Sunday 25 September 2016

Anglo Three did not gain personally, but paid a high price for their loyalty

Published 01/08/2015 | 02:30

The Anglo Three: Bernard Daly, Aoife Maguire and Tiarnan O'Mahoney
The Anglo Three: Bernard Daly, Aoife Maguire and Tiarnan O'Mahoney

Impunity. It's a loaded, often misused word in ordinary parlance. But it has specific meanings and tends not to be used lightly, especially by the legal people.

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Impunity means exemption or immunity from punishment, recrimination or unpleasant consequences.

And yesterday it formed a key part of a legal submission by Senior Counsel Sean Guerin to mitigate the punishment handed down to his client Bernard Daly.

Daly, along with Tiarnan O'Mahoney - ironically pipped at the post for the role of CEO of Anglo by David Drumm - was jailed along with their much junior former colleague Aoife Maguire.

The two-month-long trial was at times complicated and tedious, as tax and conspiracy allegations tend to be - but the jury stuck with it.

At heart, the convictions turned on a now-proven scheme to protect Sean FitzPatrick, the one man who featured heavily in the landmark prosecution, but not as a witness or defendant.

Although the Anglo Three are the first bankers to be jailed since the onset of the financial crisis, the offences pre-dated it by a long mile, but only became apparent after the bank hit the wall.

When the Revenue Commissioners began investigating bogus non-resident accounts that might attract DIRT tax in the late 1990s, Anglo told a lie - a big lie.

It said that it had no such accounts, but a tax amnesty (availed of by some of its own account holders) flushed that lie out, leading to an internal audit and a court order in 2003 in favour of the Revenue to conduct its own audit.

As with many lies, Anglo's initial lie gained traction.

Anglo, renowned for ticking all its corporate governance boxes, set up a team to help the Revenue whilst simultaneously protecting Mr FitzPatrick.

Yesterday, trial Judge Patrick McCartan said the team was put together at the request of Tiarnan O'Mahoney, overseen by Bernard Daly, while Aoife Maguire played a key role to sift out anything that might be embarrassing for the chief executive and liaise with O'Mahoney whilst doing so.

The Anglo Three were jailed for misplaced loyalty to Sean FitzPatrick.

The absence of Mr Fitzpatrick from courtroom 19 featured large during the trial. The prosecution itself told the jury that Mr FitzPatrick was "the thread running through" the charges, whilst telling them they weren't there to consider his role.

Yesterday Judge McCartan was expressly invited to consider Mr FitzPatrick's absence once again, when Mr Guerin asked him to bear in mind that the case against Mr FitzPatrick - never charged in relation to the scheme - was stronger than the one against his client Bernard Daly.

Mr Guerin asked the judge to "consider the impunity that Mr FitzPatrick has been fortunate enough to meet in these matters".

And Brendan Grehan SC told Judge McCartan that Mr FitzPatrick was the "prime mover" and main beneficiary.

When she was half-carried, trembling and hyperventilating, out of the dock last Thursday - having just been told she was being remanded in custody - Aoife Maguire rocked back and forth, quietly crying "it's not fair, it's not fair".

Is she right?

Unusually, none of the jailed Anglo bankers personally gained anything from their scheme. Now they are serving fairly stark sentences, what some might say is a very high price to pay for their loyalty to Mr FitzPatrick.

And yet, it's not as morally or legally simple as that.

Whatever their motivation and even if the Office of the Director of Public Prosecutions decided to stage Hamlet without the Prince, the Anglo Three were still found to have broken the law.

Financial crime is no longer being treated in the eyes of the citizen or State as victimless.

The sentences handed down to the Anglo Three may, at first, seem harsh.

They sentences are, however, consistent with principles and tariffs that have been floating down from the superior courts in recent times.

It is a reminder that staff must be willing to consider the price they are willing to pay for their loyalty.

Some staff at Anglo said 'no' and may have paid a price in the immediate term when they didn't make the team.

Unlike their colleagues, they still have their freedom and reputations in hand.

Irish Independent

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