Office of Fair Trading v not named

Competition authorities may obtain a warrant to search business premises where the statutory conditions are met and there are reasonable grounds to suspect that relevant documents would be concealed or destroyed. Investigative powers to obtain existing documents and ask legitimate questions pursue a legitimate aim. They are compatible with Article 6 where proportionate safeguards protect against abuse and self-incrimination. Searching business premises may engage Article 8, but the interference is justified and proportionate where the investigation is properly founded and effective legal redress is available.

The Office of Fair Trading applied without notice for warrants under the Competition Act 1998 during an investigation into suspected price fixing. The defendants were not named under the applicable practice direction.

The court considered whether the statutory warrant conditions were satisfied and whether obtaining documents, asking questions and searching business premises engaged Article 6 or Article 8 rights. No defendant made submissions. The central issues were whether relevant documents were likely to be present and concealed, and whether any interference with Convention rights was lawful and proportionate.

1. The court was satisfied that there were reasonable grounds for suspecting an infringement of the Chapter 1 prohibition, the presence on the identified premises of relevant documents, and a risk that those documents would be concealed or destroyed. The requirements of section 28(1)(b) of the Competition Act 1998 were met.
2. The implied rights to silence and against self-incrimination under Article 6 are not absolute. The relevant question is whether the legislation pursues a legitimate aim and whether the means employed are proportionate. The court applied Brown v Scott (Procurator Fiscal, Dumfermline) and another [2001] 2 WLR 817.
3. The compulsory use of documents existing independently of the suspect’s will, and the asking of legitimate questions needed to elucidate documents, were proportionate means of enforcing competition law. They did not offend the principle in Orkem v The Commission [1989] ECR 3283. Legal representation, lawyer-client privilege and legal redress provided safeguards against improper use.
4. Searching business premises could engage Article 8, but the interference was justified and proportionate. The investigation pursued the legitimate aim of preventing price cartels, judicial safeguards were present, and the defendants could seek discharge or relief for abuse.
5. The practice-direction requirements were complied with and the warrants were issued.