Anglo trial not about collapse of banks, jury hears

Thursday 10 April 2014 21.59
The trial is hearing closing arguments today
The trial is hearing closing arguments today

Lawyers for one of the three accused in the Anglo trial have told the jury the trial is not about the collapse of the banks in Ireland and they should not see the accused men as a way to get vengeance for it.

Senior Counsel Brendan Grehan was making his closing remarks to the jury on behalf of Patrick Whelan, Anglo's former head of lending in Ireland.

Mr Whelan as well as Anglo's former director of finance, William McAteer, and the bank's former chairman, Seán FitzPatrick, are all charged with giving unlawful loans to ten customers of Anglo to buy shares in the bank in July 2008.

Mr Whelan and Mr McAteer are also charged with giving unlawful loans to six members of Seán Quinn's family.

Earlier, senior counsel for the prosecution Paul O'Higgins told the jury that almost everything about the loans at the centre of the case was obviously, and spectacularly, not in the ordinary course of business for the bank.

This afternoon, Mr Grehan told the seven men and seven women of the jury there was no one who had not been affected in some way by the collapse of the banks in this country.

He said great care had been taken to ensure the jury members were impartial.

But he said it was often the smaller things that got people angry; not the cuts in their wages or the loss of increments but a couple of hours less for a special needs assistant for children in school or a home care assistant for an elderly person.

He said that was something they had to recognise.

Mr Grehan said someone told him there had been a spectator in court yesterday who said he had gone in because he wanted the accused men to get a fair trial "and then hang them".

He told the jurors they were not spectators and had to distance themselves from the kind of thinking that they were there to satisfy the baying for blood of the mob.

He said this case was not about the collapse of the banks in Ireland or seeing the three men in the dock as a way of getting vengeance for it.

This was a case about a provision in the Companies Act that went back to 1963 and had never before been prosecuted, he said.

Mr Grehan said that was what they had to focus on, devoid of pressures on them from outside the court to bring in a certain verdict.

He said people outside the court had not heard all the evidence: they had.

The transaction at the centre of this case was a perfectly valid commercial transaction, he said.

The Maple Ten got involved because they were asked to and because they wanted to help the bank. But they all agreed it was a commercial transaction from their point of view, he said.

He said they were liable to repay 25% because the terms had to be attractive and similar to other loans they had with the bank.

He said the bank held security on the loans in the form of the shares.

No one believed the bank was going to fail and the shares would become worthless, he said.

At that time, banks were looked at as blue chip investments and a safe thing from the point of view of investing money.

Mr Grehan said there was justifiable anger about the collapse of the Celtic Tiger, the government guarantee, all the money people lost and those who are mortgaged to the hilt for the next 20 years.

However, he said the events at the centre of this trial pre-dated all this. It happened at a time when nobody could have believed this would happen. People legitimately believed the share price would come back.

Mr Grehan said the explanation to the jury of Section 60 of the Companies Act by the prosecution was over simplistic.

He said the section prohibited companies lending to buy their own shares, unless the company was a bank. "Where a company is a bank and lending is in the ordinary course of its business then it is not a crime, it is not unlawful."

Mr Grehan asked how was a director of a company to meet his obligations if he could not rely, as the prosecution suggests, on legal advice, the financial regulator, an international firm, a compliance department or anyone above or below you in the company.

He said the duty of a director was not to stand idly by while the company went down the tubes. Mr Whelan had done what he was asked to do by the chief executive, he had rolled up his sleeves and got it done.

He was not someone who went to college or had a professional degree, he was a diligent hard worker who had worked his way up the bank, he said.

He had never shirked from his position or his involvement in this, Mr Grehan said.

The Companies Act runs to 3,000 pages and Section 60 alone has 40 sub-clauses and nowhere in it did it state what the prosecution claimed was the object of it - that he is left to his own devices in ensuring compliance with the act.

He had never studied company law or had no degree but was obliged to know he was doing wrong.

The very things an ordinary decent people would rely on were your boss, your legal advice, the regulator and a compliance department.

If you could not do that, if that was the law it was an unjust law, he said.

"How else could you know if you were going wrong if you can’t rely on experts in the area?," he said.

