Ms Suzanne Gunn:

The CRH decision the Deputy referenced really has brought into sharp relief the interaction between the constitutional right of privacy, as it is afforded to individual citizens, within the confines and context of regulatory and, in fact, all criminal prosecutions and-or investigations. I will not go into the granular detail of that particular case because there were three quite detailed judgments from the Supreme Court in respect of it. I will not take up all of the time talking about the case but the nub of it relates to the uptake of an entire email folder by the Competition and Consumer Protection Commission. That folder contained thousands of emails. The contention of the Supreme Court in this regard was that in circumstances in which such a significant volume of material was taken, in the absence of safeguards to protect the interests of non-relevant material to that investigation or material outside the scope of the warrant, this had the potential impact of disproportionately breaching the privacy rights of the individual concerned. So it has wide application but it really creates acute issues when it comes to electronic evidence or electronic devices.

As the Deputy stated, everybody these days carry vast swaths of information around about themselves, their businesses and everything in their pockets, on tablets and in their bags. There is an enormous amount of information contained in those devices. The courts have always held the view that a certain level of material outside of the scope of a warrant is always at risk of being taken up in the course of a search. The issue for the court in the case of CRH was the vast quantities of data involved. How the court delineated that one might deal with that issue was by way of representations or engagement with the person whose rights were affected. It also took into consideration the deletion, destruction and, potentially, the return of material that was outside the scope of the warrant executed.

All of that raises acute issues in the context of criminal investigations and prosecutions. It does not underscore it to say that it has given rise to a significant level of complexity and risk in respect of the investigations in which we are particularly involved. Colleagues in other regulatory bodies have experienced similar issues. As the Deputy has said, some albeit not all of the parties we are investigating are well financed, instructed and advised and they are live to these issues. There is no doubt whatsoever but that it has created complexity and risk in how we navigate through those issues. In the submission that is before the committee, we included our view as to how that might be dealt with, namely, by putting protocols on a statutory footing, such that might outline the obligations of an organisation like ours in respect of navigating those issues. That certainly would create a significant degree of clarity and would offset many of the issues we experience, not daily, but not on an infrequent basis. Without doubt it is an issue that needs to be dealt with. It does affect quite a considerable number of stakeholders. How and by what means that is resolved is a matter for the Deputy's side of the house.