Supreme Court recognises that criminal trials may be prohibited for ‘officially induced errors’

Speed Read

  • 'Officially induced error' relates to circumstances where a person relies on incorrect advice from an official authority as to the law, resulting in the commission of a criminal offence by that person. 
  • In recognition of the potential injustice that would be caused by a guilty verdict, the Supreme Court has endorsed officially induced error as an exception to the rule that ignorance of the law is not a defence. 
  • If successful, a plea of officially induced error will result in trial being prohibited in the interests of justice. 
  • However, a stringent test must be met in order to rely on such a plea. 

Officially induced error

The Supreme Court last week recognised for the first time in DPP v Casey [2019] IESC 7, that a criminal trial can be prohibited due to officially induced error. In agreeing to hear the appeal in this case, the Supreme Court had certified the question of the availability of this 'defence' in this jurisdiction as a point of general public importance. 

A plea of officially induced error is an exception to the rule that ignorance of the law does not excuse criminal conduct; it means that where a person relies on advice given by an official authority and commits a criminal offence as a result of reliance on that advice, they may be able to avoid a guilty verdict.  However, the Supreme Court heavily limited the circumstances in which officially induced error could be relied on and there are a number of hurdles to be overcome in order to plead it successfully. 

Procedural issue, not substantive defence

In delivering the judgment of the five-judge court, Charleton J held that officially induced error can be an answer to a criminal charge. However, it is not a substantive or excusatory defence that vindicates the accused or finds the criminal conduct at issue did not occur. Rather, it amounts to a legal objection to the continuation of the criminal process similar to claims to prejudice arising from prosecutorial delay / missing evidence. In this regard, the Court followed authorities from Canada rather than the US (where it is a full defence). 

The essence of a plea of officially induced error is rooted in the Constitution's guarantee of procedural fairness and trial in due course of law. It amounts effectively to an argument that in the circumstances a guilty verdict would amount to an affront to justice. It is a matter for the trial judge, not the jury, as to whether to allow a plea of officially induced error. 

Stringent test

Though the Supreme Court recognised a plea of officially induced error, it set out a stringent test to be met which limits the scope of the plea. Officially induced error is a very narrow exception to the rule that ignorance of the law does not condone criminality. 

Proof of the requisite elements of unfairness, to lead a trial judge, to block a prosecution, must be established by the accused on the balance of probabilities, not beyond a reasonable doubt. To raise this plea, the accused must precisely describe before the trial judge what he did rather than evading responsibility through not admitting conduct.

In particular, for officially induced error to prohibit a prosecution, the accused must prove: 

  • That he went in good faith to seek legal advice from an authority that a reasonable person would see as possessing ostensible authority to advise on whether a proposed course of conduct was not lawful; 
  • That the proposal about which legal advice was sought was specific, not vague, and described accurately the conduct which is the subject matter of the later criminal charge; 
  • That what the official advised was specific and amounted to legal advice which clearly and unequivocally authorised the proposed conduct as a matter of law; 
  • That the advice covered the situation in issue; 
  • That the advice was not such as to reasonably put the accused on notice to make further enquiries; 
  • That the advice must have been accepted honestly by the accused and was such that a reasonable person was likely to act on it; and 
  • That there was no deviation from the conduct apparently authorised in the commission of the offence. 

The parameters the Supreme Court has put on a plea of officially induced error mean that it will likely apply only in exceptional cases. 

For more information on this topic please contact Kenan Furlong, Partner or any member of A&L Goodbody's Litigation & Dispute Resolution team.

Date published: 6 March 2019