Anglo trial : Legal advice as an issue in the case

Judge told jury that such advice on transaction was irrelevant to guilt or innocence

Court 19 at the at the Dublin Central Criminal Court where the trial of former bank directors , Sean Fitzpatrick, Pat Whelan and William Mc Ateer was heard. Photograph: Cyril Byrne / The Irish Times Court 19 at the at the Dublin Central Criminal Court where the trial of former bank directors , Sean Fitzpatrick, Pat Whelan and William Mc Ateer was heard. Photograph: Cyril Byrne / The Irish Times

Court 19 at the at the Dublin Central Criminal Court where the trial of former bank directors , Sean Fitzpatrick, Pat Whelan and William Mc Ateer was heard. Photograph: Cyril Byrne / The Irish Times Court 19 at the at the Dublin Central Criminal Court where the trial of former bank directors , Sean Fitzpatrick, Pat Whelan and William Mc Ateer was heard. Photograph: Cyril Byrne / The Irish Times

Fri, Apr 18, 2014, 08:19

Shortly before the court broke for lunch on March 6th – Day 19 of the trial — Judge Martin Nolan briefly addressed the jury. He told them that the issue of whether legal advice was obtained by Anglo Irish Bank in relation to the July 2008 transaction was irrelevant to the guilt or innocence of the accused. There was to be no further reference to it in evidence.

This decision was the culmination of three days of drawn-out and at times acrimonious legal argument in the absence of the jury.

By that stage, about a dozen witnesses had given evidence about legal advice. Anglo directors, senior bank employees and some of the Maple 10 had told the court they were assured that advice had been sought and obtained on the lawfulness of the transaction. Many of them said they drew comfort from this.

On Day 14, however, the prosecution moved to have legal advice excluded. “Ignorance of the law is not a defence,” said Úna Ní Raifeartaigh SC. What the accused believed as to what was lawful was not relevant.

Ms Ní­ Raifeartaigh argued that the offence with which the three Anglo directors were charged was not an offence requiring proof of knowledge as to lawfulness. If the defence argument was accepted, she told the judge, this would have “far-reaching implications” as it would apply to the whole of the Companies Act. An officer would never be in breach if he/she sought and received positive legal advice.

Brendan Grehan SC, for Pat Whelan, said he didn’t have a problem with a ruling that specific legal advice could not be put before the jury, but it would be “inappropriate and wrong” for the court to say legal advice was irrelevant. The idea that you could be found guilty and sentenced to five years in jail “where there is no criminal intent” fell foul of fundamental principles of justice, Grehan said.

Michael O’Higgins SC, for Sean FitzPatrick, argued that the seeking of legal advice was a fact. “It was sought for a purpose. If that purpose was trying to minimise or prevent a breach of the act, then it’s evidence in this case,” he said.

The issue went to the centre of the case, O’Higgins argued, because section 60 offered an “out” if a company director took “all reasonable steps” to prevent a default. FitzPatrick raised “three red flags” on his call with David Drumm on July 9th 2008, O’Higgins said. Could the Maple 10 absorb losses? Was the regulator on board? And had legal advice been sought? For O’Higgins, the prosecution was trying to “bludgeon the court into some sort of fear factor.”