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Posts tagged ‘Director of Public Prosecutions’

A HIGH Court judge has cleared the way for aggrieved customers to initiate private criminal prosecutions against bank staff.

By SHANE PHELAN and RUAIDHRI GIBLIN

 In a landmark judgement, Mr Justice Gerard Hogan upheld the right of citizens to bring private prosecutions, after lawyers for Irish Bank Resolution Corporation (IBRC) claimed this right had been abolished 14  years ago.

His decision paves the way for a hotelier to bring a  private prosecution against two IBRC officials he claims behaved  dishonestly during discussions about a rescue plan for his business,  which has debts of €23m.

It is believed to be the first case of its kind since the banking collapse and could lead to a raft of similar actions.

“Employees of financial institutions never thought that they could be prosecuted  for their actions as bank officials,” one senior counsel told the Sunday Independent.

A summons has been issued to compel the bank officials to attend to answer allegations in a district court.

Once that hearing takes place, it will then be up to the Director of Public  Prosecutions to decide whether the case should proceed further.

“The underlying purpose of the private prosecution is . . . to draw the  public prosecutor’s attention to the case with the implicit request that the prosecution be taken over (by the DPP),” Mr Justice Hogan said in  his written judgement.

The ruling opens the way for disgruntled customers to take cases against officials at all levels of the banking sector.

However, legal experts warned there are dangers involved for people seeking  private prosecutions, as they could find themselves liable for  substantial legal costs if they fail.

The ruling came after one  current and one former member of IBRC staff sought a judicial review to  bring a halt to hotelier Pat Halpin’s private prosecution against them.

Mr Halpin, 62, has run hotels in Dublin and his native Clare for a quarter of a century, but got into difficulty in recent years over borrowings  with the former Anglo Irish Bank.

His businesses include the Aberdeen Lodge and Merrion Hall boutique hotels  in Ballsbridge, Dublin, and Halpin’s Townhouse in Kilkee, Co Clare.

IBRC last year appointed a receiver to two of his companies, Crossplan  Investments Ltd and Elektron Holdings Ltd, which look after his  interests in Dublin.

He claims he was invited to a  meeting with two IBRC officials in February last year – before the  receiver was appointed – to discuss the sale of Merrion Hall in a bid to pay down debt.

Mr Halpin says he and his accountant were left with the impression from the meeting that the matter would be  considered further “within the higher echelons” of the bank and that the bank would come back to them with proposals.

However, Mr Halpin claims he later learned it had already been decided by IBRC that a receiver be appointed to both companies.

He alleges a letter he subsequently received from the bank showed clearly  that both officials had known that a receiver was to be installed at the time of the meeting and had deliberately concealed this knowledge from  him.

Mr Halpin subsequently initiated a private  prosecution against the two officials in the district court – alleging  offences of dishonesty under the Criminal Justice (Theft and Fraud  Offences) Act 2001 – and succeeded in getting the court to issue a  summons against both. The charges have been denied by the two officials. Both went to the High Court seeking to halt the private prosecution,  claiming such prosecutions had been effectively abolished by the 1999  Criminal Justice Act.

They contended that there had to be a preliminary examination procedure for a private prosecution to take place.

The officials argued such prosecutions had been effectively abolished  because the Act did away with the traditional practice of holding a  preliminary investigation in the district court to determine if  sufficient grounds existed for sending a person forward for trial to a  higher court.

In his ruling last week, Mr Justice Hogan  disagreed and said the right to a private prosecution had not been  indirectly affected by the abolition of the preliminary examination.

The judge also said that, although he felt Mr Halpin’s case “seems slender  and tenuous”, he would not be justified in quashing the summonses.

Mr Justice Hogan cautioned it was also important to remember that the  charges had been denied in the most emphatic terms by the two officials  and they had yet to be heard on the merits of the complaints.

The judge said he would leave it to the DPP to decide whether the case should proceed or be dismissed.

