Tuesday 24 September 2019

Supreme Court refuses to order retrial of former councillor Fred Forsey Junior on corruption charges

Fred Forsey Jnr
Fred Forsey Jnr

Tim Healy

The Supreme Court has unanimously refused to order a retrial of former Fine Gael town councillor Fred Forsey Junior on corruption charges.

Mr Forsey has already served his entire sentence and the benefit to the public interest of a retrial “is outweighed by the unfairness of putting him on trial again”, given the lack of any practical consequences from the prosecution point of view and interference with his efforts to get on with his life, the five judge court ruled.

Noting the sentencing process has a number of objectives, Ms Justice Iseult O’Malley, who gave the ruling, said a person who has served his sentence “is entitled to feel any debt to society arising from his actions has already been paid and that he can attempt to rebuild his life without further engagement with the criminal courts”.

The sentence served by Mr Forsey -  an effective four year prison sentence -  included a period of community service and a further two years complying with conditions, she said.

"The rehabilitative objective should also therefore have been satisfied."

Deterrence lies in the fact that sentences of this magnitude are available to the courts for such offences, she added.

Mr Forsey last month won, by a four to one majority, a Supreme Court order quashing his conviction.

He had already served his sentence after being jailed in 2012 for an effective four years after he was convicted of receiving, while a member of Dungarvan Town Council in 2006, payments totalling €80,000 from a developer.

Last week, the DPP applied to the court for a retrial, arguing that was in the public interest, including in retaining confidence in the administration of justice, public officials, local government and the planning process.

Noel Whelan SC, for the DPP, accepted, if there was a retrial and conviction, there was no prospect Mr Forsey would have to serve any further time in prison.

Remy Farrell SC, for Mr Forsey, said his client had not just served his sentence, the longest ever imposed for corruption here, but had also endured the consequences of that, including having the breakdown of his marriage dissected by the media.

Counsel also disputed there was “overwhelming” evidence against his client.

Mr Forsey, of Coolagh Road, Abbeyside, Dungarvan, was convicted under the Prevention of Corruption Acts (POCA) in connection with receiving a total €80,000 in 2006 in three separate payments from Michael Ryan, a developer with an interest in a planning permission for development of land at Ballygagin, Co Waterford.

He was also accused of behaving corruptly in trying to persuade officials and councillors in Waterford County Council to grant permission for the development, and when that was refused, attempting to alter the zoning of the land. It was further alleged he tried to get Dungarvan UDC, of which he was formerly an elected member, to bring the lands into its control.

He denied the charges and claimed the monies were loans.

He was convicted at Waterford Circuit Criminal Court and sentenced to six years, with the final two suspended.

Last month, the majority Supreme Court overturned the conviction over a legal error in the approach at Mr Forsey's trial to the onus of proof on a corruption charge as set out in Section 4 of the POCA, which Acts have since been replaced.

In his dissenting judgment, Mr Justice MacMenamin agreed with the majority's statement of the applicable law but disagreed the conviction should be quashed because he did not consider any "fundamental injustice" occurred at trial.

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