Why some charges against Sean FitzPatrick and Pat Whelan were dropped
Anglo Irish Bank trial saw changes late in trial of charges faced by two men
Court 19 at the at the Dublin Central Criminal Court where the Anglo Irish Bank trial took place. Photograph: Cyril Byrne / The Irish Times
Charges faced by Pat Whelan related to the fraudulent alteration of loan facility letters at Anglo Irish Bank were dropped late on in the trial when the Judge found they were not “technically adequate”.
Judge Martin Nolan made his ruling after conceding it was he who chose the particular charges put to Mr Whelan after deciding that putting four different counts suggested by the prosecution related to the letters was “oppressive”.
Six charges against former chairman of the bank Sean FitzPatrick were also dropped close to the end of the trial.
Mr Whelan, the bank’s former head of lending in Ireland, had been charged with being privy to the fraudulent alteration of loan facility letters to seven individuals.
The jury had heard that the Maple 10 businessmen were provided with facility letters on or around July 11th 2008 which offered them loans to buy shares in the bank.
The conditions of the loans included that if they were defaulted on, the bank would be able to pursue the individuals personally for 25 per cent of the outstanding money owed, known as 25 per cent recourse.
The court had heard that in October 2008, new loan facility letters were sent to seven of the borrowers changing the conditions to include zero recourse. The letters were dated July 17th and signed by Mr Whelan.
At the close of evidence on Friday April 4th, Brendan Grehan SC, representing Mr Whelan, argued that the offence his client was charged with was alteration of a particular document, but he had clearly written a new letter. This had new terms and conditions and it said that it was to “supersede” the previous letter.
“It is a simple but clear cut point; the prosecution cannot avoid the consequences of what is there,” Mr Grehan said.
Judge Nolan agreed. He said he would not put the charges to the jury. He acknowledged he had given a direction in relation to the charges and said he was not “blaming the prosecution for that”. He also refused leave to the prosecution to substitute the charge with an alternative. He told Úna Ní Raifeartaigh SC she could apply to do so, but he wouldn’t accede to her request.
The Judge also agreed with Michael O’Higgins SC, for Mr FitzPatrick, that there was no evidence that his client knew anything about loans to the family of businessman Sean Quinn.
The Quinns were loaned €170 million to buy almost 15 per cent of the bank’s shares in July 2008. Mr FitzPatrick, along with defendants Mr Whelan and William McAteer director of finance at the bank, was charged with six counts of unlawfully providing assistance to them to buy the shares.
Mr O’Higgins had argued his client was “not a nanny”. He was in France at the time the deal was arranged “going about his business” and couldn’t be expected to second guess the bank”.
Judge Nolan said Mr FitzPatrick had told gardaí he knew about the loans to the Maple 10.
“I’ve looked through all of the evidence and in particular the interviews with the gardaí and there is no evidence good, bad or indifferent that he knew of the Quinn lending,” the Judge said.
He said while Mr FitzPatrick probably was aware of a lending agreement in March which involved loans to the Quinns to buy shares, to be convicted of the six counts the jury would have to be asked to infer from this beyond a reasonable doubt that he knew of the lending in July.
“That would be asking the jury to speculate and it seems to me the knowledge Mr FitzPatrick had at the time could not be established with certainty,” the Judge said.
He said it would be going “a step too far”.