There are plenty of good ideas lying around to control corruption.

This blog has referred (July 2007) to one of them.

That post referred to the fact that the UK (and Ireland, consequently) formerly had that very remedy and allowed it to fall into disuse.

It is now proposed to revive it in the UK.

Another good idea that would have stopped Charles J. Haughey, deceased leader of Fianna Fail, from getting inexplicably rich, is to be found in the laws of many former UK dominions.

Hong Kong’s version is found in the Prevention of Bribery Ordinance. It provides;

“10. (1) Any person who, being or having been a prescribed
officer –

(a) maintains a standard of living above that which is
commensurate with his present or past official
emoluments; or

(b) is in control of pecuniary resources or property
disproportionate to his present or past official
emoluments,

shall, unless he gives a satisfactory explanation to the court as to
how he was able to maintain such a standard of living or how such
pecuniary resources or property came under his control, be guilty of
an offence.”

(The definition of “prescribed officer” is critical; we are not after the dog-catcher).

A False Claim Act is, however, the superior remedy; it applies to private corruption and to public corruption; it promotes the disclosure of wrongdoing by witnesses; it acts as a disincentive to crime (by making it dangerous to undertake).

There is a perception in the public that our corruption index is high. Only full and open investigation and punishment of offenses will reduce this perception.

It is not helped by the fact that the law relating to corruption in Ireland is controversial. It is strewn over several pieces of legislation and has been criticized on a regular basis by the OECD expressly for that reason.

Two weapons in the State’s armoury were brought in by Britain (still in force in the UK), (The Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Act 1916) and are old. They are also inadequate. (The 1916 Act does not apply to employers: who, but employers, will fund the bribery?).

Ireland ratified the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions but, like many others, has dragged its heels in actually acting on its obligations.

In 2008 the OECD reported:

“In particular, the Working Group is disappointed that Ireland did not seize the opportunity of the Prevention of Corruption (Amendment) Bill 2008 to act upon the Phase 2 recommendations to consolidate and harmonise the two separate foreign bribery offences in the Prevention of Corruption (Amendment) Act 2001 and the Criminal Justice (Theft and Fraud Offences) Act 2001. The Group therefore recommends, as it did in 2007, that Ireland act on this issue as a matter of priority. It urges Ireland to pursue its declared intent to make changes to the 2008 Bill in order to achieve greater consistency between the two statutes, and consolidate at the first possible opportunity the corruption offences into a single piece of legislation. In addition, the Group continues to recommend that Ireland adopt on a high priority basis appropriate legislation to achieve effective corporate liability for foreign bribery.”

The Minister for Justice etc. welcomed this report, congratulating some civil servants, in effect, for meeting regularly to keep under review Ireland’s continuing default.

This is not academic stuff. See HERE.

And what of the, inadequate and insufficient, Prevention of Corruption (Amendment) Bill 2008?

It’s not even in sight.

There has been general astonishment at the findings of the High Court inspector into the “Fyffes” and “DCC” insider dealing transactions.

The inspector found that, Mr. Jim Flavin, having received legal advice, broke the law as to insider dealing, but, in the light of the advice, did so inadvertently.

Oddly, the judge who appointed the inspector to conduct the investigation said, in making the appointment:

The earlier proceedings were concerned only with the civil law and did not have to address culpability or responsibility of persons who may have advised or planned the transactions.”

How did that interesting idea fall by the wayside, as it appears to have done?

The UK mobile phone operator T-Mobile has reported the theft of its customers’ personal information. T-Mobile (and the UK Information Commissioner) say the employee(s) received substantial payments for the information.

If this happened in Ireland the employee would be guilty of an offence under The Public Bodies Corrupt Practices Act 1889, as extended by The Prevention of Corruption Act 1916.

The payment is a bribe.

I have adverted HERE to the provisions of Section 19A of the Criminal Justice Act 1984 (as inserted by Section 30 of the Criminal Justice Act 2007).

Section 19A is one of the Sections in Part 4 of the Criminal Justice Act 2007. Part 4 has had a predecessor (so to speak) in the United Kingdom in Section 34 of the Criminal Justice and Public Order Act 1994.

That section has caused a lot of difficulty in the UK courts.

