A fair trial means fair procedure from start to finish. A defendant in criminal proceedings has a constitutional right to have their activities investigated impartially and without bias or even the appearance of bias.
In the wake of the trial — and trials — of Sean FitzPatrick, it is clear that the office of the Directorate of Corporate Enforcement (ODCE) was neither impartial nor unbiased in its six-year investigation into the conduct of the former chairman and chief executive of Anglo Irish Bank. Whatever anyone may think of him, his right to a fair trial was denied.
The agency’s stated mission is “to improve the compliance environment for corporate activity in the Irish economy”. It is likely that as a result of the inept bungling and handling of this investigation that the compliance environment will get worse, not better.
The investigation was carried out by the ODCE’s Enforcement Unit which is responsible for receiving and responding to allegations of company law breaches. The unit consists of a mix of administrative, legal, accounting and Garda staff.
Among the reasons Judge John Aylmer gave for acquitting Mr FitzPatrick on all charges was the biased and partisan nature of the investigation.
Instead of presuming Mr FitzPatrick innocent and investigating with an open mind what had occurred, the ODCE’s approach had been a partisan one of trying to build a case against him. It had failed to seek out evidence of innocence as well as guilt.
Six years of investigation. Three judges. Three trials, the last — at 126 days — the longest criminal trial in the history of the State. All for nothing.
Ian Drennan, head of the ODCE, has some explaining to do. He admitted that the State agency was incapable of handling the investigation but blamed the shortcomings on a lack of experienced staff and the mental health problems of one of its investigators. That isn’t good enough.
While the the collapse of the trial represents a damning indictment of the ODCE, it also reflects poorly on the gardaí and on the Office of the Director of Public Prosecutions. Fianna Fáil leader Micheál Martin put it succinctly when he told the Dáil yesterday that “the State’s capacity to investigate serious white-collar crime has been shown to be inept, negligible, wasteful and virtually redundant”.
Yet Mr Martin was a member of the coalition government that in 2001 created the ODCE in the first place and, in that respect, cannot escape some measure of responsibility for how the agency has evolved. Ditto the Taoiseach. He told the Dáil that a cabinet minister performing in a similar way to the State agency would face instant dismissal but he is still the head of government with the responsibility of ensuring that State agencies behave in a proper manner.
It is clear that the ODCE didn’t. It conducted a persecution more than a prosecution.