The State utterly failed to protect the taxpayer from the dangers of white-collar crime all the way along, so to Enda Kenny and Micheál Martin, please spare us your outrage and your anger, suggests Daniel McConnell.
Shut up with your shock, with your anger. We don’t want to hear your guff. You both had ample opportunity to do something about it and you chose to do nothing.
So please, please don’t pretend to be shocked now. None of us are buying it.
The collapse of the Seán FitzPatrick trial, for the third time, which led to his acquittal shocked the country this week.
The performance of the Office of the Director of Corporate Enforcement (ODCE), which completely botched the investigation, was the target of the horror.
FitzPatrick was acquitted after Judge John Aylmer ruled, on day 126 of the trial, that the investigation carried out by the ODCE fell short of the impartial, unbiased investigation to which an accused person is entitled.
He said key witnesses had been coached and the ODCE had failed to seek out evidence of innocence as well as guilt.
Instead, he said, it had made assumptions and tried to build a case against FitzPatrick.
The judge said he also had concerns that material shredded by the ODCE’s chief investigator during FitzPatrick’s first trial could have been of assistance to the defence and damaging to the prosecution.
It dominated the agenda in the Dáil on Wednesday afternoon.
Wow, how angry everyone was. It was a disgrace, we heard, a scandal.
The ODCE, which had led the investigations into Anglo since 2009, was guilty of a “catastrophic systemic failure” which has “shattered public confidence” in the body, said Fianna Fáil’s Micheál Martin.
“The State’s capacity to investigate serious white-collar crime has been shown to be inept, negligible, wasteful, and virtually redundant,” he said.
Taoiseach Enda Kenny evidenced his visible annoyance at the failed case and said he agreed with Martin’s comments.
“Despite all the criticism of and cynicism about politics, at least there is political answerability [sic] in the sense that a minister in charge of something like this would face instant dismissal,” he told the Dáil.
“I agree with Deputy Martin. The taxpayer takes up all the costs involved. The judge did point out that the most fundamental error was the way in which they went about taking evidence from the auditors of Anglo, who were both from the firm of accountants involved.”
A report from the current ODCE management team has been demanded by Jobs Minister Mary Mitchell O’Connor who will bring the matter to Cabinet on Tuesday.
Well that is fantastic, isn’t it.
But it is all nonsense.
The political system has systematically failed to address white-collar crime for decades and the carbuncle that is the ODCE is a testament to that.
A limp eunuch of an organisation if ever there was one.
Established by Mary Harney in the Bertie Ahern-led government in 2001, the ODCE was a fig leaf of regulation and oversight. We know now that there was no oversight or regulation.
It was run on a shoestring, underpinned by incredibly weak legislation. It was never fit for purpose.
Even after the crash, the total budget for the ODCE was a paltry €5m in 2015. Incredibly, it only spent €3m of that.
“The cost of running the office during 2015 was €3m, some 60% of its allocation for the year and an increase of 2% on the previous year,” states its latest annual report.
This was the body charged with investigating and prosecuting the Anglo-Irish Bank scandal which has cost Irish society some €34bn.
But where was that detail in the expressions of outrage from Martin and Kenny on Wednesday?
Why? Because the truth of the situation does not reflect at all well on those in high political office.
Martin, who sat at the cabinet table all the way from 1997 to 2011, would have had a role in establishing the ODCE and then, as enterprise minister in 2004-08, he failed utterly to protect the taxpayer.
He was the line minister under whose auspices the ODCE fell and those years were the main years when the Irish economy, the Irish banks, and Anglo Irish Bank, in particular, went out of control.
Fast-forward to early 2009 and the political system is given a wake-up call by the then director of the ODCE, Paul Appleby.
In one of the first Anglo-related court cases, he warned from the witness box in the High Court that outdated laws were hampering the investigation into the affairs of Anglo Irish Bank.
Appleby made an unprecedented application to the court to approve a scheme devised in co-operation with the bank aimed at addressing issues of legal professional privilege relating to a massive amount of electronic information at bank premises. If the electronic information was printed out, it would run to millions of A4 pages, the court was told.
The issue arose after ODCE officials secured search warrants from the district court to enter Anglo’s then premises at Stephen’s Green and Lower Baggot St in Dublin.
So what was done?
Nothing by the Fianna Fáil government — the late Brian Lenihan’s weakness was the temerity in which he treated the banks at that stage. Then justice minister Dermot Ahern is culpable here too.
The ineptitude had a devastating cost on generations of Irish people who will be paying the Anglo bill for years to come.
After the change of government in 2011, justice minister Alan Shatter did move to improve the State’s laws governing white-collar crime.
A key part of the white-collar crime provisions in the Criminal Justice Act 2011 created a new offence of failing to report business — and corporate-related crimes, which is punishable by a term of imprisonment of up to five years.
An employer who penalises a whistleblower in any way can face up to two years in prison and the whistleblower can sue for damages.
The big kicker was that the laws could not be applied retrospectively and had no impact on the seemingly ever-delayed Anglo investigations.
More galling was the fact that even after the crash, 15 of the most senior figures in Anglo Irish Bank from the time of the September 2008 crash were still employed at the institution, on salaries in excess of €150,000.
It was also revealed that IBRC, the former Anglo Irish Bank which has received more than €34bn of taxpayers’ money to date, has the only defined benefit pension scheme in the country which is fully funded.
This is in contrast to thousands of workers who now find their pension schemes insolvent and are being shut down. The pension fund of the IBRC was in 2013 the only one in the country to declare itself “fully funded” since 2008, with a funding rate of 111%.
It has since emerged that requests for additional resources from the ODCE in late 2015 were turned down by Richard Bruton, the then jobs minister.
“Last year, in 2016, there were 35 staff in the Office of the Director of Corporate Enforcement. They were assisted by five gardaí. This gives an insight into the State’s attitude towards white-collar crime and corporate enforcement. Under the Taoiseach’s watch, the staff of this office has been cut from 42 to 35,” Gerry Adams told the Dáil.
“This lack of resources was highlighted by a senior barrister in 2014 who said ‘it is enough to make the tin-pot dictator of a banana republic blush’. That was not a Shinner but an expert in white-collar crime and a senior barrister.”
The State utterly failed to protect the taxpayer from the dangers of white-collar crime all the way along, so to Enda Kenny and Micheál Martin, please spare us your outrage and your anger.
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