The UK Court of Appeal in R. v Bresa [2005], stated:

As we made clear in our discussion of the authorities at the commencement of this judgment, Section 34 is a very difficult area. In our view however the criticisms that can be made of this direction are soundly based. The question that remains is whether, having regard to the misdirection, we could conclude that the conviction was safe. There was a very powerful case against the appellant and without an explanation from the solicitor as to the basis on which the appellant was being advised not to comment, there is a powerful case for saying that the jury could be sure that the appellant did not mention self-defence in his interview because he had not at that stage thought of that as his defence. But we cannot be sure what part the direction on Section 34 played in the jury’s decision making. It was a significant aspect of the summing up and for that reason it seems to us that we could not conclude that this conviction was safe.”

What the Court of Appeal were considering was the direction the judge had given to the jury in the “Bresa” case.

They summarised the terms of the direction that the judge was required to give to the jury:

The latest JSB guideline direction, which appears at Archbold 2004 Ed at para 15-427, has taken account of the above authorities and that supports the view that among the key features of a direction under Section 34 are the following. First there needs to be the striking of a fair balance between telling the jury of a defendant’s rights [to remain silent or not to disclose advice], and telling the jury that the defendant has a choice not to rely on those rights. Second there needs to be an accurate identification of the facts which it is alleged a defendant might reasonably have mentioned. Third there needs to be a warning that there must be a case to answer and the jury cannot convict on inference alone. Fourth there must be a direction to the effect that the key question is whether the jury can be sure that the accused remains silent not because of any advice but because he had no satisfactory explanation to give.”

In the UK, the accused is entitled to have his solicitor present with him during his interview with the police. This is not the case in Ireland.

In Ireland, under Seb-section 3 (b) of Section 19A, the Section only applies if the accused was given a reasonable opportunity to consult his solicitor.

Consider what a solicitor might say to an accused; the solicitor is very likely not acquainted with the accused [hence the title to this post}. The solicitor will need time to take full instructions and analyse the facts; in these circumstances the best advice is to advise him to say nothing.

If that is the advice given to the accused, what possible adverse inferences can be drawn if the accused fails to mention a fact he later relies on for his defence?

It should be remembered that the Gardaí will have cautioned the suspect that;

you are not obliged to say anything, but anything you do say will be taken down and may be used in evidence against you”.

It should be further remembered that the advice a solicitor gives to his/her client is privileged; the client is not obliged to divulge what advice he got from his solicitor.

So, the accused is in a position where i) he is not obliged to say anything; ii) his solicitor’s advice is secret (privileged); and iii) he is menaced with an adverse inference if he remains silent.

Sometimes a phrase or a slogan lodges its unwanted self in the brain – “Esso Blue for Happy Motoring”, or, as authors manqué of the Supreme Court could, no doubt, attest – “Plumtree’s Potted Meat”.

But it would be hard to beat the title of the book – “Represent Yourself in Court and Win!”, for an unhelpful and irritating phrase.

How would “Yourself” fare in People (DPP) v Cleary [2005] IECCA 51 where the Court of Criminal Appeal remarked;

There were a number of unusual features of the trial.”

The essence of the case against Mr. Cleary turned on two factors; first, the failure of the prosecution to prove certain elements of secondary legislation. Secondary legislation usually takes of the form of a Statutory Instrument. Unlike primary legislation, (Acts of the Oireachtas), judicial notice is not taken of Statutory Instruments. They must be proved, either by being produced to the court in the form as published in Iris Oifigiuil or by production of a copy as published by the Stationery Office.

The second factor was the taking of Mr. Cleary’s fingerprints by the Garda Siochana.

Apparently, the Gardai found a bag with what appeared to be an illegal drug in it. They waited nearby and arrested Mr. Cleary when he appeared. It was alleged that his fingerprint was found inside the lid of the box, holding the drug, which itself was in the bag.

On arrest, the Gardai took his fingerprints with his consent. (He was not obliged to consent. If he did not, only a Garda of the rank of Superintendent or above could oblige him to furnish the fingerprints.)

The Court of Criminal Appeal quashed the 2nd charge in the Indictment because of the failure to prove the secondary legislation. The 2nd charge (possession with intent to supply) was the more serious of the two charges.

The Court affirmed the conviction on the 1st charge, brushing aside the objection of defence counsel that Mr. Cleary’s consent to having his fingerprints taken was not an “informed consent”; (he was not told that the evidence could be used against him, thus, possibly, provoking a refusal to allow the taking of the fingerprints).

What amenable person from rural Ireland could possibly know how to prove secondary legislation in a trial?

Is there merit in book-burning after all?

In 8 A.D. the Emperor Augustus condemned the poet Ovid to live in Tomis in Moesia.

Tomis was at the edge of the Roman Empire on the Black Sea, near the mouths of the Danube, a mere 450 miles or so from a bend in the Volga where Stalingrad would later be sited.

