knowledge 13 November 2018 |

Supreme Court Quashes Corruption Conviction Citing an Inroad on the Presumption of Innocence

In DPP v Forsey,¹  the accused was convicted of corruption under the Prevention of Corruption Acts which have been recently repealed by the Criminal Justice (Corruption Offences) Act 2018 (the “2018 Act”). 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 Mr Forsey 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. When in force, it provided that an agent, or any other person, who corruptly accepted any gift, consideration or advantage as an inducement to doing any act in relation to his office or position, was guilty of an offence. 

In prosecuting Mr Forsey, the prosecution relied on section 4 of the Prevention of Corruption Act 2001 (“PCA”) which provided for a presumption of corruption in proceedings against a holder of a public office, where it was 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 was deemed to have been received – and given - as an inducement or reward “unless the contrary is proved”.

Mr Forsey appealed his conviction to the Court of Appeal, and subsequently to the Supreme Court, claiming, among other things, that the trial judge had misdirected the jury regarding the correct interpretation of section 4 of the PCA. Specifically, Mr Forsey argued that this provision  imposed a legal burden of proof on the defendant instead of an evidential burden of proof. 

The Supreme Court’s Judgment 

The Supreme Court agreed with Mr Forsey that section 4 of the PCA should be interpreted as shifting the evidential burden of proof to the defendant, rather than the legal burden of proof. In giving judgment, O’Malley J said that if an accused had to prove that the payments were not received corruptly on the balance of probabilities, it meant that he or she would have to persuade the jury that, at least, it was more likely than not that the money was not received corruptly. Since corrupt receipt was an essential element of the offence, this meant that the accused would have to disprove that element. In other words, the accused would have to affirmatively prove innocence. That was a clear inroad on the presumption of innocence.

According to the Supreme Court, in cases were the prosecution relies on section 4, the trial court should instruct the jury clearly as to the elements of the offence and tell the jury that the prosecution has the burden of proofing beyond reasonable doubt all of the elements, with the exception of the corrupt intention. The jury should then be told that if the prosecution has satisfied them beyond reasonable doubt of the matters it has to prove, they are to take corrupt intention as having being proved, regardless of whether the prosecution has given evidence in relation to it or not, or has only given weak evidence, unless there is something in the evidence that makes them doubt that the accused had a corrupt motive. The overriding consideration is that a jury should not convict if left in doubt as to guilt.  

Comment 

Following the outcome of the case, the DPP will now consider whether to seek a retrial. However, there are wider issues to consider here. The newly enacted 2018 Act has reproduced the presumption contained in the 2001 Act as well as providing for additional presumptions of corruption. The Supreme Court’s judgment in DPP v Forsey clarifies that each of these presumptions should be read as shifting the evidential burden of proof rather than the legal burden of proof.  While on the one hand this clearly makes the prosecution’s job more difficult, on the other hand it acknowledges the fundamental importance of the presumption of innocence in our criminal justice system.