He also awarded Mr Halpin 60 per cent of his costs. A stay has been placed on the private prosecution until January to allow the bank officials to appeal to the Supreme Court.

As yet, there has been no indication such an appeal will be lodged.

Law Library sources said the ruling was significant as it confirmed the  rarely used right of people to bring private prosecutions.

Any citizen with a reasonably credible complaint against somebody can walk  into the district court and convince a judge to grant permission for a  criminal summons, one senior legal expert said.

The  standard of proof for the issuing of a summons is low and those who were summonsed would, in all practical circumstances, have to challenge the  allegations made against them in court, the source added.

Mr Halpin told the Sunday Independent he was hopeful he would succeed in persuading the DPP to take up his case.

The businessman is also taking a separate action against IBRC for alleged overcharging to the tune of €2.6m.

source: Sunday Independent

Anglo execs still refusing to co-operate

By Emmet Oliver,
A group of former Anglo Irish Bank executives and other witnesses are still refusing to co-operate with the two-and-half year investigation into the bank, despite a fresh appeal by officers working for corporate watchdog head Paul Appleby.

The joint garda/Paul Appleby-led investigation team made a fresh appeal in May and June
— but people restated their refusal to co-operate through their lawyers, an affidavit reveals.

The investigation team wants to interview the group to shed light on a range of
events in 2008 when the bank was under severe market pressure, including the
warehousing of loans with other lenders and a deposit transaction between Anglo
and Irish Life & Permanent.

A senior garda attached to Mr Appleby’s office, Eamonn Keogh, has revealed that the fresh
appeal prompted a change of heart by some of the “reluctant
witnesses”. “A small number have since co-operated and made statements or have committed to making statements in the near future,” said his affidavit. “A definitive
response is outstanding from the remainder.”

Interviews

The investigation team had been trying to get interviews with some individuals for
more than a year, he added. Mr Appleby and his colleagues say they have no
powers to force people to give evidence. However, the High Court heard yesterday that new powers under the Criminal Justice Act could yet change this position. In certain circumstances, witnesses will have to co-operate under the terms of this bill which is making its way through the Oireachtas. The affidavit
was opened in court during an application by Mr Appleby for more time to
continue his probe. This request was granted by Mr Justice Peter Kelly, who
told the court special powers to seize material and activate warrants could
remain in place until early next year.

Mr Justice Kelly said the collapse of Anglo had “devastating consequences” and it was
not unreasonable for people to expect a thorough investigation into whether the
criminal law had been breached. The court also heard evidence from a legal representative of the Director of Public Prosecutions (DPP), who said it was not right to say “nothing” was
happening in the investigation.

The DPP was being kept fully appraised and had received a number of “modular”
reports. Barrister for the DPP, Una Ni Raifeartaigh, said it had been decided that all the various strands of the investigation should be finished rather than deciding on charges
on some segments. She said there was an overlap in witnesses between the
different strands and also other linkages.The investigation team is still hoping to finish up by the end of the year, the affidavit makes clear. However, this is subject to various provisos, the team made clear in evidence to Justice Kelly. Some of the
warehousing of loans — known as refinancing by the investigation team — was a
lot more extensive and complex than previously thought, said the affidavit.

This was a wholly unexpected development, it said, but the team was now getting a better
understanding of the transactions.

– Emmet Oliver,
Deputy Business Editor

source http://www.independent.ie/business/irish/anglo-execs-still-refusing-to-cooperate-with-probe-2833214.html

 

Comment:

This is outrageous
the government should enact emergency legislation immediately we are dealing
with a known corrupt bank  I cannot
understand why top managers and directors are allowed to get away with not supplying
the gardaí with the information they need .These people should be brought
before the courts and jailed why do we not have the names of these people
splashed across the newspapers Name and shame  these crooks. Anybody else would be in jail by
now. Who is protecting these people? What dirt have they on the politicians, who
are afraid to act against these gangsters? Allen Shatter what are you afraid of?

