Working with Witnesses in Regulatory Investigations

JOHN D FITZGERALD BL

“Regulatory”

Regulatory crime vs traditional/‘real’ crime

1. There is, of course, no separate defined or definable category of

regulatory crime as opposed to what we might call traditional, or real,

crime. Rather, for a variety of policy reasons, a number of matters are

prosecuted as crimes without satisfying some of the ingredients of what

we might traditionally consider components of the criminal law, such as

some element ofmoral wrongdoing, or the requirement for some form of

mental element, or intent, before a crime can be committed. Rather,

regulatory offences are often for breaches of some statutory code to

which the accused is expected to comply, and very often, there is a

particular social purpose to that code, such as the protection of the

environment, or health and safety1.

2. In addition, there is often an evidential difference in the prosecution of

regulatory offences, involving some form of burden on the accused to

establish a defence or a set of facts which might exonerate the accused.

Such provisions, known as ‘reverse onus’ provisions, are obviously an

exception to the traditional burden of proof on the prosecution in

criminal cases.

3. That said, it must be emphasised that what procedural or evidential

differences there are between regulatory and ‘real’ crime apply later in

the process, at the trial and penalty stage, and not to the preliminary

1Reilly v Pattwell2008] IEHC 446

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investigative stage which is the subject of this paper. It is clear that the

same principles of fair procedures (or natural justice) apply to those

suspected of regulatory crimes as it does to all criminal defendants. For

example, in Competition Authority v. Irish Dental Association2 evidence

obtained on foot of a defective search warrant was declared inadmissible

by the Court. There was no suggestion in this case that the standard of

natural justice was any different for the association the subject of the

search warrant in that case than it would be for any other offender.

4. Rather, from the point of view of the investigative stage of the criminal

process, the main distinction between regulatory and other offences is a

practical one – regulatory offences are often much more complicated

factually, involving several potential offenders (including corporations),

repeated or continuous acts and very often a considerable volume of

paper and electronic evidence.

5. From an investigator’s point of view, it is easy to see why this can present

particular challenges.In a traditional crime, say a bank robbery, it is often

very clear how many perpetrators there were and what precisely they are

alleged to have done. The efforts of the investigator, therefore, are very

often targeted towards identifying who those perpetrators are, and once

they are identified, it is quite clear what their rights are and how the

investigation must be conducted.

6. In regulatory offences, however, this is all much more unclear. At the

outset of the investigation it may not be entirely clear what precise

offences have been committed (if any) and, perhaps more importantly,

who was involved in those activities.Given that the procedural rights of

suspects apply to those suspected of regulatory offences, however, this

presents a real difficulty for investigators in determining when those

procedural rights kick in.

2Competition Authority v. Irish Dental Association [2005] 3 IR 208.

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7. While this paper ostensibly covers two very different aspects of the

investigative process, therefore – taking statements and search warrants

– I believe that the underlying issues and difficulties which are peculiar to

regulatory offences are common to both.

“Investigations”

What is the difference between an investigation and an inspection?

When does an investigation begin?

Do the same rules apply?

8. One of the features of regulatory agencies, as outlined above, is that they

often involve an agency monitoring compliance with a statutory code,

and a suspected breach of that code. As such, therefore, again unlike

most criminal cases the starting point can be different. Rather than the

investigation starting with a report of a bank robbery, therefore, there

may be an initial stage of a routine inspection, in the course of which a

suspicion of a breach arises. At some point, that suspicion might

crystallise to some extent as to the nature of the breach, and the identity

of those suspected of that breach.

9. Of course, the line between an inspection and an investigation, or the

point at which the investigation progresses to the point of concrete

suspicion is by no means a clear one, but is rather something of a

continuum, but it is nevertheless a very important one as it is only at that

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stage that the persons or entities suspected of those breaches acquire the

procedural rights referred to above.

10. In Re National Irish Bank (No.1)3, two inspectors were appointed under

the Companies Act 1990 to investigate the affairs of NIB in relation to the

improper charging of interest, the improper charging of fees and the

improper removal of funds from the accounts of customers. Prior to

commencing their investigation, the inspectors sought the directions of

the High Court on whether anyone they questioned was entitled to refuse

to answer their questions. Shanley J held that they were not entitled to –

“It is clear from this letter that the inspectors propose a two stage

procedure in their examination: the first, an information gathering

exercise; the second stage, arising only when the first stage indicates it

is possible that adverse conclusions may be drawn in relation to

certain individuals dependant in whole or in part on the testimony of

others. At the latter stage such individuals at risk will be entitled to

attend, hear the evidence, cross-examine the witnesses, and give

evidence themselves.” (p.153)

