MARTINA DEVLIN: Any State watchdog is toothless unless properly trained
‘Why didn’t the Director of Public Prosecutions’ office spot the flaws in this case and put all the parties involved out of their misery long ago?’
WE saw the emperor wearing no clothes this week. An important body of the State was stripped bare and a spotlight trained on its inadequacies – what was revealed is not a pretty sight.
The Office of the Director of Corporate Enforcement (ODCE) is exposed as unfit for purpose. Deficient in leadership. Lacking in judgment. Wasteful of public funding. Ignorant or neglectful of proper procedures. Failing in oversight of its work. Chancing its arm as it conducted a criminal trial of enormous public interest.
In short, an embarrassment to itself and a cause of reputational damage to the State it is charged with serving.
The ODCE should stop insulting us with excuses about why the Séan FitzPatrick trial was shambolic, and spare us the promises to try harder in future. Responsibility for a catalogue of failures must be accepted, and resignations offered.
The corporate watchdog bumbled its way through the trial in such a bafflingly inept manner that the judge ended the charade before the jury could deliberate on a verdict, directing an acquittal. Thank goodness someone did their job properly, Judge John Aylmer.
With the ODCE naked before us, let us consider what can be learned. The headliner must be the public loss of confidence in the State’s ability to investigate serious white-collar crime. Government needs to attend to that omission sharpish.
A question mark also arises over the judgment of the Director of Public Prosecutions (DPP). Why didn’t the DPP’s office spot the flaws in this case and put all the parties involved out of their misery long ago?
Such gross inefficiency from State bodies loosens the social glue that keeps Irish society functioning. Social glue is a two-way street. It relies on citizens to supply support including taxes, and a state to provide services ranging from education, healthcare and policing to the delivery of justice.
When it works properly, it fosters unity and loyalty – when it fails, the contract between citizen and state is weakened and repercussions are inevitable.
Clearly, there were system failures during the five-year-long case taken against the former Anglo Irish Bank chairman. Unfortunately, they highlight leadership defects within the ODCE. For example, a thorough grasp of risk management is integral to any well-run organisation, but the ODCE prosecuted what Judge Aylmer called an “inappropriately biased and partisan” case – coaching witnesses and contaminating witness statements, in addition to documents being shredded by lead prosecutor Kevin O’Connell. The ODCE must have realised there were risks inherent in the way it compiled its case, but proceeded anyway with fingers and toes crossed.
Other questions arise regarding staff training and handling. How was staff progress monitored? How were skill shortages addressed? Where was the succession planning, so that if any staff member had to leave the investigation another could take their place? Why was a solicitor inexperienced at conducting a major criminal investigation allowed to be lead investigator? Why didn’t anyone spot he was out of his depth? How could one person’s health issues derail an entire case? How was the duty of care to an employee under severe mental stress exercised? These are not minor omissions but central to an effective corporate governance policy.
The ODCE has complained about a lack of resources but coaching witnesses and shredding documents are not a matter of resources but of running a dodgy prosecution. Citizens are frustrated by the deficiencies exposed by this case, and rightly so. Not only because of the millions of euro wasted – the Exchequer meets all costs here – but because since the economic firestorm, we have been urged to trust the State to seek justice and accountability on our behalf. And we have done so. There has been relatively little social unrest since €64bn of bank debt – €30bn relating to Anglo Irish Bank – was transformed into sovereign debt. Rather, we have put our shoulders to the wheel.
Judge Aylmer was right to set Mr FitzPatrick free. Everyone is entitled to a fair trial. It would be abuse of power for agencies of the State to decide on guilt in private instead of being required to prove it in public.
However, in the nine years since the collapse, public services have been slashed and taxes raised. Lives have been shattered by unemployment and families grieved by emigration. Citizens have had their lives made miserable in numerous ways, not because of their own actions but because of what others did: because bankers were greedy and regulators didn’t regulate, and by and large the State let them get away with it.
Mr FitzPatrick has been acquitted of misleading Anglo’s auditors over loans reaching up to €100m for himself and those connected with him, but let’s not forget why he was borrowing in the first place. To make himself wealthier than he was already, with investments in a plethora of get-rich-quick schemes including a Nigerian oil project.
He saw himself not as a banker but a player. Instead of acting as stewards of wealth, we must be creators of wealth, he told UCD’s School of Business in 2008. Anglo had to be nationalised the following year.
The matter of whether Ireland needs a statutory body dealing with white-collar crime is now to be raised in the Dáil.
Setting up State agencies is all very well, but who will guard the guardians?