Immunity from Prosecution is an slightly odd concept – but nowhere is it so odd as it is in Ireland it would seem.
A Prosecution service (such as a Director of Public Prosecution) will occassionally grant Immunity to someone so they can testify against others without what they say being used to implicate themselves in wrong-doing. The idea is generally to use a small fish to catch a larger one.
The only other kind of immunity I know of is that ‘granted’ by those who are about to be testified against. It usually involves something terminal such a car crash ( Karen Silkwood , Michael Hastings, Paul White: All whistleblowers all died in car crashes), being beaten to death in police custody (Sergei Magnitsky) , unaccountably dropping down dead (Alexander Perepilichnyy – A Magnitsky case Whistleblower) or a simple bullet to the head (Yves Coulon Agip Affair). These are very effective but slightly drastic and can attract unwanted attention,
The Irish it seems may have invented a third possibly better kind. It’s called the Immunity-so-you-don’t-ever-have-to-testify – against anyone.
Back in 2008 Mr Matt Moran was the Chief Financial Officer at Anglo Irish Bank. He was, therefore, intimately involved in all aspects of the debacle that was and still is Anglo. His various florrid opinions on the parlous state of Anglo’s finances prior to its implosion, how the wealthy of Ireland were removing their money from the bank and from Ireland, and sending it abroad, his considered opinion of Mr Seán Quinn (Ireland’s most notoious property tycoon and sometime Anglo investor and customer) and how, with just a bit of drink and a beer mat he could get 5 billion euros out of a British fund manager, are all available to hear in the Anglo tapes or read exceprts from here.
Mr Moran is in some ways the kind of witness for whom immunity was invented – he certainly would know who did what and when.
No surprise then that the Irish DPP granted Mr Moran immunity. But the Irish DPP appears to have taken a novel approach. It turns out the Immunity was granted two years ago though no one at the time was told. The information only came to light when the Irish Times revealed it in September 2013. Why it came to light then I shall come back to.
But what is a little odd is that during that whole two years, no prosecution starring Mr Moran has taken place. No date set, as far as I know for any trial of former Anglo CEO and Mr Moran’s boss, Mr David Drumm. The only trial with a start date is that of
,,, former Anglo directors and executives Seán FitzPatrick, Willie McAteer and Pat Whelan for providing unlawful financial assistance to 16 individuals – 10 long-standing customers of the bank and six members of Seán Quinn’s family – to buy shares in the bank is scheduled to begin in January.
This would be a trial looking at illegal share manipulation only. Unless the charges were widened, which I doubt will happen, this trial would very carefully avoid looking at any issues of reckless lending, materially misleading clients and regulators as to the real value of assets, of securities or the real nature of collateral accepted for loans granted and most importantly, would avoid any issue lifting the lid on improper dealings between the banks officers and the government of the day such as may have happened in the sale of Anglo’s Austrian subsidiary to Private Austrian bank Valartis. In other words it would be a show trial.
So far all the Irish people have been given by way of justice is a couple of Micky O’Mouse white-wash inquiries which found nothing wrong. And bear in mind that as far back as 2009 when Mr Lenihan the then finance Minister was shedding crocodile tears and expressing his “frustration” at the delays it was already being pointed out,
…that the scandals at the now-nationalised Anglo Irish Bank emerged at the same time as crooked financier Bernie Madoff was arrested in New York. Madoff has since been jailed for 150 years while not one Irish prosecution has reached the courts.
In the mean time Mr Moran long ago left Anglo and is now handsomely employed at Lombard International Assurance in Luxembourg.
Such a long absense of any prosecution – not even so far as we know any depostion from Mr Moran – looks to me rather like an immunity granted as a reward for NOT testifying.
It is especially perplexing when you look at what Irish Law says about Immunity. These quotes are taken from the law regarding Immunity in relation to Cartels as laid down in the Competition Acts of 1991 and 1996 . I have used this document simply because it is available, I don’t know under what particular act Mr Moran’s Immunity was granted, but I doubt it makes any difference because generally Immunity is the same no matter which particular law it was granted under. If I am wrong about this I would be grateful for a lawyer to correct me.
In the section which details the requirements for being considered for immunity Irish law says in pargraph 13 the applicant must have “…terminated its participation in the illegal activity”. Mr Moran left Anglo and the bank iself is no more, so presumably he’s OK on that one.
Paragraph 15 looks more difficult:
15 The applicant… must not have coerced another party to participate in the illegal activity and must not have acted as the instigator or have played the lead role in the illegal activity. The applicant must be able to show this to the satisfaction of the Authority.
So given that Mr Moran has been granted immunity are we to take it that the DPP is quite confident, having looked in to it in detail, that Mr Moran was not the instigator of any ‘illegal activity’, didn’t play a lead role in any and did not coerce others? And all this while he was number two at the bank? Wow!
That means Mr Drumm must have either acted alone or coerced Mr Moran and all those below him. Ladies and gentleman are we going to see the world’s first Rogue CEO? Will we find Drumm was a KGB agent, spent time in Cuba and was a loner with deep psychological problems? I can hardly wait. Though I suspect I may have to.
