Supreme Court: Reverse burden of proof undermined allegedly corrupt councillor’s presumption of innocence

About this case:

• Citation:
  [2018] IESC 55
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Iseult O'Malley

Finding that the reverse burden of proof imposed on the accused to disprove the allegation the payments were corrupt was a “clear inroad on the presumption of innocence”, Ms Justice Iseult O’Malley said that the error in interpreting the legislation amounted to “a failure to appreciate and apply a fundamental principle of constitutional law”.

Background

In 2006, Mr Frederick Forsey received a total sum of €80,000, in three separate payments, from Mr Michael Ryan – a developer who was interested in a proposed development of lands in Co Waterford. At the time, Mr Forsey was a member of the Dungarvan Town Council.

The DPP’s case was that the money was paid and received corruptly, in consideration of Mr Forsey’s assistance in attempting to procure planning permission for the development.

The alleged assistance consisted of lobbying members and staff of Waterford County Council, and, when permission was refused, proposing the extension of Dungarvan Town Council’s administrative area so as to take in the lands in question.

The defence was that the money was merely a loan, intended to be repayable although never in fact repaid. Mr Forsey maintained that he supported the proposed development in the belief that it would benefit the Dungarvan area, and that he had sought the loan from the developer because he was in financial difficulty and could not get funds elsewhere.

In 2012, Mr Forsey was convicted on six counts of corruption contrary to s. 1(1) of the Prevention of Corruption Act 1906 as inserted by s.2 of the Prevention of Corruption (Amendment) Act 2001, and was sentenced to six years imprisonment with the final two years suspended. 

Grounds of Appeal

It was submitted on behalf of Mr Forsey that the prosecution and the trial judge erred in their approach to the statutory presumption of corruption, provided for in s.4 of the Prevention of Corruption (Amendment) Act 2001. Mr Forsey accepted that the presumption applied to his case, but argued that the burden “cast upon the defence should, for the purpose of ensuring compliance with the Constitution and with the European Convention on Human Rights, be construed as an evidential burden only”.

Mr Forsey contended that the error in approach arose in circumstances where the prosecution and the trial judge approached the case ‘on the basis that, once the payments were proved, it was for the defence to satisfy the jury on the balance of probabilities that they were not corrupt’.

Mr Forsey’s legal representatives in the appeal accept that the prosecution interpretation of the legislation was not challenged in any way by counsel who acted for the defence in the trial.

The second issue raised on behalf of Mr Forsey was whether his actions (so far as lobbying staff and members of Waterford County Council was concerned) actually came within the scope of the relevant legislative provisions as properly construed. In this regard, Mr Forsey argued that “the lands sought to be developed were outside the area administered by the town council of which he was a member and he did not, therefore, have any legal power or role in making decisions about the planning application”. As such, Mr Forsey argued that “the money could not be seen as having been received on account of anything done by him ‘in relation to’ his ‘office or position’, as required by the legislation”. 

Clear inroad on the presumption of innocence

Delivering the leading judgment of the five-judge Court, Ms Justice O’Malley (with whom Chief Justice Frank Clarke, Ms Justice Elizabeth Dunne, and Ms Justice Mary Finlay Geoghegan concurred) said that it was unnecessary to give any definitive view on the second issue raised by Mr Forsey, given her conclusions on the first issue (which affected all six counts on the indictment).

On the first issue, Ms Justice O’Malley said that a reverse burden of proof which imposed “an obligation on the accused to disprove a core element of the offence” was “capable of amounting to a violation of the presumption of innocence” in violation of Article 38.1 of the Constitution.

Ms Justice O’Malley said that the Court, in “attempting to discern the impact of a particular measure on the presumption of innocence”, must consider the following questions:

• Has the provision transferred a burden in respect of an essential element of the offence, that would otherwise have fallen to be proved by the prosecution beyond reasonable doubt?
• Does it require the accused to prove that the element in question does not exist?

Mr Justice O’Malley said that “if an accused has to prove innocent receipt on the balance of probabilities, it would mean that he or she would have to persuade the jury that… it was more likely than not that he or she did not receive the money corruptly. Since corrupt receipt is an essential element of the offence, it would mean that the accused would have to disprove that element – he or she would have to affirmatively prove innocence.”

This, she said, was “a clear inroad on the presumption of innocence”.

While accepting that “a presumption in relation to intent is not per se unconstitutional”, Ms Justice O’Malley said that the question was whether “rebuttal of the presumption requires the accused to prove innocence and requires or permits conviction where that issue may be in doubt”.

Stating that the interpretation of s.4 of the Prevention of Corruption (Amendment) Act 2001 adopted by the trial court and the Court of Appeal was contrary to authority and could lead to violations of the right to be presumed innocent, Ms Justice O’Malley said that this “mutual legal error on the part of the defence, the prosecution and the trial judge, leading to a failure to appreciate and apply a fundamental principle of constitutional law”.

In allowing the appeal, Mr Forsey’s convictions were quashed.

In his dissenting judgment, Mr Justice John MacMenamin said that DPP v. Cronin [2006] IESC 9 set “the criteria of fundamental injustice, and evidential thresholds”, finding that “these thresholds have not been crossed”.

• by Seosamh Gráinséir for Irish Legal News