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Saturday 23 August 2014

The machinery of justice has a rhythm of its own

The trial of the three former executives of Anglo Irish Bank may well go on for months, writes Gene Kerrigan

Gene Kerrigan

Published 09/02/2014 | 02:30

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From left, William McAteer; Sean Fitzpatrick and Pat Whelan
From left, William McAteer; Sean Fitzpatrick and Pat Whelan

The trial of the three Anglo directors may well set a record for the most boring legal event in the history of the State – which will be a good thing. No surprises so far, everything is already pretty well known to those who were paying attention. The relevant events will now – over the course of some months – be explained in tedious detail to a jury, so they can decide if any law was broken and, if there was, who broke it.

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The three directors, Sean FitzPatrick, Willie McAteer and Pat Whelan, all plead not guilty and can be expected to put up a robust defence.

If you want a glimpse of how boring this process is, recite the following aloud. Say that, "being an official of Anglo Irish Bank PLC" – then name the three directors – "within the county and city of Dublin . . . between the 10th and 17th of July 2008, both dates inclusive . . . unlawful financial assistance . . . in breach of . . . for the purpose of, or in connection with . . . thereby an officer in default . . . Section 60 (15) of the Companies Act 1963, as amended by Section 383 of the Companies Act 1963, and substituted by Section 100 of the Company Law Enforcement Act . . ."

Etcetera, etcetera, etcetera. Then say the same thing again. Say it aloud 16 times. Then read aloud another charge, as applying only to Pat Whelan, and read that a total of seven times, each reading almost word for word the same as the last.

It took the court registrar 24 minutes to read the charges aloud.

It was quite right that there was public discussion and controversy about Anglo Irish Bank and various happenings related thereto. It is equally important that none of that controversy infects the trial. The right of the accused to a fair trial, on the trial issues and on those alone, is as important as anyone's right to discuss the public controversies.

The legal proceedings are concerned only with one aspect of events, the "unwinding" of billionaire Sean Quinn's extraordinary intrusion into the Anglo story and the methods employed to do that.

The less sensational the trial is, the better, the more technical and boring it is, the fairer it will be, dispassionately matching evidence of what happened against the legal boundaries within which company directors must operate.

Even allowing for this necessarily sluggish progress, the first day of the trial proceeded at a pace that would draw nods of approval from any snails in the vicinity.

There is a jury of 15, the extra three sitting in case of illnesses or deaths, to increase the chances that there will be 12 jurors left to reach a verdict after the four months the case is expected to take.

The morning began with one of the 15 dropping out, for undisclosed but apparently worthy reasons. A new juror had to be selected, which meant a video link to another room, over which a gathering of would-be jurors was addressed, then the drawing out of names and the swearing in. One new juror had to be chosen from the two dozen jurors in the other room, so they had to come to Court 19 and join the 14 sitting in the jury box, which meant about 40 jurors crammed into a space where 12 normally sit.

A name was called and the man went up and whispered with the judge and was excused. Then a second would-be juror had a whisper and was excused. And a third. And a fourth.

At which point some of us wondered if we might approach Judge Martin Nolan and have a little whisper and be released from this tortuous place. A fifth would-be juror had a whisper and was excused, then the sixth was selected and we had a jury.

It was now 11.20am, 50 minutes into the proceedings and the jury had to elect a foreman. The judge decided there should be a break until noon. You can see how this might go on for four months.

On resumption, prosecution barrister Paul O'Higgins gave the jurors what he called a "road map" of the case. He explained what companies are and had a look at the industrial revolution, then everyone went for lunch. At 2pm, Mr O'Higgins explained the charges and tried to clarify in ordinary language the extraordinary thing that is the "contract for difference".

It's a way of betting on the movement of shares. If you're right, you make big money; if you're wrong, you lose your shirt. Sean Quinn bet a lot of shirts. Mr O'Higgins explained how Mr Quinn was like a gambler who lost on one horse and then had to keep betting to try to catch up.

Perhaps it would be more appropriate to liken Mr Quinn to one of those hollow-eyed poor souls who sit in front of slot machines in casinos, putting one coin after another into the slot, pulling the handle, the next coin already on its way to the slot before the wheels stop spinning. It's always the next coin that will bring the jackpot gushing. Greed seemed to have made Mr Quinn oblivious to the fact that he'd won the jackpot long ago and was now in the process of throwing it away.

The nub of the case is what happened when the Anglo directors learned what Quinn was up to. They knew that Quinn's actions would destabilise the bank if word got out, so they sought to "unwind" Quinn's investment.

There was a reference to the Anglo chief executive, David Drumm, who, Mr O'Higgins said, "is not before the court, but of whom you'll hear a lot".

Anglo arranged to loan about €175m to Quinn and €450m to 10 selected clients of the bank (the 'Maple Ten'), who were to use the money to buy Quinn's stake.

The State contends that the three directors took actions that were "absolutely illegal". The defendants claim they acted lawfully and on Friday the court heard that the Financial Regulator was 'four-square' behind the deal agreed at Easter 2008.

The case continues.

Irish Independent

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