Court of Appeal Rules on
Reverse Burden of Proof in
Corruption Case
briefing
Reverse burden of proof provisions have been the subject of considerable
debate both in Ireland and abroad. Recently the Court of Appeal, in a rare
judgment on the interpretation of the Prevention of Corruption Act 1906,
upheld a provision which imposes a reverse burden of proof in certain
bribery cases. The judgment relates to an appeal brought by former Fine
Gael Councillor, Mr Fred Forsey, against his conviction on six counts of
bribery for which he was sentenced to six years imprisonment. In its
judgment the Court of Appeal also addressed arguments regarding whether
Mr Forsey’s actions fell within the scope of his office.
Overview
The case against Mr Forsey related to three
payments of €10,000, €10,000 and €60,000,
respectively. Mr Forsey received the
payments from a property developer in 2006
while he was a member and Vice Chairman
of Dungarvan Urban District Council. While
Mr Forsey claimed that the payments were
loans, a jury found that he received the
payments corruptly in relation to a planning
application for the development of land at
Ballygagin, County Waterford and found
him guilty of bribery under section 1 of the
Prevention of Corruption Act 1906 (“PCA
1906”).
Section 1 of the PCA 1906 provides that an
agent or any other person who corruptly
accepts any gift, consideration or advantage
on account of an agent doing an act in
relation to his or her office or position is
guilty of an offence. Mr Forsey was found to
have behaved corruptly in trying to persuade
officials and councillors in Waterford
County Council to grant permission for the
proposed development. He also called for
the extension of the boundary of Dungarvan
town, the effect of which would have
been to include the development land in
the Dungarvan area and thereby alter its
rezoning status.
Mr Forsey’s conviction was largely
attributable to the prosecution’s reliance on
section 4 of the Prevention of Corruption
Act 2001 (“PCA 2001”) which reverses the
burden of proof in a prosecution under
section 1 in certain circumstances. Section 4
provides:
“Where in any proceedings against a person
referred to in subsection 5(b) of section 1
(inserted by section 2 of this Act) of the Act
of 1906 for an offence under the Public Bodies
Corrupt Practices Act, 1889 as amended, or the
Act of 1906, as amended, it is proved that:
a) any gift, consideration or advantage has
been given to or received by a person
Court of Appeal Rules
on Reverse Burden of
Proof in Corruption
Case
(continued)
b) the person who gave the gift, consideration
or advantage or on whose behalf the gift,
consideration or advantage was given had
an interest in the discharge by the person
of any of the functions specified in this
section
the gift or consideration or advantage shall
be deemed to have been given and received
corruptly as an inducement to or reward for the
person performing or omitting to perform any
of the functions aforesaid unless the contrary is
proved.”
Section 4 applies generally to a variety
of functions concerned with the public
administration of the State under any
statute and particularly to the functions
of a member of a body that is part of the
public administration of the State under the
Planning and Development Act 2000.
Mr Forsey appealed his conviction on two
grounds. First he claimed that the trial judge
misdirected the jury regarding the burden
of proof arising out of section 4 of the PCA
2001. Secondly, he argued that as a member
of Dungarvan Urban District Council he had
no function in relation to a development in
Waterford.
Reversal of Burden of Proof
On the issue of the burden of proof, the
appeal turned on whether section 4 of the
PCA 2001 imposes a legal or an evidential
burden of proof on the accused. The
distinction is significant. Under a legal
burden of proof, once the prosecution has
proved, beyond reasonable doubt, that the
accused is a) a person referred to in section
1(5)(b) of the PCA 1906, and b) that he or she
has received advantage from a person who
has an interest in the accused’s performance
of his or her functions under the Planning
and Development Act 2000, then the burden
shifts to the accused to prove, on the balance
of probabilities that the payments were not
made corruptly. In contrast, in the case of an
evidential burden of proof, the prosecution
must also prove that the payments were
made corruptly at which point the accused
must raise a reasonable doubt as to whether
or not this was the case.
2 | mccann fitzgerald ¼ september 2016
In its judgment the Court of Appeal held that
section 4 of the PCA 2001 imposes a legal
burden of proof on the accused. While the
Court recognised that the presumption of
innocence is a constitutional right pursuant
to Article 38.1 of the Irish Constitution, as
well as a right under common law and under
Article 6.2 of the European Convention of
Human Rights, it observed that this right
is not absolute. According to the Court of
Appeal restrictions on the presumption of
innocence can be justified in circumstances
of special or particular importance and need
and where it is exceptionally appropriate
to the crime and where it is reasonable. In
addition, the legislative provision must be
explicit in regard to the obligation imposed
and “nothing less than a clear imposition will be
construed as doing so.”
