The Supreme Court has recognised that an accused person may ask a court to stop a criminal prosecution on the basis of officially induced error, but ruled that the plea was not available to Denis Casey on the evidence in his case.
In a judgment delivered on 21 February 2019, Mr Justice Peter Charleton said the plea is a legal objection to continuing a criminal process, rather than a substantive defence to guilt. The accused must prove its elements on the balance of probabilities, and the issue is for a judge, ordinarily the trial judge, to decide.
The court said an accused must have sought advice in good faith from an authority a reasonable person would regard as having authority to advise on the law. The person must have described the proposed conduct specifically and accurately, received clear and unequivocal legal advice that it was lawful, honestly relied on that advice, and acted without departing from what was authorised.
Casey had been convicted by a jury in the Dublin Circuit Criminal Court of conspiracy to defraud and sentenced to two years and nine months’ imprisonment. The charge concerned transactions through which Anglo Irish Bank’s own funds were routed through Irish Life Assurance and Irish Life & Permanent, creating the impression that the bank had received about €7.2 billion in deposits from an independent source. The Supreme Court said the appeal had to proceed on the basis of the jury’s verdict that the accounts created a false and misleading impression.
Casey argued that official discussions about support between Irish banks, and the Financial Regulator’s alleged awareness of or failure to challenge the transactions, could support a plea of official sanction. The judgment recounted his evidence that he had not asked the regulator about the September transactions before they occurred, and that he had no advance discussion with it about the March transactions.
Charleton J concluded that the material could not establish the required official advice. General discussion of an agenda to support Irish banks did not authorise the specific transactions. Nor did an official’s alleged silence or failure to object after the event amount to approval. The trial judge had therefore been correct to exclude any mention of officially induced error before the jury.
The Supreme Court dismissed Casey’s appeal and said his conviction should stand. It did not decide whether entrapment is a defence in Irish law; the judgment said that question was unnecessary to resolve in this appeal.