Judge Kelly on Anglo and the ODCE

By Gavin Sheridan

 I couldn’t let this pass without putting it in full here (emphasis mine):
JUDGMENT of Mr. Justice Kelly delivered on the 10th day of May, 2011
Introduction
The collapse of Anglo Irish Bank Corporation Limited (Anglo) has had profound and serious consequences for the economic wellbeing of this State and its’ citizens. It has caused much hardship to many small shareholders who invested in it in good faith. It played no small part in seriously damaging Ireland’s business reputation throughout the world.
In such circumstances, one could reasonably expect that the relevant authorities in the State would carry out a comprehensive investigation so as to ascertain whether any breach or breaches of the criminal law might have occurred in respect of the activities of Anglo and those who were responsible for it.
The applicant (the Director) has indeed been carrying out an investigation together with the Garda Bureau of Fraud Investigation and it is that investigation which gives rise to the current application.
The application concerns the treatment of material which was obtained on foot of warrants granted by the District Court to the Director in February, March and September 2009. This involved the use of what is statutorily described as an “extended power of seizure”.
In this application, the Director seeks orders pursuant to s. 20(2G)(a) of the Companies Act 1990 as inserted by s. 5 of the Companies (Amendment) Act 2009 to extend the period specified under s. 20(2I)(a)(i) to deal with such material for a further period of six months from the date specified in a similar order which I made on 9th November, 2010. A second order is sought in the same terms in respect of potentially legally privileged material.
This is the sixth time on which the Director has applied for orders of this type. The first occasion was in October 2009.
The Application
The statutory provision relied upon by the Director provides that an application may be made to the court by the Director or any person affected by the exercise of an extended power of seizure. An extended power of seizure was exercised in the present case and that is not in contest. In such circumstances, the Act provides that the court “may, if it thinks fit and having had regard, in particular, to any submissions made on behalf of the Director with regard to the progress of any investigation being carried on by the Director for the purpose of which the powers under this section had been exercised, give one or more” directions (my emphasis). The direction which is sought here is a further extension for a period of six months within which to deal with the material which has been the subject of the extended power of seizure.
At earlier hearings, I directed that if further extensions of time were to be sought, the court would have to be apprised of the progress being made in the various investigations which are being carried on.
The Investigation
Five issues have been identified which are the subject of investigation by the Director and the Garda Bureau of Fraud Investigation.
They concern:-
(i) the provision of financial assistance by Anglo to a number of persons in 2008 to enable the purchase of Anglo’s shares in circumstances which may have contravened s. 60 of the Companies Act 1963;
(ii) the provision of loans by Anglo to its former directors and the regular “warehousing” in Irish Nationwide Building Society of certain loans made available by Anglo to some former directors at the end of Anglo’s financial year thereby misleading the auditors in circumstances which may be contrary to provisions of the Companies Acts 1963 – 1990;
(iii) a “back-to-back” deposit arrangement undertaken with Irish Life and Permanent Group for the benefit of Anglo at the end of Anglo’s financial year in September 2008;
(iv) the provision of a loan to a director of Anglo in circumstances which may be contrary to common law and s. 297 of the Companies Act 1963; and
(v) the communication of possible false or misleading information in certain Anglo public statements in 2008 which may constitute breaches of the Transparency (Directive 2004/109/EC) Regulations 2007 and the European Communities (Admission to Listing and Miscellaneous Provisions) Regulations 2007.
I will consider each of these issues in turn.
Issue (i)
In sworn testimony which was put before me in November 2010, I was informed that insofar as this issue was concerned “substantial progress has been made, and the Director expects that the investigation of this item will be substantially completed at the end of the year”. That was the Directors own time estimate and not one in any way imposed by the court.
In an affidavit dated 19th April, 2011, in support of this application, I was told that a report relating to certain aspects of this issue was forwarded to the D.P.P. on 24th December, 2010 and that a file was sent to the same officer on 14th March, 2011, following what was described as “the substantial completion of this investigation”. The file was seventeen volumes in size and consisted of some eight thousand pages.
I am informed that the investigation file with the D.P.P. is about 90% complete. Despite the “substantial completion” of the investigation, there are a number of important interviews which have yet to be concluded and some other unspecified work which remains outstanding. Only when this is done will the Director be submitting this additional evidence to the D.P.P.
In December 2010, the Garda Bureau of Fraud Investigation furnished an investigation file in respect of market abuse matters in relation to this issue to the D.P.P. It is under consideration by that officer. I am not given any information as to what has happened to this since December 2010.
However, I am informed that further documentation is required to complete this investigation and this involves documents in respect of which the provisions of the Bankers’ Books Evidence Acts will have to called in aid. In addition, the investigation continues to involve the use of mutual assistance procedures in the United Kingdom in order to obtain evidence and statements from a number of persons.
