As the Criminal Justice (Corruption Offences) Bill 2017 starts to wend its way through the legislative process, the issues of bribery and corruption will also shortly be considered by the Supreme Court.
In DPP v Forsey, the accused was convicted of corruption under the Prevention of Corruption Acts. As set out in our previous briefing here, the case against him was that, he, as an elected member of a district council received payments from an individual interested in planning applications for the development of land situated in the functional area of a neighbouring council. Mr Forsey’s council had no role in relation to these planning applications.
The criminal conduct alleged was that he behaved corruptly in trying to persuade members of the neighbouring council to grant permission for the proposed development and, when that was refused, to alter the zoning of the land in question. The prosecution also alleged that the applicant had sought to get the council of which he was a member, to bring the relevant lands into its control.
The charges were brought under section 1 of the Prevention of Corruption Act 1906. It provides that an agent, or any other person, who corruptly accepts any gift, consideration or advantage as an inducement to doing any act in relation to his office or position, shall be guilty of an offence.
Mr Forsey appealed his conviction. He was unsuccessful in the Court of Appeal. That court held that held that he was an agent, within the meaning of the 2001 Act, because he was the holder of a public office.
However, Mr Forsey successfully obtained leave to appeal to the Supreme Court on a number of issues including this one.1 He argued that it should be a fundamental proof to show that the person’s office or position actually encompassed the act complained of. He said that the interpretation adopted by the Court of Appeal appeared to considerably broaden the concept of corruption beyond the actual scope of a person’s office, or position, as defined by law or contract, and to extend it into what he described as a “diffuse and ephemeral” realm, of inference, that is, of “pull”, or status. He suggested that it led to the conclusion that two office holders might be considered quite differently in respect of identical gifts made to them, depending on what was perceived by a jury to be the extent of their influence.
He also centred his appeal on the correct interpretation of section 4 of the Prevention of Corruption (Amendment) Act 2001. Section 4 provides for a presumption of corruption in proceedings against a holder of a public office, when it is proved that he received any gift, consideration or advantage from someone having an interest in the discharge by the office holder of specified functions. The benefit is deemed to have been received – and given - as an inducement or reward “unless the contrary is proved”.
The issues now for consideration by the Supreme Court include:
- What is the scope of a person’s office or position in the consideration of the correct interpretation of the offence of corruption?
- Are the presumptions contained in section 4 of the 2001 Act legal, as opposed to evidential burdens?
The outcome of the appeal is awaited with interest. The Criminal Justice (Corruption Offences) Bill 2017 introduces a new offence of active and passive trading in influence and it will be important to see if this comprehensively addresses any perceived deficits in the existing law as argued for by Mr Forsey. The new Bill also re-enacts certain presumptions of a corrupt gift, consideration or advantage when these are made to an “official” and the views of the Supreme Court on the burden placed on the accused by the existing legislation will be important when considering how the new legislation will be interpreted.