The Irish Court of Appeal has upheld a provision that establishes a reverse burden of proof in certain bribery cases.
The case involved a former Fine Gael Councillor who was convicted of six counts of bribery for which he received six years imprisonment. He was found guilty under Section 1 of the Prevention of Corruption Act 1906 for payments in relation to a planning application for the development of land at Ballygagin, County Waterford.
The prosecution relied on Section 4 of the Prevention of Corruption Act 2001, which reverses the burden of proof under Section 1 in certain circumstances, if “any gift, consideration or advantage has been given to or received by a person… 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”.
On the burden of proof, the appeal turned on whether Section 4 imposes a legal or evidential burden of proof on the accused. Should there be legal burden of proof, the accused would have to prove on the balance of probabilities that the payments were not made corruptly. Conversely, evidential burden of proof would require the prosecution to prove that the payments were made corruptly, then allowing the accused to raise reasonable doubt.
The Court of Appeal found that Section 4 explicitly reverses the legal burden of proof, which it upheld on the basis of the difficulty of proving intention in cases of corruption. While the constitutional right to the presumption of innocence, and its protection under the European Convention on Human Rights, was acknowledged, the Court found that the right is not absolute. Curtailment can be justified in circumstances of special or particular importance, and where it is reasonable and exceptionally appropriate to the crime. The Court also looked to Article 28 of the UN Convention on Corruption which allows for such reversal and was assumed to be in accordance with the presumption of innocence under the Universal Declaration of Human Rights.
Uncertainly as to the nature of the Section 4 reversal – and its constitutionality – has now been clarified, in what has been considered an important contribution to facilitating the successful prosecution of corruption cases.
Click here for the full judgement in DPP V Forsey.