“I am satisfied that there is no entitlement to invoke the panoply of

rights identified by the Supreme Court at the information gathering

stage of the Inspectors' work. The procedures identified by the

inspectors following the outcome of the first stage accord in my view

with the requirements of fairness and justice and guarantee, where

appropriate, the exercise of the rights identified in In re Haughey

[1971] I.R. 217.” (p.168)

3 [1999] 3 IR 145

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11. In the course of a later challenge by some individuals to the inspection in

Re National Irish Bank (No.2)4, Kelly J agreed, citing English caselaw to

state:-

"Remember what it is not. It is not a trial of anyone, nor anything like

it. There is no accused person. There is no prosecutor…It is simply an

investigation, without anyone being accused."

Insofar as this jurisdiction is concerned that, in my view, is a correct

summary of the position which obtains at least insofar as the

investigatory stage of the inspectors' task is concerned. Once one

moves into the second stage then, whilst the investigation is not

transformed into an adversarial hearing, nonetheless fair procedures

have to be observed insofar as any adverse conclusions may be drawn

in relation to individuals. The procedure which the inspectors have

outlined as one which they will follow if such a stage is reached is in

complete compliance with their obligations to observe fair procedures

under the relevant jurisprudence. It follows therefore, that I take

precisely the same view as did Shanley J. that there is no entitlement

to invoke the rights established in In Re Haughey [1971] I.R. 217, at

the information gathering stage of the inspectors' work.”

12. Of course, as outlined above, in the course of many regulatory

investigations there may be no clear dividing line between this ‘two stage

procedure’. Instead, it may be more of a process as the true picture

begins to emerge in the course of the fact-finding enquiry. I do not read

the NIB cases as requiring any such clear distinction, and (as we shall see

later) the courts do in fact recognise that there are shades of grey

between these two stages. Nevertheless, it is very important for

investigators to be aware of the distinction between fact-finding and

4[1999] 3 IR 190

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investigation, and to be as clear as possible in their own minds where

they stand in the course of their investigation.

“Witnesses”

What is the difference between a witness and a suspect?

When does a witness become a suspect?

Is there a difference between a suspect and a potential suspect?

Should I tell a witness that they may be under suspicion?

How much should I tell them of the nature of that suspicion?

13. Again, going back to the bank robbery example, in traditional criminal

investigations it is often very clear who is the witness and who is the

suspect. There is very little prospect of confusing the bank teller or the

customer and the person with the balaclava. The bank teller and the

customer are there to help the investigator by way of descriptions etc,

the person in the balaclava is very clearly not, and is also very clearly

entitled not to help the investigator should they so choose.

14. As indicated above, however, given the corporate nature of many

regulatory offenders, and the complicated nature of the offences, it is

often very difficult to establish (at least at the outset) who is who, and

which side of the witness/suspect line each person is on. Indeed, they

may not even know this themselves. The nature of much regulatory

offending is that many people in an organization may potentially have

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some idea of what is going on, and may or may not have known that

whatever it was was potentially illegal, and they may therefore be very

reluctant to share that information with an investigator in case they

implicate themselves further.

15. The challenge, therefore, for an investigator in dealing with witnesses is

to encourage them to give as much helpful information as possible

without being later accused of encouraging that information under false

pretences. In other words, you don’t want to make a potentially helpful

witness clam up, and on the other side, you don’t want to find that a

helpful admission of wrongdoing is later ruled inadmissible for having

been taken unfairly.

16. The line between a suspect and a witness has been considered by the

courts in a number of cases which reflects the distinction between a fact-

finding exercise and an investigation in the NIB cases above.

17. In DPP v. Breen (1995) the gardaí were carrying out a search of the

accused's farm where it was suspected that guns, ammunition or

explosives were likely to be hidden. Another garda who was not involved

in the actual search, but who knew Mr Breen, was invited in by him. At

that stage, neither of them knew what, if anything, had been found on

the farm at this point. They had a general conversation about farming

matters and his family when at some point they discussed the search at

which point Mr Breen became agitated and said that “he had wanted

several times to tell somebody about it but he was afraid”. The garda

asked him to tell him what was troubling him. Mr Breen started banging

the table with his fist and said "I can't talk. Don't ask me. I'll end up like

those in the North" and he was crying. Garda Heverin stated that he was

troubled and wanted to tell somebody about it, that it appeared to him to

be connected with the searching of the lands and the farm buildings. He

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did not, however, administer a caution, but instead said "Tell me Sean”,

after which Mr Breen made an admission.

