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.
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
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.
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  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 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."
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.
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.