The State's corporate watchdog has asked an Oireachtas committee to clarify whether a report on the collapse of the trial of former Anglo Irish Bank chairman Sean FitzPatrick will be covered by legal privilege.
Ian Drennan has offered the Joint Oireachtas Committee on Business, Enterprise and Innovation a 450-page report to help it understand the reasons behind the collapse of the 2017 case so it can hold the regulator to account and scrutinise legislation that would beef up its powers.
The handover of Mr Drennan’s report to the committee has, however, been complicated by the issue of whether the document would be subject to privilege granting him legal immunity from defamation actions.
He sought clarification from the committee this week on whether his report would be treated as an official document of the Dáil, making it subject to privilege.
The committee last week agreed to accept the report after protracted correspondence with Mr Drennan dating back to 2017 over how it would examine the failures within the Office of the Director of Corporate Enforcement (ODCE) that led the trial judge directed the acquittal of Mr FitzPatrick after a long criminal trial.
‘Anxious to review’
Fianna Fáil TD Mary Butler, the committee chairwoman, said the members were "anxious to review the submission". She has said the report would have to be forwarded to the Office of the Parliamentary Legal Adviser for it to be subjected to legal privilege.
A spokesman for the ODCE said that it did not consider it appropriate to comment on private correspondence with the committee. He confirmed that the office expected to submit the report shortly.
In a letter to the committee on January 10th, 2018 – released to The Irish Times under the Freedom of Information Act – Mr Drennan said the documents he was willing to provide “includes the names of a significant number of individuals and organisations, with others being identifiable from such material”.
“Clearly those individuals and organisations are entitled to take steps to protect their good names, and as such, the risk of litigation is, I would suggest, readily apparent,” he said.
Mr FitzPatrick was accused of furnishing false information to Anglo’s auditors Ernst & Young, now EY, over his loans at the bank. He denied the charges.
Trial and retrial
His first trial collapsed in 2015 after the lead investigator Kevin O’Connell, legal adviser to the ODCE, admitted shredding documents in “a panic”.
Judge John Aylmer directed the jury to acquit Mr FitzPatrick in the retrial in 2017 over the ODCE's mishandling of the investigation, concluding that witnesses had been coached and evidence had been contaminated.
Mr Drennan has sought to cast blame for the collapse of the trial “well beyond” the failures within the ODCE but has raised concerns about publicly naming names in his report for the committee on the episode.
Mr O’Connell, who is no longer with the ODCE, has separately written to the committee, complaining that he has been disproportionately blamed for the collapse of the trial and that he has unaired information he is willing to share with the committee.
TDs and senators have agreed to invite him to testify.