This morning, the jury in the retrial of former Anglo Irish Bank chairman Seán FitzPatrick will be directed by trial judge John Aylmer to acquit him. FitzPatrick was accused of misleading the bank's auditors about loans worth millions of euro following an investigation carried out by the Office of the Director of Corporate Enforcement (ODCE) for breaches of the Companies Acts.
He originally faced 27 charges, including furnishing false information and making misleading, false or deceptive statements.
The prosecution was complex, and the Director of Public Prosecutions dropped nine charges at the close of the prosecution case as insufficient evidence had been adduced to prove them.
The judge ruled that the ODCE investigation had been biased and lacked the required impartiality and fairness inherent in criminal trials, and that it had fallen short of the unbiased, impartial and balanced investigation to which an accused person is entitled.
Instead of presuming FitzPatrick innocent and investigating with an open mind what had occurred, to determine whether an offence had been committed and, if so, by whom, the judge found the ODCE’s approach had been a partisan one of trying to build a case against FitzPatrick. It had failed to seek out evidence of innocence as well as guilt.
To the public, the judge's findings may have come as a surprise
The judge said the most fundamental error had been the manner in which the ODCE had set about taking statements from witnesses.
He said this had involved coaching of witnesses, contamination of their statements from third parties such as solicitors for the auditors and cross-contamination of statements between witnesses.
In January 2017, Kevin O’Connell, the lead investigator and a legal adviser with the ODCE, gave evidence.
During his cross-examination, the jury was shown a draft statement from Vincent Bergin, the audit manager for Anglo, which had been circulated to a number of people in the ODCE, including O'Connell and Paul Appleby, the then director of corporate enforcement.
Numerous amendments were suggested by investigators, including insertions and deletions of entire paragraphs. O’Connell gave evidence that he had distilled or synthesised “the shared viewpoint” finally agreed by all.
The jury was shown various drafts of the document with new sections inserted, other sections crossed out or deleted, and others marked with the words “drop” or “delete”.
Statements of evidence provide the basis for a prosecution and for the preparation of a defence.
Coaching of witnesses and altering of statements is not allowed in Ireland as it is perceived as creating a risk that witnesses will tailor their evidence in a manner that they believe is expected of them and may assist a dishonest witness to calculate whether his evidence comes across as consistent or convincing.
More importantly, jurors do not hear the evidence that would have been originally given by the relevant witness.
Although the jury has to assess the credibility of witnesses and which evidence is reliable, they might never know that a witness’s evidence had changed or that a statement had been altered.
The judge said it meant the jury had never got to hear what the witness might have said in an unvarnished statement.
The judge also pointed to the extraordinary circumstances in which O’Connell had destroyed potentially relevant documentary evidence. Normal fair procedures in a trial require all potentially relevant material to be furnished to the defence.
This allows for proper preparation of a case and analysis of the strengths and weaknesses of a prosecution.
Even if it was legally possible, any further trial would be unthinkable
In FitzPatrick’s first trial, in May 2015, O’Connell admitted he had shredded documents potentially relevant to the investigation. He said he had panicked when he discovered five pages in his office and made a wrong and unethical decision to destroy them.
The judge said there must be a concern that those pages were damaging to the prosecution or of assistance to the defence and this was the second limb of his decision that the investigation was flawed and unfair.
The judge also found that the investigation was flawed in that it had failed to investigate some aspects of the alleged offences and, consequently, it was not possible to prove some of the charges to the required legal standard.
The judge’s decision to direct an acquittal followed legal argument by both sides, preceded by painstaking and methodical laying of groundwork by FitzPatrick’s legal team.
To the public, the news may come as a surprise – the media cannot report such legal arguments in case they eventually become a matter for the jury to determine. In FitzPatrick’s first trial, the jury was discharged without reaching a verdict.
In this trial, he will be acquitted by the jury at the direction of the judge.
Even if it was legally possible, any further trial would be unthinkable given the judge’s findings of bias and partiality in the investigation.
Siobhán Ní Chúlacháin is a barrister