I confess that when the affidavit evidence of last November was put before me and I was told that this investigation would be “substantially completed” by the end of 2010, I took that to mean that papers in final form would be placed before the Director of Public Prosecutions for his decisions at that juncture. That clearly is not the case.
Issue (ii)
In November 2010, I was told under oath concerning this issue that “substantial progress has been made and the Director envisages that the investigation of this item will be substantially completed by the end of March 2011”.
In an affidavit dated 19th April, 2011, I am told that the position concerning this issue is that:-
“Further analysis of documents will be required and a significant number of witnesses (approximately fifty) remain to be interviewed. The ODCE investigation is progressing well and every effort is being made for its completion by the end of 2011”.
This is remarkably different to what I was told last November. Instead of the investigation being “substantially completed by the end of March 2011” there is now no more than an assertion that every effort will be made for its completion by the end of 2011.
I am at a loss to know how the original time estimate could have been given, as even now, in May 2011, fifty witnesses have yet to be interviewed.
Issue (iii)
In November of last year, I was told that it was anticipated that this investigation would be substantially completed at the end of that year. A file was indeed furnished to the D.P.P. on this topic in December 2010. However, I have been given no information as to what has occurred since then. I do not know whether the D.P.P. is still considering the matter, whether he has issued directions or has made any decision at all on the topic.
Issue (iv)
In this case a file was also sent to the D.P.P. at Christmas 2010. No further information has been furnished as to what has been happening since then.
Issue (v)
I am told that a report was furnished to the D.P.P. on this matter in December 2010. However, as the investigation is largely interconnected with the events which are the subject of the issues at (i) – (iv) above, this investigation apparently cannot be completed until those investigations are at an end.
Discussion
I accept, as I have done before, that the task of conducting these investigations is a difficult one. It involves consideration of large numbers of documents both in hardcopy and electronic form. The electronic documentation has to be processed and that is complicated and time consuming. Some people have been uncooperative in making statements. Others have made commitments to give statements but have not yet done so. Other individuals have simply refused to cooperate at all. I also accept matters may arise during an investigation which put time estimates out of kilter.
Very considerable resources have been made available with a view to making progress on these inquiries.
Notwithstanding all of this, however, it has to be borne in mind that the genesis for this application was the execution of search warrants issued by the District Court as far back as 23rd February, 2009.
Now, more than two years after that event, the investigation is still continuing and I have been unable to obtain anything like a firm estimate as to when it is going to be brought to an end.
The self-selected estimates of time which were the subject of the testimony given to me in November of last year have proven to be inaccurate to a substantial degree. For example, I simply do not understand how in relation to Issue (ii), I was told that the investigation would be substantially completed by the end of March 2011 when now in May 2011, fifty witnesses remain to be interviewed. The best that I can be told by way of estimate is that every effort is being made for the completion of the investigation of this issue by the end of 2011.
This case may be unique as to its complexity and the volume of material that has to be assimilated but it is certainly not unique in its speed, or rather lack of it. Over the last few years, I have sent papers for consideration by the relevant investigation and prosecution authorities in a number of Commercial Court cases where judgments for many millions and indeed tens of millions of euros were given against individuals where there was prima facie evidence of criminal wrongdoing on their part. In some such cases admissions of wrongdoing were made. Despite the fact that years have passed since the papers were referred to the authorities, no prosecutions have ensued and little appears to have been done. I am not alone in my sense of disquiet in this regard. In his judgment of 13th April, 2011, in Kelly v. Byrne, Clarke J. said in respect of the defendant in that case:-
“It is of some relevance to note that Mr. Byrne made full and frank admissions in the witness box as to the practices in which he was engaged and his acceptance that those practices were unlawful under many headings. I do have to comment that, in the light of those admissions, it is very surprising indeed that no further action against Mr. Byrne seems, as yet, to have been taken.”
This is not a desirable state of affairs. An apparent failure to investigate thoroughly yet efficiently and expeditiously possible criminal wrongdoing in the commercial/ corporate sector does nothing to instil confidence in the criminal justice system as applicable to that sector.
Conclusion
I acknowledge again the huge volume of material that has to be considered in the present case and I do not underestimate the complexities involved. Despite that, in excess of two years investigation without any appreciable result is not at all satisfactory.
I am prepared to exercise the discretion which is vested in me under the statutory provisions in favour of the Director on this occasion. I am not, however, prepared to grant an extension of six further months as sought. I will grant an extension until Thursday, 28th July, 2011. On that occasion, I expect much progress to have been achieved. If a further extension is to be sought, I expect to be furnished with much more detailed information as to the progress of the investigation of these various issues. In particular, I will require to know what progress has been made in respect of the material sent to the D.P.P. in December 2010. I will also expect more accurate estimates of time as to the completion of these investigations than have been furnished to date.

