Saturday 17 November 2018

Recent innovation may feature in sentencing

Gavel and law books
Gavel and law books
Dearbhail McDonald

Dearbhail McDonald

The trial of three former Anglo executives was unprecedented on so many levels.

And the forthcoming sentencing hearing of Pat Whelan and William McAteer may also be somewhat unique.

This is because the final phase of the trial could involve a Newton hearing, a relatively recent innovation in sentencing law on both sides of the Irish Sea.

Newton hearings are generally used where a defendant wants to be sentenced on a factual basis that significantly differs from what the prosecution alleges.

The prospect of a Newton hearing was canvassed during the Anglo trial, in the absence of the jury.

The jury were told, following a series of rulings by trial judge Nolan, that they could not consider a range of issues including the taking of legal advice by Anglo in advance of the July 2008 deal, or the role of the office of the Financial Regulator.

However, matters such as the content and quality of "positive" legal advice received by Anglo in advance of the deal and the regulator's knowledge of the deal may be raised at sentencing.

This is particularly in light of the prosecution's submission, in the closing speech to the jury, that a March 2008 agreement – which did not go ahead – was probably unlawful.

In summing up, the prosecution said that the regulator certainly knew "and may well have approved" the March 2008 deal which involved lending to the Quinns.

This agreement may have been "fraudulent" and "probably unlawful" said prosecutor Paul O'Higgins SC.

The sentencing hearing will take place on April 28 next.

Irish Independent

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