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Recent Court Rulings With Implications for Irish Competition and Regulatory Investigations

AUTHORs: Kate McKenna DATE: 25/07/2019

The following three recent court rulings are of significant relevance to the conduct of competition law and other regulatory investigations under Ireland’s criminal prosecution enforcement regime.

  • In DPP v Casey, the Irish Supreme Court held that a person can benefit from immunity from criminal prosecution where their reliance on incorrect advice from an official authority results in their commission of a criminal offence;
  • In Sweeney v Ireland, the Irish Supreme Court upheld the constitutionality (compliance with right to silence / privilege against self-incrimination) of a statutory obligation on a person who is aware of certain serious crimes to inform the authorities; and
  • In Volaw Trust v Comptroller of Taxes, the Privy Council held that the privilege against self-incrimination can apply, in certain narrow circumstances, where a person is required by an official authority to produce a pre-existing document.

1. DPP v Casey

The concept of ‘officially induced error’ (where a person relies on an official authority’s advice and commits a criminal offence as a result) is an exception to the general rule that ignorance of the law is insufficient to avoid a guilty verdict.  In DPP v Duffy, the Supreme Court recognised for the first time that a criminal prosecution can be prohibited due to ‘officially induced error’ conflicting with Irish constitutional rights to procedural fairness.However, the Supreme Court strictly limited the circumstances in which officially induced error could be relied on in future by outlining the following challenging criteria to be met by the accused including:

  • That legal advice was sought in good faith and reasonably from an authority on whether the relevant conduct was lawful;
  • That the legal advice sought was specific and described accurately the conduct which is the subject matter of the later criminal charge;
  • That what the official advised was specific to the relevant conduct and amounted to legal advice which authorised the relevant conduct;
  • That the advice must have been accepted honestly by the accused and was such that a reasonable person was likely to act on it; and
  • That there was no deviation from the conduct apparently authorised in the commission of the offence.

While it appears most unlikely that the above-listed criteria have been met in past interactions with Irish regulators including the Competition and Consumer Protection Commission (CCPC), the Supreme Court’s ruling may have a chilling effect of regulators willingness to share advice.

2. Sweeney v Ireland

The Irish constitutional right to silence and privilege against self-incrimination is at the centre of this case.The High Court had held that the offence of withholding information, under section 9(1)(b) of the Offences Against the State (Amendment) Act 1998, was incompatible with the aforementioned right and the Supreme Court overturned that ruling.

The Supreme Court held that the relevant statutory reporting obligation does not infringe the right to silence or the privilege against self-incrimination because it only applies to witnesses, such that it does not compel individuals who have committed crimes to disclose information to their detriment.

The Supreme Court’s decision has a wider impact in respect of other Irish law provisions. An almost identically phrased reporting obligation exists in the Irish competition law framework, under section 19 of the Criminal Justice Act 2011 (“the 2011 Act”) which compels persons to report information relating to a range of “relevant offences”, including the cartel offence under the Competition Acts. Specifically, it is a criminal offence for any person, without reasonable excuse, to fail to report, as soon as practicable, information which he or she knows or believes might be of material assistance in preventing the commission of or securing the prosecution of any other person for the cartel offence. Justice Charleton stated that the reporting obligation pertains to “those with knowledge of a serious offence… and the duty cast on those who have such information to assist where, by such assistance, they are not revealing participation in the crime”.It is interesting to consider how that reasoning might be applied by the Irish courts to company employees who witness communications relating to the commission of a cartel offence by a company in circumstances where the nature of their role shields them from the possibility of individual prosecution for any cartel offence by the company.

3. Volaw Trust and Corporate Services Limited v Comptroller of Taxes

The privilege against self-incrimination was also the subject matter of a recent and significant Privy Council ruling.  The Privy Council held that the privilege against self-incrimination can be relied on by a person who is required by an official authority to produce a pre-existing document in very narrow circumstances.  Lord Reed outlined a purposive interpretation, that the privilege against self-incrimination is intended to avoid confessions under coercion, and on that basis a person who is required to produce pre-existing documents as part of a criminal investigation may only rely on the privilege where he would be prosecuted and subjected to significant penalties for refusing to produce the documents.  On this basis, only certain compulsory demands to produce pre-existing documents in a criminal investigation will engage the privilege against self-incrimination.  Furthermore, in any case there must be balancing of other factors including the public interest in the investigation.

Volaw is an interesting ruling from an Irish perspective because it considers an issue which has not yet been ruled on by the Irish courts, namely whether a company which is compelled to give pre-existing documents to a regulator can seek to rely on the privilege against self-incrimination. While an Irish court would also have to consider the relevance of Irish constitutional law and the right to silence, the Privy Council ruling is an interesting precedent which is likely to be considered in any future Irish case on this issue.

Given the strong stance taken by the Irish Supreme Court in defending the constitutional rights of persons subject to Irish competition law investigations in CRH v CCPC, where the Court found against the Irish competition regulator and identified breaches of constitutional and ECHR fundamental rights, we will await with interest any further court decisions on this area.