Officially Induced Error, An Exception to the Principle of Criminal Liability

In Ireland we live in a common law jurisdiction and one that holds, that when dealing with criminal law, it is better to let ten guilty persons free rather than imprison a single innocent one. Common law is based on certain principles such as, the principle of legality which provides that the law must be public and precise, and the principle of criminal liability, that ignorance of the law is no excuse. This is only the basis for our legal system because all power must flow from the Constitution; however, Ireland has also ceded certain competencies to the European Union, in particular we are bound by the European Conventions on Human Rights (ECHR). The basis of this article will be rooted in Articles 34.1 and 38.1 of Bunreacht na hÉireann and, Article 6 of the ECHR. These provisions relate directly to the administration of justice by the courts, the due course of law and, the right to a fair trial. The commonality between these three articles, is the requirement to prevent potential acts of injustice. Officially induced error is an answer to the question, is it fair to be punished when the accused has been genuinely misinformed as to the law by relevant authorities? 

Officially induced error is an objection to a trial or criminal proceeding on grounds that the accused had reasonably relied on legal advice that was offered by an authority and it was reasonable to accept that advice as being positively true. This defence was first recognised by The United States Supreme Court in Sherman v The United States and was called entrapment by estroppel, a subset of the entrapment doctrine. The issue for Ireland when looking at United States precedent was that it is a substantive defence which the courts here were reluctant to adopt. Instead, the courts looked to Canada and the case of R v Cancoil Thermal Corporation and Parkinson where it was recognised that  “officially induced error” is available as a defence to an alleged violation of a regulatory statute where an accused has reasonably relied upon the erroneous legal opinion or advice of an official who is responsible for the administration or enforcement of the particular law”.

This can be seen directly in the case of R v Jorgenson; this case involved the prosecution of a video store owner for “knowingly” selling obscene material without “lawful justification or excuse”, out of eight videotapes purchased by undercover police three were found to be obscene and presented at trial. However, it was found that the videos in question had in fact been approved by the film censor’s offices. This lead to the following analysis by Lamer CJ, “In order for an accused to rely on an officially induced error as an excuse, he must show, after establishing he made an error of law (or of mixed law and fact), that he considered his legal position, consulted an appropriate official, obtained reasonable advice and relied on that advice in his actions…If an appropriate official is consulted, the advice obtained will generally be presumed to be reasonable unless it appears on its face to be utterly unreasonable”. Canadian precedent repeatedly places emphasis on that, advice must be given by a public authority who specifically knowledgeable in the topic at hand. That advice must have been objectively reasonable to rely on. 

Officially induced error was first recognised in this jurisdiction in DPP v Casey. This case involved a conspiracy to defraud where the accused was sentenced to 2 year and 9 months in prison. Casey argued that this style of accounting was authorised by the financial regulator and as such he should be intitled to a prohibition of a trial in the pursuit of justice. It was stated in Nash v DPP that defences are a matter for assessment in the pursuit of justice. While the Supreme Court in Casey acknowledge a defence of officially induced error it laid out a stringent test.

1.     The accused in good faith sought legal advice from an authority that a reasonable person would see as possessing such authority as to offer advice on whether conduct as in fact lawful.

2.     The legal advice sought was specific, not vague and described accurately.

3.     The advice offered actually amounted to legal advice which authorised said conduct.

4.     The advice offered specifically covered the issue at hand.

5.     The advice did not reasonably cause the accused to seek further clarification.

6.     The advice was accepted honestly, and the advice was such that any reasonable person would act upon.

7.     There was no deviation from the apparently authorised conduct.

This is essentially an objective test of due diligence and involves a reverse burden of proof on the accused. Casey’s appeal failed on grounds of vagueness, that the exchange offered between the accused and the regulator was too broad to be considered within the perimeter of this test and the persuasive case law at hand. The court further reiterates that, “it is not a response to a criminal charge which justifies conduct… it is instead a legal objection to the continuation of the legal process”. This is a clear rejection of the American approach in which it is a substantive or excusatory defence but is a defence on procedural grounds. This defence must be raised before the trial judge before a jury has been sworn in and, is a matter for the trail judge to decide upon. This would reinforce the decision of the Supreme Court in Shannon Regional Fisheries Board v Cavan County Council where a pure defence of due diligence was rejected. This is interesting because in the above-mentioned case because they hoped to rely on the Canadian case of R v City of Sault Ste Marie which explicitly allowed for a defence of due diligence. It is reasonable to suggest that this old Canadian case laid groundwork for the defence of officially induced error providing that the accused had undertaken sufficient due diligence which is the heart the test because there was already precedent set on grounds of fair proceedings during the course of justice.

What is clear is that a plea of officially induced error must be weighed on the balance of probabilities and not proven beyond a reasonable doubt. However, what is not clear is whether or not the defence will be extended to advice offered by legal practitioners. The continued use of the term “erroneous legal error” may suggest that the courts will entertain a claim that the advice offered by a Solicitor or Barrister could possibly give rise to a successful claim of officially induced error. However, this would still need to be examined against an objective test, the legal practitioner in question would have to be a specialist in the area at issue. They would had to have been formally instructed in the matter specifically and that there would be other very high requirements attached to allow for this defence. Accepting anything would essentially be allowing for a defence of plausible deniability. I would be highly unlikely for the courts to extend this offence to include professionals other than public regulators/authorities for that reason.

In conclusion, the admittance for this defence into precedence is in the interest of justice and fairness keeping in line with provisions of the Irish Constitution and Article 6 of the ECHR. The law is not there to punish but to protect the state and its citizens. However, this plea should only be accepted in exceptional circumstances where the criteria in Casey has been objectively satisfied. Ignorance of the law is no excuse but the circumstances that these accused find themselves in may be better reflected in sentencing at a judge’s discretion in most circumstances rather than an outright plea of officially induced error. One question remains, if the learned trial judges denies a plea of officially induced error may leave still be granted to appeal this ruling after a criminal trial.