New Appeal: Re s 4 of the Prevention of Corruption Act 1906 to 2001

In this determination, DPP v Forsey, the Supreme Court granted Forsey leave to appeal against his conviction for corruption while he was an elected member of Dungarvan UDC. The Court determined that it is necessary in the public interest to clarify two points of law:

 

1. Is the burden of proof against the presumption of corruption contained in s 4 of the Prevention of Corruption Act 1906 to 2001 a reasonable doubt or the balance of probabilities?

2. Should the jury consider the scope of the accused’s position or office (their pull) in considering if corruption took place?

 

Law

S 4 of the Prevention of Corruption Act 1906 to 2001 (here) creates a presumption of corruption by a public office holder who receives a gift, consideration or advantage from someone with an interest in the discharge of the office holder’s function.

 

Background

In 2006, Forsey lobbied members of Waterford County Council to have land close to Dungarvan, belonging to a property developer (Ryan), rezoned for development. When he was unsuccessful, he sought to have that land brought under the control of Dungarvan UDC. During the same period Ryan made three payments to Forsey totaling €80,000. The two men made a written loan agreement relating to that money.

 

In 2012, a jury in Waterford Circuit Court found Forsey guilty of corruption for receiving the €80,000 in return for his endeavours to have Ryan’s land rezoned. Forsey appealed his conviction to the Court of Appeal. His main grounds was that the trial judge misdirected the jury that the burden lay with him to show that Ryan’s payment was not corrupt and that the standard of proof was on the balance of probability. Secondly, Forsey questioned whether the presumption of corruption imposed conflicted with the Constitution or the European Convention on Human Rights. And thirdly, Forsey argued that the trial judge should have directed the jury to consider the scope of his office and the extent of the influence that it is alleged that Ryan sought to purchase (whether Forsey had the pull to secure rezoning was an essential element of the crime).

 

In 2016 the Court of Appeal (here) dismissed Forsey’s appeal on all grounds. He applied to the Supreme Court for one further appeal. The Court determined that Forsey had raised issues of general interest and it is in the public interest that those issues be resolved. The Court certified three questions:

1. Whether, in light of the facts, including that there was no requisition, the applicant is now entitled to revisit the points sought to be argued?

2. What is the scope of a person’s office or position in the consideration of the correct interpretation of the offence of corruption?

3. Are the presumptions contained in s 4 of the Act legal, as opposed to evidential burdens.

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