knowledge 8 July 2019 |

White Collar Crime: Officially Induced Error can halt a Criminal Trial

In DPP v Casey,¹ the accused had been convicted of conspiracy to defraud for the misstatement of seven transactions showing a positive balance of €7.2 billion as a deposit in the accounts of Anglo Irish Bank plc. In fact, this was that bank’s own money routed through another financial institution so as to appear as a deposit from an outside source. The accused was chief executive of that latter financial institution.

At trial, one of the accused’s answers to the charge was that he had official authorisation for this form of misleading accounting. Following his conviction and first unsuccessful appeal, the Supreme Court then certified the following question for a subsequent appeal as a point of general public importance.

“Whether the defence of ‘officially induced error’ or ‘entrapment by estoppel’ is available in this jurisdiction and, if so, what its parameters are and whether it was open to the applicant on the evidence in this case.”

In recognising officially induced error as an answer to a criminal charge in Ireland, the court concluded that:

• An answer to a criminal charge of officially induced error is an exception to the rule that ignorance of the law, or mistake as to the law, cannot excuse criminal conduct;

• For officially induced error to be accepted so as to bar the continuation of a criminal prosecution, the accused must prove that he went in good faith to seek legal advice from the authority that a reasonable person would see as possessing ostensible authority to advise on whether a proposed course of conduct was or was not lawful;

• In seeking advice, it is not enough that an accused give a vague outline to that authority of what he proposes. Instead, the proposal about which legal advice is sought must be specific, describing accurately that conduct which is the subject matter of the later criminal charge;

• What the official advises must be specific and must amount to legal advice, or advice of mixed law and fact, in a manner which clearly and unequivocally authorises the conduct as a matter of law;

• It is not sufficient for the advice to be such as to reasonably put the accused on notice to make further enquiries;

• The advice must cover the situation in issue;

• That advice must be accepted honestly by the accused and must be such that a reasonable person would be likely to act on it;

• In the commission of the offence, there must be no deviation from the apparently authorised conduct; and

• To raise the defence, the accused must precisely describe before the trial judge what he did rather than evading responsibility through not admitting conduct.

The court went on to explain that officially induced error is not a justificatory or excusatory defence in criminal law: rather, it amounts to a legal objection to the continuation of the criminal process rooted in Article 34.1 and Article 38.1 of the Constitution and founded on justice and due process.

An accused seeking to rely on officially induced error or the indistinguishable entrapment by estoppel should raise the matter by written notice to be dealt with by the trial judge before the jury is sworn. The accused must establish on the balance of probabilities the elements of unfairness leading to the trial judge staying the prosecution. If the accused is successful, that ends the trial. If not, the facts underlying the defence become irrelevant to the criminal trial run in front of the jury. However, if it ultimately transpires that an accused was foolish or mistaken in acting as he did, this may be pleaded in mitigation of sentence.

Comment

Although the court ultimately concluded that an answer of officially induced error could not succeed on the facts of this particular case, the judgment is significant as it recognises for the first time that this type of legal objection can halt a criminal trial in Ireland. However, it is clear from the rigorous test set out by the Supreme Court that it will only be in exceptional circumstances that such an argument will prevail.

The Investigations and White Collar Crime Group or your usual contact at McCann FitzGerald would be pleased to provide further information.