Search warrants and privacy in Ireland - CRH, Irish Cement & Lynch v. CCPC

The High Court gave a very important judgment yesterday (Independent.ie story) on the issues raised by the use of a search warrant to seize an entire email account where many of the emails in the account were not caught by the terms of the warrant. To grossly simplify a complicated decision, Barrett J. held that where the Competition and Consumer Protection Commission (CCPC) had seized an entire email account it was not itself entitled to carry out a "sifting" exercise to determine which emails fell within the scope of the warrant - instead, this had to be done by some impartial vetting process. In the lack of a suitable statutory mechanism, this could be done by agreement between the parties.

The full decision isn't yet on the courts.ie site, but courtesy of the CCPC I've uploaded a scanned copy to Scribd. The full decision will need careful consideration, but at first glance it's a very privacy protective decision which may have far reaching consequences in other areas of criminal procedure. Notably, it cites with approval the 2013 Canadian Supreme Court decision in R. v. Vu on the special privacy issues presented by searches of computers. (And, I'm glad to see, the Digital Rights Ireland litigation.) By requiring specificity in what is seized and how that material is then examined, it puts a question mark over other search powers - such as those under s.48 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 - which are generally used so as to seize an entire computer and not merely specific records.

Destroying the history of those victimised by the State

Fiona de Londras has a letter in the Irish Times today, co-signed by a range of prominent lawyers, highlighting an injustice about to be done by the Irish state. The letter is worth quoting in full:

As human rights lawyers we note with great concern the proposal that records of applicants to the symphysiotomy payment scheme would be shredded after March 20th.

This would reinforce the harm done to women by the physical and symbolic destruction of official medical records attesting to the abuse and harm they experienced. Furthermore it would lead to the destruction of vital records and evidence that might be of assistance in future legal, historiographical and political processes of recording the symphysiotomy in Ireland and ensuring accountability for these instances of inhumane and harmful treatment.

The UN Human Rights Committee has called for a “prompt, independent and thorough investigation into cases of symphysiotomy” leading to prosecutions where appropriate.

It is likely that Ireland is under a positive obligation to hold such an inquiry under the European Convention on Human Rights

That these records would be returned to the applicants to the scheme is, thus, of paramount importance.

We note that applicants to this scheme were obliged to provide “relevant supporting records”. They were not informed that these records would be destroyed, that they should send or retain certified copies, or that by applying to the scheme through submission of these records they were at risk of losing this documentary evidence of their medical mistreatment

The limitations of data storage at hospitals are such that such records, if destroyed, might not be capable of retrieval elsewhere, and in some cases processes for accessing records can be so difficult to navigate as to be almost inaccessible.

Thus, we call on Ms Justice Harding Clarke to reconsider this, and to ensure that all records are returned to the applicants to the scheme, by registered post, at the earliest possible date. Under no circumstances should they be destroyed.

We also endorse the call from Marie O’Connor of Survivors of Symphysiotomy that applicants to the scheme be asked for their consent to these records being archived. 

Quite apart from the collective harm involved, the destruction of these records will be a significant wrong to the individual women. They were told that "the Assessor  shall,  where  reasonably possible, arrange  for  the  return  to  the  Applicant  or  her  Solicitor  of  any  documents submitted". The plan to shred these documents is a direct breach of this promise and makes it likely that the women will not be able to get copies of those documents from other sources.

The issue is urgent. The documents will be destroyed unless "an option letter" is received by 20th March. However, there is an interim solution for those affected: a subject access request under the Data Protection Acts will, in effect, stop the clock. Daragh O'Brien has details of the steps to take.