18. In holding that this admission was inadmissible, the court held that he

was quite clearly troubled and afraid, and had told the garda this. The

garda“knew or ought to have appreciated that he was on the threshold of

admitting some involvement in a crime relating to the use of his property

for the purposes of a subversive organisation. In these circumstances he

ought not to have been encouraged to make any admission without first

being cautioned.

19. What made the statement of admission unfair, therefore, was that the

garda knew he was a suspect, was afraid and should have appreciated

that he was on the verge of making an admission.

20. The Breen case was distinguished in DPP v O’Reilly5, the well publicised

case in which Mr O’Reilly was widely suspected of having murdered his

wife, but continued to protest his innocence to the extent of appearing

on television to seek public assistance in finding her murderer. While it

seems that the gardai strongly suspected him from the outset, they had

very little direct evidence to support this suspicion and accordingly had a

number of dealings with him (including taking a statement) when he was

formally and outwardly a witness rather than a suspect. In what was very

clearly a witness statement, Mr O’Reilly gave an account of the family

background, family activities, work activities and his movements on the

day when the murder occurred

21. In the course of his trial, the prosecution sought to rely on some portions

of this witness statement, and he objected on the basis of the above case,

namely that he had not been cautioned prior to making that statement.

5[2009] IECCA 18

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22. The court, however, held that the previous statements were admissible

and this was upheld on appeal as follows:-

“The notion or term ' suspect' has a rather elastic meaning. In the

aftermath of a crime, particularly a crime as serious as murder, the

investigating gardaí may have in mind a number of suspects. Indeed as

the learned trial judge himself remarked, illustratively, after a serious

crime the whole world is a potential suspect. One or more persons may

fall particularly into the category of ' suspect' because of their

presence and/or proximity to the scene of the crime at the time it was

committed, or because of a particular marital, social or business

relationship, with attendant circumstances, with the victim. As the

learned trial judge observed, a person may fall into the category of

suspect because of a person's particular attitude and demeanour as

observed by the investigators in the immediate aftermath of a crime.

A person who comes under garda suspicion so as to be regarded as a '

suspect' or 'potential suspect' (and it would be at least sometimes

difficult to draw a line of distinction between those two terms) may be

eliminated and replaced by another ' suspect' or 'suspects' as an

investigation progresses. The degree to which a person might be

considered a ' suspect' may vary greatly. A person on the one hand,

may be the subject of an investigation in order to either eliminate that

person as a suspect or confirm the need for further investigation. On

the other hand a person in respect of whom the investigating gardaí

have formed a firm opinion that he or she is the culprit, requires proof

to charge such a person. This will depend on the gathering of sufficient

evidence by further investigation. The decision to charge is a critical

element so is the fact of a suspect being in custody.”

23. Accordingly, the Court of Criminal Appeal held that there was “stark

contrast” between this case and Breen. Mr O’Reilly wasn’t troubled and

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afraid or agitated in any way, but instead “freely and voluntarily” gave a

witness statement. Also, unlike the Breen case, there was no suggestion

that he was on the threshold of admitting some involvement in a crime

and indeed the contrary was the case and the account given by the

applicant on its face, exonerated him from any involvement in any crime

and in particular the murder in question.

24. What is interesting about the contrast in these cases, therefore, is that

rather than any black and white distinction between witnesses and

suspects, and between a fact-finding stage and an investigative stage, the

courts will in an appropriate case recognise that much will depend on the

circumstances, including in particular the overall fairness of the dealings

between the investigator and the witness/suspect.

25. Obviously, the more a person moves from being witness to being a

suspect, the greater the rights they acquire, such as being told that they

are a suspect and cautioned to this effect, and allowing them to respond

to the nature of that suspicion.

Taking statements

When should the statement be taken?

Can they be accompanied or legally advised?

Must every word be recorded?

What to leave out - irrelevant vs exculpatory material

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What to put in – relevant vs suggested/coached material

Drafts and re-drafts

Disclosure

26. With regard to taking statements, therefore, it is important to consider

whether or not the person from whom you are taking a statement is a

witness or a suspect, or at least where on that spectrum the person lies.

In the light of the O’Reilly case above, it would appear that a degree of

latitude will be afforded to an investigator who may have a degree of

suspicion about a witness.

