Private prosecutions, again.

Last year the prosecutions of Anglo Irish bank bosses fizzled out in community service for Pat Whelan and William McAteer, guilty of 10 counts of providing illegal loans to the group of investors known as the Maple 10 to prop up the Anglo share price. Sean FitzPatrick, the bank’s former chairman, was acquitted of engaging in an illegal share-support scheme.

As the ‘Ansbacher’ tax scandal took briefly again to wing in December, the outgoing chair of the Revenue Commissioners, Josephine Feehily, reminded us again that although 289 cases of illegality were identified in relation to the largest tax evasion scheme in Irish history, not one person has been prosecuted over Ansbacher.

In July 2013 the DPP withdrew corruption charges against four county councillors and a businessman ending a 21-year saga of the rezoning of lands at Carrickmines in South Dublin because of the medical condition of former government press secretary and lobbyist Frank Dunlop who was the chief prosecution witness.

Corrupt ex-planning official George Redmond  won his legal battle last month to have all  adverse findings against him removed from the planning tribunal report following a Supreme Court ruling on the evidence of whistleblower, James Gogarty. Tribunal findings of corruption against (corrupt) former Minister for Justice, Ray Burke, and (corrupt) businessmen Michael Bailey and Joseph Murphy Jr were quashed for the same reasons. Findings that they hindered and obstructed the tribunal were rescinded.

Mr Redmond was convicted of corruption in 2003 and sentenced to 12 months imprisonment following a majority jury verdict. That conviction was overturned on appeal as unsafe and he was released after six months. He was retried in 2008 on two separate corruption charges but the jury failed to reach a verdict on the first count and he was acquitted on the second.

Sean Quinn is back at his glass plant though his family seem to have hidden €500m in assets all over Europe.   

So far so bad.

However, there has been some ambiguous momentum. Sean FitzPatrick still faces 12 counts of failing to disclose to auditors Ernst & Young the true value of loans worth at least €139m given to him or people connected to him, by Irish Nationwide Building Society from 2002 to 2007. The Garda are finally considering a file concerning the  Ansbacher accounts, after “a delay in the system”. The State has sought the extradition of former Anglo CEO, David Drumm.

Democracy is subverted by the flagrancy and impunity of white-collar crime. At every level the criminal system has been set up to ensure maintenance of the status quo, and certainly not to challenge the privileges of the wealthiest or most powerful, who ravaged this country.

For example, since its inception, the Competition Authority – now the Competition and Consumer Protection Commission – has secured 33 convictions against companies and individuals, but the yield has been low: €629,000 in fines and no one sent to jail, though nine people were given (suspended) custodial sentences. The ODCE has secured around 300 convictions, mostly in the District Court where fines and penalties are derisory. In its 14-year history, the Office of the Director of Corporate Enforcement (ODCE) has never secured a single prosecution for insider trading or market abuse, though in 2012 it did finally secure a three-year prison sentence arising from a company law conviction and in 2014 it secured the convictions of Whelan and McAteer, though Sean FitzPatrick was acquitted.

The only convictions related to the drawn-out tribunals have been of Ray Burke for tax evasion, George Redmond (eventually overturned) and Frank Dunlop for corruption, and Liam Cosgrave for offences under the ethics acts; as well as of Liam Lawlor for blatant obstruction of the Planning Tribunal. More are needed. The idea that Bertie Ahern’s digout story which the Planning Tribunal discounted, was never looked at for possible perjury or obstruction of the tribunal, is inflamingly iniquitous.

Comparisons have inevitably been drawn with the US where $65bn-Ponzi-scheme supremo, Bernie Madoff, is serving a 150- year jail term.  But, even there, though over 800 bankers served jail time for the savings and loan crisis in the 1980s, not one was imprisoned for the sub-crime crisis of 2007-9.

The US prosecutor’s panoply of wire-taps, plea-bargaining, monetary incentives for witnesses to testify against former colleagues and the wholesale removal of discretion in sentencing from judges are alien to the Irish judicial system.

The recent protected disclosures bill ushers in US-style immunity from prosecution to corporate whistleblowers, though in the US they are now even offering enormous financial rewards to whistleblowers. It is also time to consider introducing pre-trial hearings that would force prosecutors to show their hand at an early stage, flushing out frivolous cases, and reducing delays. This would undoubtedly have helped with the first Anglo prosecutions.

But above all we need a change in the ethos of the criminal justice system. A rigorous programme of training for judges, lawyers, Gardaí, ODCE, Central Bank, Competition and Consumer Protection Commission, Revenue and DPP must be prioritised.

Eighteen months ago Village announced, in frustration, an initiative to promote private prosecutions of tribunal villains and corrupt bankers. We pursued the matter with banking whistleblower Jonathan Sugarman. 

After some frustrating false starts, lawyers – including senior counsel Michael McDowell and Newry-based solicitor Kevin Neary who handled the £10,000 reward that ultimately led to the instigation of the planning tribunal – generously undertook to provide their services for the initiative. However, Mr Sugarman, whose career was devastated by his bravery in disclosing breaches of banking regulations by Unicredit Bank, decided in the end not to pursue his commitment to the case. This was a pity as a senior figure in the enforcement apparatus had made contact about the matter. After this Village has had to deal with four separate and unlikely defamation cases, which it has dispatched. It all sapped our energy for the private prosecutions. That energy has now returned.

Village is looking for another case to pursue and will return to this issue over the next few issues. •