A recent Competition Appeals Tribunal decision granting the Competition and Markets Authority (CMA) a warrant to search the home of a company director provides an insight into the CMA’s approach in investigations. This is part of the CMA’s investigation into suspected bid‑rigging in school construction tenders, and the premises is the home of a managing director of one of the businesses under investigation.
This briefing follows our earlier update, CMA sets the tone on searching and seizing mobile phones during competition law investigations, and is another significant indication of the CMA’s willingness to use of its investigatory powers to obtain information held at domestic premises and on personal devices.
Background to the investigation
The warrant formed part of a broader CMA investigation into suspected bid rigging in tenders for roofing and construction services supplied to schools and academy trusts under the Government’s Condition Improvement Fund. The CMA had already executed business warrants at seven company premises.
In this case, Mr X was managing director of a business. The business premises had already been the subject of a dawn raid in this investigation. When he arrived at the businesses’ premises on the afternoon of the dawn raid, he had insisted that his personal phone was not used for work. However, the CMA later identified evidence from the phones of executives of other investigated businesses of Mr X using his personal phone for anticompetitive exchanges of information. The CMA therefore applied to the Competition Appeals Tribunal (CAT) for a warrant to search his home.
The CAT found that the statutory conditions for granting a warrant were satisfied. In particular, it accepted that relevant information was held on the individual’s personal mobile phone, and that there was a real risk that evidence would be concealed if a warrant were not issued. The Court also considered arguments raised under Article 8 ECHR relating to Mr X’s right to respect for his private and family life, but, balancing the privacy intrusion against the seriousness of the suspected conduct and the risk of evidence concealment, exercised its discretion in favour of granting the warrant.
Read the Competition and Markets Authority v Another judgment for more information.
Threshold for warrants
The CAT also confirmed that the statutory conditions for granting a warrant are the same for both domestic and business premises. As a result, the CMA does not face a higher threshold when seeking access to an individual’s home, even where the warrant may authorise the search and seizure of personal mobile phones or other devices. The Tribunal was clear that the CA 1998 does not create a separate or elevated statutory test for domestic premises. This is a helpful clarification for the CMA who had faced arguments in the past that they had a higher bar to get over in order to conduct a domestic raid.
However, the CAT did acknowledge that a domestic search is significantly more intrusive and therefore considered right to private and family life under Article 8 ECHR.
With respect to this test, it held that:
- The public interest in uncovering suspected wrongdoing involving public funds outweighed the Article 8 interference
- The individual’s insistence that he did not use his personal phone for work actually increased the need for the warrant - the CAT went so far as to say the individual had brought the application on himself through this initial dishonesty
To protect family life, the CAT restricted execution to times when school aged children would not be present.
Why this matters for businesses
In a well connected “always on” working environment, and continuing hybrid working arrangements, business related communications frequently take place on personal mobile phones, messaging apps and tablets. This ruling makes clear that personal devices used for work are firmly within scope during a dawn raid, and reinforces the CMA’s willingness to obtain domestic warrants where it believes key evidence, in particular messages on personal devices, may be at risk.
Organisations should ensure they are prepared for the possibility that staff may be asked to surrender personal devices, even if those devices are not routinely used for work. Businesses may want to consider policies in place which limit personal phone use and/or specific dawn raid policies which provide staff with clear guidelines on the scope of the CMA’s powers to ensure staff provide all necessary information to the CMA.
The judgment also makes an important practical point for businesses and individuals: when the CMA is investigating a suspected secret cartel and believes relevant material may be held at someone’s home, the very nature of cartel behaviour can help justify a warrant. Because cartels are, by definition, covert, the Tribunal accepted that this secrecy can itself suggest a real risk that evidence might be concealed, removed, tampered with, or destroyed if the CMA were to proceed by way of a compulsory production notice alone.
How we can help
Our team has a wealth of experience in advising on CMA investigations and dawn raids preparedness. We can support you with policy reviews, staff training, and immediate assistance during an investigation. We have developed a dawn raid app which provides simple checklists and guidance to assist you with the crucial initial response in the event of a raid.
Our dawn raid app is available free of charge from the App Store or the Google Play store.
Our content explained
Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.