27. The flexibility around this issue, of course, feeds into the question and

when and how to go about taking a statement from a witness. There is

no particular rule as to when is the best time to take a statement, as

much will depend on the circumstances. In general terms, of course, the

more contemporaneous a statement to the events in question, the better

evidence it will be. Equally however, as outlined above, in many

regulatory investigations a witness may be very reluctant to make a

formal statement until they know what, if anything, is alleged against

them and the difficulty for the investigator is that, at least in the early

stages, they may not know or be unsure what the answer to those

concerns would be.

28. With regard to the question of whether they should be legally

represented, there is no way you can prevent this. While there are rules

around the presence of legal advisers in garda stations, so such rules

apply to witnesses or potential suspects. The difficulty, of course, is that

in my experience any solicitor worth his or her salt is going to intervene in

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the process, and not in a way that is designed to facilitate the

investigation. Perhaps the only bit of advice I can give on this issue is not

to allow the solicitor to intervene too much in the light of the Anglo trial.

The role of the solicitor is to advise their client rather than tell them what

to say.

How do you go about taking the statement?

29. In McCormack v. Judges of the Circuit Court6, Charleton J stated quite

simply that “people, in general, speaking about seven times faster than

they write… and, in any event, it was never the law that absolutely

everything had to be written down by gardaí conducting an interview.”

30. Accordingly, that entails that some form of editing has to be done by the

investigator, and this is where difficulties can arise. There is a tension

here between ensuring that a statement is relevant to the charges, and

ensuring that is a true and fair interpretation of the witness’ account.

There is a very real present danger for an investigator that, in editing

outwhat they see to be irrelevant or extraneous material, what they are

in fact doing is taking out material that they consider to be inconvenient

or inconsistent with the case they wish to make.

31. As a matter of general principle, it should be remembered that there is an

onus on the prosecution to obtain and preserve evidence that is relevant

not only to guilt, but also that might exonerate an accused. This principle

is known as the “Braddish/Dunne” principle from two cases in the early

2000s.

32. In Braddish v DPP7, gardai had identified a suspect from CCTV footage of

an alleged robbery and arrested and detained him, in the course of which

6[2007] IEHC 1237[2001] 3 I.R. 127

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he made admissions. The gardai, however, returned the footage on

which their arrest had been grounded so it was not available for

inspection by the defence. As the arrest and admission had followed

from the identification of the suspect from the footage, and such

identification is, in the words of Hardiman J “notoriously subjective”, it

was held that the inability of the defence to challenge his arrest in the

absence of the footage gave rise to a real risk of an unfair trial. In a

passage which was much relied upon in subsequent applications,

Hardiman J. held as follows:-

“It is the duty of the gardaí, arising from their unique investigative

role, to seek out and preserve all evidence having a bearing or

potential bearing on the issue of guilt or innocence. This is so whether

the prosecution proposes to rely on the evidence or not, and regardless

of whether it assists the case the prosecution is advancing or not.”

33. What has become known therefore, as the Braddish principle, was

extended somewhat in the subsequent case of Dunne v. Director of Public

Prosecutions8 to include a duty not merely to preserve, but also to seek

out, evidence that might be relevant to the issue of guilt or innocence.

34. Within the particular context of taking statements, of course, this general

principle has a particular application in that a note of an interview with a

witness, or a statement taken from them, must be taken “warts and all”.

There have been a number of cases on this in which the notes or records

taken by the gardai have omitted material in which a suspect denied an

allegation, or prevaricated over an answer. For instance, in The People

(Director of Public Prosecutions) v. McCowan9, the court was critical of

memoranda of interview which omitted “answers which are either

8[2002] 2 I.R. 3059 [2003]4 I.R 349

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general in nature, or which are exculpatory in nature”. Similarly, in The

People (Director of Public Prosecutions) v. Diver10, the court stated:-

“I wish to reiterate that the gardaí are not entitled to exercise total

editorial control in recording what has been said. Nor are they entitled

to cherry pick what is to be recorded. (The interview)…must be a fair

record of what was said and it is important to provide sufficient

context to allow for an evaluation of what is said, especially where, as

here, the accused was allegedly making ambiguous or inconclusive

verbal statements and manifesting symptoms of distress.”

35. The flip side of this, of course, is that an investigator must be very careful

in suggesting a particular direction or answer to a witness.The

investigator may request that the witness clarify their statement but they

may not coach the witness in any form. This point was affirmed in the

English case of R v. Momodou11 which stated that if a witness were to be

directed as to what they should say in order to prove a case, it would

fundamentally strike against the proper administration of justice.