Ovid’s trial was held in camera before the Emperor. His ostensible offence was the writing of the Ars Amatoria. Eight years had passed since its publication: the Emperor’s real motivation lay in the discovery of the wanton life of his daughter Julia and he was in search of a scapegoat.

Ovid was that scapegoat.

This truth, or context, deprived Ovid of the chance to address the Emperor’s motivation in condemning him to exile, as he wrote from Tomis to his friends and public in Rome.

In the face of power, formally judicial or otherwise, it is necessary to be circumspect.

As Ovid discovered, and told his Roman readers, the Danube and even the Black Sea would freeze over in winter. He expressed his anguish in the recollection of his last moments in Rome;

Iamque quiescebant voces hominumque canumque,
Lunaque nocturnos alta regebat equos.

At last all noise of men and dogs was still,
The moon was driving high o’er heaven’s hill.”

His life in Tomis is recalled and examined in “An Imaginary Life” by David Malouf. Malouf’s book, a sustained work of imagination, is a reflection on what it is to be human. Ovid’s humanity, in the loneliness of his exile, is counterpointed by the strange example of a feral boy found by the inhabitants of Tomis and brought in from the barbarous wastes of the steppe.

The Supreme Court has decided that the words:

require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2 specimens of his breath and may indicate the manner in which he is to comply with the requirement”

mean that a person need only, on request by a Garda officer, provide two specimens of his/her breath and need not supply a third.

Furthermore, if he/she does provide three specimens, the third specimen is not available to ground a prosecution for “driving under the influence”.

Essentially, the machine for measuring the breath of motorists is not the source of the obligation; the statute (s.13 of the Road Traffic Act, 1994) is.

Compliance with the statute discharges the obligation; meeting the needs of the machine (or its limitations) is not the obligation.

The Supreme court was mindful that the issue involved the interpretation of a penal statute. The Interpretation Act 2005 makes provision for the “purposive” interpretation of legislation, but excludes penal statutes. The law leans against the creation of penal provisions where the statute is not clear.

Section 25 of the Non-Fatal Offences Against the Person Act 1997 provides

25.—(1) In any proceedings for an offence alleging the causing of harm or serious harm to a person, the production of a certificate purporting to be signed by a registered medical practitioner and relating to an examination of that person, shall unless the contrary is proved, be evidence of any fact thereby certified without proof of any signature thereon or that any such signature is that of such practitioner.”

The need for precision in a statute is obvious. Sub-section (2) of Section 25 goes on to provide:

(2) In this section “registered medical practitioner” means a person registered in the General Register of Medical Practitioners established under section 26 of the Medical Practitioners Act, 1978.”

The average medical practitioner rarely thinks of himself or herself as “a registered medical practitioner”. Nevertheless, it is submitted, that is exactly the description which the practitioner must append to any certificate produced for the purposes of Section 25.

The issue is not:

a) That the person certifying is a doctor (Dr. Ian Paisley and Dr. Martin Mansergh spring to mind as invalid examples);

b) That the person certifying is a medical practitioner (US surgeons from Texas spring to mind as invalid candidates);

The issue is:

a) Is the person certifying, a medical practitioner?

AND

b) Is that person registered “…in the General Register of Medical Practitioners…”

AND

c) Does the Certificate purport to express each of these elements?

If it does not, it is submitted, the certificate is inadmissible as “evidence of any fact thereby certified”.

It is likely I was unfair to the Parliamentary Draftsman HERE.

Who can now say what was intended by the legislation? In Ireland, the answer to that question is “the Courts�?.

Unlike some other jurisdictions we do not seek the meaning of words used in legislation by, for instance, interviewing the people involved in the introduction of the legislation. In the case of Section 20 of the Proceeds of Crime (Amendment) Act 2005, if we were to follow that course we would have to interview the then Minister for Justice. But even that would not be sufficient. He did not “pass�? the legislation; he introduced it to the Oireachtas. It was the Oireachtas that passed it.

It is not feasible to interview the members of the Oireachats to find out what they intended. Even if it were feasible to do so, it would be wrong. It would be an admission that nobody knew the meaning and purpose of the legislation until the views of those members was ascertained. Even the idea of something being “ascertained�? is a problem.

Who will formulate the question to be put to the members?

Who will interpret the confused, inarticulate replies? (Some, at least, will be such).

No, indeed. We need the principles of Statutory Interpretation.

A golden age of Statutory Interpretation has just opened in Ireland.

The future is bright for its practitioners.

