Society whose nominated accountant had pursued "a hidden agenda", which was to investigate a belief by the Society that Mr. Kennedy was involved in bogus personal injury claims. As cover, the Society, at the same time, offered as the ostensible reason for her presence at his premises, the reporting on his practice under the solicitor's accounts regulations. I think it is correct to say, as Mr. Hogan has himself said, that there was an element of what could be described as "legal duplicity" involved in the Society's approach, whereas of course there is no question of that or any similar type of conduct in the instant case. Therefore in his submission the application of the exclusionary principle to these proceedings should be even more restricted and even more limited than its application in Kennedy.
- In conclusion I think it is fair to say that Mr. Hogan S.C. acknowledged that the search warrant was not a valid authority for the purposes of obtaining any of the documentation in issue as it was illegal. Consequently, there is a breach of legal rights. This conclusion therefore brings into play the discretion which Kingsmill Moore J. outlined in O'Brien. Having identified several facts which ought to be taken into account in the exercise of that discretion, his submission to this Court was that the proper conclusion which I should reach, was one which favoured the reception of the evidence in question.
- Could I firstly say that I have some doubts about receiving details of the District Court hearing, certainly insofar as those details relate to the information sworn by Ms. Fenton, which information grounded the application for and presumably formed the basis upon which the search warrant issued. This information is critical from a district judge's point of view in exercising the powers contained in s. 45(4) of the Act, but where the challenge is focused on the search warrant itself, that is on what appears on the face of it, I have grave reservations about the correctness or wisdom of this court in receiving such evidence.
In any event there is a passage from the judgment of Keane J. as he then was, in Simple Imports Limited v. Revenue Commissioners, [2000] 2 I.R.243, at p. 255 of the report in which the former Chief Justice says:-
"I am satisfied that the submission on behalf of the respondents that, in a case where the warrant itself states that it has been issued by a district judge on a basis which is not justified by the statute creating the power, the invalidity of the warrant can be cured by evidence that there was in fact before the district judge evidence which entitled him to issue the warrant within the terms of the statute is not well founded. The proposition seems to me to be contrary to principle and unsupported by authority. Given the necessarily draconian nature of the powers conferred by the statute, a warrant cannot be regarded as valid which carries on its face a statement that it has been issued on the basis which is not authorised by the statute. It follows that the warrants were invalid and must be quashed."
That passage, if relevant, is of course binding upon me but in any event I respectfully agree with it. Lest however I give the impression by dealing with this point, that Mr. Hogan S.C. made the submission that, despite the error on its face, the warrant was valid on the basis of the information sworn, this was not so. No such submission was made.
In any event it seems to me that what is crucial is the search warrant, a warrant that is valid and legal, because it is that, and not the information upon which it was sought, which justifies the exercise by an authorised officer of the powers specified in
s. 45 (3) of the Act of 2002.
- The issue as to how a court should deal with evidence obtained in breach of the law originally arose in criminal cases where the Supreme Court, in two most important decisions dealt with this problem. The first in point of time was the famous case of the People (Attorney General) v. O'Brien [1965] I.R. 142. There, the two accused individuals had been charged with house breaking and with stealing and receiving certain property. The evidence tendered by the prosecution, which founded their conviction, emerged from a search which had been carried out to a dwelling house, namely, 118 Captain's Road. Unfortunately the warrant, which purportedly justified that search, had in error the address of the house as being "118 Cashel Road" and not as it ought to have been "118 Captain's Road". In those circumstances there did not appear to be any valid search warrant and hence the question arose as to what was the correct legal treatment of the evidence obtained as a result of the entry and search by the Gardaí in question.
- There were two essential judgments given by the Supreme Court, one by Kingsmill Moore J. and one by Walsh J. The former largely addressed the question of "legality" per se whilst the latter focused principally on the consequences which follow from a breach of constitutional rights. Kingsmill Moore J. surveyed many of the cases which up to then had touched on this point and outlined the three options facing the court. The first was to rule admissible such evidence if relevant. The second was never to admit evidence obtained by an illegal means whether relevant or not, and the third choice was, though obtained illegally, to neverthless confer upon the trial court a discretion whether or not to receive the resulting evidence. As everyone now knows the learned judge opted for the third solution, namely, that involving a discretion. He went on in his judgment, if I could be bold enough to try and summarise it rather quickly, to indicate how that discretion should be exercised. It was to be founded upon public interest. On the one hand of course there is the detection and punishment of crime and on the other, and this is the competing interest, there are the rights of individuals not to be subject to illegal means or if they are, not to be further disadvantaged by facing the fruits of what was unlawfully obtained.
