DPP v Bourke Waste Removal Ltd and Others

CourtCourt of Criminal Appeal
JudgeMr. Justice Hardiman
Judgment Date24 May 2012
Neutral Citation[2012] IECCA 66
Date24 May 2012
Docket Number[C.C.A No. 89 of 2010]

[2012] IECCA 66


Hardiman J.

Moriarty J.

Hogan J.

[Record No: 89/10]
DPP v Bourke Waste Removal Ltd & Ors
The People (at the suit of the Director of Public Prosecutions)


Bourke Waste Removal Limited, Stanley Bourke, McGrath Industrial Waste Limited, Patrick McGrath, Declan McGrath, Wheeley Environmental Refuse Services Limited, Paul Francis Gleeson, Padraig Hughes


AG, PEOPLE v BELL & ORS 1969 IR 24 1971 105 ILTR 41

RSC 1962 O.99 r1(1)

RSC 1962 O.99 r1(3)

RSC 1962 O.99 r1(4)

DPP v KELLY 2008 3 IR 202 2007/19/3829 2007 IEHC 450


F (S) v JUDGE MURPHY & ORS UNREP HEDIGAN 18.11.2009 2009/22/5400 2009 IEHC 497

DILLANE v IRELAND & AG 1980 ILRM 167 1980/12/2233

DCR 1948 RULE 67





Jurisdiction - Courts - Central Criminal Court - Criminal proceedings by indictment - Respondents found not guilty - Application for costs - Discretion of Central Criminal Court to award costs - Discretion of Court of Criminal Appeal on appeal - Factors to be taken into account - The People (Attorney General) v Bell [1969] IR 24 applied - The People (Director of Public Prosecution) v Kelly [2007] IEHC 450, [2008] 3 IR 202 and The People (Director of Public Prosecutions) v McNicholas [2011] IECCC 2, (Unrep, Cooke J, 20/12/2011) not followed - Dillane v The Attorney General [1980] I.L.R.M. 167; SF v Judge Murphy [2009] IEHC 497, (Unrep, Hedigan J, 18/11/2009); Minister for Justice v Devine [2012] IESC 2, [2012] 1 IR 326 and The People (Director of Public Prosecutions) v Bourke Waste Removal Ltd [2010] IEHC 122, (Unrep, McKechnie J, 12/3/2010) considered - Rules of the Superior Courts, 1986 (SI 16/1986), O 99, r 1 - Appeal refused (89/2010 - CCA - 24/5/2012) [2012] IECCA 66

People (DPP) v Bourke Waste Removal Ltd



Trial on indictment - Acquittal - Competition law - Test to be applied - Whether prosecution warranted - Whether prosecution conducted unfairly or improperly - Whether acquittal granted on foot of direction of trial judge - Whether defendants had drawn suspicion on themselves - Whether relevant that defendants not entitled to legal aid and funded defences themselves - Whether Court of Criminal Appeal ought to interfere with discretionary power of trial judge - Whether error of principle - People (AG) v Bell [1969] IR 24 applied - DPP v Kelly [2007] IEHC 450, [2008] 3 IR 202; DPP v McNicholas [2011] IECCC 2, (Unrep, Cooke J, 20/12/2011); F v Judge Murphy [2009] IEHC 497, (Unrep, Hedigan J, 18/11/2009); Dillane v AG [1980] ILRM 167 and Minister for Justice v Devine [2012] IESC 2, [2012] 1 IR 326 considered - Rules of the Superior Courts 1962 (SI 71/1962), O 99 - Rules of the Superior Courts 1986 (SI 15/1986), O 99 - District Court Rules 1948 (SI 431/1948), O 67 - Criminal Justice Act 2006 (No 26), s 24 (89/2010 - CCA - 24/5/2012) [2012] IECCA 66

The People (DPP) v. Bourke Waste Removal Ltd

Facts The respondents had been prosecuted in respect of alleged offences under competition law and following a trial were acquitted. The respondents were granted orders for costs in respect of their criminal trial and the Director of Public Prosecutions sought to appeal pursuant to s. 24 of Criminal Justice Act, 2006 against the granting of these orders. It had been contended that the respondents had unlawfully agreed to act together which had as its object the restriction or distortion of competition in the provision of domestic waste collection services. It was contended that the prosecution was justifiably brought on apparently credible evidence and that no fault could justifiably be found against the prosecution in its conduct at any stage of the proceedings. In addition it was submitted that the trial judge had refused to direct verdicts of not guilty upon applications made on behalf of the respondents.

Held by the Court (Hardiman J delivering judgment) in dismissing the appeal: An application for costs was entirely a matter for the discretion of the trial court. In awarding costs the court should have regard as to the evidence tendered by the prosecution, what actually transpired at trial, what responses were made by the defendants prior to the trial and if an acquittal had occurred, on what basis had it occurred. The trial judge had received submissions on the issue, had delivered a reserved judgment and had also found that the respondents had generally co-operated with the investigation by the Competition Authority. Trial Courts must balance the competing policy considerations of having suspected criminality pursued diligently in the public interest, while in appropriate cases, ensure that acquitted persons do not suffer unfair consequential financial losses.


