Sunday 20 January 2019

A major prosecution was left in the hands of an inexperienced solicitor


Kevin O’Connell, the ODCE legal adviser who led the investigation. Photo: Collins
Kevin O’Connell, the ODCE legal adviser who led the investigation. Photo: Collins
Gene Kerrigan

Gene Kerrigan

When Sean FitzPatrick walked free of the charges against him, wild allegations flew.

Such conspiracy theories offer simple explanations, easily understood. A kind of psychological comfort food.

The truth is more complex. And the truth is: the State, in the Celtic Tiger years, was in awe of the bankers and their rich clients. It ensured that their activities were lightly policed. After the economic crash, when the State was called on to prosecute people such as Mr FitzPatrick, it did so reluctantly.

And the tools the State employed were, to say the least, ill-suited to the job.

We did not in 2009, and do not now, have the structures and the personnel in place to ensure that people of wealth obey the laws.

And when we suspect they have broken the laws, we did not then, and we do not now, have the structures and personnel to make them accountable.

The law is for little people.

There are many in the establishment who would gladly have sacrificed their old mate Seanie rather than have the reality of the legal system so crudely laid bare. We should not, by conjuring up fanciful conspiracy theories, help them disguise this reality.

The crimes alleged against Mr FitzPatrick occurred between 2002 and 2007. That's where we can look to understand last week's events.

It was a period in which self-described "entrepreneurs" were treated as secular saints, engaged in the sacred rituals of the market. Only begrudgers questioned the way in which virtually the entire economy was left at the mercy of people who specialised in borrowing and lending money.

No one was louder in glorifying the grab-it culture than our Seanie. "We had ideas, and we had balls," he said in a 2005 speech. "We worked the scene and maximised the moment, the world watched in astonishment."

The result? "We have done very well by Ireland."

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From the end of the 1990s, it was clear the freebooting Celtic Tiger economy urgently needed regulation. And some outfit to police it. The shameless hustling was giving us a questionable reputation. We needed to be able to point to regulatory bodies.

Many businesses paid little attention to the rules of company law. Only 13pc of companies even bothered to file returns on time. Honest business people were handicapped in competing with those who ignored the law.

Already, the world's chancers were flowing to Ireland. There were 40,000 "non-resident" companies. It was ­widely understood that Ireland had become a kind of motel for sleazy international business people. One of those motels where you rent rooms by the hour.

Stick up a brass plate and slip our lawyers and accountants a few bucks and they'll see your needs are satisfied.

We were the "Wild West" of the financial business, as The New York Times phrased it.

In 2001, we set up the Office of the Director of Corporate Enforcement (ODCE).

In 2003, we had the Companies (Audit and Accounting) Bill. This would merely require company directors to sign a few forms attesting that there was nothing hooky going on in their outfits.

But even this went too far for some. The bill was watered down.

Business figures kept up a steady drumbeat of complaint about how regulation stifled them (they still do).

In 2004, the Government published a white paper titled 'Regulating better'. It discussed ways of watering down regulation.

In 2005, EU Commissioner Charlie McCreevy demanded that "the cost of regulation must be reduced". There was boasting of our "light-touch" regulation.

In 2007, the ODCE had just 36 staff members. Nevertheless, it disqualified 1,600 directors, took hundreds to court and referred €48m to Revenue, for taxing.

It worked hard and it was cost efficient. It spent just €2.9m of its €4.5m budget.

While the ODCE took its job seriously, regulators were largely treated as a nuisance. They were considered by some to be at best a fig leaf, to give the banks respectability. They were not expected to meddle in the affairs of the big players in the financial markets, and were not equipped to do so.

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The director of the ODCE had for two years been requesting another 20 staff. Cases were dropped due to lack of personnel. The delay was mentioned in the Dail in February 2007. Taoiseach Bertie Ahern responded that the ODCE would have to "wait a few more years if the staff are required".

A year later, the financial business collapsed. Eventually, Mr FitzPatrick faced criminal accusations. The job of prosecuting him fell to the ODCE - a fledgling, understaffed body just seven years old.

The ODCE had done excellent work policing the fine print of company law - it had no experience at all of handling major cases in the criminal courts.

We now know that the person running the case, Kevin O'Connell, had never handled a criminal prosecution; he believed himself to be lined up as a scapegoat; he panicked and destroyed documents after mismanaging them.

Magically, the great institutions of criminal law - the office of the DPP, the Attorney General's office and the police - melted away.

It never occurred to anyone to check - not just to ask - but to check that the ODCE was equipped to do the job.

Bear in mind the staffing of the ODCE was known to be a problem and had been a matter of Dail controversy.

In other jurisdictions, prosecutors would have been queuing up for a chance to make their names in such a high-profile case, involving matters central to the observance of crucial laws.

Here, it was left to a solicitor with no experience of criminal work.

If Mr FitzPatrick had been suspected of shoplifting, we'd have had the mechanism to prosecute; if it was suspected he didn't sign off the dole for a couple of weeks after he got a nixer, Fine Gael politicians would fight one another to be first to appoint a prosecutor.

We still don't have, or want, the mechanism necessary to prosecute the elite if they're suspected of serious crime.

In 2010, the ODCE had 45 staff, with 10 gardai. In 2016 the figures were 35 and five.

Sunday Independent

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