Monday 16 July 2018

Sean FitzPatrick acquitted on all counts after direction of trial judge

Former Anglo Bank Chairman, Sean Fitzpatrick with his daughter Sarah, after he was acquitted of all charges outside the CCJ court. Picture credit; Damien Eagers
Former Anglo Bank Chairman, Sean Fitzpatrick with his daughter Sarah, after he was acquitted of all charges outside the CCJ court. Picture credit; Damien Eagers
Former Anglo Bank Chairman, Sean Fitzpatrick, after he was acquitted of all charges outside the CCJ court. Picture credit; Damien Eagers

Declan Brennan

The trial of former Anglo Irish Bank chairman Sean FitzPatrick for allegedly misleading the bank's auditors about millions of euro in loans between 2002 and 2007 has collapsed.

On day 126 of the trial Judge John Aylmer this morning said that he intends to direct the jury tomorrow to acquit Mr FitzPatrick of all counts.

His ruling came after lengthy submissions from the defence arguing that the case should not go before the jury because of flaws in the investigation process and in the prosecution case. Lawyers for the Director of Public Prosecution argued that the trial should continue and should be decided by the jury.

Judge Aylmer said that after considering the arguments from both sides he had decided that in the interests of the accused's constitutional right to a fair trial he would direct the jury to find the former banking executive not guilty.

He said that the investigation, carried out by the Office of the Director of Corporate Enforcement (ODCE), fell short of an unbiased, impartial, balanced investigation that an accused is entitled to.

He said the investigation failed to seek out evidence as to the innocence as well as the guilt of the accused.

Former Anglo Bank Chairman, Sean Fitzpatrick, after he was acquitted of all charges outside the CCJ court. Picture credit; Damien Eagers
Former Anglo Bank Chairman, Sean Fitzpatrick, after he was acquitted of all charges outside the CCJ court. Picture credit; Damien Eagers

He said the most fundamental error was the manner in which the ODCE set about taking statements from witnesses. He said this involved coaching of witnesses, contamination of their statements from third parties such as solicitors for the auditors and cross-contamination of their statements between other witnesses.

Judge Aylmer also pointed to the extraordinary circumstances in which the ODCE lead investigator, Kevin O'Connell had admitted destroyed potentially relevant documentary evidence. This happened during legal argument in the first trial in May 2015 and emerged during that process.

That trial was then stopped and the retrial of Mr FitzPatrick began last September. It was scheduled to last three months but quickly became bogged down in weeks of legal argument in the absence of the jury.

Lawyers for Mr Fitzpatrick claimed that two key witnesses from Ernst&Young, Anglo's former auditors, were coached by investigators.

They also argued that the statements by these witnesses were put together by the investigators as well as by lawyers for Ernst&Young. Finally they said that entire sections from one statement ended up in the other statement.

The prosecution had alleged that Mr FitzPatrick (68) of Whitshed Road, Greystones, Co Wicklow had failed to disclose to the bank’s auditor Ernst and Young the details of director’s loans he received from Anglo between November 2002 and February 2008.

He pleaded not guilty to 27 offences under the 1990 Companies Act. These include 22 charges of making a misleading, false or deceptive statement to auditors and five charges of furnishing false information in the years 2002 to 2007. The DPP had dropped some of these charges in the last four weeks.

The prosecution came on foot of an investigation by the ODCE that began shortly after the full size of Mr FitzPatrick's personal loans emerged in December 2008. Between 2005 and 2007 the loans from the bank linked to the chairman had quadrupled to around €122 million.

The revelations led to Mr FitzPatrick resigning as chairman.

Mr FitzPatrick has said his prosecution for allegedly misleading the bank's auditors about millions of euro in loans was a difficult time for him and his family.

Speaking after the ruling the former bank executive said "I want to say it was a very long and tiring and difficult time for my family, myself but thankfully today the trial is over.

“As you can appreciate it's a wonderful day for me and my family.”

He paid tribute to his legal team and also said he appreciated the media's restraint during the current trial, adding: “I would hope that my privacy and that of my family is respected in the coming days."

The trial at Dublin Circuit Criminal Court was a retrial after the first trial in May 2015 ended following weeks of legal argument over the flaws in the ODCE investigation.

Mr FitzPatrick was charged in December 2012 after being arrested at the Bridewell Garda Station.

He was brought before Dublin District Court where fraud squad Detective Inspector Raymond Kavanagh told the court that Mr FitzPatrick said “no comment” in reply to 12 charges of knowingly or recklessly making false, misleading or deceptive statements to Anglo's auditors from 2002 to 2007.

This morning Mr FitzPatrick looked initially taken aback when Judge Aylmer made it clear at the start of a lengthy ruling, that he intended to direct an acquittal. Judge Aylmer said it would give rise to further unfairness if he didn't inform the defendant immediately.

He said he was making his ruling because of real concerns that the defendant was being denied his constitutional right to a fair trial.

Mr FitzPatrick broke into a smile as the decision sunk in and his daughter Sarah, who was present during much of the trial process, broke into tears. After Judge Aylmer finished his ruling and rose, Ms FitzPatrick stepped into the dock and cried while she and her father embraced.

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