A HIGH Court judge has extended the investigation by the Director of Corporate Enforcement and Garda into Anglo Irish Bank to the end of July after saying the progress of the two-year inquiry “is not at all satisfactory”. A six-month extension had been sought.
Mr Justice Peter Kelly also strongly criticised the failure to mount any prosecutions in other Commercial Court cases involving judgments for millions of euro despite “prima facie evidence” and even admissions of criminal wrongdoing where papers to that effect had been sent years ago by him to the authorities.
“This is not a desirable state of affairs,” he said. “An apparent failure to investigate thoroughly yet efficiently and expeditiously possible criminal wrongdoing in the commercial/corporate sectors does nothing to instil confidence in the criminal justice system.”
He was not alone in his sense of disquiet, he said. Mr Justice Frank Clarke had recently said it was “very surprising indeed” that little action had been taken about struck-off solicitor Thomas Byrne despite Mr Byrne’s admissions in court about practices in which he had engaged.
Mr Justice Kelly was giving judgment refusing an application for a six-month extension of the Anglo investigation. The judge said he would extend the inquiry only to July 28th when he expected “much progress” to have been achieved.
He warned, if a further extension was sought in July, he would have to be given a detailed update on progress, including what happened to material sent by the investigators to the DPP’s office last December and March.
The judge said the collapse of Anglo “has had profound and serious consequence for the economic wellbeing of this State and its’ citizens”; “caused hardship to many small shareholders who invested in it in good faith”; and played “no small part in seriously damaging Ireland’s business reputation throughout the world”.
One could reasonably expect the relevant State authorities would carry out a comprehensive investigation to ascertain whether any breaches of the criminal law might have occurred, he said. The director was carrying out that investigation with the assistance of the Garda Bureau of Fraud Investigation and was seeking orders allowing him retain and deal with material seized in February 2009 under an “extended power of seizure”. This was the sixth time the director sought such orders.
The Companies Act provides for the court, when considering whether to grant such orders, to “have regard to the progress” of any investigation. The judge accepted the investigation was complex, that some people were unco-operative or had delayed in making statements, and that others had refused to co-operate at all.
However, the genesis of this application for another extension was search warrants issued in February 2009. More than two years later, he had not obtained “anything like a firm estimate” of when the investigation would end and the best he could be told was “every effort” was being made to complete it by the end of 2011.
In the Anglo case, five issues were the subject of investigation but investigations into three of those were not yet complete. Files sent to the DPP to date related to three issues.
A file was sent to the DPP in March 2010 concerning financial assistance by Anglo to persons in 2008 to enable them buy Anglo shares, but the judge was now told further evidence on this had to be submitted to the DPP.
On a second issue – whether loans by Anglo to its former directors and the regular “warehousing” of certain directors’ loans in Irish Nationwide, thereby misleading auditors, breached the Companies Act – the director previously said he expected this to be “substantially complete” by March last. Now the court was told 50 persons remained to be interviewed and further analysis of documents was required.
Files on two other issues were sent to the DPP last December but the court had no information about what was happening to those files. Those issues concerned a loan to a director of Anglo and a “back to back” deposit arrangement with Irish Life Permanent Group for the benefit of Anglo at the end of Anglo’s financial year in September 2008.
The probe into the fifth issue – whether communication of false or misleading information in some Anglo public statements in 2008 breached European transparency regulations – apparently cannot be completed until the investigations into the other issues concludes, the judge noted.