36. This case was cited with approval by Charleton J inin GO’R v. DPP12in

which the applicant sought to prohibit his trial for sexual assault on the

grounds that the complainant had engaged in role play with a

psychologist in preparation for her court appearance. In refusing the

relief sought, the Court held that there was nothing wrong with

investigators directing a witness to the issues in the case, or indeed in

allowing a witness to study an earlier statement to address any details

that were absent. However, there is a line between directing a witness to

relevant matters, and directing a witness to more favourable matters, and

the latter approach is objectionable. As Charleton J stated:-

10 [2005] 3 I.R. 28011 [2005] 1 WLR 344212 [2012] 1 IR 193

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“any suggestion of any kind to a witness as to the appropriate form or

content of evidence, or the putting of only selected and apparently

attractive or credible parts of the defence case to prosecution

witnesses, would completely undermine the search for the truth which

remains at the heart of any trial process.”

37. Finally, with regard to drafts and re-drafts, it should be emphasised that the ‘warts and all” approach to the obtaining of evidence, also applies to the disclosure of evidence. Previous drafts of statements, which include extraneous and/or inconvenient material must be disclosed. Judge Kearns stated in DPP v. McCarthy and Ors13that:-

“the prosecution are under a duty to disclose to the defence any material which may be relevant to the case and which could either help the defence or damage the prosecution’.

38. If the regulatory body is in possession of such material, they are under a duty to make the documentation available to the defence. Therefore, if previous witness statements have been made and subsequently changed, it is proper that all drafts are furnished to the defence This was made clear in the particular context of previous draft statements in DPP v Conmey14In this case, initial witness statements were made that were inconsistent with later statements that were adduced at trial. Mr Justice Hardiman ruled that:-

“[there is] no doubt, in the circumstances of the case, that the original statements of [the witnesses] should have been disclosed to the defence….this extends to material which enable a party to strengthen his own case or to undermine the case of his adversary and material which may put him upon a line of inquiry towards either of these two ends’.15

Search warrants13DPP v. McCarthy and Ors [Court of Criminal Appeal, unreported, 25th July 2007 at page 2814DPP v. Conmey [2010] IECCA 10515DPP v. Conmey [2010] IECCA 105 at page 35

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When do I need a warrant?

How much information should I put forward in seeking the warrant?

39. A search warrant, with very limited exceptions, must be sought from a

judge, based on some formula of words involving a ‘reasonable

suspicion’. Given the requirement for a reasonable suspicion, it is of

course the case that a warrant is not required where there is no such

suspicion. Accordingly, where a regulatory body is involved in conducting

routine inspections of business premises, there is no requirement for a

warrant.

40. A second point to be made about ‘reasonable suspicion’ is that it is a

suspicion only, which may in the fullness of time turn out to have been

misplaced. In other words, what is required in order to ground a warrant

to enter a premises does not have to meet the standard of hard evidence

which would be put forward in court, but merely needs to satisfy a test

that it was reasonably held in good faith. This point was made clear by

Charleton J in the recent Supreme Court decision in CRH v. Competition

and Consumer Protection Commission16 as follows:-

“issuing a search warrant is not to be confounded with any analogy

with the criminal trial process. That is not the task. Facts are not being

found: facts are being gathered. It necessarily follows that what is

involved is an exercise in the pursuit of what is potential, essentially an

exercise which may yield no information or limited information. It is of

the nature of a criminal enquiry that a warrant may authorise an

16 [2017] IESC 34

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intrusion into someone’s privacy to little or no effect…and a negative

result does not upset the validity of what was done”

41. The third point I would make about applying for a warrant is that it is

done in court on an ex parte basis and accordingly, like any such ex parte

application, full disclosure must be made to the court. InEBS v Heffernan

and Kearns17, McGovern J stated that:-

“an application made ex parte must be made uberrima fides that is to

say with the utmost good faith. Full disclosure of all facts relevant to

the application must be made even where such facts may militate

against the granting of an interim order.”

42. As an illustration of the possible consequences of a failure to do so, in the

English case ofR (Rawlinson & Hunter Trustees) v Central Criminal Court18,

the Serious Fraud Office failed to disclose that a firm of accountants who

had completed a report on which they had relied in grounding their

suspicion had earlier acted in the transaction on the opposite side to the

party against whom they were seeking the warrant. While it was a

complicated case and there were other reasons for the court declaring

the warrant invalid, the failure to fully and properly explain the nature

and source of the information on which the warrant was based was an

important factor in the court’s decision.

What powers does the warrant give me?

