DPP v Casey

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 21 February 2019
• Neutral Citation: [2019] IESC 7
• Court: Supreme Court
• Docket Number: [S.C. No. 159 of 2017],Supreme Court appeal number: S:AP:IE:2017:000159 [2019] IESC 007 Court of Appeal record number: 2016 nos 258 and 244 [2017] IECA 250 Circuit Criminal Court bill number: DU529/2014
• Date: 21 February 2019

[2019] IESC 7

An Chúirt Uachtarach

The Supreme Court

Charleton J.

O'Donnell Donal J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley Iseult J.

Supreme Court appeal number: S:AP:IE:2017:000159

[2019] IESC 007

Court of Appeal record number: 2016 nos 258 and 244

[2017] IECA 250

Circuit Criminal Court bill number: DU529/2014

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

- and -

Denis Casey

Accused/Appellant

Conviction – Conspiracy to defraud – Point of general public importance – Appellant seeking to appeal against conviction – Whether the defence of “officially induced error” or “entrapment by estoppel” is available in this jurisdiction

Facts: The accused/appellant, Mr Casey, after a six month trial, in the Dublin Circuit Criminal Court, was convicted on 9 June 2016 of conspiracy to defraud and subsequently sentenced to two years and nine months imprisonment. The underlying crime concerned the accounts of Anglo Irish Bank plc and the misstatement of seven transactions as showing a positive balance of €7.2 billion as a deposit. This was that bank’s own money routed through Irish Life Assurance and Irish Life & Permanent plc, of which the accused was chief executive, so as to appear as a deposit from an outside source. The events occurred in the months leading up to the collapse of Anglo Irish Bank, nationalised in January 2009, and the government support, from September 2008 onwards, to Irish Life Assurance and Irish Life & Permanent. At trial, the accused raised numerous defences challenging any contention that the content and presentation of the accounts was at all misleading. Among the accused’s answers to the charge was that he had official authorisation for this form of misleading accounting. His multiple grounds appeal to the Court of Appeal was refused on 30 June 2017. By determination of 29 June 2018, the Supreme Court certified the following as a point of general public importance, later amended on 15 October 2018 at case management: 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.

Held by the Court 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 as to bar the continuation of a criminal prosecution, the accused must prove that he or she 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 or she 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. It follows that in the commission of the offence, there must be no deviation from the apparently authorised conduct. To raise the defence, the accused must precisely describe before the trial judge what he or she did rather than evading responsibility through not admitting conduct. 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. The principle that an accused should not be convicted in the circumstances described in the prior paragraph is rooted in Article 34.1 and Article 38.1 of the Constitution: it is founded on justice and on due process. Notice in writing of both the nature of the answer to an offence charged and how it is claimed to be applicable is part of the proper administration of justice in this regard. The proof of elements of unfairness leading to the trial judge staying a prosecution must be established by the accused on the balance of probabilities. The applicability of this plea in demur is a matter of law for the trial judge. The assessment of whether the accused has met the burden of proof on the facts and whether the legal exception is applicable is ordinarily for a judge of the court of trial to decide.

The Court held that the Court of Appeal correctly dismissed the appeal and that the conviction should stand.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton of Thursday 21 ^st of February 2019

1 After a six month trial before Judge Martin Nolan and a jury, in the Dublin Circuit Criminal Court, the accused Denis Casey was convicted on 9 June 2016 of conspiracy to defraud and subsequently sentenced to two years and nine months imprisonment. The underlying crime concerned the accounts of Anglo Irish Bank plc and the misstatement of seven transactions as showing a positive balance of €7.2 billion as a deposit. This was that bank's own money routed through Irish Life Assurance and Irish Life & Permanent plc, of which the accused was chief executive, so as to appear as a deposit from an outside source. The events occurred in the months leading up to the collapse of Anglo Irish Bank, nationalised in January 2009, and the government support, from September 2008 onwards, to Irish Life Assurance and Irish Life & Permanent. At trial, the accused raised numerous defences challenging any contention that the content and presentation of the accounts was at all misleading. Among the accused's answers to the charge was that he had official authorisation for this form of misleading accounting. His multiple grounds appeal to the Court of Appeal was refused by judgment of Ryan P of 30 June 2017. By determination of 29 June 2018, this Court certified the following as a point of general public importance, later amended on 15 October 2018 at case management:

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.

Charge

2 The charge on which a conviction was recorded to the jury and which is relevant to this appeal was cast in the following form:

Denis Casey, did between the 1st of March 2008 and 30th of September 2008, both dates inclusive, within the County of the City of Dublin, conspire with John Bowe, Peter Fitzpatrick, William McAteer and others to defraud by engaging in transactions between Anglo Irish Bank Corporation plc., Irish Life & Permanent plc and Irish Life Assurance dishonestly to create the false and misleading impression that deposits from a non-bank entity to Anglo Irish Bank Corporation plc during the year ending 30 September 2008 were approximately 7.2 billion larger in amount than they really were, with the intention of inducing existing and prospective depositors with, existing and prospective investors in, and existing or prospective lenders to Anglo Irish Bank Corporation plc to make decisions concerning their deposits or investments in, or loans to the Bank on the assumption that the said Bank received larger deposits from a non-Bank entity during the year ending 30 September 2008 than it really did.

3 Section 149(1) of the Companies Act 1963, now replaced by such provisions as sections 282 of the Companies Act 2014, obliges those in control of a company to prepare accurate accounts. Accounts must show the real picture of the state of a company's financial health. The statutory obligation, the one applicable here, from 1963 states:

Every balance sheet of a company shall give a true and fair view of the state of affairs of the company as at the end of its financial year, and every profit and loss account of a company shall give a true and fair view of the profit or loss of the company for the financial year.

4 Other accounting obligations arise for financial institutions under relevant legislation; section 32J of the Central Bank Act 1942 as inserted by the Central Bank Reform Act 2010 provides that banks “shall keep all proper accounting records of all its transactions.” The fundamental legal requirement, however, is most elegantly stated as the necessity for a company in its accounts to give a true and fair view of the financial health of that company. That obligation remains the fundamental duty of every company and every individual working in the preparation of financial statements. While at trial, it was advanced on behalf of the respective accused persons that the accounting treatment of this transaction was appropriate, that matter was determined at trial by the verdict of the jury. Consequently, this appeal must be approached on the basis that the accounts as presented created a false and misleading impression in respect of the relevant transactions. An appeal, the question for the Court is whether by reason of the matters advanced by the accused that trial should have been permitted to proceed.

5 On the appeal, the circumstances leading to the ultimate nationalisation of Anglo Irish Bank, and its later and still ongoing liquidation, were described by counsel for the accused as unprecedented. As a matter of history, however, many banks collapse. The accused at trial put forward that what was involved was merely the presentation of accounts in their most favourable light, in accordance with legal and professional standards, in order to...