source:http://thestory.ie/

Comment:

Almost 3 years have passed and we still haven’t even begun criminal proceedings against the Directors of Anglo, All of the Culprits that were conspiring to defraud their own shareholders by their fraudulent support of the Anglo Irish Bank Stock. Insider trading that resulted is wholesale fraud and the collapse of the confidence and good name of Irish Life and permanent whose Directors were responsible in the dubious attempts to support Anglo Irish Banks stock.  All of the Directors of the Various Banks have questions to answer s but as this is Ireland none of them will ever see the inside of a court room except if they bring a libel case brought against me because of this comment .This state of affairs clearly shows that the well connected in this Ba-NAMA- Republic are been protected from prosecution and the means is to slowly drag out this process for as long as possible and eventually have all investigations dropped! Why? Because the rot goes all the way to the top

Brian Lenihan , Brian Clown and Berti Ahern are ultimately responsible for this disaster and they should all be in Jail !

“improper and unlawful”

 by namawinelake

There was something surreal about lawyers in the High Court last October, 2010 acting for Paddy McKillen, casually referring to the €45m loan provided by Anglo to the developer as a participant in what has become known as the “Anglo Golden Circle” or “Anglo Maple 10” transaction whereby a group, reported to have been 10 of Anglo’s customers, were advanced some €450m in allegedly non-recourse loans to purchase shares being disposed of by tycoon, Sean Quinn. The reference to the loan in open court last October, 2010 had nothing to do with the probity/legality of the transaction, the purpose was to examine if the loans were performing or not in the context of NAMA’s rights to acquire the loans. At the time, it seemed decidedly surreal.
Surreal, because there have been several investigations into the so-called “Anglo Golden Circle” transaction over the past 28 months. Two of the investigations have been by the Gardai (Irish police service) and the Office of the Director of Corporate Enforcement. Just before Christmas 2010, there was an indication that files were being sent to the Director of Public Prosecutions, but four months later, there doesn’t appear to be any progress.
Of interest therefore is that a judge in Northern Irelandhas referred to the scheme in a judgment (not yet available online seemingly) reported yesterday by the BBC. The case inBelfast involves a company controlled by prominent Northern Irish developer, Peter Curistan on one side and Anglo Irish Bank on the other. There is a contention that another Northern Irish property company, PBN Property (now in NAMA incidentally) was favoured in a transaction involving Anglo and Peter Curistan. PBN Property is partly controlled by Paddy Kearney who is alleged to be one of the “Anglo Golden Circle”. The judge is reported to have called theGolden Circle transaction “a prima facie improper and unlawful proceeding”. One wonders what the process is inNorthern Ireland whereby a judge’s assessment of something as unlawful leads to a police inquiry. And on this side of the border, we continue to wonder when or even if, we will ever get legal clarity on what seems to have been a share support scheme.