The people who draft legislation are unusual. The job is difficult and requires long training, experience and talent. Inevitably, mistakes are sometimes made.

Section 20 of the Proceeds of Crime (Amendment) Act 2005 looks like a mistake. The writing is not elegant; the reverse.

To understand Section 20 it is actually necessary to cut and paste the amendments set out in Section 20 into Section 38 of the Criminal Justice Act 1994.

Section 38 had, originally, a simple aim; to confiscate money entering or leaving the country and connected with drug trafficking.

Somebody, (probably the Minister for Justice etc.) decided to expand it to apply to cash connected with any criminal activity. In addition, it seems it was intended to allow confiscation regardless of the importation or exportation element.

So, Section 20 of the Proceeds of Crime (Amendment) Act 2005 inserted two new sub-sections into Section 38 of the Criminal Justice Act 1994.

However, no amendment was made to Section 38 (2) of the Criminal Justice Act 1994. Continued retention or confiscation of the cash was permissible only on the order of a District Court judge. Before making the order the judge had to be satisfied of certain matters (by evidence from the Gardai). That evidence included the requirement to show the cash was being imported or exported.

This renders the new provision Section 38 (1A) VERY difficult to rely on; most such cases would have no element of importation or exportation, and yet it is only when evidence showing such element is adduced that the sub-section becomes useful to the prosecution.

38.—(1) A member of the Garda Síochána or an officer of customs and excise may seize and, in accordance with this section, detain any cash which is being imported into or exported from the State if its amount is not less than the prescribed sum and he has reasonable grounds for suspecting that it directly or indirectly represents any person’s proceeds of, or is intended by any person for use in, drug trafficking.

(2) Cash seized by virtue of this section shall not be detained for more than forty-eight hours unless its detention beyond forty-eight hours is authorised by an order made by a judge of the District Court and no such order shall be made unless the judge is satisfied—

( a ) that there are reasonable grounds for the suspicion mentioned in subsection (1) of this section, and

( b ) that detention of the cash beyond forty-eight hours is justified while its origin or derivation is further investigated or consideration is given to the institution (whether in the State or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.

(3) Any order under subsection (2) of this section shall authorise the continued detention of the cash to which it relates for such period, not exceeding three months beginning with the date of the order, as may be specified in the order, and a judge of the District Court, if satisfied as to the matters mentioned in that subsection, may thereafter from time to time by order authorise the further detention of the cash but so that—

( a ) no period of detention specified in such an order, shall exceed three months beginning with the date of the order; and

( b ) the total period of detention shall not exceed two years from the date of the order under subsection (2) of this section.

(4) Any application for an order under subsection (2) or (3) of this section may be made by a member of the Garda Síochána or an officer of customs and excise.

(5) At any time while cash is detained by virtue of the foregoing provisions of this section a judge of the District Court may direct its release if satisfied—

( a ) on an application made by the person from whom it was seized or a person by or on whose behalf it was being imported or exported, that there are no, or are no longer, any such grounds for its detention as are mentioned in subsection (2) of this section, or

( b ) on an application made by any other person, that detention of the cash is not for that or any other reason justified.

(6) If at a time when any cash is being detained by virtue of the foregoing provisions of this section—

( a ) an application for its forfeiture is made under section 39 of this Act; or

( b ) proceedings are instituted (whether in the State or elsewhere) against any person for an offence with which the cash is connected,

the cash shall not be released until any proceedings pursuant to the application or, as the case may be, the proceedings for that offence have been concluded.

20.—Section 38 of the Act of 1994 is hereby amended—

(a) by the substitution of the following subsections for subsection (1):

“(1) A member of the Garda Síochána or an officer of customs and excise may search a person if the member or officer has reasonable grounds for suspecting that—

(a) the person is importing or exporting, or intends or is about to import or export, an amount of cash which is not less than the prescribed sum, and

(b) the cash directly or indirectly represents the proceeds of crime or is intended by any person for use in connection with any criminal conduct.

(1A) A member of the Garda Síochána or an officer of the Revenue Commissioners may seize and in accordance with this section detain any cash (including cash found during a search under subsection (1)) if—

(a) its amount is not less than the prescribed sum, and

(b) he or she has reasonable grounds for suspecting that it directly or indirectly represents the proceeds of crime or is intended by any person for use in any criminal conduct.�?,

and

(b) by the insertion of the following subsection after subsection (3):

“(3A) Where an application is made under section 39(1) for an order for the forfeiture of cash detained under this section, the cash shall, notwithstanding subsection (3), continue to be so detained until the application is finally determined.�?.