- The judge went on to indicate that in the exercise of this discretion, his colleague Walsh J. had considered the nature and extent of the illegality. In his own view one should inquire whether it was intentional or not, whether it was a once off or part of a pattern of behaviour, whether it was trivial or technical or important vis-à-vis constitutional rights and if repeated whether there would be a real danger that necessary freedoms guaranteed by law would be abrogated to some or other extent. He felt that the court should not lay down any rigid rules and that the resolution of the problem would have to be achieved on a case-by-case basis.
On the facts of O'Brien he came to the conclusion that there was no deliberate treachery, imposition, deceit or illegality. There was no policy on the part of the Gardaí to disregard constitutional or legal rights with regard to search warrants, and that what occurred, was purely unintentional and accidental. From his point of view the evidence should be received.
- Walsh J. dealt with the situation of a search and seizure, which in the circumstances of any given case might constitute a breach of constitutional rights. He felt that if such a conclusion was reached, that created a far more important and serious situation than if there was a breach of legal rights falling short of having a constitutional foundation. He went on to say that if there was a conscious and deliberate breach of constitutional rights, then there was no question of discretion and no question of balancing competing interests, unless there existed also within the circumstances of that case, what he called "extraordinary excusing circumstances". He gave examples of what might constitute such circumstances. He felt that the absence of a discretion in the circumstances which I have outlined, was fully justified giving the imperative of the court's obligation to vindicate and protect such constitutional rights, and that such vindication and protection could not yield to other competing interests, with the right to a fair trial being greater in the hierarchical structure of rights than the right of the people to prosecute.
In the instant case it is unquestionably recognised, as previously indicated, that if this court should travel that route, there are in fact no such extraordinary or excusing circumstances.
- The conclusion therefore from O'Brien is that if the evidence in question was obtained purely by illegal means, there is a discretion for the court to exercise in the manner which I have indicated. If on the other hand, such evidence also involved a conscious and deliberate violation of one's constitutional rights, then in the absence of extraordinary excusing circumstances, that evidence had to be disallowed. I cannot find within O'Brien however any real or detailed description of what might constitute "conscious and deliberate" in this context.
- That issue, however, was addressed by the Supreme Court in The People (D.P.P.) v. Kenny [1990] 2 I.R. 110. This was a misuse of drugs prosecution in which a flat was searched purportedly under a search warrant issued pursuant to s. 26 of the Misuse of Drugs Act, 1977, whereupon heroin was found. The validity of that search warrant subsequently became an issue, though in circumstances different from that pertaining in this case. Nonetheless, what is of immediate interest to us is the treatment of the resulting evidence by the Supreme Court. With regard to the facts, it is sufficient to say that the Court of Criminal Appeal felt that the search warrant was invalid because the Peace Commissioner who had granted the warrant, did so, solely on the basis of the Garda's belief that it was necessary to do so, without independently satisfying himself that there were reasonable grounds for suspecting the existence of a controlled drug on the premises in question.
- At p. 129 of the report, Finlay C.J. said:
"It is, of course, a corollary of this submission that the phrase 'conscious and deliberate violation of constitutional rights' used in the decision of this Court in The People (Attorney General) v. O'Brien [1965] I.R. 142 and recurring in other decisions relates to the knowledge and intention associated with the actual act or acts complained of and does not rest on the knowledge, actual or imputed, of the person committing those acts with regard to the nature of the constitutional rights of the person involved, nor as to the consequences of those acts upon any such constitutional rights."
In the passage which I have just mentioned, the then Chief Justice was outlining the issues in that case. On the following page, p. 133, he dealt with those issues in this manner:-
"As between two alternative rules or principles governing the exclusion of evidence obtained as a result of the invasion of personal rights of a citizen, the court has, it seems to me, an obligation to choose the principle which is likely to provide a stronger and more effective defence and vindication of the right concerned.
To exclude only evidence obtained by a person who knows or ought reasonably to know that he is invading a constitutional right is to impose a negative deterrent. It is clearly effective to dissuade a policeman from acting in a manner which he knows is unconstitutional or from acting in a manner reckless as to whether his conduct is or is not unconstitutional.
