The decision of Judge Martin Nolan not to jail the criminal Anglo Irish bankers has seen matters of natural justice and public interest smothered by a wave of righteous indignation.
Typical of the waffle was a media release from Senator Lorraine Higgins, a candidate in the forthcoming European Elections. Ms Higgins was quick out of the block, getting the anger off her chest within two hours of the non-custodial sentence being handed down in the Dublin Circuit Criminal Court.
“It is outrageous that Mr Whelan and Mr McAteer have walked free of court today. Both these individuals were convicted of giving loans to 10 individuals to buy shares in the bank, with the judge in this case indicating that they committed a blatant breach of the Companies Act. They were convicted of a wrongdoing and yet their sentence does not reflect this.”
She wants the DPP to appeal the “leniency” of the sentence.
If natural justice applies to Ms Higgins’ campaign, her cheap shot should see her lose rather than gain votes. Ms Higgins might note that her Labour party was in government in the 1980s, 1990s, and since 2011. Over the course of the last 30 years, it is the lawmakers of this country who bear greater responsibility than anyone in ensuring that there is little or no accountability in the area of white collar crime.
Ms Higgins wasn’t alone. On the airwaves and in print, many who should know better hopped up to surf the anger. Two front page headlines in red top tabloids yesterday summed up much of the reaction. ‘They All Got Away With It”, screamed one. ‘Banks A Lot Judge,” harrumphed the other. Unfortunately, the hypocrisy was not confined to the lower half of the media market.
Some voices have called for mandatory minimum sentences to be introduced for white collar crime. The call infers that judges can’t be trusted to properly oversee criminal trials in this area. In reality, mandatory minimum sentences tend to be about assuaging public anger at the cost of natural justice. Such a system has been shown to be redundant in the area of drug crime, and is highly unlikely work for those who rob with the pen rather than the gun.
And what of the garlic man? He has been wheeled out as an example of double standards in our criminal justice system. Paul Begley ran a fruit and vegetable importing business. Over the course of at least four years, he defrauded Revenue by mislabelling boxes of garlic as apples. The crime avoided duties of €1.6m, defrauding Revenue, and deceiving both his competitors and customers. It was a simple crime of greed.
Begley was sentenced to six years by Judge Nolan. The sentence was reduced to two years on appeal following a campaign by his family and friends.
Begley’s initial sentence was harsh, but far from outrageous. Now, some anger surfers are pointing at the case as evidence that there is one law for bankers and another for the rest of us.
The garlic man’s crime was one of greed, only detected when a state agency — the customs service — rumbled it. The Anglo boys’ crime was one of desperation, an attempt to save the bank from destruction. Their own careers were on the line also, but it would be stretching it to suggest that was the principal motive at work.
THE convicted Anglo pair did not design the criminal enterprise which contravened section 60 of the Companies Act. They were under the impression that legal advice had reinforced the decision to make the loans that turned out to be illegal.
They were also under the impression — with plenty of supporting evidence — that the state agency charged with overseeing banks, the financial regulator, was in the loop about the loans.
Ignorance is no defence in law, but even if the mitigating factors were deemed irrelevant to their guilt or innocence, the judge rightly decided that the various factors had to be taken into account in sentencing.
It was with that in mind Judge Nolan decided it would be “unjust” to jail Whelan and McAteer.
Notably, reporters who attended the full trial said they were unsurprised at the judgment. Those who sat through the 43 days of the trial, and listened to the 53 witnesses saw the result as being a fair reflection on the basis of the evidence.
Whelan and McAteer were senior executives in Anglo, the institution responsible for deepening recession in this country, and adding greatly to the debts thrust onto citizens. The manner in which the bank was run for up to 20 years was reckless. In its last five years, the top people in the bank lost the run of themselves. Their actions lurched into plain stupidity.
The two men convicted were not changed with being party to institutional recklessness and stupidly, because no such offences exist. They were charged with a specific crime, found guilty, and according to all available evidence, sentenced appropriately.
That doesn’t satisfy a widespread thirst for accountability for the banking collapse, but the trial was never about that.