Shredding played key role in downfall of FitzPatrick inquiry

Legal adviser taken aback by Garda Commissioners note about witness statements

! about 6 hours ago Updated: about 5 hours ago

Colm Keena

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The former chairman and chief executive of Anglo Irish Bank, Sen FitzPatrick, has been acquitted on all charges against him at the Circuit Criminal Court. Video: Colm Keena
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The spectacular ending of the trial of the former chairman of Anglo Irish Bank, Sen FitzPatrick, has come about in part
because documents relevant to the case were shredded by a solicitor investigating the alleged offences.

The extraordinary shredding of documents led to a collapse of an earlier trial and contributed to the decision by the
judge on Tuesday that he would direct the jury to acquit in this trial.

Kevin OConnell, a legal adviser with the Office of the Director of Corporate Enforcement, took on a lead role in the
investigation but, according to evidence he gave in the absence of the jury, shredded documents during a panic attack
in his office in May 2015.

He informed the Director of Public Prosecutions as to what he had done, then sought psychiatric help. The first trial of
FitzPatrick, then ongoing, collapsed as a result.

The collapse of one of the most significant white-collar crime cases to come before the courts in the wake of the Irish
banking crisis is a huge blow to the reputation of the Office of the Director of Corporate Enforcement (ODCE), the
agency established to investigate corporate crime. It led the inquiry. It is also a blow to the reputation of An Garda
Sochna and the Office of the Director of Public Prosecutions.

FitzPatrick (68), of Whitshed Road, Greystones, Co Wicklow, had pleaded notNext

Read guilty to 27 charges under the Companies
Acts relating to giving false or misleading information to Anglos auditors Ernst & Young
A religious (now
revolution in EY).
taking place in Ireland
In announcing his decision on Tuesday, Judge John Aylmer referred to OConnells evidence that the documents he
shredded were notes of phone conversations similar to other such notes he had discovered to the DPP.

However, the judge said the fact was we didnt know what was in them and there must be a doubt about why they were
singled out.

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OConnell had given evidence to the first trial of FitzPatrick, over six days, in the absence of the jury, as it was becoming
evident that the investigation had been mishandled in relation to the taking of statements from two key witnesses.

In evidence heard by the court in the absence of the jury it emerged that OConnell feared last year, at the time of the
shredding, that he was going to be hung out to dry if the case collapsed.

Garda correspondence
More recently, internal Garda correspondence, released to the trial by Garda Commissioner Nirn OSullivan, showed
senior Garda officers being advised in the wake of the shredding that no members of the force were connected with the
destruction of documents or with the taking of witness statements from two key witnesses.

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OConnell, in the witness box in the absence of the jury, said he was taken aback by the latter claim, given that Garda
colleagues in the ODCE had been involved in the inquiry alongside him and had been copied in email correspondence
and had attended meetings concerned with the taking of statements from the two witnesses.

Defence counsel Bernard Condon SC commented to the court that the Garda were attempting to find a bus to put him
[OConnell] under. An assistant Garda commissioner, the correspondence revealed, had been warned that the case
might produce adverse publicity for the force.

Extended legal argument heard in the absence of the jury outlined how the inquiry was handled as if it was a civil case
before the High Court rather than a criminal case. The process of taking witness statements from two key witnesses, the
court heard, was lawyer led.

The two key witnesses, EY partners Kieran Kelly and Vincent Bergin, were coached and their witness statements
contaminated, with some of the wording in both statements having been actually written by the former Director of
Corporate Enforcement, Paul Appleby, the court was told. The interference included the suggested changing of key
phrases in the statements. The taking of statements occurred as if they were affidavits being prepared for a civil case.
The two key witnesses, both former auditors of Anglos books, signed witness statements that were the product of a long
engagement involving a number of individuals in the ODCE, as well as lawyers in EY and in the law firm that acts for
EY, A&L Goodbody.

It was statement by committee, Condon told the judge, during the extended legal argument.