To apply, on the other hand, the absolute protection rule of exclusion whilst providing also that negative deterrent, incorporates as well a positive encouragement to those in authority over the crime prevention and detention services of the State to consider in detail the personal rights of the citizens as set out in the Constitution, and the effect of their powers of arrest, detention, search and questioning in relation to such rights.
It seems to me to be an inescapable conclusion that a principle of exclusion which contains both negative and positive force is likely to protect constitutional rights in more instances than is a principle with negative consequences only.
The exclusion of evidence on the basis that it results from unconstitutional conduct like every other exclusionary rule suffers from the marked disadvantage that it constitutes a potential limitation of the capacity of the courts to arrive at the truth and so most effectively to administer justice.
I appreciate the anomalies which may occur by reason of the application of the absolute protection rule to criminal cases.
The detection of crime in the conviction of guilty persons, no matter how important they may be in relation to the ordering of society, cannot, however, in my view, outweigh the unambiguously expressed constitutional obligation 'as far as practicable to defend and vindicate the personal rights of the citizen'.
After very careful consideration I conclude that I must differ from the views of the majority of this Court expressed in the judgment of Griffith J. in The People v. Shaw [1982] I.R. 1. I am satisfied that the correct principle is that evidence obtained by invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence in its (the courts) discretion.
In the instant case there cannot be any question but that the acts of the gardaí which obtained the warrant by the submission to the peace commissioner of the sworn written information in the form in which I have recited it, and which then forcibly entered the dwelling house were neither unintentional nor accidental and counsel for the respondent agrees that there are no extraordinary excusing circumstances in this case. Even though, then, I would accept that neither of the two gardaí concerned had any knowledge that they were invading the constitutional rights of the accused, and I would also accept that they were carrying out the process of obtaining and executing a search warrant in a manner which has been customary over a long period with the gardaí. I am satisfied that the evidence obtained as a result of the forcible entry into the house should not have been admitted at the trial of the accused and that, accordingly, the conviction of the accused should not have occurred."
- Therefore it seems to me that this judgment and in particular the passages which I have just read, elucidate in very considerable detail what is meant by the phrase "conscious and deliberate" as that has travelled the course of time from the decision in O'Brien. As the Chief Justice said, whilst the application of this exclusionary principle should apply, anomalies will undoubtedly result, but that such is necessary in order to defend and vindicate the rights of the citizen.
- It seems to me that Finlay C.J. was describing what constitutes "conscious and deliberate" and was doing so, by reference to the acts in question. He concluded that it was not in any way necessary, that those carrying out such acts, should know or realise that they were acting in breach of the law, or realise that they were acting in violation of the constitutional rights of the people in question. Moreover, though such individuals might have carried out such acts in an honest and bona fide way, nevertheless, if the carrying out of the same was otherwise than unintentional or accidental, then, provided the other ingredients necessary to constitute a breach of constitutional rights existed, the conclusion, that the same were conscious and deliberately breached, would be justified.
Applying those principles to this case for a moment, I am satisfied that the I.D.A. has constitutional rights and that such rights of freedom and expression, most certainly, and probably also that of privacy, are not too remote so as to exclude their application to the present circumstances. Those rights to be enjoyed by an association like the I.D.A. can have no greater application than to the business in which it is involved. Consequently in my view, given that the search warrant was illegal and given the existence of those rights, I have come to the conclusion that, subject to the caveat later mentioned, the activities carried out by the plaintiff on the occasion in question, did constitute a breach of the defendant's constitutional rights.
- There is no doubt from the evidence which I have heard, that the Competition Authority, in the form of its personnel, knowingly, deliberately and intentionally decided that it would apply to the District Court for this warrant and knew that it had obtained such a warrant. More particularly however, it knowingly, deliberately and intentionally turned up at the premises of the I.D.A., with the declared purpose of entering and searching those premises and taking away material (if it thought it was relevant to its investigation) and secondly, it knowingly, deliberately and intentionally entered, searched, took away and retained material, all with the forethought of furthering the investigation in which it was involved. I cannot see how such acts could be described as unintentional or accidental, given the description of what constitutes a 'conscious and deliberate' violation, as outlined in the judgment of Finlay C.J. in Kenny. Therefore, subject to the caveat which I have mentioned, I believe that this court has no discretion with regard to the material in question. The caveat is of course, whether these principles, which were outlined in a criminal case, should apply with equal force to this action, which is a civil proceeding. The answer to this submission largely turns on the decision of the Supreme Court in Kennedy No. 3, which I will refer to in a moment.
