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'Company directors can't be passive observers': Prosecution begin closing remarks at Anglo trial

The jury was directed to find two of the former executives not guilty on a number of accounts.

Sean Ftizpatrick
Sean Ftizpatrick
Image: Sam Boal/Photocall Ireland

Updated 11.07pm

CLOSING STATEMENTS IN the Anglo trial began today, with Paul O’Higgin senior counsel for the prosecution beginning his closing statement shortly after 2pm.

Earlier in the day, the jury had been directed by the Judge Martin Nolan to find Sean Fitzpatrick not guilty on charges relating to loans drawn down by the Quinn family and also to find Pat Whelan not guilty of seven charges of being privy to the fraudulent alteration of a loan document.

Whelan and former Anglo Director of Finance William McAteer still face these charges as well as six charges relating to the loaning of money to the Quinn family.

All three have denied the charges.

Closing statements

Senior counsel for the prosecution Paul O’Higgins addressed the members of the jury beginning by stating “you’ll be pleased to hear this is the last set of things I’m going to say about the case before you retire to consider your verdict”.

He told the jury that they did not need to concern themselves with matters relating to the charges that the accused had been found not guilty of today.

He carried on by saying the prosecution carries onus of proving the case beyond reasonable doubt.

O’Higgins raised the issue of what constitutes reasonable doubt, by stating that reasonable doubt could be a “nagging concern” that would stay with jurors as they walked down quays or if they couldn’t be “fully satisfied” or “fully sure”.

He went on to say that there was a great matter of evidence was “relevant” and “irrelevant”.

“Good calls or bad calls, whatever… these are not things which have any bearing on the case and don’t fall for your consideration,” said O’Higgins.

Quinn loans

Speaking about Sean Fitzpatrick, the senior counsel said:”there is no evidence he knew about lending to the Quinns.”

Other matters the jury will have heard about through the course of the trial he said, is whether or not the financial regulator approved of the borrowing in question. He said that was wholly legally irrelevant to the case they were to make a judgement on.

Another thing he told the jury was to disregard whether other people should stand trial.

O’Higgins states that the “key in this case” was if the bank lending the accused are on trial for, was “not lending in the ordinary course of business in the bank”.

He told the jury that if they found, without reasonable doubt, that the lending in question, did not fall under ordinary business in the bank, then the next question the jury needed to ask is “did any of the accused… authorise it… or did they permit it”.

He claimed that the Maple 10 and Quinn loans for purchase of Anglo Irish Bank shares were not in ordinary course of bank’s business

Witnesses

The prosecution told the jury when considering the witnesses that have appeared before them, that there is “scarcely a detached witness”.

Speaking about the individuals that make up the Maple 10, he said that these are “not people that are at a full arms length from the accused, referring to Mr Whelan’s letter which cited them as the “10 heroes”, adding that many had long standing relationships with the accused, “at least with some of them,” said O’Higgins.

Speaking about other witnesses that have appeared before the trial he said there were no “special prosecution witnesses” in the case.

“The Quinns don’t come here without an agenda,” adding that they “plainly had and have issues with Anglo and the people in Anglo…”.

He added that the Department of Finance were not “without views – they obviously have a perspective on things that happened…”

If the jury do find that the accused authorised the lending, he said they are guilty of the relevant offence under the Companies Act.

The prosecution then addressed what they charges are stating that they relate to the Companies Act and Section 60, which prevents a company lending money to buy its own shares.

Buying and selling shares

He said it was there so a company will be seen by the people buying and selling shares as a true reflection of what the company is.

He outlined the provisions of another section which provides an exemption to this, whereby the company is in the business of lending, which Anglo Irish Bank was. Lending was its business, he said.

However, the prosecution said that the Maple 10 loans were “absolutely not” lending in the ordinary way of business for the bank as the loans were for the specific purpose of using the company’s assets to affect the share price. 

The prosecution said that the purpose of the loans was “crystal clear” stating that it was “extraordinary” business for the bank and “only happened because the bank found themselves in an extraordinary situation”.

He said the the accused  took no steps if any kind to prevent what happened.

The senior counsel then discussed the matter of being an executive director and a non executive director of a company.

 

Company director

“No one is obliged to be a director of a company,” said O’Higgins, stating that it though the job can have “considerable awards” it is a “prividledge” and comes with “great responsibility“. 

He added that a director of a company had the responsibility to ensure the company complied with the companies act, adding that a company director can’t be a “passive observer”.

He also said there was no distinction in law between executive and non-executive directors.

“You can’t just sit there and take no notice whatsoever,” adding that if people don’t feel capable or up for the job of being a company director then they should decline when asked to be one. “The three men made themselves subject to the regime,” said O’Higgins.

The prosecution concluded by stating there was a “flagrant breach of the companies act” in this case.

The closing arguments will continue tomorrow.

All the accused deny the charges against them.

Originally published 6.04pm

Read our coverage of the Anglo Trial here>>>>>>

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