DPP v Bourke Waste Removal Ltd & Others

• Jurisdiction: Ireland
• Judgment Date: 12 March 2010
• Neutral Citation: [2010] IEHC 122
• Date: 12 March 2010
• Docket Number: Bill No.: 00127A/08
• Court: High Court

[2010] IEHC 122

THE CENTRAL CRIMINAL COURT

Bill No.: 00127A/08

Between:

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

-and-

BOURKE WASTE REMOVAL LIMITED, STANLEY BOURKE, MCGRATH INDUSTRIAL WASTE LIMITED, PATRICK MCGRATH, DECLAN MCGRATH, WHEELEY ENVIRONMENTAL REFUSE T/A WERS WASTE, PAUL FRANCIS GLEESON, PADRAIG HUGHES

Applicants

Abstract:

Criminal law - Competition law -Practice and Procedure - Costs - Cartel - Corporate applicants - Short jury deliberations - Acquittal - Order 99 rule 1 of the Rules of the Superior Courts, 1986 as a principal rule and discretionary principle - Civil proceedings and criminal proceedings - Onus of proof - Whether acquitted cartel applicants could obtain their costs whether prosecution did not misconduct itself

Facts: The applicants were acquitted by the Central Criminal Court in 2009. The case of the prosecutions against the corporate applications was that they had entered into an agreement prohibited by s. 4 Competition Act 2002, amounting to a cartel. The applicants in the present application sought their costs. The applicants argued that their clients were at all times co-operative, answered questions, made statements, and supplied all relevant documents. They were business people with no previous convictions and the jury deliberations had been particularly short. The DPP had submitted that the prosecution did not misconduct itself and that ultimately an essential witness did not swear up.

Held by McKechnie J. that the primacy of the rule in O. 99, r. 1 RSC was of itself significant and it also conferred a discretionary jurisdiction as to costs. The principal rule applied to all proceedings in the Superior Courts. Sub-rules (3) and (4) thereofdid not apply to criminal cases. Cartels were examples of white collar economic crime. The defence was privately funded and any flood gates argument could be discounted. An acquitted person was entitled to their costs unless substantial reasons existed otherwise. The direction of an acquittal would mitigate strongly against any resistance to costs being granted to a successful defendant but the converse was not the case. The criticisms of witnesses not swearing up were of no value. The applicants had at all times maintained their innocence. The Court would grant the applicants the costs incurred by them in and incidental to their defence.

Reporter: E.F

1 JUDGMENT of Justice William McKechnie delivered on the 12th March 2010

2 Background:

3 1. This judgment is given in respect of an application for costs by the applicants following their acquittal in the Central Criminal Court sitting in Galway on the 2nd July 2009. The allegation made by the prosecution was that the corporate applicants had entered into an agreement prohibited by s. 4 of the Competition Act 2002 ("CA 2002"), and thus were guilty of offences under s. 6 of that Act. The allegation against the personal applicants (save for Mr. Hughes) was that as directors, they had authorised their respective companies to enter into such an agreement and as a result were guilty of an offence under s. 8(6) of the CA 2002. As against Mr. Hughes, it was alleged that he aided, abetted, counselled and procured each of the companies to enter into such an agreement and as a result committed a number of offences contrary to the 2002 Act as provided for by the Criminal Law Act 1997. All charges arose out of a tender process initiated by Mayo County Council for the purposes of disposing of its waste collection business and certain customer databases relating thereto. Further particulars of such charges will be set out below.

4 2. On the 4th December 2008, the applicants herein were sent forward to the Central Criminal Court for trial on indictment. The trial date was fixed for the 23rd June 2009. On the morning of the hearing, the indictment in final form was lodged and the accused were duly arraigned and pleaded not guilty on all counts. The trial then commenced with each undertaking and their respective directors, as well as Mr. Hughes, being represented by Senior and Junior Counsel. None of the applicants were eligible for legal aid and, therefore, were privately represented by solicitors and such counsel. In all, the prosecution was at hearing for eight days between the 23rd June 2009 and the 2nd July 2009. Having been duly charged by the trial judge, the jury, after a short deliberation, returned unanimous verdicts of not guilty on all counts.

