Director of Public Prosecutions v Forsey

Factual and Procedural Background

The Appellant, a member of The Town Council, received three separate payments totalling €80,000 from a property developer interested in obtaining planning permission for land situated outside the town boundary but within The County. The prosecution alleged that the monies were corruptly paid in return for the Appellant’s lobbying of members and staff of The County Council and for proposing an extension of The Town Council’s boundary to encompass the land. The defence maintained the funds were an unsecured loan sought because of the Appellant’s financial difficulties.

In 2012 a jury convicted the Appellant on six counts of corruption under s.1(1) of the Prevention of Corruption Act 1906 (as inserted by the 2001 Act). He was sentenced to six years’ imprisonment, with two years suspended. No notice of appeal was filed until 2014, when new lawyers sought and obtained an extension of time from the Court of Appeal. That court upheld the convictions, but the Appellant obtained leave to appeal to The Supreme Court.

Legal Issues Presented

1. Whether the statutory presumption of corruption in s.4 of the Prevention of Corruption (Amendment) Act 2001 casts a legal burden (balance of probabilities) or merely an evidential burden on an accused.
2. Whether the Appellant’s lobbying of officials of The County Council in respect of land outside The Town Council’s jurisdiction could amount to acts done “in relation to” his office, as required by s.1(1) of the 1906 Act (as amended).
3. Whether, under DPP v Cronin (No. 2), an accused is precluded from advancing on appeal legal arguments not raised at trial, absent proof of a fundamental injustice.

Arguments of the Parties

Appellant's Arguments

• The phrase “unless the contrary is proved” in s.4 must, to comply with the Constitution and Article 6 ECHR, impose only an evidential burden; the ultimate burden of proving corrupt intent remains on the prosecution (relying on DPP v Smyth and R v Webster).
• Because the land lay outside The Town Council’s jurisdiction, the Appellant had no statutory function over the planning application; therefore money could not have been received “in relation to” his office.
• DPP v Cronin is distinguishable; permitting the appeal is necessary to avert a fundamental injustice because the jury were mis-directed on the burden of proof.

Respondent's Arguments

• Section 4 imposes a legal burden on the accused; the Court of Appeal correctly held the provision is clear, proportionate and constitutional.
• The Appellant’s status gave him privileged access to decision-makers; that nexus satisfies the “in relation to office” requirement even where he lacked formal power.
• Under Cronin, issues not raised at trial cannot ground an appeal unless a fundamental injustice is demonstrated; none occurred because the evidence of guilt was overwhelming.

Table of Precedents Cited

Court's Reasoning and Analysis

Majority (Judge O'Malley and concurring judges)

• Reviewed the statutory framework and concluded the s.4 presumption arises only where the payment relates to specific functions listed in s.4(2); but the parties had proceeded on the assumption it applied, so the Court addressed the burden issue.
• Applying DPP v Smyth, the Constitution and Article 6 require that reverse-onus clauses affecting an element of the offence impose no more than an evidential burden; otherwise a jury could convict while still having a reasonable doubt.
• Directions given at trial told the jury the defence had to satisfy them on the balance of probabilities that the payments were innocent, thereby shifting a legal burden and undermining the presumption of innocence.
• The misdirection constituted a fundamental injustice; under the Cronin exception the Court could entertain the point even though it had not been raised below.
• Because all six counts were tainted by the misdirection, the convictions must be quashed; the Court did not need to reach a final view on the territorial-jurisdiction argument.

Dissent (Judge MacMenamin)

• Accepted that the charge was technically defective but emphasised that the prosecution evidence was overwhelming and the “loan” defence hopeless.
• Under Cronin, appellate review should be confined to issues raised at trial unless a manifest injustice is shown; none existed because no properly directed jury could have acquitted.
• Would have dismissed the appeal and affirmed the convictions.

Holding and Implications

HOLDING: the appeal was ALLOWED; the convictions were QUASHED.

Implications: The decision re-affirms that reverse-onus provisions affecting an ingredient of an offence will normally be read as imposing only an evidential burden, safeguarding the constitutional presumption of innocence. Trial judges must instruct juries that, even where a statutory presumption arises, the prosecution retains the ultimate duty to prove guilt beyond reasonable doubt. Although a dissent emphasised evidential strength and the Cronin doctrine, the majority’s approach signals heightened scrutiny of misdirections in corruption trials and limits the scope of legal burdens on defendants.