Potential conflict
There was also an issue of potential conflict. Some of the lawyers acting for EY in the drafting of the statements were
also acting for EY in a 50 million damages claim from the Irish Bank Resolution Corporation(IBRC). The State-owned
bodys case includes matters relevant to the FitzPatrick trial.

The lawyers were also acting for EY in relation to an inquiry by the firms regulatory body, the Chartered Accountants
Regulatory Board (Carb), which is investigating the adequacy of the audit work done by EY on Anglos books. Condon
said the Carb inquiry could potentially lead to EY losing its licence.

One of the complaints from FitzPatricks defence team was that the ODCE did not seek out information that went to
their clients potential innocence as well as his potential guilt, a point that has now been accepted by the judge. The
ODCE had been trying to build a case, the judge said.

FitzPatrick walks away an innocent man. It is the second time he has faced charges that came to trial and from which he
has emerged with his innocence intact. In 2014 a jury found him innocent of charges of providing unlawful financial
assistance to 10 individuals known as the Maple 10, in July 2008, so that they could buy shares in Anglo Irish Bank.

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During that trial, Judge Martin Nolan directed that FitzPatrick be found not guilty of other charges relating to loans
issued to members of the family of the businessman Sen Quinn.

The charges on which FitzPatrick is now to be acquitted related to the treatment of loans from the bank which were
transferred each year end to the Irish Nationwide Building Society, before being transferred back to the bank. This
meant they did not have to be disclosed in Anglos end of year accounts.

The so-called warehousing of the loans led to FitzPatricks resignation when it emerged in December 2008, and
contributed to the loss in confidence in the bank that in turn led to it being nationalised in January 2009. The ODCE
began investigating the matter in December 2008.

OConnell said the documents he shredded had been overlooked when disclosure was being made to the FitzPatrick
defence, and when he discovered them on a tray on the floor of his office, he realised he was going to have to go back to
the witness box and give more evidence. After he informed the State legal team of what he had done, he sought
psychiatric help.

Dramatic development
 The bizarre and dramatic development turned a crisis caused by how the investigation had been conducted, into a full-
blown catastrophe. Although OConnell said he wasnt sure what the documents he shredded were, he said he believed
they were notes taken in meetings or during phone calls associated with the case. Complaints about disclosure had
featured during his giving of evidence in 2015, and when he returned to the office and found more documents that had
not been disclosed, he panicked, he said.

In 2015 he referred to eight or nine pages of notes, while this year he said he thought about three or four pages may
have been involved. He refused to let the court have access to reports concerning his mental health.

OConnell had played a key role in gathering evidence against FitzPatrick even though he had never played a role in
investigating an indictable offence before.

The court heard that, as problems with the investigation emerged during the trial, the new Director of Corporate
Enforcement, Ian Drennan, who had taken over from Appleby in August 2012, informed his staff that only Garda
officers were to henceforth take witness statements.

He also said that when the details of what had happened in the FitzPatrick case emerged, it was likely that the agency
would suffer very severe reputational damage as well as parliamentary scrutiny.

All of the interviews with the EY partners occurred in the presence of the solicitors from A&L Goodbody, including
partner Liam Kennedy, with whom OConnell was in regular contact.

There were up to 40 versions of the Kelly and Bergin statements in the huge discovery of documents released to the
defence last year. It was after the multiple drafts were received that the defence learned of the flaws it argued existed in
relation to how the investigation had been conducted.

Some of the drafts had been going back and forth between the ODCE and A&L Goodbody, some within the ODCE, and
some within A&L Goodbody. It was statement by committee, Condon said. Conspicuous by their absence were the
guards. He said standards in investigating a suspected crime could not be lowered just because it was an alleged white-
collar crime. Everyone goes to the same prison.

READ MORE
The banker, the investigator and the shredding of documents

Timeline: The life and times of Sen FitzPatrick

Sen FitzPatrick case is longest criminal trial in States history

Fitzpatrick on loans: it was done, done, done and I just signed it

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