source: URL: http://wp.me/pNlCf-1iP

comment:

Insider trading is the trading of a corporation‘s stock or other securities (e.g. bonds or stock options) by individuals with potential access to non-public information about the company. In most countries, trading by corporate insiders such as officers, key employees, directors, and large shareholders may be legal, if this trading is done in a way that does not take advantage of non-public information. However, the term is frequently used to refer to a practice in which an insider or a related party trades based on material non-public information obtained during the performance of the insider’s duties at the corporation, or otherwise in breach of a fiduciary or other relationship of trust and confidence or where the non-public information was misappropriated from the company

Irish Law on Insider trading :Insider%20Trading%20Law%20in%20Ireland

 The Golden Circle: There are a few different branches in the republic ,some in the financial sector and some are within the political elite of the country. Then there are the rest in prominent positions around the state guanos and the State media, illegal insider trading was carried out by one branch of the golden circle In the case of Anglo Irish Bank but we must also not forget that Irish Life and Permanent senior directors and other bank officials from the Department of Finance and the then financial regulator. None of the Golden circle has been brought before the courts for this specific crime why???  Now that we have a new Government what is taking them so long to bring these crooks to justice ?

Ministerial transport arrangements cuts

Bertie Ahern, the sixth leader of Fianna Fáil ...

Image via Wikipedia

THE NEW GOVERNMENT has decided to cut back on ministerial transport arrangements, with all but three members of the cabinet being forced to supply their own cars from May.

This morning’s cabinet meeting decided that only the Taoiseach, Tánaiste and Minister for Justice and Equality would still be given a State-supplied car with a full-time Garda driver – with all other members of the government having to stump up for their own cars in future.

Other ministers would still be given drivers, under the new regime that takes effect on May 1, but the car will have to be supplied by the minister themselves – in line with the arrangements already in effect for junior ministers.

Former Taoisigh – including Bertie Ahern and Brian Cowen – and former Presidents will also lose their automatic right to an official state-supplied car and a Garda driver, except when they are required in line with important State occasions.

The President, Chief Justice and Director of Public Prosecutions are the only other people who retain a State car with a full-time Garda at the wheel.

In a statement, a government spokesman said that those three, as well as the three exempted ministers – currently Enda Kenny, Eamon Gilmore, and Alan Shatter – required the use of a Garda driver for security reasons.

The new moves will produce “very substantial savings”, the statement added, explaining that Ceann Comhairle Seán Barrett and attorney general Máire Whelan will also lose their full-time drivers and state-supplied cars, and will have to produce their own vehicles in future.

In the case of the former Taoisigh and of former president Mary Robinson, the new transport arrangements come into effect in three months’ time.

The cabinet also decided to cut the maximum permitted number of staff in the private and constituency offices of ministers and junior ministers.

Ministers will now have a maximum of eight staff in their private offices, and four in their constituency offices – reduced from ten and six respectively.

Junior ministers will see the same staffing numbers cut from seven and five respectively, to five and three respectively.

Comment:

Why stop there what about the enormous salaries of the rest of the TD’s X civil servants and perks like free car parking in the grounds of Leister House. It would be better for the controller and Auditor General to first publish a list of exactly what the perks and wage top up’s public representatives get! .We the public don’t really have a clue as to how well X public representatives are looked after !

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