24th day of May 2012 by Mr. Justice Hardiman


1. This is an appeal brought by the Director of Public Prosecutions pursuant to s. 24 of the Criminal Justice Act 2006 against orders for costs, granted in favour of each of the named Respondents, following their acquittals on all counts of the indictment preferred against them at their Central Criminal Court trial on competition-related offences before McKechnie J. and a jury. The several respondents were sent forward for trial on 4 th December, 2008, the verdicts of acquittal were returned by the Jury on 2 nd July, 2009, and, following the furnishing of Affidavits and submissions in relation to the Respondents' applications for costs, the learned Trial Judge, in a detailed reserved judgment of 12 th March, 2010, made the awards of costs to each of them that have given rise to this Appeal.


2. By its nature, an appeal of this kind is an exception to the long established practice of the Court of Criminal Appeal's jurisdiction arising only upon convictions at trial Courts, whether by Jury verdicts or guilty pleas. The Court is empowered by virtue of s.24 of the Criminal Justice Act, 2006 to entertain such appeals as this section provides that, where a person tried on indictment is acquitted, the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an order for costs made by the trial Court against the prosecution. Given the relatively recent provenance of that Statute, the number of recorded appeals brought under the section to date is understandably sparse.


3. The precise nature of the matters complained of against the respondents at the trial does not require to be detailed, but its gravamen was to the effect that the corporate Respondents had unlawfully agreed together on a basis which had as its object the prevention, restriction or distortion of competition in the provision of domestic waste collection services in Co. Mayo, by sharing the available market and its customers, and that the named individuals had, as directors or other principals, authorised or consented to the acts constituting entry into such agreements.


4. Both before the Trial Judge, and in the written and oral submissions made to this Court, there was a considerable measure of agreement as to the legal principles applicable. In particular, it is beyond doubt that The People (Attorney General) -v- Bell [1969] IR 24 crucially changed what Walsh J. in his judgment referred to as "the centuries-old rule, that an accused person who is acquitted at a trial on indictment was not entitled to any costs of the trial." In both the Supreme Court judgment, and the judgment of Kenny J. in the High Court which it upheld, detailed analysis of historical Crown Prerogative and succeeding legislative provisions was set forth, but what was in essence found was that the 1962 Rules of the Superior Courts, in referring at Rule 1(1) of Part 1 of Order 99 to "...costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts, respectively" were deemed not merely to apply to High Court civil proceedings, but also to prosecutions brought in the Central Criminal Court as the criminal arm of the High Court. However, it was also found by the High Court, and upheld on appeal, that the succeeding sub-Rules (3) and (4) were not applicable to criminal proceedings. Sub-Rule (3) provided that the "costs of every action, question, or issue tried by a Jury shall follow the event unless the Court, for special cause, to be mentioned in the Order, shall otherwise direct." The succeeding sub-Rule (4) provided that "costs of every issue of fact or law raised upon a claim or counterclaim shall, unless otherwise ordered, follow the event." Accordingly, with like Rules of Court incorporated into the succeeding 1986 Rules of the Superior Courts, it is not in issue that the Central Criminal Court enjoys a discretion in adjudicating upon costs applications made by acquitted Defendants, but that the exercise of that discretion is not coupled with any specific presumption under the Rules that costs should follow the event, or in effect accord with an outcome of acquittal. It is in regard to the factors that should primarily weigh upon the exercise of that discretion, and its exercise in the instant case, that the present appeal was argued.


5. Not long after the enactment of the legislation which enabled the Applicant's appeal against costs, a helpful Judgment was provided by Charleton J. in the case of Director of Public Prosecutions -v- Anthony Kelly [2007] IEHC 450. This followed upon the accused's acquittal on a charge of murder in the Central Criminal Court, following which he applied for costs against the prosecution. In his reasoned and detailed judgment,...

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6 cases
  • DPP v T.O'D (No. 2)
    • Ireland
    • Court of Appeal (Ireland)
    • 1 June 2017
    ...to the defence. 10 A similar issue was considered by the Court of Criminal Appeal in DPP v. Bourke Waste Removal Limited and Others [2012] IECCA 66. This was an appeal brought by the Director pursuant to s. 24 of the Criminal Justice Act 2006 against orders for costs granted against him fol......
  • R v Jackson (Patrick) and Olding (Stuart) (Application for Costs)
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    ...an assessment.” [26] In The People (at the suit of The Director of Public Prosecutions), Applicant v Bourke Waste Removal Ltd and others [2013] 2 IR 94, the Court of Criminal Appeal considered the discretionary nature of an award of defence costs. The trial judge had awarded costs against t......
  • Dowling v Bord Altranais agus Cnaimhseachais na hÉireann
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    ...awarding costs in criminal cases was later considered by the Court of Criminal Appeal in People (D.P.P.) v. Bourke Waste Removal Ltd. [2013] 2 I.R. 94. This concerned the issue of costs in a case where the respondent had been acquitted by jury in the Central Criminal Court of offences unde......
  • Child and Family Agency -v- KM & Anor
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    ...in the Central Criminal Court, and awarded the defendant 50% of his costs. The Court of Criminal Appeal pointed out in DPP V. Bourke [2012] IECCA 66 that there is no provision for costs to follow the event in criminal cases in the Rules of the Superior Courts, but that the result of a prose......
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