The Supreme Court has ruled that a manager can be prosecuted for a competition offence without the company concerned first being prosecuted or convicted. A jury must still be satisfied beyond the required standard of proof that the company committed the underlying offence, as well as that the manager authorised or consented to the relevant acts.
The ruling came in a consultative case stated by a Western Circuit judge under section 16 of the Courts of Justice Act 1947. The judge asked the Supreme Court to answer two legal questions while the prosecution of Pat Hegarty was pending. The Court answered the first question “Yes” and the second “No”. It did not decide whether Mr Hegarty was guilty.
Mr Hegarty faced two charges under section 3(4)(a) of the Competition (Amendment) Act 1996, concerning alleged price fixing in gas oil and kerosene in Galway city and county. The indictment named Fate Park Limited, trading as Sweeney Oil/Rabbit Oil, as the undertaking said to have committed the underlying offences. The judgment records that the company had not been prosecuted and no conviction had been recorded against it.
Mr Hegarty’s counsel argued that the company had to be prosecuted and convicted before he could be found guilty. Without that process, counsel submitted, a jury could not establish the company’s alleged offence, and the company would have no opportunity to defend its reputation. The DPP argued that the jury could determine whether the company committed the offence during Mr Hegarty’s trial, without a separate prosecution or conviction of the company.
The Supreme Court held that the statutory wording required proof that an offence had been committed by the undertaking, not that it had been convicted. Any finding by the jury would not itself put the company on trial, expose it to a criminal sanction or conviction, or prevent it from contesting evidence if later prosecuted. The judgment also said Mr Hegarty could not rely on prejudice said to belong to the company alone; his own right to a fair trial remained protected.
For the charges against Mr Hegarty to succeed, the prosecution would have to prove, among other things, that Fate Park Limited was an undertaking, that it committed the relevant section 2 offence, that Mr Hegarty was a manager or officer, and that he authorised or consented to the acts in that capacity. The jury would make the ultimate decision on the evidence, which Mr Hegarty could challenge.
The judgment was delivered by Mr Justice William M. McKechnie on 28 July 2011. The Court’s answers resolved the legal questions referred to it; the source does not record a verdict on the charges.