Trial hears everything about loans 'topsy turvy'

The jury was earlier told that almost everything about the loans at the centre of the trial was obviously and spectacularly not in the ordinary course of business for the bank.

In his closing argument, senior counsel for the prosecution Paul O'Higgins said everything about the loans was "topsy turvy" and a lot of what was on the loan documentation was bogus.

Mr O'Higgins said there was strong evidence that the loans were exactly the type for which Section 60 of the Companies Act existed to prevent.

It was to prevent a company lending for a purpose which would affect the share price.

What was "absolutely striking" was that it was a done deal from the beginning, he said.

He said if a director of a company is instructed by a CEO to do something against the law it does not offer "one crumb of a defence to any case".

"If a CEO tells you to do something which is illegal it is up to you to say no you can't do that."

He said even if you did not know it was illegal, ignorance of the law was no defence.

Another feature of the loans that really stood out was the lack of attention to the correct dates on the contracts for "vast, vast sums" of €60m, he said.

He added that the bank had legally committed to the lending without its credit committee approving them because the loans were not for the benefit of the borrowers, they were for the benefit of the bank.

Mr O'Higgins said Mr Whelan, an executive director and board member, was fully involved with the plan and had signed not just the loan papers but bogus credit committee documents.

He said he was "up to his neck" and must have authorised or permitted the loans.

He said Mr McAteer must have been "a genius at the modh coinníollach", the conditional tense in school, because most of his answers in garda interviews were "I would have or could have".

Mr O'Higgins said these were convenient answers should evidence later emerge.

He said Mr McAteer knew all about the central feature of the scheme.

In relation to Mr FitzPatrick, he said this was the biggest thing to happen to the bank and concerned the lending of hundreds of millions of euro.

Mr O'Higgins said he knew two crucial things, that huge lending was taking place and that the purpose of the lending was to unwind Seán Quinn’s CFD position and avert the risk to the bank's shares.

He said it was not good enough to palm it off on a compliance department.

He told the jury it must consider the evidence objectively with neither sympathy nor hostility.

There was no reasonable doubt as to whether they were guilty of the charges against them.

Jury told FitzPatrick 'singled out'

The jury was this afternoon told Mr FitzPatrick could not have authorised the loans at the centre of criminal charges because he did not have the power to do so.

In closing speeches, senior counsel Michael O'Higgins said it was absolutely clear that the only people who could authorise a loan were those on the credit committee who signed off on it.

He said it would never have occurred to Mr FitzPatrick to stop the loans because he could not have known there was anything wrong with them.

He said David Drumm called him on 9 July when the deal was at a very embryonic stage. 

He said Mr Drumm had a duty to impart what he knew to Mr FitzPatrick. 

Mr Drumm was the person with the information, he said.

Mr O'Higgins said the prosecution has conceded that the former chairman was singled out from other non-executive directors for prosecution.  

There were seven non-executive directors on the board but only Mr FitzPatrick was arrested.  

Five of them made statements through a corporate law firm and were never ever interviewed.

He said: "You might think others could have been prosecuted, the seven non-executive directors were in the frame, only one was prosecuted... you would have expected gardaí to have gone and interviewed these people and arrested them. Instead these statements of vagueness were accepted at face value.

"There was no follow-up, no shaking the tree. And do you know the reason? The prosecution said if everyone who could have been prosecuted was prosecuted then everyone would have got off.

"If I was to suggest to you that my client was picked on, was singled out you would say I was a conspiracy theorist but the prosecution have told you this."

He said the "the guards took up the cudgels of the man on the bar stool and said you are the face of Anglo, a cat couldn't wet the ground in there without you knowing it".

He said Mr FitzPatrick had challenged this in his interviews with gardaí in 2010 and asked them to find one person who would contradict his claim that he was not involved in the day-to-day running of the bank.  

He said it was now April 2014, and not one person had been produced who would say this.

He said the prosecution seemed to be saying the bank was going down the tubes but there was nothing they could do about it.

He said the transaction was a real transaction.  People had a choice as to whether to get involved with it.

He said the jury would have to ask had the prosecution proved there was a loan, was it outside the provisions of the legislation and was Mr FitzPatrick aware of the matters which made it outside Section 60.  

If they had a doubt about this, they had to acquit him, he said.

He will continue his speech tomorrow.