Tuesday 17 July 2018

Can we be sure that a disaster like this won't occur again?

Although Anglo was the author of the scheme, Casey authorised Irish Life & Permanent’s involvement and had behaved “disgracefully” (Stock picture)
Although Anglo was the author of the scheme, Casey authorised Irish Life & Permanent’s involvement and had behaved “disgracefully” (Stock picture)
Dearbhail McDonald

Dearbhail McDonald

There are a lot of things I dislike about the US criminal justice system when it comes to the prosecution of white collar or economic crime.

Mainly the presumption of guilt, the extreme sentencing regime which gives rise to a dubious plea bargaining system and the obligatory, exploitative perp walk.

But there's no doubt that it's a highly effective form of satisfying the public's need for accountability - or vengeance.

Yesterday's jailing of three former bankers who engaged in a €7.2bn conspiracy to defraud in September 2008, as Ireland's economy teetered on the brink, for me bore all the hallmarks of a sickly sugar crash.

The initial satiation of that rare thing, the jailing of bankers, was quickly followed by feelings of fatigue, lethargy and irritation.

The jailing of former Anglo Irish Bank executives John Bowe and Willie McAteer, and also Denis Casey, the former chief executive of Irish Life and Permanent was bang to rights.

A most diligent and dedicated jury found, after the longest criminal trial in modern Irish history, that the three men had engaged in a scheme to bolster Anglo's balance sheet by setting up a €7.2bn circular transaction scheme between March and September 2008.

In the words of trial judge Martin Nolan, a former detective to boot, what the men had done - manufacturing €7.2bn of deposits by ''obvious sham transactions'' - was reprehensible.

Read More: Three top bank execs jailed for 'dishonest, corrupt' Anglo fraud

It's hard to disagree with that conclusion. But what of the other players, for want of a better word, who were not prosecuted or who were afforded immunity?

What about the choice of charges, conspiracy to defraud, rather than market abuse - which might have captured more potential accused persons, including State officials?

What of our gilded phalanx of professional services firms tasked with ensuring blue chip company accounts are true and fair?

Yesterday Judge Nolan took Ernst and Young, Anglo's former accountants, to task when he said it beggared belief that they had signed off on Anglo's interim accounts, published as "true and fair", if they knew the real situation.

Judge Nolan said that the firm should have known the true situation at least by the end of October 2008 if they had been doing their job properly, adding that he didn't know if it was blindness or wilful blindness on the accountants' part.

What, then, of State bodies such as the Office of the Financial Regulator, that sanctioned the now infamous "green jersey agenda"?

During the trial, Judge Nolan gave a salient ruling on the role of regulator.

Read More: Fall from grace complete as former corporate titan swaps boardroom for cell

Over six days in the absence of the jury, prosecutors fought tooth-and-nail to exclude any reference to advice from the regulator to engage in a "green jersey agenda" by helping each other to get through the 2008 financial crisis.

In the so-called regulatory ruling last February, Judge Nolan - who ruled that the role of the regulator could be raised in mitigation at sentence, but not as a defence - said it was his view that the regulator condoned optics-based balance sheet management.

Judge Nolan found, reluctantly, that there was no defence of entrapment (the US has a dedicated defence of officially induced error) open to the men.

But he found that the regulator was "pretty hands-on" and put the seed in Casey's mind of that "green jersey agenda".

And that Casey acted on it.

Yet when it came to yesterday's sentencing, the role of the regulator seemed to evaporate, the State body receiving, in my view, barely a light dusting.

Perhaps that is why I feel a little hungover by the outcome.

Yes, the bankers have gone to jail, though they may not stay there in the event of a successful appeal. Where are the institutions of State in all of this? And are we any closer to ensuring it never happens again?

Dearbhail McDonald is INM Group Business Editor

Irish Independent

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