Execution vs trawling exercise

Power to search place or people present?

17[2012] IEHC 39918[2012] EWHC 2254

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To what extent can the co-operation of those present be required –

passwords, search terms etc?

Can material that is not relevant to the search be taken away?

If the material is taken away for analysis, can the subject of the search be

present for the analysis?

What problems can arise?

43. One of the difficulties in speaking about search powers is that there is no

single statutory power of search under Irish law. Rather, there are a

number of more specific statutory powers depending on the nature of the

suspected offence at issue, and these powers are by no means uniform.

In speaking of what is authorised by a power of search, therefore, the first

port of call must always be the particular statute creating the power of

search. As Charleton J stated in the CRH case referred to above:- “What is

empowered by a search warrant is a matter of the proper construction of

the legislation.”

44. Traditionally, most search warrant provisions allow for the search to

include any persons present at the time and to seize anything “found in

the possession of a person present”19. However, given the complexity of

most regulatory investigations, it is clear that a simple power of search of

persons and places might be inadequate. Given the volume of material,

the assistance of some of the persons present may be necessary in order

to direct the investigator to the relevant files. In particular, in any office

premises much of the material sought may not be in a cabinet but stored

electronically. So, for instance, some powers of search create a particular

19 See, for instance, section 29(6) of the Offences Against the State Act 1939, section 7(2) of the Child Trafficking and Pornography Act 1998, section 10(2) of the Criminal Justice (Miscellaneous Provisions) Act 1997 and section 48(3) of the Criminal Justice (Theft and Fraud Offences) Act 2001

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power to search a computer and to require a person present to operate

that computer and to give them the password to do so (see for instance

section 48 of the Criminal Justice (Theft and Fraud Offences) Act 2001, or

the powers of inspectors under section 64 of the Safety, Health and

Welfare at Work Act 2005).

45. In addition, issues of privacy and privilege might arise. For instance, what

if among the papers being searched are materials over which the person

or company being searched wishes to claim some form of privilege?

Unusually, section 33 of the Competition and Consumer Protection Act

2014 allows for an application to court in order to quickly resolve any

such claim of privilege.

46. That said, some general points can be made. A power of search,

whatever its precise wording, can include material that does not relate to

the offence suspected but which may reasonably be evidence of another

offence (see Chic Fashions (West Wales) Ltd. v. Jones20). It cannot,

however, extend to a “general ransacking” in order to see if a crime has

been committed or not (see Ghani v. Jones21). In Hanahoe v. Hussey22,

therefore, which involved the search of a solicitor’s office and the seizure

of documents relating to clients of that solicitor, Kinlen J accepted that

warrants may allow for the gathering of information as well as evidence

and “necessarily involves (scrupulously carried out) a consideration of

many more documents than there is ultimately seized in order to satisfy

the searcher that all relevant documents have been obtained.”23Similarly,

in the United Kingdom, the High Court held in R.(H.) v. Commissioners of

Inland Revenue24 that an officer conducting a search was entitled to seize

a computer disk so that its contents could be viewed elsewhere,

20 (1968) 2 Q.B. 29921 (1970) 1 Q.B. 693 22 [1998] 3 IR 6923 At p.9124 [2002] EWHC 2164

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notwithstanding the fact that the disk might include material which was

irrelevant to the purpose of the search.

47. The limits of this general power were, however, made clear in the CRH

case referred to above. In that case, it was held that the copying, removal

and examination of the entire personal email account of the managing

director of a company went beyond the statutory powers of the CCPC.

Charleton J referred to:-

“the extraordinary scope of what was seized. It was every single email from a particular person…the problem is in the seizure of an entire email account of many thousands of communications without justification for such an ample and undifferentiated seizure. Nor does the context necessarily, as in the examples just given, provide that justification. This search was done without any relevant dates as target and without the consideration of using target search terms or some other means of limiting the material proportionately to what needed to be taken. That may be justified where the police or investigating authority needs to search out accomplices or co-conspirators to prevent or investigate an atrocity or where the identification or an organised crime or terrorist ring requires a complete analysis of all information available as to their communications. Such a necessity, however, has not been identified here by the Commission.”

48. In summary, therefore, it is clear that many statutory powers of search

are inadequate to cope with complex regulatory investigations. In making

any such application, however, the following principles apply:-

(i) make a full disclosure to court in seeking the warrant;

(ii) try to have as much an idea as possible what you are looking for;

and

(iii) limit the scope of the search as much as possible to weed out any

private or extraneous material.

John D Fitzgerald

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20th October 2017

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