Ireland: Recent Court Rulings With Implications For Irish Competition And Regulatory Investigations

Last Updated: 6 August 2019
Article by Kate McKenna

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions