State has emerged with most damning indictment
Published 30/04/2014 | 02:30
IF Anglo trial judge Martin Nolan was a chat show host, he could have said at the start of his sentence: "Roll it there Mark [the name of his registrar], there's one for everyone in the audience."
You may be outraged that two bankers who gave out €450m worth of illegal loans to shore up Anglo's share price have been spared jail.
But such is the ingenuity of Judge Nolan's sentence that it had something in it for everyone.
I would hazard a barfly guess that Judge Nolan's ruling is unlikely to attract too much protest by either the prosecution or the defence.
Having been spared a jail term of up to five years, Pat Whelan and William McAteer – who will be assessed for their suitability for community service – are unlikely to mount appeals against their convictions or sentence.
The men, who had no previous convictions, are automatically disqualified from acting as company directors for five years.
That sanction comes with its own consequences, but it is nothing compared to being Ireland's first bankers behind bars.
Judge Nolan's sentence and, critically, his factual rationale for not sending the Anglo duo to jail, will surely make the State think twice about an appeal and, potentially, its strategy in future post-bailout proceedings.
Whelan and McAteer were spared jail because of Judge Nolan's findings of fact in relation to the role of former Financial Regulator Pat Neary, his second-in-command Con Horan, as well as legal advice that may or may not have been provided to Anglo.
At heart, Judge Nolan said that he couldn't imprison the two men when a state agency – ie, the Regulator – had led them into error and illegality.
It was Whelan and McAteer who faced trial and conviction, but it is the State that has emerged with the most damning indictment.
There were two schemes to unwind businessman Sean Quinn's secret stake in Anglo: both involved lending to buy shares in Anglo.
The first scheme was hatched in March 2008 after the so-called St Patrick's Day Massacre on Anglo's shares.
This written agreement, which was sent to the Regulator's office, involved loans of €460m to the Quinns.
But the scheme did not proceed because institutional investors were as scarce as hens' teeth.
However, Judge Nolan ruled – as a matter of fact – that Neary and Horan "must have known" from March 2008 that it was intended that Anglo was going to be lending money to buy its own shares as part of the unwind scheme.
The Regulator did not query the legality of the March scheme and did not take advice from colleagues in other state agencies.
Judge Nolan said that it was incredible that no red lights went off at this stage.
The difference between the March 2008 agreement and the Maple 10 transaction, which occurred in July of that year, was that the Maple scheme actually went ahead, even though it involved different parties.
Judge Nolan ruled that even if the Regulator did not know in July 2008 that there would be some lending to the Maple 10, it knew there would be lending to the Quinns, if only on a short-term basis.
In a damning riposte to the State, Judge Nolan said that it seemed the Regulator didn't realise the law was being broken or chose to disregard it – and said he was not sure which one was which. Judge Nolan accepted the submissions of the prosecution throughout the trial on almost every legal argument, including the exclusion of legal advice and the role of the Regulator from the jury's consideration.
He ruled that extending loans to stabilise Anglo's share price was a breach of the law.
This makes it difficult for the prosecution to complain he erred in law or in principle.
But in sparing Whelan and McAteer jail terms, Judge Nolan has drawn the prosecution into a factual bind, one that places a key arm of the State – the regulator – in the eye of the illegality storm. There was a blatant breach of the law, but the State turned a blind eye to it.