- If I can now deal with the second submission made by Mr. Murphy on behalf of the I.D.A. which arises in this manner. If I am incorrect in concluding that the I.D.A. are entitled to rely upon the constitutional rights which I have identified, and furthermore, if I am incorrect in concluding that the activities carried out by the Competition Authority on the morning in question constitute a conscious and deliberate violation of those rights, (as that term should be understood), nevertheless counsel argues that the evidence should still be excluded, on the court's conclusion arrived at, following the balancing process envisaged in O'Brien.
There is no doubt but that there is major public interest in the law of regulation and the law of competition, and that these are vital statutory tools which pervade in a very considerable way, the economic and business activities of those who sustain that part of this democratic society. There is therefore a major public interest in preventing any breach of the Competition Act, 2002 or of the applicable articles under the E.C. Treaty. There is also a major public interest in effectively dealing with any breaches of such Act or of the Treaty Provisions, whether by way of civil or criminal action or both. On the other side, of course, you have the rights of individuals. Those individuals in this case, include persons who carry on business, who carry on commerce and who conduct economic activity. Such persons, again in the context of how critically important their activity is to this economy, must have rights and these must be protected. Moreover, I am not forgetting that one of the main beneficiaries of the implementation of an active and vibrant competition policy, is the consumer.
- In this case it is enlightening to just recall the details of the arrival of and the search carried out by the Competition Authority. Apparently there were six or seven individuals in attendance. It took about three hours. There was computer material seized, perhaps hard-drive, and disks also taken. There were two motor vehicles used. Needless to say, the attendance at the premises took place without the I.D.A. being forewarned, which is perfectly understandable. The material which was seized and taken away was personal, private material and was of course, business sensitive to the work of the I.D.A.
- The activities of the Competition Authority had as their purpose the enforcement of the provisions of the Act of 2002. That Act conveys very substantial powers on authorised officers and other individuals within the Competition Authority. Its width and breadth is quite substantial. The purpose of the exercise of those powers is not simply to further civil proceedings, but can also involve criminal proceedings though, of course I appreciate, that we are not dealing with criminal proceedings in this case. As a result of the exercise of those powers the documents taken away can be legitimately and legally used in court to found an action against former owners and/or to incriminate them in criminal proceedings. Quite unlike the situation of a crime having been committed and the Gardaí immediately responding by way of investigation, there was no similar or comparable urgency in this case. The initial complaint apparently was made in September, 2004 and the investigation had been ongoing for four weeks or more. There was therefore no pressing need, in the sense of immediacy urging the Competition Authority to move with all due haste. There was as a result, ample opportunity and time to make certain that the primary documentation was correct.
- On the other hand there is a major public interest in underpinning public confidence in the business and commercial community with regard to the operation of the Competition Act. The Act of 2002 and its predecessor constitute a relatively new but now very vibrant and most penetrating statutory code in this jurisdiction. It is supported by several articles of the Treaty. Therefore, in my view, it is absolutely crucial that the most core and basic document which founds the searching of premises, namely the search warrant, is correct. There is no question in this case but that the entire wording, content and form of the search warrant was within the control of the Competition Authority. Whilst I am satisfied, and this I wish to make clear, that there was no deliberation in the sense of a decision being taken, even informally, by the Competition Authority to proceed with a search warrant which was erroneous, nevertheless I believe that in all of the circumstances, the competing public interest permits or demands of me, to exercise my discretion by excluding the material in question. This conclusion is the one which I have arrived at and is subject only to the same reservation, as I have previously expressed arising out of Kennedy.
- Before I mention Kennedy, there is one other decision of relevance which was referred to. It is that of Laffoy J. in the case of Universal City Studios Incorporated v. Mulligan [1999] 3 I.R. 407. That was a civil action in which the admissibility of certain material became an issue. At p. 404 of the report, Laffoy J. said that, although civil in nature:-
" … I am satisfied that as a matter of principle the exclusionary rule laid down by the Supreme Court in The People (Director of Public Prosecutions) v. Kenny in relation to the admissibility in criminal trials of evidence obtained by invasion of constitutional personal rights of a citizen is applicable."
The learned judge then went on to refer to and rely upon a passage from the judgment of Finlay C.J. which is recited at p. 134 of the report in Kenny. Whilst on the particular evidence of that case, she came to the conclusion that there was no invasion of constitutional rights, and whilst otherwise she exercised her discretion to admit the evidence, nevertheless what is interesting from the passage which I have read, was her full acceptance and endorsement of the principles outlined in Kenny.
