Last night, Dearbhail McDonald, associate and legal editor at the Irish Independent; Tom Lyons, senior business correspondent at the Irish Times, and Tom O’Malley, a senior lectuter in law from the National University of Ireland Galway, appeared on RTÉ’s Prime Time to discuss the fall out of yesterday’s sentencing of Willie McAteer and Pat Whelan.
The two former Anglo Irish Bank executives were convicted of making loans to illegally prop up the bank’s share price. Yesterday, Judge Martin Nolan ruled that neither man should be jailed but said they may be forced to carry out community service.
In reference to the Financial Regulator’s office, Judge Nolan said:
“It would be most unjust to jail these two men when I feel that a State agency had led the two men into error and illegality.”
During the panel’s discussion, they briefly mentioned the role of ‘others’ in the Maple Ten deal, and at one point specifically the Department of Finance.
David McCullagh: “Tom Lyons, he [Judge Martin Nolan] really was scathing, in his judgement, about the Financial Regulator [Patrick Neary]. Why did he take such a hard line?”
Tom Lyons: “Well, I think he saw that the Financial Regulator [Patrick Neary] was heavily involved in this deal from at least March 2008, and possibly earlier. And he said that, you know, given all of the evidence that, you know, it really appeared that the Financial Regulator was giving a green light to this deal. And he said that, you know, that he thought that the Regulator really was on top of things and it should have been the one to step in and block it. But, for some reason, it didn’t.”
McCullagh: “And, presumably, if the Regulator was aware, we heard in evidence, the Department of Finance was also aware, but the department didn’t seem to get the same amount of attention in the judgement.”
Lyons: “Well the Department of Finance was aware in general terms, of the issue, you know, in terms of this is an issue that could destablise Irish banking. But it wasn’t its job to get into the nitty gritty of what was the ins and outs of how they were actually dealing with it. So I mean the Department of Finance only featured for 22 minutes in a 48-day trial. So clearly the focus, all the time, was on what did the Regulator know, or not know and when exactly did it know it.”
McCullagh: “We had a difference in what the jury was allowed to consider when it was reaching a verdict and what the judge was allowed to consider when he was deciding sentencing in terms of the legal advice, in terms of the Financial Regulator, for a lay audience, can you explain what the difference is there? What the thinking there is?”
Tom O’Malley: “Well, it’s quite a common situation because the jury is already deciding whether the person is guilty or not guilty of the offences actually charged. And, obviously, they have to be, they have to confine their attention to the legal definition of the offence to begin with, and also to the facts of the case. So, in those circumstances, they are confined if you like, their verdict is simply one of guilty, not guilty or we cannot agree. When it comes to a sentence, on the other hand, a different set of circumstances, it’s a much different kind of exercise. The people have now been found guilty, it’s up to the judge to decide, if you like precisely, how guilty they are, to try to measure their guilt, having regard to the level of personal responsibility that they had and to the entirety of the circumstances of the case. And therefore it is, it is not at all uncommon that factors that are totally irrelevant for the purposes of deciding if a person is guilty of innocent then become relevant for the purposes, if you like, of measuring the precise level of culpability that the person has. And, in this case, obviously, there were two difficulties, in a sense, facing the judge, or, well two challenges, if you like. One was that he was dealing with a set of offences that had never been apparently prosecuted before, so he didn’t have any precedents as to the appropriate sentence or what the appropriate principles might be. But, secondly, and much more importantly, he was dealing with two people who were not, as often happens in criminal activities, acting entirely alone. Instead of that, they were part of a much bigger operation, they were part of a fairly large cast of actors, not even lead actors arguably and, therefore, he had to look at their level of responsibility in light of the, if you like, the network within which they were operating.”
McCullagh: “And, by being so scathing of the Regulator in his judgement, do you think he set any precedence here?”
O’Malley: “Well, I’m not sure. I suppose one point I would make about that is that, when you look at the Regulator, one of the other questions you have to ask is, or one of the other things you have to do is to go a bit further back along the food chain and ask the question who created and who tolerated the system of light-touch regulation that the Regulator appears to have been implementing. But, on the other hand, I don’t think there was any unfairness in what he had to say about the Regulator. Opinions might vary on this. But, on the other hand, when you consider the evidence that the Regulator himself gave in the course of the trial, it wasn’t as if a person was being condemned without actually being heard. The Regulator was heard in the course of the trial. He gave evidence, he was cross-examined at length and quite vigorously. And therefore, I personally, although I wasn’t present at any of the trial, don’t think that there was any unfairness done in terms of the conclusions that the judge drew in relation to the fact that the Regulator, and perhaps others, should have been far more vigilant in terms of what was happening. And they should have been far more alert of the possibility that serious breaches of the law were actually taking place.”
McCullagh: “Tom Lyons, the Central Bank this evening issued a statement, in the wake of the judgement, and they said that they had ‘substantially strengthened Ireland’s capacity and financial regulation and supervision’. And they’re ‘confident the shortcomings identified by the court would not reoccur today’. Would you share that confidence?”
Lyons: “Well I think there’s definitely been changes at the top and they’ve put very credible people in place, in terms of the Financial Regulator and the Central Bank at the top. But, down below that, I mean they’re still pretty much the same people and we’re seeing, we’re coming across the same names that were there during the boom when all this sort of stuff was going on. And it is a fact that, you know, there’s been nobody sanctioned and nobody sacked from the Financial Regulator or the Central Bank. They’ve all been allowed retire and certainly in the case of Patrick Neary, who featured so heavily in this trial, I mean he retired with €630,000 pay-off and he’s on a pension today of €143,000, so I mean if that’s sanction?”
Watch back in full here
Previously: “I Imagine There Will Be An Appeal”