Friday 22 March 2019

Former bank executive loses appeal over conviction for €7.2bn conspiracy

Appeal: Former banking executive Denis Casey leaving the Four Courts Photo: Collins Courts
Appeal: Former banking executive Denis Casey leaving the Four Courts Photo: Collins Courts
Shane Phelan

Shane Phelan

Former Irish Life & Permanent chief executive Denis Casey has lost his appeal over his conviction for a €7.2bn conspiracy to mask the true financial state of Anglo Irish Bank in the months before it collapsed in 2008.

Mr Casey was jailed for two years and nine months in July 2016 after being found guilty of a conspiracy to defraud.

His co-accused, Anglo executives John Bowe and Willie McAteer, were also jailed for their part in the conspiracy.

Although he has completed his jail term, Mr Casey argued he should have been allowed to mount a defence of “officially induced error”. He claimed he was entitled to use the role of the Financial Regulator, the Central Bank and the Department of Finance as a defence in his trial.

Mr Casey claimed he authorised inter bank transactions at the heart of the case on the basis the regulator was fully aware of them and that they were encouraged as part of a "green jersey agenda".

The agenda involved Irish banks supporting each other during the financial crisis.

But the trial judge found officially induced error could not be used as a defence and could only be used in seeking to mitigate a sentence.

A five judge Supreme Court rejected Mr Casey’s appeal this morning.

Mr Justice Peter Charleton said there was nothing in evidence before the trial judge which would have enabled a plea of officially induced error to succeed.

“The trial judge was correct in ruling out any mention of any such defence before the jury,” he said.

The other four judges on the court agreed with Mr Justice Charleton’s ruling and, accordingly, the appeal was dismissed.

In his appeal, lawyers for Mr Casey said the financial regulator “raised no quibble” about the circular transactions between the two financial institutions.

Although the regulator was not told about the transactions by Mr Casey before they occurred in March and September 2008, Mr Casey relied on a regulatory conversation in October 2008, where it is claimed the €7,2bn was pointed out to officials as not being “a real number”.

Mr Casey relied on this conversation as showing both an awareness of the transaction on the part of the Financial Regulator and, he alleges, acceptance of it.

However, lawyers for the DPP argued the defence of officially induced error must rely on a representation as to the legality of a particular course of action having been made before the offence took place. They said no such representation was made by Mr Casey.

In his ruling, Mr Justice Charleton said that for officially induced error to be accepted as a bar to the continuation of a criminal prosecution, the accused must prove he went in good faith to seek legal advice from the authority on whether a proposed course of conduct was lawful.

The proposal about which legal advice is sought must be specific and what the official advises must be specific. It was not good enough to give an”vague outline” of what was proposed.

The official giving advice on the proposed course of action must also be specific and their advice must cover the particular issue.

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