Business Irish

Friday 15 December 2017

Dearbhail McDonald : US trade surplus report could sour Irish luck

Caitriona Perry reacts as US President Donald Trump speaks to her in the Oval Office
Caitriona Perry reacts as US President Donald Trump speaks to her in the Oval Office
Dearbhail McDonald

Dearbhail McDonald

My heart went out to my friend and colleague Caitriona Perry when RTE's simply outstanding Washington correspondent was thrust into the international limelight last week following a "bizarre" encounter in the Oval Office with US President Donald J Trump.

On the phone to newly-appointed Taoiseach Leo Varadkar, Trump made the unusual move of inviting Perry to his desk. "Caitriona Perry, she has a nice smile on her face, so I bet she treats you well," said Trump to the Taoiseach, before a smiling but stoic Perry retreated back to the press corps.

Trump used the phone call to congratulate Varadkar on his "great victory", telling the Fine Gael leader that there were so many Irish people in America - and how he felt he knew all of them.

So far, so 'special relationship'.

How much Trump really loves the Irish is currently being tested by the plight of thousands of undocumented Irish in America, who are living in fear of arrest and deportation for immigration violations. Trump's plans to reduce the rate American companies pay on their profits to 15pc - just above Ireland's 12.5pc rate - also spooked policy makers here.

But the true test of the special Ireland-US relationship could lie in the fallout from the receipt of a publication of an "Omnibus Report on Significant Trade Deficits" that was ordered by Trump on foot of an executive order. Ireland was identified by the White House as one of a group of countries running an "unfair" trade surplus with the US.

This country was named by Commerce Secretary Wilbur Ross, the billionaire who tripled the value of his investment in Bank of Ireland after investing in BoI at the height of the financial crisis, as the country with the fifth-highest trade surplus with the United States.

Ireland registered a $36bn (€31.5bn) surplus with the US last year, the multinational pharma sector accounting for much of Irish exports to the US.

America has been consumed with fears that Trump will start a trade war with China by imposing tariffs on steel and other imports. It doesn't help that China is reeling over a US decision to impose sanctions on a Chinese bank accused of laundering North Korean money. But if Trump fulfills his campaign promise to support American workers and "end unfair trade practices once and for all", Ireland could find itself in the trade surplus firing line. It's time to keep the White House on speed dial and, like Perry, grin and bear it in style.

* * * * *

The failure of two former bank executives to overturn their convictions for a €7.2bn conspiracy to defraud must have come as a welcome and increasingly rare relief to the Office of the Director of Public Prosecutions.

Last year, the former head of capital markets with Anglo Irish Bank, John Bowe, and the former chief executive of Irish Life and Permanent, Denis Casey, were each found guilty of conspiring to mislead investors by using interbank loans to make Anglo appear €7.2bn more valuable between March 1 and September 30, 2008.

Bowe and Casey were jailed for two years and two years and nine months respectively. However, last Friday, in a 138-page judgment, the Court of Appeal upheld Bowe and Casey's convictions, despite the men's extensive grounds of appeal, including arguments about the role of the State authorities, among them the former Financial Regulator.

Bowe and Casey were jailed last year following what was then the longest criminal trial in the history of the State.

That longest-ever-trial precedent was then usurped by former Anglo chairman Sean FitzPatrick's epic acquittal last April on all charges of misleading auditors and furnishing false information about multimillion-euro loans to him and people connected to him between 2002 and 2007.

FitzPatrick was acquitted on day 126 of his (second) trial after presiding judge John Aylmer ruled that the investigation carried out by the Office of the Director of Corporate Enforcement (ODCE) fell short of the impartial, unbiased investigation that an accused person is entitled to.

The conduct of the State and its agencies, including the DPP and the ODCE, in the FitzPatrick trial was, by any stretch of the imagination, staggering.

Two key witnesses were coached, the judge ruled. The ODCE failed to seek out evidence of FitzPatrick's innocence as well as guilt. And, in a plot line that would have been removed from a Netflix series for being too incredible, evidence that could have been of assistance to the defence - and by extension damaging to the prosecution - was shredded by the ODCE's chief investigator during FitzPatrick's first trial.

In the wake of the collapse of the trial, former Minister for Jobs, Enterprise and Innovation Mary Mitchell O'Connor ordered the ODCE to produce a report into what went wrong - hardly the most independent or inspired means of ascertaining the anatomy of a State blunderbuss.

Will the ODCE eviscerate itself for contaminating the investigation? Will the Law Society investigate the law firm involved in the statement-making process that led to the finding that the key witnesses had been coached? Will the inquiry hold the Office of the DPP to account for persisting with a prosecution that was fatally flawed?

The failure of Bowe and Casey's appeals following FitzPatrick's dramatic acquittal tells its own story of the challenges of prosecuting white-collar crime. In reality, nobody wanted to drop the ball in the FitzPatrick case. And so a game of pass-the-parcel was played until Judge Aylmer, who hadn't even been appointed to the bench during FitzPatrick's first trial in 2015, called a halt before the long-suffering jury could make up its mind.

The case is often made for juries to be stood down in complex white-collar cases. Seven years ago James Hamilton, the former DPP, favoured reconsideration of how complex and lengthy white-collar criminal trials might best be held, with alternatives such as expert specialist juries or panels of judges, similar to the Special Criminal Court, mooted at that time.

However, the failed efforts of Bowe and Casey to overturn their convictions arguably makes the case for the retention of juries in such trials. The Court of Appeal ruled in Bowe and Casey's appeal that the duo's trial was satisfactory and their convictions safe despite "herculean" efforts by the men's barristers.

In the wake of the acquittal of the Jobstown Six, which placed conspiracy theories about jury trial in a ha'penny place, attention has turned once again to the conduct of the State and its agencies, particularly the gardai.

There is a huge cost to the State in running complex trials and an even greater cost when it doesn't. But when it's the State whose conduct collapses them, the cost to public confidence in the administration of justice is well and truly crippling.

Sunday Indo Business

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