In relation to the favouritism of this story: irishexaminer.com/ireland/kf … z0YW4pFeXn
and many, many other examples of relatives and cronies being given plum positions, I think this act is the one that should cover these misdemeanours.
The word ‘advantage’ is interesting to me. It seems to be one of those all-encompassing words that mean that any act that is to the benefit of the giver, but outside the normal and proper rules of the public body can be considered corrupt, even if the benefit is just ‘kudos’ amongst pals.
I await the best legal minds of the 'pin to disabuse me of my hopes!
The penalties are pretty stiff:
(Note - section (a) has been amended in the UK).
(Note - F2 also marks further amendments to the UK act).
The Prevention of Corruption Act, 1906 was amended in Ireland in 2001 by the Prevention of Corruption (Amendment) Act, 2001 link and again in 2005 by the Proceeds of Crime (Amendment) Act, 2005 link
New s.1 of the 1906 Act (as inserted by s.2 of the 2001 Act):
Section 8 is probably more like what you are looking for:
That section 4 of the 2001 is a particularly tough and all-encompassing section. I can’t see that all the fellows at the various tribunals can’t be charged under it. It’s a shame, though, that the punishments were watered down. I particularly like the banned from holding public office and forfeit of pension.
So, a new plank for my manifesto! Tell me something, js, if new penalties for an existing act are brought in, can the penalties apply to previous occurrences of the crime?
The main penalties were increased, 10 as opposed to 7 years on indictment, but it is a shame that some of the consequential orders can no longer be made. I suppose the one about banning from public office would be justified by a certain party on the basis that many of the founders of the State were criminals etc.
No. Laws can only have prospective, not retrospective effect. This includes penalties. If the indictment referred to the new act it would be bad on its face and if it was on a summons/charge sheet that would have to be amended.
However, the question to be asked is whether a disqualification from holding public office is a “penalty” in law. A disqualification fom driving is a penalty, but being made subject to the provisions of the Sex Offenders Act, 2001 is not a penalty in law (see Enright v. Ireland). In Enright, the Court found that the reporting requiresmnts of that act were not in violation of the constitution if they were applied retrospectively because it was merely an administrative requirement rather than a punishment. So perhaps the distinction is that if a judge disqualifies someone from holding public office it might be a penalty, but if on the other hand there was a sex offenders type register with various requirements (e.g. declaration of conviction on all election materials) that might be applied retrospectively.
Privately amending a bill is difficult. I suppose you could argue that the original Act is not actually an official act on the statutebooks but rather its provisions were simply adopted into irish law and therefore any amendments in the 2001 are of no real effect. I wouldn’t bet the house on it though.
You are perfectly entitled to bring a private prosecution of anyone you wish in the District Court. AFAIK, there is nothing in the 2001 act which prevents private prosecutions (unlike, for example, s. 3(9)of the Criminal Law (Sexual Offences) Act 2006 whereby a charge can only be proffered by or with the consent of, the DPP).
I’m amazed that there isn’t some journalist or anti-corruption group prepared to have a punt on one of these (the costs and difficulties would make it a fools errand for an ordinary joe soap, but if a newspaper brought such charges as a publicity stunt it might be worthwhile (after all, think of all the money it cost the IT for their contempt of court case)).
The big problem is that we don’t have a governmental agency charged with investigating these issues and gathering evidence (Tribunals notwithstanding; evidence that might actually be used in a prosecution). I don’t blame the individual gardai for not investigating these matters, but I do think the absence of such a department within the Gardai is one of their bigger failings.
JS - I like your thinking. I’m not fond of private prosecutions as a general matter (think about the ludicrous prosecutions for blasphemy and criminal libel we’ve seen in the past) but I’d happily make an exception for these types of cases. The CAB would be the natural agency to take on political corruption if the institutional will was there - SIPO certainly isn’t up to much.
Hmmm. So Anglo shareholders use this act to prosecute Mr. Neary for his failure to regulate Anglo citing dinner-parties, invites to functions etc. as the corrupt payment.
If nothing else, the discovery phase would be interesting…
I agree, it would be purely for the publicity, it would never get anywhere as the Judge would refuse jurisdiction and according to Reid must strike the case out. But it would shake things up no end if a politician or journalist brought one of these cases (obviously a private citizen would just be dismissed as a nutter and spin would turn it into a victory for the politician in question).
Well CAB have a lot of new staff, might as well put them to good use. SIPO does some important filing and dusting work to ensure that their files don’t get dirt on them.
There is no discovery phase in criminal proceedings, only disclosure i.e. the state has to disclose what it has, the accused only ever has to disclose a brief outline of any alibi to be used in a trial on indictment.
Private prosecutions without search or questioning powers aren’t going to get very far. The US has an interesting alternative - civil actions which may be brought by any individual alleging fraud on the Federal Government. The claimant is entitled to a percentage of any recovery. Wikipedia has a good write up: en.wikipedia.org/wiki/False_Claims_Act
Private Prosecutions are in principle a great idea -but in fact not worth a damn.
If you seek to initiate one through the District Court and go through the necessary procedcures and the Judge decides there is a prima facie case to answer and makes an order returning the defendant for trial - the DPP has reserved to him the right to take over that prosecution and then make a decision whether to proceed to trial. In every private prosecution which has been initiated -the DPP has stepped in and decided not to proceed. The right to take a public prosecution in Irish Law is in effect a myth. I have been that soldier.
The preliminary examination in the DC has been removed since 1999. The DPP takes control of any indictable charge, but it is still possible to have a private prosecution of a summary offence. As I said above if the DJ refuses jurisdiction that’s the end of the matter, but it’s the publicity it would generate rather than an actual conviction that is important.
LL - I presume you’re only talking about trial on indictment? My understanding was that a common informer can prosecute a summary matter to conclusion and that the DPP has no right to intervene. If I recall correctly the Garda Siochana Act 2005 (s. 8 ) limited this position but only in respect of Garda prosecutions.
You are quite right Johnny. Indeed it is more than ten years sine I attempted to use the device of a private prosecution.
But you do point out the only benefit which will acrrue is publicity -there is absolutely no way the DPP will allow his preogative to be ‘usurped’ by a private citizen. it is shameful but it is a fact.
I haVE no direct experience in respect of purely summary matters being purused in this way - but anyone generally seeking to prosecute privately in the absence of a prosecution by the state is generally doing so because because of a criminal act against themselves or their family and in order to have it not dismissed out of hand by a court it would invariably be an offence which is triable on indictment. That in my limited experience has usually been the situation.
Theres a thought. Write to Dave Waddell at SIPO and enquire what prosecution they are presently considering and how many they have undertaken since coming into being.
I’m aware that all prosecutions start in the DC but is it impossible for the private individual to proceed with a prosecution to the Circuit Court - and if so, why are constitutional challenges allowable by individuals? What is the legislation that underpins that? Supposing the journalist presented a good enough case in the DC that merited it being sent forward but the DPP decided not to prosecute all the evidence , or at least an outline of the facts, would still have yo be heard - if you could ensure it was heard in front of the right judge and a prima facie case established, that’s a lot of evidence in the public domain.
Doesn’t the Section 21 (?) alibi warning apply only on indictment anyway? Nothing like that in the DC afaik.