- The case most strongly relied upon by the Competition Authority as modifying to a substantial extent the principles above mentioned, is that of Kennedy v. The Law Society, No. 3, [2002] I.R. 458. The Law Society apparently suspected that Mr. Kennedy, a solicitor under its control, was involved in bogus personal injury claims. It appointed an accountant under the Accounts Regulations to investigate his practice. He did not realise that at the same time the accountant had a brief to search for and identify any material, which might either prove the suspicions which the Law Society had or else quell them. Mr. Kennedy felt that the accountant as appointed, was simply reporting under the Financial Regulations. When the report was ultimately produced, there were indeed references to financial irregularities but more importantly from the point of view of this case, there was also a reference to information, which suggested the involvement of the solicitor in fraudulent claims. Judicial review proceedings followed. The Supreme Court held that the investigation of fraudulent claims was not authorised by the relevant regulations and on that basis held that the investigation was illegal. However, the judgment of Murphy J. who was speaking for the Court, left open the question as to what were the legal consequences which following upon the court's decision.
- That particular question prompted or required a further hearing and decision of the court, which was given by Fennelly J. It is that decision which is presently relied upon. At p. 489 of the report, Mr. Justice Fennelly having referred to Kenny's case, then continued at the bottom of that page by saying:-
"The constitutional rights at issue are typically the right to liberty or the inviolability of the person or of a dwelling. In the investigation of crime, the law confers on the police extensive powers, not normally possessed by disciplinary or administrative tribunals, to encroach on such fundamental rights. I do not exclude the possibility that such a situation may, depending on the facts of the case, call for the application of those principles in the sphere of administrative and, in particular, disciplinary hearings. But the scope for such situations to arise must necessarily be extremely limited. They do not, in my estimation, arise here. The excess of statutory powers was not a trivial one, but it occurred in the course of the conduct by the governing body of the profession of their supervisory role over solicitors. No comparison can be made with the illegal and hence unconstitutional detention of a suspect or an unauthorised search of his person or of his dwelling. The applicant has not identified any constitutional right of his which was affected by the investigation."
- Fennelly J. then went on to deal specifically with the illegality attendant on that investigation. It seems to me from the passage which I have recited, that Kennedy is and can clearly be distinguished from the facts of the present case. I would firstly say that in my opinion the code of regulation, in this case of competition, can almost certainly be treated as a category on its own. Secondly, this case does not involve administrative or disciplinary matters which Fennelly J. was specifically dealing with in Kennedy. Thirdly, and as a consequence of this, the case clearly does not involve any role of a supervising professional body over its members, who practice in the context of the public, as the Law Society has over practising solicitors. Fourthly, there were no constitutional rights identified in Kennedy and it is instructive to look at an earlier part of the judgment in which Fennelly J. sets out the submissions made on behalf of Mr. Kennedy. From that, I cannot identify the making of any submission or argument, of any substantive nature, alleging that Mr. Kennedy's constitutional rights had been breached in that case. Finally, as again pointed out by the learned judge, Kennedy's case bears no comparison to a situation where there is an unconstitutional detention of a suspect or an unauthorised search of his premises. Therefore it seems to me that Kennedy is not an authority which governs the circumstances of this case, which as I have already pointed out, involves the Competition Authority, not only in the exercise of civil rights, in terms of pursuing a cause of action under s. 14 of the Act, but also the very substantial other rights which it has in terms of what might constitute a breach of the criminal law; emphasising however, as I do, that the present case is solely civil in nature. Notwithstanding the presence of this aspect however, I still do not believe that what was said by the Supreme Court in Kennedy is applicable in this case, or applicable in such a manner as would justify this court in heavily circumscribing the application of O'Brien and Kenny to the facts at hand. I think the decision of Laffoy J. in the Universal City Studios case is a clear authority for the application of those principles in circumstances far more akin to those which present themselves here. Therefore the conclusion which I have reached above, is not in my view, in any way altered by the decision of the Supreme Court in Kennedy.
- Accordingly, for these reasons I would propose to exclude any reliance which the Competition Authority may purport to place on the evidence obtained as a result of the search of the I.D.A's premises pursuant, to this purportedly valid search warrant, on the morning of 12th October, 2004.
Signed: W McKechnie
