Saga set to drag on long after end of Anglo trial

It looks like the Anglo trial is all over bar the sentencing but, in reality, the saga has a long way to go before it has exhausted public interest and ceased to be in the public interest.

Saga set to drag on long after end of Anglo trial

Q: Where’s the prince?

A: The trial was described by Patrick Whelan’s lawyers as “Hamlet without the prince” because of the absence of David Drumm, the bank’s former chief executive and architect of the Maple Ten illegal loan deal for which Whelan and his co-accused William McAteer have just been convicted. He resigned the position in December 2008 and fled to the US, where he watched from a safe distance as the bank was nationalised and the full scale of the country’s banking disaster unfolded. He’s still there.

Q. Is he off the hook, then?

A: No. If he puts a foot back in Ireland, his next step could well be into a Garda station, as he has been under investigation since early 2009, a file on him is with the DPP, and gardaí have made no secret of the fact that they want to question him. All in all, he’d be well advised to stay put.

Q: So will he ever face trial here?

A: Possibly, because his plans to stay Stateside could be thwarted on two fronts. Firstly, he’s embroiled in bankruptcy proceedings which he initiated but which Anglo, now called Irish Bank Resolution Corporation (and in liquidation), is challenging. His hearing is scheduled for Boston next month and it raises questions about his entitlement to remain in the US, as he entered on an investment visa for a business that never really got off the ground. Secondly, there is a possibility, albeit a slim one, that he could be extradited.

If it’s decided there is enough evidence to charge him here, and it can be shown that the offences with which he would be charged were also offences under US law, the US authorities might hand him over.

Those are sizeable ‘ifs’. There is another possible outcome — thanks to the hankering for home that tends to eat away at every Irish emigrant — he might just feel in future that he needs to come back for personal reasons and agree to face the music. Whether or not the band will still be playing particularly loudly at that point is another matter.

Seán FitzPatrick: Due back in court for new trial in October.

Q: So, realistically, the courts are unlikely to be troubled further?

A: On the contrary, Seán FitzPatrick is due a return visit in October, when he faces a separate trial on 12 charges of making misleading statements to auditors. There are also a bunch of files on other people connected to Anglo still with the DPP and the Office of the Director of Corporate Enforcement. Further prosecutions have not been ruled out.

Q: And what about the court of public opinion?

A: It’s troubled by a lot of questions — for example, how come the financial regulator at the time of the Anglo shenanigans, Patrick Neary, was so lax in monitoring activities within Anglo and so disinclined to question the activities that he did know about? Neary retired from his post in January 2009, just before the nationalisation of Anglo, and gave evidence at the trial of the executives but has otherwise encountered little that would upset his enjoyment of his very generous pension.

Patrick Neary: Oireachtas banking inquiry looming.

Q: Will we hear from him again?

A: Well, there is the small matter of the Oireachtas banking inquiry which has been on hold to avoid any chance of prejudicing the trials of the Anglo executives. Preparations for it will begin when the Dáil returns after Easter but there’s a lot of work to be done in figuring out how the inquiry will be conducted, collating the extensive documentary evidence it will draw on and drawing up the comprehensive terms of reference that will be needed to probe the bank guarantee, the regulatory regime, and the internal workings of the individual banks.

Talk of it being under way by year’s end is optimistic.

Q: What happens in the meantime?

A: The family of Seán Quinn want to get their mammoth civil case against the State underway and, given that it was also put on hold pending the outcome of the criminal prosecutions, the courts are likely to be sympathetic to giving them an early date.

To recap in basic terms a very complex situation, Quinn built up a massive interest in Anglo and when the bank went belly-up, receivers were appointed to various Quinn operations. He and his family have been fighting those moves and claim the loans Anglo gave them were illegal and the extraordinary interest Quinn had in the bank should never have been allowed. They say they’ve lost €2.3bn and the State, which took over Anglo and turned it into IBRC, plus the Department of Finance and Financial Regulator are to blame.

Q: That’s a bit meaty. Anything lighter to digest?

A: Pat Whelan and Willie McAteer’s sentencing takes place on Monday week. They face up to five years in jail, although it’s very unlikely they’ll get the maximum penalty given it’s a first offence and there were mitigating factors, such as the financial regulator’s knowledge of their actions.

Q: So that should be the end of that, then?

A: Yes, unless they appeal, which they may well do. If by any chance they get a custodial sentence, they’ll most likely appeal on severity grounds.

But they could also appeal the conviction itself, as they’ve always maintained their innocence. In addition, legal commentators have made much of the trial judge’s decision not to allow the jury take into consideration the fact that the executives had obtained legal advice that didn’t discourage them from proceeding with the Maple Ten deal. If it can be successfully argued that the judge erred in law by excluding this from the evidence, the defendants would have to be given an appeal hearing.

Q: So this saga could drag on and on and...

A: Afraid so. It may be done and busted but it’s not yet done and dusted. Don’t throw away that layman’s guide to contracts for difference just yet.

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