Michael Clifford. 


A good day for the justice system

The prosecution of Sean Fitzpatrick bore many elements of a stitch-up, writes Michael Clifford

A good day for the justice system

That is the only conclusion that can be reached from what the judge in Fitzpatrick’s trial described as a “biased and partisan approach” to the investigation of the former banker. On Wednesday, Judge John Aylmer instructed the jury in Dublin Circuit Criminal Court to find Fitzpatrick not guilty of 27 charges related to breaches of company law. The judge said the prosecution case was too dangerously flawed to allow the evidence go before the jury.

Fitzpatrick walked from the court to a cacophony of anger. For many, he was the chief culprit in the economic collapse that led to a deep recession, out of which the country has emerged with a whole new set of serious social ills.

Retribution demanded that Fitzpatrick be hauled before the stocks, his reputation pummelled and he then be carted off to prison. The only problem is that we live in a democracy, which is governed by the rule of law and Mr Fitzpatrick is adjudged to have broken no laws.

Despite the emotionally-charged reaction to the verdict, Wednesday was a good day for the criminal justice system. Many factors contributed to the shambles of a prosecution, but the seriously flawed efforts to build a case against Fitzpatrick must surely have been informed by his stock among the public for the last decade. There was a general consensus that this pied piper of the Celtic Tiger must be offered up to satiate societal anger.

In reality, the charges which he faced had practically nothing to do with the collapse of Anglo Irish Bank, or the economy. Fitzpatrick was accused of hiding loans for a few weeks a year when the bank was audited. This was done by transferring the loans to another bank in an operation known as bed-and-breakfasting. This is an offence — of which he was found not guilty — but one unconnected to the collapse of the bank.

Fitzpatrick is a wholly unsympathetic character. The anger directed towards him is entirely reasonable. But it’s also a dangerous starting point for a prosecution, which if successful would almost definitely have deprived him of his liberty. History is littered with examples of miscarriages of justice which were rooted in a society’s thirst for retribution in the wake of an outrage.

We only have to look across the Irish Sea to observe how waves of anger wash through prosecutions that put innocent people in prison. The issue, context and circumstances between the Birmingham Six, Guildford Four and others are worlds away from Seanie Fitz, but the principle is the same. Widespread thirst for retribution is a shaky foundation for any criminal prosecution, and when one does go ahead forensic vigilance is required. There was no such vigilance in the prosecution of Fitzpatrick.

While innocent in the eyes of the law, Fitzpatrick is guilty of plenty else. He was the creator of the reckless lending practices that did for his bank, and in turn dragged down the economy and society.

He is guilty of a wanton disregard for the centrality of his role in engineering the direction of the national economy. While he was spreading his entrepreneurial wings, dispersing money like confetti, he obviously thought nothing of the potential downside for the country.

He was guilty of an unbridled arrogance peculiar to his caste. They thought they had it all sussed. They knew how the world worked, and how it could be bent to their will. They, this caste of what Morgan Kelly once described as “faintly dim former rugby players”, led the country down the road to economic Armageddon.

Typical of this was a speech Fitzpatrick gave in 2007, lashing out at those who would stifle the titans of high finance with cumbersome laws and inconvenient regulation.

“It is time to shout ‘stop’,” he told a gathering of businesspeople who had come to hear the Messiah.

“We should be proud of our success, not suspicious of it. Our wealth creators should be rewarded and admired not subjected to levels of scrutiny which convicted criminals would rightly find intrusive.”

This is the kind of thing that put pressure on politicians to back off, to allow these geniuses continue to shape the world in their likeness because the results trickle down all the way to voters. And the politicians in turn nodded and said ‘Yes Seanie, yes Seanie, three bags full, Seanie’.

So the record will show that Fitzpatrick did stay on the right side of the law, even if the law was shaped during his time — and for decades before that — to facilitate that which would be clearly regarded as serious crime in other jurisdictions.

Contrary to popular opinion, he has paid a price. He has seen his fortune disappear and he has been put through the ignominy of bankruptcy. For the last five years, he has been under the stress of pending and continuing trials. This must take a toll on health, but there will be no sympathy for him on that score.

In this age of click-on-a-conspiracy some see the outcome of the trial as a set-up. In the Dáil on Thursday, People Before Profit TD Richard Boyd-Barrett voiced his theory: “This stinks to high heaven,” he said, adding that “the establishment” had “contrived and conspired” to ensure Fitzpatrick walked free.

The irony is that it was most likely the pressure to stick it to Fitzpatrick from the so-called establishment that contaminated the prosecution’s duty to approach the case in a neutral manner. Richard’s quaint notion that politicians in the main parties wanted to protect a beaten docket banker is great knockabout politics, but lacks any grounding in the real world.

And so ends the trials of Sean Fitzpatrick. One more postscript to the economic collapse can now be written. A depressing aspect of the whole affair is that it has done little to further the cause of any real analysis of what actually happened.

Fitzpatrick continues to fit the role of chief villain, a one-man-show whose rise benefited only his buddies in “the establishment”.

The late Brian Lenihan’s crass comment that “we all partied” was misplaced. But there remains no stomach to admit that we all benefited. Peter Nyberg, who wrote a report on the banking collapse, was asked about this at the Oireachtas banking inquiry when it opened in December 2014.

“I still think it’s true that a lot of people in many different ways enjoyed the benefits of the bubble,” he said.

“Employment, public expenditure, prices and the extent of public services…Low-cost loans and access to investment property. That doesn’t necessarily mean that they partied but it does mean that in the boom or the bubble their lives fared much better than otherwise would have.”

Maybe now that the pied piper of the Celtic Tiger has walked free we can properly reflect on the reality of those times in order to eliminate the possibility of history repeating itself.

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