“I Imagine There Will Be An Appeal”



Professor of European Criminal Justice Finbarr McCauley, of University College Dublin, appeared on RTÉ’s Prime Time last night to speak about the Anglo trial.

He and presenter David McCullagh were joined by Orla O’Donnell, legal correspondent for RTÉ, Ian Kehoe, assistant editor of the Sunday Business Post, and Gregory Connor, Professor of Economics, Finance and Accounting at NUI Maynooth.

During their discussion they talked about how, during the Anglo trial, a lot of time was spent discussing the matter of legal advice that Anglo had received from Matheson Ormbsby Prentice in relation to the Maple 10 deal and how the law firm advised them the deal was on the level.

But the prosecution successfully contended that legal advice does not make an illegal act legal. And after about 20 days of argument on the matter Judge Martin Nolan ruled that the jury had to ignore the issue of legal advice.

Professor McCauley took issue with this move and even suggested an appeal may be made on foot of it.

Orla O’Donnell: The legal advice was very important to the defence because they wanted to show that these three men had done everything they could to ensure that this deal was legal and, in fact, there was a lot of talk about legal advice for the first, I think, 19 or 20 days of the trial. And yet, after that time, there was some legal argument, the prosecution said that legal advice – good, bad or indifferent – couldn’t make something that was illegal legal and the judge ruled that yes, that ignorance of the law is no defence, so they were told it could never be mentioned again.”

David McCullough: “So all that evidence that the jury had heard was, in effect, wiped out from…their deliberations.”

O’Donnell: “That’s right, irrelevant.”

David McCullough: “Finbar McCauley, some people looking at this, literally, are going to think, ‘Well, if the Financial Regulator said that it didn’t have a problem with this, and this is an arm of the State, then why were these men being prosecuted?’.

Finbarr McCauley: “Well, that’s a very good point – the point that Orla’s made there about the judge’s ruling, in the course of which he effectively excluded that evidence – I think that, with all due respects to the judge, and they have to make all these line calls in very difficult situations – but I would have thought that that’s a mistake. It seemed the prosecution argument seemed to be that this was effectively mistake of of law, in fact they used the famous Latin maximum, ‘Ignorantia Juris’, was bandied about – meaning, ‘Mistake Of Law Is Never A Defence. But, I think if you scrutinise what the defence were saying – they weren’t actually alleging that they didn’t know that Section 60 existed, or that they didn’t know what the sub-sections said. Their argument was that, under the advice that they had received from their own lawyers that they thought the behaviour they were purporting to do, came within the relevant provision. That’s not a mistake of law, with all due respects to their learned counsel, that’s a mistake of fact. Let me give you an example, if I go through a ceremony of marriage, during an already subsisting marriage to my current and beautiful wife, and I go to court, and I’m facing a charge of bigamy, and I say, ‘Oh, I didn’t know that bigamy was an offence in this country, so may I be excused?’ – I would be told – ignorance of the law is no excuse and that would be quite a proper thing for the court to say. But, if i said, ‘I’m sorry, I didn’t, I thought my divorce papers had come through’ – but in fact I was mistaken about that fact, that would not be a mistake of law – that would be a mistake of fact – I’m mistake of the factual situation pertaining to me. In my judgement for what it’s worth, I think that is what the defence were saying. And I think, therefore that the trial judge’s decision to exclude that evidence effectively converted this offence, the Section 60 offence, into one of strict liability. It precluded consideration of the mental state, the mental element, which, as you know is a fundamental issue in the law.”

O’Donnell: “That’s, one of the issues is that the defence were asking the judge to read a defence into the legislation, a defence of due diligence. And I think in English legislation there is some kind of defence of good faith but the judge said that he couldn’t do that, that he could only deal with the law as it was, it wasn’t up to a Circuit Court judge to make law. So he said it wasn’t in the legislation.”

Gregory Connor: “I think from the perspective…”

McCauley: “If I could just finish on that point, sorry Gregory.”

Connor: “Yes, sure.”

McCauley: I would imagine that there will be an appeal, I mean I can’t say for certain but I imagine that there will be an appeal on that very point.”

Watch back in full here

Related: Much of Anglo trial taken up with legal argument (RTÉ)

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