Skilled lawyers duelled while the jury was kept out

A significant portion of the 11-week trial was taken up by sometimes heated argument in the absence of the jury focusing on the issue of legal advice taken by Anglo at the time of the Maple plan.

Skilled lawyers duelled while the jury was kept out

Evidence of the advice was a major feature of the trial until early March when the prosecution got it excluded.

In 2008, Anglo had recruited reputable solicitors, Matheson Ormsby Prentice, to guide it on the legality of the Maple deal. From the trial’s beginning it was a defence strategy to use evidence of this advice to show the accused fulfilled their duties as directors in ensuring the deal was in line with law.

Witnesses testified that the firm had told Anglo the deal was on the level. When taken alongside the regulator’s approval, the legal advice formed a case that the men fulfilled their duties as directors. However, the prosecution argued legal advice does not make an illegal act legal.

The defence teams said this logic placed an impossible burden on the men in their roles as directors. The 1963 Companies Act is 3,000 pages and section 60 contains 40 sub-clauses. The defence asked how a company director can be compliant with such a vast amount of law without being able to rely on the advice of lawyers.

Judge Nolan sided with the prosecution, ruling that “such a defence would blatantly offend one of the core principles of our criminal justice system, namely ignorance of the law is no defence”.

His ruling led to the strange situation of the jury being told halfway through the trial that it must ignore the issue of legal advice despite having already heard extensive evidence on the subject.

The prosecution won another vital victory in having the opinion of the regulator and the role played by Morgan Stanley discounted as a defence. The jury was told it did not matter that the regulator approved the deal and or that experienced investment bank Morgan Stanley was executing the plan.

Judge Nolan also told the jury that it was no defence for the men to claim they didn’t know they were committing a crime. However, the judge did take the unusual step of indicating, in the jury’s absence, that he would take the approval of the regulator as a mitigating factor if the men were convicted.

“I have no doubt the financial regulator knew there was going to be substantial lending into this scheme to effect it,” he said during a legal ruling in the absence of the jury. “I also take the view that the financial regulator took no steps to discourage the scheme or in any way stop it. And it seems from regulator witnesses that they were somewhat relieved when the scheme went through and that the [contract for difference] issue was alleviated and regularised.”

The prosecution didn’t enjoy an unbroken run. The judge directed not guilty verdicts on a series of charges against Mr FitzPatrick and Mr Whelan. He ruled there was no evidence that Mr FitzPatrick knew about lending to the Quinns to buy the Anglo shares. He also ruled that the seven charges that Mr Whelan fraudulently altered the date on loan letters were not supported by the evidence.

At times the arguments took a surreal turn. Cases involving pirates and Frenchmen duelling in England were put before the court. At one point, Paul O’Higgins, prosecuting, cited the 19th-century trial of a Tipperary woman who had cooked her child because she thought it was possessed by demons.

At several points there appeared to be tension between Judge Nolan and Michael O’Higgins, defending. Early in the trial Mr O’Higgins made an application that Judge Nolan should recuse himself because he had expressed an opinion on the legal advice that counsel felt was prejudicial. When Mr O’Higgins continued to raise the legal advice issue throughout the trial Judge Nolan interrupted, saying: “I find it hard to stop you making the same point over and over again.”

Despite these occasional run-ins, most of the trial was conducted smoothly. There was a large amount of agreement on the facts, meaning it finished well before the initial outside estimate of six months.

One of more unusual incidents occurred when Paul O’Higgins used part of his closing speech to ridicule the evidence of prosecution witness and Maple Ten developer Seamus Ross. Counsel sarcastically suggested Mr Ross was not entirely forthcoming in his evidence that he wasn’t focused on the Maple deal in July 2008.

This led to the strange situation of a judge criticising the prosecution for how it treated its witness. In the absence of the jury, Judge Nolan admonished counsel for his “rude” and “unnecessary” comments which he said Mr Ross would have to read in the next day’s newspapers.

The judge later told the jury he thought the Maple Ten were “remarkable men in some ways” and they were acting to help the bank and the country.

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