Supporting Documents:

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the Applicant to appeal to this Court from the Court of Appeal

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 20th June, 2018

DATE OF ORDER: 20th June, 2018

DATE OF PERFECTION OF ORDER: 24th August, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 29th August, 2018 AND WAS IN TIME.

1. This determination concerns a decision of the Court of Appeal made on 29 January 2018. This was an appeal pursuant to section 23(3)(b) of the Criminal Procedure Act 2010 for determination that a court of trial in directing a verdict of not guilty was wrong in law and that the evidence adduced in the proceedings sufficed to be such as the jury might reasonably be satisfied beyond a reasonable doubt the person’s guilt in respect of the offence concerned.

2. TN was indicted for holding or disposing of waste in a manner that was likely to cause environmental pollution on dates between February 2007 and November 2008. A trial took place before a jury and Judge McCartan over several weeks in 2015 but on 27 October 2015 the trial judge directed the acquittal of the accused on the basis that he was not a manager of the facility at which the alleged pollution took place.

3. It was argued on appeal by the Director of Public Prosecutions that Judge McCartan had made an error in terms of defining, for the purpose of ordering an acquittal by direction, who was a manager within the meaning of section 9(1) of the Waste Management Act 1996. This provides that where an offence “has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other similar officer of the body corporate” then that person will also be liable to be proceeded against “and punished as if he” or she “were guilty of” the relevant offence.

4. The view of the Court of Appeal was that for someone to be a manager that person does not have to have overall control of a body corporate or to be responsible for everything that happens in every branch but, rather, like a bank, a person can be a local or branch manager without necessarily running a nationwide or international operation.

5. On this, the view of the Court of Appeal is well expressed in the following paragraphs which summarise their view of the law:

26. While the Court has taken some time to refer to some of the authorities that were opened to the trial court and to this Court, it is somewhat hesitant about the continuing relevance of some of the older authorities. The Waste Management Act 1996 is a modern statute. The phrase “Director, Manager, Secretary or other similar officer of a body corporate or a person who is purporting to act in any such a capacity” must be seen in a modern context. It is to be noted that the section deals with directors, managers, secretaries or other similar officers of a body corporate. It is clear therefore that the individuals must hold responsibility at a corporate level. The manager of an individual branch of a bank is not to be equated with a manager of the bank. At the same time it must be appreciated that time has moved on since the discussions in Gibson v. Barton [1875] L.R. 10 QB 329. Nowadays it is not unusual to find Finance Directors, Human Resource Directors and IT Directors in large corporations, to give but some examples. In other companies the titles may vary, so one may have Finance Managers, Human Resources Managers and IT Managers. Other companies may have Chief Financial Officers or Chief Marketing Officers. Responsibilities may be distributed in such a way that it would be difficult to say that any one individual was responsible for the management of the whole affairs of the company. However, if the individual’s role is a significant one then the fact that there may be some particular areas of the company activity with which he does not have an involvement does not mean that he is not to be regarded as a manager of the corporation. Very significant responsibilities can be entrusted to an Assistant General Manager, to regional managers but also individuals such as safety managers to whom very important areas of responsibility are entrusted. Such individuals may properly be regarded as “other similar officers” within the terms of s. 9(1) of the Waste Management Act 1996 and comparable provisions of other statutes where the same formula is used. The Court has already made the comment that the manager of a branch of a bank would not be regarded as a manager of the bank. This was with reference to a bank having a nationwide branch network. The situation would be quite different if the bank only had one place of business or a very small number of places of business. The phrase “other officer” as distinct from “Director” or “Secretary” of the company must refer to individuals having a similar stature and exercising similar responsibility to what might be expected of a company director or company secretary. Certainly, on one view of the evidence at least Mr N. was managing the Kerdiffstown facility which was Neiphin’s core activity. It may not be to overstate matters to say that Kerdiffstown was Neiphin.

27. In the Court’s view, the trial judge was in error in focusing his attention on whether there was evidence that Mr N. had the capacity to direct the whole of the affairs of the company and the power and responsibility to decide corporate strategy. The question, really, to have been asked was whether Mr N. was functioning as a Senior Manager, having functional responsibility for a significant part of the company’s activities and having direct responsibility for the area in controversy, namely the management of the Kerdiffstown waste site. Having indicated its view that the trial judge was in error, the Court will, in accordance with the indications it gave at an earlier stage, hear counsel on both sides in relation to what further orders should follow.

7. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

8. The application for leave filed, and the respondent’s notice thereto, are both published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in detail.

9. The court is not one for the correction of error. No aspect of this ruling has precedential value as a matter of law.

10. In response, the Director of Public Prosecutions points to the fact that the accused was acting on behalf of a relevant company and assumes the specific role of “manager” of the waste facility in question under the terms of the licenses that were provided and held himself out to be a suitably qualified person to be appointed “to manage the facility”. His CV was given to the Environmental Protection Agency “at that time” and the allegation is that it was furnished “in order to demonstrate his qualifications to act as manager of the waste facility” and show that he had “very senior decision-making” powers within the relevant overall group of companies.

11. The Court is convinced that the point advanced is one of general public importance. As to whether someone is a manager or someone exercising responsibility akin to a manager is a question of fact but also carries a legal meaning that is of wider application than even in relation to this case. The relevant statutory formula involves the use of ordinary words in the English language which are generally used in a number of statutes and may require elucidation. The Court of Appeal has claimed to have corrected an error by the trial judge whereby too much emphasis was laid on any issue as to whether responsibility was local or national. The Court is persuaded that another view, which may have wider ramifications than for the case at point is demonstrated.

12. Accordingly, subject to case management, the following point is identified:

Where, as in section 9(1) of the Waste Management Act 1996, a statute provides that where an offence “has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other similar officer of the body corporate” then that person will also be liable similarly, what degree of responsibility is required to meet such a statutory definition?

AND IT IS HEREBY ORDERED ACCORDINGLY