Wednesday 17 January 2018

The trial of Seán FitzPatrick was due to last less than six weeks - but it unravelled slowly

The former chairman of Anglo Irish Bank, Sean FitzPatrick leaves the Dublin Circuit Criminal Court with his daughter Sarah after he was acquitted Picture: Collins
The former chairman of Anglo Irish Bank, Sean FitzPatrick leaves the Dublin Circuit Criminal Court with his daughter Sarah after he was acquitted Picture: Collins

Declan Brennan

The storm clouds are gathering. Those were the portentous words of Judge Mary Ellen Ring in late April 2015 when lawyers for Seán FitzPatrick began for the first time to reveal the litany of problems with the investigation into his alleged auditing offences.

It wasn't meant to be like this. The trial of the former Anglo chief for failing to disclose multi-million euros in personal loans to the bank's auditors was originally scheduled to last less than six weeks. A year before this "Seanie" had walked out of court a free man after a jury cleared him on breaking Company Law by providing unlawful financial assistance to the 10 developers known as "the Maple Ten".

Now he was back in court facing charges linked with the temporary moving of up to €87m in loans out of the bank at the end of each financial year. When the practice, known as "bed and breakfasting", became known to the public in December 2008 as a result of the financial crash, the Anglo chairman was forced to resign and an investigation was launched.

Mr FitzPatrick was facing a real possibility of criminal convictions. But as soon as that jury was sworn in his defence team told Judge Ring there were some legal issues which the court would have to rule on. This is what is known as a trial within a trial, where the evidence is put before the judge to decide whether the jury should hear it. In this case we were told it would take perhaps a week.

Very quickly into this legal argument Mr FitzPatrick's lawyers were using head-turning terms like witness coaching and contamination of statements.

Read More: DPP seek access for Sean FitzPatrick trial transcripts

A week became a fortnight and it seemed the more the defence pulled at the loose threads in the ODCE investigation, the more the prosecution case unravelled. Senior counsel Bernard Condon was leaving no stone unturned as he cross-examined Kevin O'Connell, the ODCE investigator who had taken the lead on one of the highest profile white collar criminal investigations in living memory, despite his lack of experience.

Small, softly-spoken but extremely precise and diligent, Mr O'Connell has worked for the ODCE since 2002. At times it was painful to watch as the tenacious lawyer hauled the witness over the coals regarding the ODCE practice of coaching witnesses from the auditing firm Ernst & Young so that their final statements would fit the case they wanted to take against Mr FitzPatrick.

Until the investigation into Mr FitzPatrick's loans, Mr O'Connell had never taken statements from witnesses to be used in a criminal trial. He looked like a man on the edge. Somehow though he managed to stay the course to the end of his cross-examination. When his ordeal ended he returned to his office. It was only then he spotted a tray of previously overlooked documents related to Anglo.

His elation turned to alarm at the thought of having to go back into court and tell the defence they had forgotten to hand over some documents. Under extreme pressure he panicked and decided to shred the documents. By any standards it was shocking. When prosecutor Paul O'Higgins told the court the following week what their lead investigator had done, everyone was sure it was game over.

But Judge Mary Ellen Ring ruled the trial would go on. She refused to rule out the evidence or halt the trial. It was a decision that Judge John Aylmer would reverse this week when he ruled that warnings would not be enough to prevent an unfair trial. But back in May 2015 we all knew we were sitting on a bombshell story that couldn't be reported because of the possibility of a retrial.

A new trial was scheduled and since last September it all felt a bit like Groundhog Day as Mr FitzPatrick's legal team again outlined the problems with the case. Again the judge ruled the jury should hear it all. So for the third time, this time before a jury, we heard the details of this travesty of a prosecution. The case limped along, through more weeks of legal argument, until finally last Tuesday Judge Aylmer stopped the case.

Irish Independent

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