This blog has awoken from its slumber………. actually have just been too busy helping people accused of crimes.

Yesterday’s complaint by Paul Gogarty Green Party TD to bring the Ivor Callely alleged false expenses debacle to the attention of the Gardai gained him valuable political “prime time” but to this neutral observers mind it just seemed like a well motivated politcal stunt for him. Whether his actions yesterday will save his seat at the next election is another matter.

To be fair to the Deputy Gogarty, if this alleged fraud has occurred the people of Ireland are at a financial loss but strictly speaking I would have thought that it would be upto the Chairman of the relevant Ethics Committee in Dail Eireann to make the complaint to the Gardai that they have enough evidence to say a crime has been committed. I note the Deputy Calelly has been suspended for 20 days. It may have been better if the Dail Committee had of its own motion, made a compliant ot the Gardai as issues of double jeopardy may arise at the margins to the benefit of Deputy Callely at any criminal trial.

Submission of a false expense claim to a public body in return for money amounts to an offence of false accounting which is set out in Section 10 of the Criminal Justice (Theft and Fraud Offences) Act of 2001 The key ingredient to be proven is that the act is one of dishonesty, in relation to a document such as an expense claim. A key proof will be proving the expense claims were signed by the person in question and with his knowledge and signature. The DPP will have that expenses were claimed dishonestly with the intention of causing a loss or a gain ; it is not necessary to prove an intention to defraud a particular person.

Some interesting legal issues and defences for that matter arise where a member of the Dail is accused of a crime. Parliamentary privilege is provided for by virtue of Article 15 (12) of our Constitution and in the context of the freedom expression this would amount to an absolute defence but it is hard to see how the submission of an expense or claim form would be covered by the important protection given in Article 15.

All citizens are equal in the eyes of the law, if a TD murdered his spouse if a fit of rage in the grounds of Dail Eireann parliamentary privilege could not prevent prosecution.

The issue of parliamentary expenses is and has been litigated in the UK Courts in particular regarding an abuse of a second home allowance in a case deceided on the 30th July, 2010 several parliamentarians were unsuccessful in using the cloak of parliamentary privilege to halt their trials. That is not to say they will be convicted by a jury of their peers.

See the link below. A prospective prosecution against Deputy Callely would be a first regarding expense claims (to my knowledge) so there is no guarantee the Irish Courts would follow their UK counterparts although the previous cases that have arisien across the Irish sea are highly persuasive. Given new revelations against Mr. Callely that an allegedly defunct comapny has been used to submit the claims it seems a possible breach of company criminal law may now arise. Most company criminal law offences do not require proof of a guilty mind and are what we call strict liability offences so Deputy Callely would be well advised to get criminal defence legal advice asap.

At this point in time it would seem that one the complaint is properly formualted by the proper parlaimentary body there is nothing to prevent an active investigation from proceeding but I cannot see Deputy Gogarty being the star witness !

The views expressed by Peter Connolly are his alone and do not amount to legal advice. For questions or legal advice on any aspect of the criminal law feel free to contact me directly and in private.

Chaytor & Ors, R v [2010] EWCA Crim 1910 (30 July 2010)

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