Hypothetical prosecution of a politician

edanto

In the hypothetical case where a politician was proven to have accepted a bribe, I'm led to believe that the judicial punishment is unlimited.

However, what are the processes beforehand?

Is the DPP that would initiate a prosecution like that, or the Guards? Would they be bound to investigate any complaint from a member of the public or are there discretionary steps to allow them to ignore spurious accusations?

Rhonda9000

edanto wrote: »

I'm led to believe that the judicial punishment is unlimited.

!?

Rhonda9000

Speaking of topical political bribes etc. would anyone like to discuss the current revelations with regard to our esteemed leader and the approach taken in Attorney General for Hong Kong v. Reid (bribe monies / properties --> constructive trust); any thoughts / insights on if and how the Irish judiciary would grapple with this?

johnnyskeleton

The offence of making a gain by deception has a maximum sentence of 5 years imprisonment and an unlimited fine. There might be more specific offences of malfeasance in public office, depending on the nature of the politician and of the bribery. I don't think they would have sentences much higher than 5 - 10 years though.

The DPP are an independent body that give directions to the gardai in relation to all indictable offences for which the gardai have sent an investigation file. The gardai have a discretion as regards complaints that are completely unfounded, or which upon further investigation have no reality to them.

johnnyskeleton

Rhonda9000 wrote: »

Speaking of topical political bribes etc. would anyone like to discuss the current revelations with regard to our esteemed leader and the approach taken in Attorney General for Hong Kong v. Reid (bribe monies / properties --> constructive trust); any thoughts / insights on if and how the Irish judiciary would grapple with this?

As in a constructive trust over Charlie's silk shirts, or bertie's fancy curtains? It's legally difficult, because there is often no quantifiable loss to the state - i.e. the politicians get the money but you can't point to any specific detriment to the state, only to a general decrease in standards.

I suppose the more realistic approach would be to use the CAB to seek to repossess the assets through the High Court.

edanto

Rhonda9000 wrote: »

!?

oops, typed that bit in too much of a hurry, I meant the fine and prison unlimited, but stand corrected, cheers. Interesting replies so far.

Rhonda9000

Point well made but the losses in AG for Hong Kong were also quite indirect / obscure and the Privvy Council awarded the constructive trust anyway? Indeed from a practical point of view, the CAB would seem like the easiest route. Whether it's shirts or curtains, tips and icebergs spring to mind at this point.

Tom Young

Rhonda9000 wrote: »

Speaking of topical political bribes etc. would anyone like to discuss the current revelations with regard to our esteemed leader and the approach taken in Attorney General for Hong Kong v. Reid (bribe monies / properties --> constructive trust); any thoughts / insights on if and how the Irish judiciary would grapple with this?

I see O'Dell and some others have written on this subject in the context of restitution/unjust enrichment and tracing. The closest cases I can spot on it are In re Fredricks Inns / Fraudulent Preference and claw back.

I am surprised that it didn't feature in the SC Fyffes appeal.

I too at lost with the OPs opening line.

Rhonda9000

Tom Young wrote: »

I see O'Dell and some others have written on this subject in the context of restitution/unjust enrichment and tracing. The closest cases I can spot on it are In re Fredricks Inns / Fraudulent Preference and claw back.

I am surprised that it didn't feature in the SC Fyffes appeal.

I too at lost with the OPs opening line.

I really should do more reading ... with the glacial pace of the tribunal he'd nearly manage raising laches with regard to demands for a constructive trust

Tom Young

Rhonda9000 wrote: »

I really should do more reading ... with the glacial pace of the tribunal he'd nearly manage raising laches with regard to demands for a constructive trust

I was reading an article by Brian Murray SC recently on the entire area of Tribunals, Oireachtas rules and powers to compel. There's a really nice case out there called Wireless Traders v Fair Trade Commission.

The whole Maguire v Ardagh debacle is of great interest too.

I take your point on equity levers to try and remove the impetus however it remains to be seen whether or not the terms of the given tribunal can indeed be modified to allow such arguments be raised.

I still get some shivers when I think of the new age constructive trust. Joy.

Tom Young

Rhonda9000 wrote: »

I really should do more reading ... with the glacial pace of the tribunal he'd nearly manage raising laches with regard to demands for a constructive trust

Some other cases worth a gander:
Boardman v Phipps [1967] 2 AC 46
Regal (Hastings) v Gulliver [1967] 2 AC 134
Attorney-General for Hong Kong v Reid [1994] 1 AC 324
Lister v Stubbs (1890) 45 Ch D 1
Foskett v McKeown, [1998] Ch. 265.
Chase Manhattan Bank v Israel British Bank, Ltd [1981] Ch 105
Westdeutsche Landesbank Girozentrale v Islington London Borough Council, [1996] A.C. 669, [1996] 2 All E.R. 961
http://www.ucc.ie/law/restitution/archive/englcases/westdeutsche.htm

and Wallersteiner v. Moir (No. 2) [1975] Q.B. 373

You'll get some of these in the Equity texts and others in recent Company law texts.

