Saturday 17 February 2018

Spotlight on ODCE, Gardaí and DPP as FitzPatrick defence team labels investigation 'a shambles'

Kevin O’Connell, who gave evidence this week Picture: Collins
Kevin O’Connell, who gave evidence this week Picture: Collins
Shane Phelan

Shane Phelan

As a week of shock revelations about the Sean FitzPatrick loans probe drew to a close yesterday, the lead barrister for the former Anglo Irish Bank chairman was in full flight.

Bernard Condon SC had spent seven days hauling Office of the Director of Corporate Enforcement (ODCE) official Kevin O'Connell over the coals.

During that time he extracted admissions that two key witnesses were "coached" and statements obtained from them in an "unlawful" manner.

The soft-spoken Mr O'Connell had told how he came to take a lead role in the inquiry despite having no experience. He also testified in excruciating detail about shredding documents which should have been disclosed to the defence.

Much of his time in the stand was spent acknowledging mistakes and speaking with regret etched in his voice. Mr Condon pounced on the admissions, alleging the probe was deeply flawed and unfair.

Then, as the defence barrister was winding up his questioning yesterday, he moved in for the kill.

"The investigation was a shambles and you should not take any pride in it and it should never be repeated by the ODCE," he said.

Mr O'Connell responded meekly: "I take no pride whatsoever in any of the manifold mistakes I made."

Sean FitzPatrick Photo: Collins Courts
Sean FitzPatrick Photo: Collins Courts

While his evidence at Dublin Circuit Criminal Court has cast a long shadow over the ODCE, it will also have made for uncomfortable listening for An Garda Síochána and the Office of the Director of Public Prosecutions.

Read More: Sean FitzPatrick lawyers accuse investigators of crafting and creating statements

Mr O'Connell claimed both organisations were made aware of the investigative practices being used, but neither intervened to stop him. "Nobody said what I was doing wasn't right," he said.

Mr O'Connell, a 15-year veteran of the ODCE, had been working as a legal adviser when he was thrust into a lead role in the investigation of Mr FitzPatrick.

The former banker resigned as chairman of Anglo in late 2008 after it emerged he had not disclosed multi-million euro loans from the bank.

The investigation that followed took three years to complete, but resulted in 27 charges being laid against Mr FitzPatrick (68), mostly related to the misleading of auditors between 2002 and 2007. He denies all the charges.

Central to the case are Anglo's two auditors during that period, Kieran Kelly and Vincent Bergin. Both are partners at EY, the financial services firm previously known as Ernst & Young.

The usual investigative practice would have been for gardaí to question the witnesses and take their statements. But this did not happen in the case of the two auditors. Mr O'Connell claimed this was because gardaí were "flat out" working on other Anglo probes and did not "buy in" to the loans investigation.

Instead their statements emerged after a lengthy consultation process involving over 20 different people at the ODCE, Ernst & Young and its legal advisors A&L Goodbody.

In the words of Mr Condon, the statements were "written by committee" with numerous different drafts being contributed to by people on all sides of a "three-sided triangle".

Many points were included at the suggestion of Mr O'Connell and his boss, then Director of Corporate Enforcement Paul Appleby.

Mr O'Connell said he sent a report to the Office of the DPP in which he outlined how Mr Bergin's statement was taken but no concerns were raised.

Mr Condon said the process amounted to coaching. He also claimed there had been "contamination" as the auditors had seen each other's statements.

A supplementary statement by Mr Bergin included sections "lifted word for word" from the account give by Mr Kelly.

The jury has been told Judge John Aylmer has already ruled that the process was "unlawful".

It was also told how, after being confronted about this at a previous trial in 2015, Mr O'Connell made "a calamitous error".

Returning to his office he found 16 documents which should have been disclosed to the defence team. These were quickly despatched to the Office of the DPP, but later that day four or five more documents were found. Mr O'Connell believes these were notes of conversations with people at A&L Goodbody.

But instead of ensuring these too were forwarded to the defence via the DPP, he shredded them.

Jurors viewed CCTV footage of Mr O'Connell attempting to shield the papers from a garda colleague as he entered the shredding room at the ODCE's offices. When he emerged minutes later he was seen swinging an empty tray.

Mr O'Connell told the court he felt under "enormous pressure" at the time and had been "terrified" at the prospect of having to explain in court why the documents had not been disclosed.

He admitted what had happened to Mr Appleby's successor, Ian Drennan, and had fully expected he could be subject to a criminal or disciplinary investigation.

However, the court heard no Garda investigation was launched, despite the fact destruction of evidence is a criminal offence. Neither was there a disciplinary probe.

The court heard a report, written by Detective Inspector Ray Kavanagh and forwarded to an assistant Garda commissioner in June 2015, that stated gardaí on secondment at the ODCE were not involved in the drafting of the witness statements.

But Mr O'Connell took issue with this, insisting Det Insp Kavanagh was present at meetings where drafts of the statements were discussed.

The court later heard that after Mr Kelly's statement was delivered in January 2012, Det Insp Kavanagh emailed Sinéad O'Boyle, a solicitor at A&L Goodbody, expressing thanks to her and a partner at the law firm, Liam Kennedy, for their assistance with the statement.

The case continues next week.

Irish Independent

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