THERE HAVE BEEN calls for the Director of Corporate Enforcement to resign after Seán FitzPatrick’s acquittal of all the charges he faced.
The judge in the trial of the former chairman of Anglo Irish Bank yesterday said that he would be directing the jury to acquit Fitzpatrick due to ‘alarming flaws in the prosecution’.
Among these flaws identified by Judge John Aylmer were the coaching of witnesses and the cross-contamination between witness statements.
The flaws were such that he felt FitzPatrick would be denied his right a fair trial.
The Office of the Director of Corporate Enforcement (ODCE) carried out the investigation into FitzPatrick and Judge Aylmer was critical of its conducted.
He said that the Kevin O’Connell, a legal advisor for the ODCE who was designated to run the investigation for the ODCE, had no previous experience relevant to the proper investigation of indictable offences.
“As a consequence of that inexperience, he has admitted in evidence before me and before the jury that he made many fundamental errors in the investigation,” Judge Aylmer said.
As a result, the investigation fell far short of the standard impartial, unbiased and thorough investigation in which the paramount duty was to seek out and preserve all evidence which was or might potentially be relevant to innocence as well as guilt.
He said that the most fundamental error was the manner in which the ODCE went about taking witness statements from the two main prosecution witnesses, Kieran Kelly and Vincent Bergin of EY, who were the statutory auditors for Anglo Irish Bank.
Initially the ODCE intended to follow the usual protocol by sending gardaí seconded to the ODCE to take statements from witnesses but “they quickly lost sight of that” and started a process of drafting statements through A&L Goodbody, solicitors for EY.
Judge Alymer also said the ODCE had taken an “inappropriately biased and partisan approach” to the investigation and said that internal memos showed that they were trying to build or construct a case rather than to investigate the case independently and impartially.
“There were suggestions that questions ought not to be asked, the answers to which might be ‘unhelpful’ to the case being made by the ODCE,” he said.
He said it was conceded by the prosecution that there was a very high degree of suggestion or coaching and contamination by others and cross-contamination in the preparation of the statements.
He said these issues were of grave concern.
Reaction
In response to the judge’s decision, there has been strong criticism of the ability of the State to prosecute white-collar crime.
“The litany of failings pointed to by the judge amount to a damning indictment of those who are supposed to be prosecuting cases of white-collar crime in the State,” Pearse Doherty TD said yesterday evening.
Those bodies are simply not up to the task. The legislative framework is in need of an overhaul to bring it up to what is needed, for example reckless lending is still not a crime in this State. The culture and infrastructure needed to tackle white-collar crime has never been developed in this State.
The ODCE has said that its processes has changed since the investigation was carried out and that it “is a very different organisation to what it was at that time”.
The ODCE also pointed out that its director changed in 2012 since the FitzPatrick investigation.
The new director was, however, in place in April 2015 when ODCE documents were shredded in a ‘calamitous error’.
This is led Labour to call for the director to resign.
“It is astonishing that the Director of Corporate Enforcement presided over an office where documents were shredded and it is truly shocking to learn that witnesses were coached,” said Alan Kelly TD.
“The comments of Judge Aylmer are damning of the ODCE and given the outcome of the case it is incumbent on the director to offer his immediate resignation.”
- With reporting by Declan Brennan
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