FITZPATRICK IS SET TO BE ACQUITTED
Judge Aylmer found ODCE investigation fell short of an unbiased, impartial, balanced investigation
THE TRIAL of former Anglo Irish Bank chairman Sean FitzPatrick for allegedly misleading the bank’s auditors about millions of euro in loans between 2002 and 2007 has collapsed.
On day 126 of the trial, Judge John Aylmer yesterday (Tuesday) morning said that he intends to direct the jury today to acquit Mr FitzPatrick of all counts.
His ruling comes after lengthy submissions from the defence arguing that the case should not go before the jury because of flaws in the investigation process and in the prosecution case. Lawyers for the Director of Public Prosecution argued that the trial should continue and should be decided by the jury.
Judge Aylmer said that after considering the arguments from both sides he had decided that, in the interests of the accused’s constitutional right to a fair trial, he would direct the jury to find the former banking executive not guilty.
He said that the investigation, carried out by the Office of thehe Director of Corporate Enforcement (ODCE), fell short of an unbiased, impartial, balanced investigation that an accused is entitled to.
He said the investigation failed to seek out evidence as to the innocence as well as the guilt of the accused.
He said the most fundamental error was the manner in which the ODCE set about tak- ing statements from witnesses. He said this involved coaching of witnesses, contamination of their statements from third parties such as solicitors for the auditors and cross-contamination of their statements between other witnesses.
Judge Aylmer also pointed to the extraordinary circumstances in which the ODCE lead investigator, Kevin O’Connell, had admitted destroyed potentially relevant documentary evidence. This happened during legal argument in the first trial in May 2015 and emerged during that process.
That trial was then stopped and the retrial of Mr FitzPatrick began last September. It was scheduled to last three months but quickly became bogged down in weeks of legal argument in the absence of the jury.
They claimed that two key witnesses from Ernst&Young, Anglo’s former auditors, were coached by investigators.
They also argued that the statements by these witnesses were put together by the investigators as well as by lawyers for Ernst&Young. Finally they said that entire sections from one statement ended up in the other statement.
The prosecution had alleged that Mr FitzPatrick (68) of Whitshed Road, Greystones, had failed to disclose to the bank’s auditor Ernst and Young the details of director’s loans he received from Anglo between November 2002 and February 2008.
He pleaded not guilty to 27 offences under the 1990 Companies Act. These include 22 charges of making a misleading,le false or deceptive statement to auditors and five charges of furnishing false information in theh years 2002 to 2007. The DPP had dropped some of these charges inn the last four weeks.
The prosecution came on foot of an investigation by the ODCE that began shortly after the full sizes of Mr FitzPatrick’s personal loans emerged in December 2008. Between 2005 and 2007 the loans from the bank linked to the chairman had quadrupled to around €122 million.
The revelations led to Mr FitzPatrick resigning as chairman.