Background

Early in 2009, following the collapse of Anglo-Irish Bank (“the Bank”) and Mr Sean FitzPatrick’s resignation as Chairman, the Office of Director of Corporate Enforcement (“the ODCE”) commenced an investigation in respect of allegations of financial irregularities within the Bank whilst Mr FitzPatrick was Chairman.

Following completion of the investigation, the DPP initiated proceedings in the Circuit Criminal Court in relation to various breaches of the Companies Acts 1990.

The First Trial

At the first trial of this matter in 2015, evidence was heard from a legal advisor in the ODCE who was the chief investigating officer who managed the investigation. In cross examination, Mr FitzPatrick’s Counsel raised a number of procedural concerns in relation to how the investigation was conducted by the ODCE. In particular, he raised concerns in respect of;

  1. The manner in which the witness statements were taken by the ODCE investigation officer from two auditors from the firm EY, who were key witnesses for the prosecution; and
  2. The extent of disclosure made by the ODCE of the documentation gathered during the investigation.

1) Witness Statements

Counsel for Mr FitzPatrick submitted that the statements should have been taken directly from the EY auditors by members of An Garda Síochána seconded to the ODCE. He was critical of the involvement of the solicitors engaged by EY in the taking of the statements. He claimed that the EY witnesses had been coached and that their statements were affected by the involvement of their solicitors. He claimed that numerous drafts had been prepared and circulated between the ODCE, the EY witnesses and their solicitors.

2) Disclosure

Mr FitzPatrick’s Counsel submitted that documentation was still being disclosed to them during the course of the trial. Further, during the course of the trial, the ODCE investigation officer admitted that, having discovered some documents that had not been disclosed to the defence, he had shredded these documents.

Ultimately, Mr FitzPatrick’s Counsel submitted that the entire trial was beyond redemption due to the flawed nature of the investigation. The presiding Judge decided that the trial should continue and evidence was given by both EY auditors. However, ultimately the jury was discharged and a new trial fixed.

Decision of Dublin Circuit Criminal Court

A second trial commenced in September 2016. Following 126 hearing days, Judge John Aylmer ruled on 23 May last that the investigation “fell short of the impartial, unbiased investigation that an accused is entitled to”. He said key witnesses had been coached and that the ODCE had failed to seek out evidence of innocence as well as guilt. Instead, he said, the ODCE had made assumptions and tried to build a case against Mr FitzPatrick based on these assumptions.

Judge Aylmer stated that he had a concern that the material shredded during the first trial may have been material that could have been of assistance to the defence and damaging to the prosecution. He stated that the statement taking process was the most fundamental error made. He noted that it was intended that statements would be taken in the normal way, by members of An Garda Síochána, but that instead the ODCE obtained the statements through EY’s solicitors. Ultimately, Judge Alymer ruled that warnings to the jury would be inadequate to address the issue of the coaching of witnesses and directed the jury to acquit Mr FitzPatrick. The jury acquitted Mr FitzPatrick the next day.

Learnings

The learnings from this long running trial are of relevance to all regulatory bodies that have a statutory function to conduct investigations and prosecutions.

The ruling of Judge Aylmer reinforces the importance of the following points:

  1. The requirement to make full disclosure. This is paramount in procedurally sound investigations and prosecutions.
  2. The requirement to maintain all evidence obtained during the course of an investigation.
  3. The need to ensure complete transparency and procedural fairness in procuring independent statements of evidence from witnesses.
  4. The benefits of appropriate training for investigators conducting an investigative role for a statutory body.