On point: HAUGHEY v. MORIARTY & CLERK OF DAIL EIREANN 1998 IEHC 6

LAWLOR V FLOOD 1999 IEHC 10 - This is good for a general review of the powers and reliefs of a tribunal.

The terms of reference of a tribunal would be key to use of reliefs, here is the one cited in Lawlor v Flood:

"In the event of the Tribunal in the course of its inquiries is made aware of any Acts associated with the planning process committed on or after the 20th of June 1985 which may in its opinion amount to corruption, or which involve attempts to influence by threats or deception or inducement or otherwise to compromise the disinterested performance of public duties, it shall report on such acts and should in particular make recommendations as to the effectiveness and improvement of existing legislation governing corruption in the light of its enquiries."

Tom Young

D.P.P.-v- Michael Fahy, Neutral Citation: [2007] IECCA 102

You have to love this citation from Finnegan J.

Against the background of allegations of improper conduct against County Councillors before Tribunals such an inference from wealth without explanation might well be drawn. It is particularly unfortunate that this risk was created by non-compliance by the respondent with the Act of 1999. The name by which the applicant is popularly known and which it is likely was known to some at least of a Galway jury could well exacerbate the prejudice having regard to the nature of the offences with which the applicant is charged.
In the circumstances of this case the court is satisfied that the introduction of inadmissible evidence in the manner in which it occurred created a real and substantial risk of an unfair trial. The apprehension of the applicant’s senior counsel that to seek to remedy the situation by cross-examination and a direction to the jury might exacerbate the position was not unreasonable. Such course might well have proved counterproductive in emphasising the significance which could be attached to the evidence given. The learned trial judge, in the circumstances of this case, ought to have discharged the jury.
In these circumstances the court grants the applicant leave to appeal and treats the hearing of the application as the appeal and allows the appeal and directs a retrial.

edanto

Tom Young wrote: »

Wireless Traders v Fair Trade Commission

Where would I go about reading into this? What jurisdiction was it in? Also, those other cases you reference - I would like to read about them but haven't a clue where to start.

Would you be able to add something to one of the stickies in the forum about how to research legal info?

thx

Tom Young

Wireless Traders is Irish - Citation to follow.

dermot_sheehan

Tom Young wrote: »

I was reading an article by Brian Murray SC recently on the entire area of Tribunals, Oireachtas rules and powers to compel. There's a really nice case out there called Wireless Traders v Fair Trade Commission.

The whole Maguire v Ardagh debacle is of great interest too.

I take your point on equity levers to try and remove the impetus however it remains to be seen whether or not the terms of the given tribunal can indeed be modified to allow such arguments be raised.

I still get some shivers when I think of the new age constructive trust. Joy.

wireless traders is an unreported decision of the supreme court dated the 14 march 1956, I'm unsure what relevance it has. It involves the courts declining to grant an injunction to prevent the passage of a potentially unconstitutional bill holding that the correct course of apction for the plaintiffs to take would be to seek a declaration that the bill was unconstitutional after it was enacted.


The maximum prison time for a public officer guilty of corruption is 7 years.

Tom Young

gabhain7 wrote: »

wireless traders is an unreported decision of the supreme court dated the 14 march 1956, I'm unsure what relevance it has. It involves the courts declining to grant an injunction to prevent the passage of a potentially unconstitutional bill holding that the correct course of apction for the plaintiffs to take would be to seek a declaration that the bill was unconstitutional after it was enacted.


The maximum prison time for a public officer guilty of corruption is 7 years.

It was mentioned above and the poster wanted to read it. In relation to the the article I read by Brian Murray SC, it was made relevant. Perhaps you should seek it out and read it.

edanto

I'll just park the wireless traders bit for a minute, I'll have to try and figure out how to access the cases when cited as D.P.P.-v- Michael Fahy, Neutral Citation: [2007] IECCA 102, for example - search engines haven't helped me much, but I'm sure there's info somewhere.

gabhain7 wrote: »

The maximum prison time for a public officer guilty of corruption is 7 years.

Thanks to fabulous anti-corruption legislation brought in by the current Taoiseach, I'll see your seven and I'll raise you three. ;>

8.—(1) A public official who does any act in relation to his or her office or position for the purpose of corruptly obtaining a gift, consideration or advantage for himself, herself or any other person, shall be guilty of an offence and shall be liable—
(a) on summary conviction, to a fine not exceeding £2,362.69 or to imprisonment for a term not exceeding 12 months or to both, or
(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 10 years or to both.

I would assume that this only applies to actions carried out after the legislation became law.

Another interesting aspect of that legislation is that if the person fails to disclose the donation, it shall be deemed to have been given and received corruptly unless the contrary is proved. (I pointed this out in Politics a few months ago, but in the post I implied strongly that a currently serving official could be considered guilty under it and earned myself a ban - before realising that the acts had occurred before the legislation)

Tom Young

www.courts.ie - judgments database.

I'll have to try and figure out how to access the cases when cited as D.P.P.-v- Michael Fahy, Neutral Citation: [2007] IECCA 102, for example - search engines haven't helped me much, but I'm sure there's info somewhere.

edanto

thankee kindlee