New Appeal: Is the defence of officially induced error (or entrapment by estoppel) available in this jurisdiction?

In this determination, Director of Public Prosecutions v Casey, the Supreme Court granted Casey, former chief executive of Irish Life and Permanent, leave to appeal on whether the trial judge should have allowed him to raise the defence of officially induced error at his trial for conspiring to mislead investors (Anglo Irish case). The Court granted leave on the questions:

whether the defence of “officially induced error” 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.

 

Background

The Dublin Circuit Criminal Court found Casey (and others) guilty of a single count of conspiring to mislead investors by circulating funds between Irish Life Assurance and Anglo-Irish Bank for the purpose of inflating Anglo’s deposit balance by €7.2 billion. At trial, Casey sought to introduce a defence of officially induced error, which is known in the US as entrapment by estoppel. It was his case that the financial regulator, the Central Bank and the Department of Finance knew of and approved of the scheme.

The trial judge refused to allow Casey raise that defence, finding that the evidence presented could only go towards mitigation.

The Court of Appeal dismissed Casey’s appeal, setting out the test for a defence of officially induced error as:

(i) The accused must have considered the legal consequences of their actions and sought legal advice;

(ii) The legal advice must have been obtained from appropriate government officials who were involved in the administration of the law in question;

(iii) The legal advice must have been erroneous;

(iv) The legal advice must have been relied upon;

(v) The reliance must have been objectively reasonable.

Casey sought leave to appeal to the Supreme Court. He argued that the authorities from the US and Canada did not support the CoA’s finding that it was necessary that an accused show that they had obtained legal advice on the illegal act.

The Supreme Court determined that Casey had raised an issue of general public importance and granted leave to appeal.

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