The Supreme Court has refused an application by the Director of Public Prosecutions (DPP) for a retrial of Fred Forsey, whose six convictions for corruption in public office were quashed in an earlier decision.
The Court, in a judgment delivered by Ms Justice Iseult O’Malley on 21 December 2018, held that the public interest in reaching a valid verdict did not outweigh the unfairness of requiring Mr Forsey to face another trial after serving his sentence. It refused the DPP’s application; it did not determine his guilt or innocence at a retrial.
The convictions arose from payments totalling €80,000 made over several months in 2006 by a person seeking planning permission for a proposed development in County Waterford. Receipt of the money and Mr Forsey’s efforts to promote the development were not disputed at trial. The central issue was whether he accepted the payments corruptly.
In its earlier ruling on 8 November 2018, the Supreme Court found that the jury had been wrongly directed that Mr Forsey was presumed to have received the money corruptly unless he proved otherwise on the balance of probabilities. The judgment said the error appeared to have been shared by counsel and the trial judge. The convictions were quashed on that basis.
The DPP argued that a trial on serious charges should ordinarily proceed to a valid verdict unless a fair trial was no longer possible. She submitted that relevant evidence remained available and that the passage of time had not prejudiced Mr Forsey. The DPP also said punishment was not the only purpose of prosecution, pointing to deterrence and public confidence in democratic institutions and the rule of law. She accepted that no further punishment would be imposed if Mr Forsey were convicted again.
Mr Forsey relied chiefly on the sentence he had already served. He had received six years’ imprisonment, with the final two years suspended, and had served the custodial portion apart from the final three months, when he was temporarily released to undertake supervised community service. The suspended term expired without breach of his bond. He also referred to the trial’s extensive media coverage and its effect on his efforts to begin a new career.
Justice O’Malley said the appeal had not succeeded because of inadequate evidence or prosecutorial misconduct. No evidence had been lost, and no helpful witnesses were missing. The Court identified the competing considerations as the public interest in a valid verdict on serious charges and the accused’s right not to face an unfair or oppressive process.
The judgment said the DPP had produced no Irish decision ordering a retrial after the entire sentence had been served. It concluded that Mr Forsey was entitled to regard his debt to society as paid and to try to rebuild his life without further criminal proceedings. In the circumstances, the benefit of another trial was outweighed by the unfairness it would cause.