The Court held that section 4 explicitly
reverses the legal burden of proof. It also
held that it was justified “in the unusual
circumstances of the prevalence of corruption
worldwide and the difficulty of proving
intention, even where the circumstances are
strongly suggestive of criminality.” The Court
observed that Article 28 of the United
Nations Convention on Corruption 2005
seems to authorise a provision of the type set
out in section 4 and that it has to be assumed
that Article 28 is not in conflict with the
Universal Declaration of Human Rights and
its acknowledgment of the presumption of
innocence.
The Court of Appeal distinguished the
decision of the Court of Appeal of England
and Wales in R v Webster [2010] EWCA Crim
2819. That case concerned section 2 of the
Prevention of Corruption Act 1916 (“PCA
1916”) which also reverses the burden
of proof in certain circumstances. The
English and Welsh court considered that
the reverse burden created by section 2
should be “read down” as creating a bare
evidential burden to raise a reasonable
doubt only, notwithstanding that it had
previously been understood to place a legal
burden on the accused to disprove corrupt
intent. In refusing to follow the same
Court of Appeal Rules
on Reverse Burden of
Proof in Corruption
Case
(continued)
approach, the Court of Appeal observed
that the court in Webster considered that
the rationale for section 2 of the PCA 1916
had been undermined by a series of events,
including the introduction of the European
Convention of Human Rights. In contrast,
the section 4 provision is fresh legislation,
introduced in 2001. The Court of Appeal
concluded that:
“An argument that seeks to establish that it was
not necessary to continue this presumption in
circumstances where there has been substantial
changes since it was originally enacted may well
be legitimate as far as it goes when the law has
not been changed. However, that cannot apply
where the legislature has decided, as it did here,
to re-enact this provision in 2001.”
Official Functions
The Court of Appeal also rejected Mr
Forsey’s argument that he did not have
any function in regard to the proposed
development because it was in the
administrative area of Waterford County
Council and not that of the body of which
he was an elected member. While the Court
accepted that there must be a sufficient
nexus between the allegedly corrupt
behaviour and the accused’s office or
position, it held that it is sufficient if the
“activities can be comprised in the more general
definition of being in relation to his office or
position.” As the payments to Mr Forsey
were made for the purpose of exploiting his
access as an elected official, then they were
made in relation to his office or position,
notwithstanding the fact that his actions did
not concern his specific statutory functions.
3 | mccann fitzgerald ¼ september 2016
Comment
The Court of Appeal’s decision in DPP v
Forsey is of considerable significance for
Irish corruption law. Bribery is notoriously
difficult to detect and successfully
prosecute, not least because it is an offence
which tends to occur in private between
two parties who are both equally culpable.
Prior to DPP v Forsey there was some doubt
as to whether section 4 reversed the legal or
evidential burden of proof. In the event that
it reversed the legal burden of proof, there
were also doubts about its constitutionality.
In resolving these doubts, the Court of
Appeal has made an important contribution
to facilitating the successful prosecution
of corruption cases under the Prevention of
Corruption Acts 1889 – 2010 (“PCA”).
The decision in DPP v Forsey is also good
news for the Government’s proposed new
corruption bill. As outlined in our previous
briefing (here), in 2012, the then Government
published the draft scheme of a proposed
Criminal Justice (Corruption) Bill which,
among other things, proposes to consolidate
the existing offences set out in the PCA.
That draft scheme also contains a number
of provisions which reverse the burden of
proof in specified circumstances. The Court
of Appeal’s recent judgment improves the
possibility of these provisions being upheld
should they be challenged on constitutional
and/or human rights’ grounds. More broadly,
DPP v Forsey illustrates the complexity of
the current anti-corruption framework
and underscores the need for consolidating
legislation, sooner rather than later.
Further information is available from:
Megan Hooper
Karyn Harty
Imelda Higgins
Partner, Dispute Resolution &
Litigation
Partner, Dispute Resolution &
Litigation
ddi +353-1-611 9158
email megan.hooper@
mccannfitzgerald.com
ddi +353-1-607 1220
email karyn.harty@
mccannfitzgerald.com
Senior Associate, Legal
Information & Knowhow,
Finance
ddi +353-1-611 9172
email imelda.higgins@
mccannfitzgerald.com
Alternatively, your usual contact in McCann FitzGerald will be happy to help you further.
This document is for general guidance only and should not be regarded as a substitute for professional
advice. Such advice should always be taken before acting on any of the matters discussed.
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© McCann FitzGerald, September 2016