DPP v Hegarty, [2011] IESC 32 (2011)

Docket Number:350/08
Judge:McKechnie J.
 
FREE EXCERPT

THE SUPREME COURT

MURRAY C.J.

O’DONNELL J.

McKECHNIE J. [2008 Appeal No. 350]IN THE MATTER OF

SECTION 16 OF THE COURTS OF JUSTICE ACT 1947BETWEENTHE PEOPLE

(AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)PROSECUTORAND

PAT HEGARTYACCUSED

JUDGMENT of Mr. Justice William M. McKechnie dated the 28th day of July, 2011.

This is a consultative case stated by His Honour Judge Groarke of the Western Circuit, pursuant to s. 16 of the Courts of Justice Act 1947, wherein, by reference to the circumstances so outlined, he seeks the opinion of this Court on two questions. The facts, as agreed or so found, and upon which the case is stated, are as follows.

On the 21st May, 2008, Mr. Hegarty, the accused person, attended at Galway Circuit Criminal Court to answer two charges preferred against him on Bill No. MS 55/04, the first of which reads as follows:-

“Statement of Offence:

Being a Manager or Officer of an undertaking which entered into an agreement which had as its object the prevention, restriction or distortion of competition, contrary to s. 4(1) of the Competition Act 1991 and s. 2 of the Competition (Amendment) Act 1996, as provided for by s. 3(4)(a) of the said Act.

Particulars of Offence:

Patrick Hegarty, between the 1st day of January, 2001, and the 11th day of February, 2002, both dates inclusive, in the County of Galway, were a Manager or Officer of Fate Park Limited t/a Sweeney Oil/Rabbit Oil, an undertaking within the meaning of s. 3 of the Competition Act 1991, such company having committed an offence, (emphasis added) namely entering into an agreement with other undertakings again within the meaning of s. 3 of the Competition Act 1991, which had as its object the prevention, restriction or distortion of competition in the trade of gas oil in Galway city and county, by directly or indirectly fixing the selling price of gas oil, and authorised or consented to the doing of the acts constituting that offence.”

Count No. 2 on the indictment is in identical form, save that the trading product was kerosene.

On a previous occasion, namely the 9th May, 2007, Mr. Hegarty was also called upon to answer the same charges, but on that occasion, a company named Sweeney Oil Limited t/a Rabbit Oil was cited on the indictment as his co-accused. That company faced two charges arising out of the same set of circumstances. The first was that it had entered into an agreement with other undertakings, which had as its object the prevention, restriction or distortion of competition by directly or indirectly fixing the selling price of gas oil in Galway city and county, contrary to s. 2(2) of the Competition (Amendment) Act 1996 (“the 1996 Act”).

Again, count No. 2 on the indictment was in identical form, save that the product was kerosene.

For reasons which have never been evidentially explained, but described in submissions as being technical in nature, the Director of Public Prosecutions (“the D.P.P.”) on that occasion (the 9th May, 2007,) entered a nolle prosequi in respect of the company. The prosecution against the accused was then adjourned so that an abridged book of evidence could be served; hence the new trial date of the 21st May, 2008, was fixed.

At the commencement of that trial, counsel on behalf of the accused moved a motion under s. 4(E) of the Criminal Procedure Act 1967, as inserted by s. 9 of the Criminal Justice Act 1999, to quash the indictment on the basis that any successful prosecution against his client was contingent on Fate Park Ltd. having committed a particular criminal offence. (See “Particulars of Offence” at para. 2 supra). This could only be established by a conviction being secured against it. Since that company had never been prosecuted for such an offence, it was therefore not possible for the jury to return a guilty verdict against Mr.Hegarty. The D.P.P. disagreed with this proposition. Whilst accepting the contingency as an ingredient of the offence, the D.P.P. argued that the same could be established otherwise than by formal conviction.

Having heard submissions from Mr. Edward S. Walsh S.C., on behalf of the accused, and Mr. Denis Vaughan-Buckley S.C., on behalf of the D.P.P., the trial judge rejected the submissions of the prosecution. Being dissatisfied with such ruling, expressed whilst the matter was still pending, the learned judge agreed to submit by way of case stated the following two questions for the opinion of this Court:-

“Where an individual is prosecuted pursuant to s. 3(4)(a) of the Competition Act 1996 [sic]:

(a) whether an adjudication as to whether the relevant undertaking has committed an offence can be undertaken when no prosecution has been initiated against the undertaking, and

(b) whether it is necessary that the undertaking be convicted of the offence before the individual can be convicted.”

The submissions made before the Circuit Criminal Court have largely been repeated before this Court and can be summarised in the manner following. First, however, it is convenient to refer to the relevant statutory provisions.

Section 4 of the Competition Act 1991 (“the 1991 Act”) provides, inter alia, that all agreements between undertakings, which have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services, are prohibited and void. Price fixing is a notorious example of such “hard core” activity. Any entity engaged for gain, inter alia, in the supply or distribution of goods, is an undertaking (s. 3 of 1991 Act) – that remains the law as provided by s. 3 of the Competition Act 2002. There is no doubt but that “Fate Park Limited t/a Sweeney Oil/Rabbit Oil”, being the company referred to in the indictment, is such an undertaking and hereinafter will be referred to either as such or, as heretofore, “the company”.

Pursuant to s. 2 of the Competition (Amendment) Act 1996, an undertaking which enters into the type of agreement previously referred to is guilty of an offence (the “sec. 2 offence”). Section 3(4)(a) of this Act reads:-

“3(4)(a) Where an offence under Section 2 of the Act has been committed by an undertaking [emphasis added] and the doing of the acts that constituted the offence has been authorised, or consented to, by a person, being a director, manager, or other similar officer of the undertaking, or a person who purports to act in any such capacity, that person as well as the undertaking shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence [the “sec. 3(4) offence”]”.

It is essentially under this section that the accused stands charged. For ease of reference I have termed the offence referable to the undertaking the “sec. 2 offence” or “the offence under s. 2” of the 1996 Act and that referable to the individual as the “sec. 3(4) offence” or “the offence under s. 3(4)” of the 1996 Act.

On behalf of the accused it is accepted that, by virtue of s. 4(1) of the 1991 Act and s. 2 of the 1996 Act, it is an offence in certain circumstances for two or more “undertakings” to agree with each other to fix the selling price of trading goods (the “sec. 2 offence”), and that by virtue of s. 3(4) of the 1996 Act, where such an offence has been committed, any director, manager or similar officer, or a person purporting to act as such, of any party, who authorises or consents to the underlying acts, is also guilty of an offence (the “sec. 3(4) offence”). It should be noted that...

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