5 3. Following that verdict the within application was moved. It was grounded on an affidavit sworn by Mr. Dara Robinson of Gareth Sheehan & Partners, Solicitors, for the first and second defendants, and opposed on the basis of an affidavit and written legal submissions presented by the Director of Public Prosecutions ("D.P.P."). Oral submissions were made on behalf of all applicants but primarily by Mr. Diarmaid McGuiness S.C. on behalf of Bourke Waste Removal Limited and Stanley Bourke. Counsel for the other applicants substantively adopted his position. Mr. Paul McDermott S.C. made replying submissions on behalf of the D.P.P. The court is grateful for such assistance.

6 The Indictment:

7 4. For the sake of clarity, the terms of the indictment should be set out. The final indictment relied upon at trial contained 20 counts against eight accused. There was substantial repetition in relation to the first seven accused who were waste collection operators. The final accused was not an operator on the market. The indictment, as against Bourke Waste Removal Ltd. and Mr. Stanley Bourke, read as follows:

8 "CHARGES PREFERRED TO THE JURY AS AGAINST BOURKE WASTE REMOVAL LIMITED

9 Count No 1

10 Statement of Offence

11 Entering into an agreement which had as its object the prevention, restriction or distortion of competition contrary to Section 4(1) and 6 of the Competition Act 2002 being an offence to which s. 8(1) of the Act applies.

12 Particulars of Offence

13 Bourke Waste Removal Limited, between the 24th August 2005 and the 2nd day of September 2005, both dates inclusive, within the County of Mayo, being an undertaking within the meaning of Section 3 of the Competition Act 2002, did enter into an agreement with other undertakings, also within the meaning of Section 3 of the Competition Act 2002, which had as its object the prevention, restriction or distortion of competition in the provision of domestic waste collection services in County Mayo by sharing the market for the provision of waste collection services in County Mayo. [Emphasis added]

14 Count No 2

15 Statement of Offence

16 Entering into an agreement which had as its object the prevention, restriction or distortion of competition contrary to Section 4(1) and 6 of the Competition Act 2002 being an offence to which s. 8(1) of the Act applies.

17 Particulars of Offence

18 Bourke Waste Removal Limited, between the 24th August 2005 and the 2nd day of September 2005, both dates inclusive, within the County of Mayo, being an undertaking within the meaning of Section 3 of the Competition Act 2002, did enter into an agreement with other undertakings, also within the meaning of Section 3 of the Competition Act 2002, which had as its object the prevention, restriction or distortion of competition in the provision of domestic waste collection services in County Mayo by sharing customers for the provision of waste collection services in County Mayo. [Emphasis added]

19 CHARGES PREFERRED TO THE JURY AS AGAINST STANLEY BOURKE

20 Count No 3

21 Statement of Offence

22 Being a Director of an undertaking which entered into an agreement which had as its object the prevention, restriction or distortion of competition contrary to Section 4(1), 6 and 8(6) of the Competition Act 2002 being an offence to which s 8(1) applies.

23 Particulars of Offence

24 Stanley Bourke between the 24th day August 2005 and 2nd day of September 2005, both dates inclusive, within the County of Mayo, was a Director of Bourke Waste Removal Limited, an undertaking within the meaning of Section 3 of the Competition Act 2002, which said company entered into an agreement with other undertakings, also within the meaning of Section 4 of the Competition Act 2002 and contrary to section 4(1) and section 6(1) of the Competition Act 2002, which had as its object the prevention, restriction or distortion of competition in the provision of domestic waste collection services in County Mayo by sharing the market for the provision of waste collection services in County Mayo and authorized or consented to the doing of acts constituting the entering into the said agreement. [Emphasis added]

25 Count No 4

26 Statement of Offence

27 Being a Director of an undertaking which entered into an agreement which had as its object the prevention, restriction or distortion of competition contrary to Section 4(1), 6 and 8(6) of the Competition Act 2002 being an offence to which s 8(1) applies.

28 Particulars of Offence

29 Stanley Bourke between the 24th day August 2005 and 2nd day of September 2005, both dates inclusive, within the County of Mayo, was a Director of Bourke Waste Removal Limited, an undertaking within the meaning of Section 3 of the Competition Act 2002, which said company entered into an agreement with other undertakings, also within the meaning of Section 4 of the Competition Act 2002 and contrary to section 4(1) and section 6(1) of the Competition Act 2002, which had as its object the prevention, restriction or distortion of competition in the provision of domestic waste collection services in County Mayo by sharing customers for the provision of waste collection services in County Mayo and authorized or consented to the doing of acts constituting the entering into the said agreement." [Emphasis added]

30 5. The Statement of Offence and Particulars...