But back to poor used, abused and thoroughly innocent Mr Moran. Let’s look at what Mr Moran would have been required to provide in return for his immunity and a free pass out of Ireland to pastures green in Luxembourg.
Section 16 says,
16 Throughout the course of the Authority’s investigation and any subsequent prosecution, the applicant must provide complete and timely co-operation. In particular, the applicant must:
a) Reveal any and all offences … in which it may have been involved;
b) Provide full, frank and truthful disclosure of all the evidence and information known or available to it or under its control, including all documentary and other records, wherever located, relating to the offences under investigation with no misrepresentation of any material facts; and
c) Co-operate fully, on a continuing basis, expeditiously and at its own expense throughout the investigation and with any ensuing prosecutions.
Let me remind you this is all from the Competition Acts but as I said the detail of immunity is unlikely to be very different in any other act. I just want you to be aware.
But taking this law as a likely indicator of the law under which Mr Moran was dealt with, it would seem that the DPP must already have details of all offences Mr Moran was aware of, all the documents and records necessary to detail and prove those offences and a full and frank disclosure of everything he knew about what went on at Anglo. Remember he was number two in the bank.
If the DPP does not have all this, then on what basis was Mr Moran given immunity from the law? If the DPP does have all this and must have had it all for several YEARS already, then what kind of bumbling half wits or conniving lick-spittles run the place that they still haven’t done a thing with it all?
The whole idea of Immunity is to use a small fish to catch a larger one. Mr Moran however was the number two at Anglo. As the Chief Financial Officer he really only reported to one man above him, the CEO, Mr David Drumm. Both of them would have been technically answerable to the board, but the dysfunction or rather non-functioning of Anglo’s board is now common knowledge. Thus by granting Immunity to Mr Moran the DPP has contrived to put one of the two TOP architects of the entire Anglo catastrophe forever beyond the reach of justice and the law. (It remains to be seen if Mr Moran was granted partial or complete Immunity. Partial means he can’t be prosecuted using his own testimony or evidence gained because of it. But he could be prosectured if other independently acquired evidence came to light. Complete Immunity means just that. Both are common in the U.S.A but have rarely been granted in Ireland.)
Whichever turns out to be the case for Mr Moran, what remains unchanged is that, if he ever is called to testify, most of those he could implicate will be junior to him. The lovely Sean FitzPatrick is so far only on trail for share price manipulation.
It is unusual, to say the least, to grant immunity to the largest suspect in order to help secure evidence against lesser suspects. Was there no one, not one person, lower down the food chain at Anglo who would have gladly accepted Immunity and testified against the two top suspects? Personally I find that hard to believe.
Which brings us back to wondering why was Mr Moran given immunity and why are we learning about it now?
A few weeks ago The Village Magazine wrote an open letter to the Irish DPP saying if no case was brought against UniCredit various other banks and a rogues gallery of neer-do-well bankers then the Village would. I wonder if the Village is going to make good on this threat? I do sincerely hope so.
It is interesting however that it is after the threat was made that we find out about Mr Moran and, as the web site “Public Inquiry” notes, that the DDP, Claire Loftus seems to have fired a warning shot at The Village, its owner Michael Smith and the UniCredit whistleblower Mr Sugarman.
In the preface to the DPP annual report Ms Loftus wrote,
I want to take this opportunity to say something generally about the risks of pre-trial publicity interfering with the right of an accused person to a fair trial.
The media and commentators have a high degree of responsibility to ensure that not only do they not commit a contempt of court by publishing or broadcasting prejudicial material but also that such publicity is not the cause of a trial being postponed for a long period, or even indefinitely.
These risks increase as any trial date approaches.
As Public Inquiry then asked,
Could it be that her warning is aimed at the editor of Village magazine, Michael Smith, who issued the … challenge to Ms. Loftus and her office in the August/September issue?
A warning from the Irish DPP not to say or write anything that might prejudice a future prosecution – after so many years when even Madoff has already been goaled – seems to be taking the piss. What are we all to wait for, the next Ice Age?! I have seen glaciers melt and mountain ranges erode faster than justice moves in ireland. It is even slower than it is in England and THAT is saying something.
The Irish authorities seized two MILLION documents from Anglo. They have had several very senior bankers trawling through the debris making sense of it all sufficient to wind it up. There are people who can piece together a great deal of who did what and when including the involvement of senior political figures. U.S. Vulture funds connected with Elliott Associates have recently made it clear they think such documents exist and have gone to court to be allowed to find them.
Other documents relating the the infamous sale of Anglo’s Austrian subsidiary to the private bank Valartis, using money lent to Valartis by Anglo! – which spirited away hundreds of millions from any possible bail-in which would confiscated those millions, and also protected the identity of the owners of those millions from curious Irish eyes, plus the connection of that sale to a knot of allegations of high level corruption among the political elite of Austria – there are anwers to all these questions in the documents at Anglo, at Dame Street and in the heads of the who worked at Anglo. To give any of them immunity and then never get round to making them testify is … what?
An immunity from prosecution is given when a proscutor wants to strike a deal with a witness so they can speak freely and in so doing bring about larger prosecutions. But if an immunity is given and no prosecution ever results then what is it? What was it given for really?
I would argue is is a kind of silk gag. The person doesn’t have to say a word – they’ve been given immunity. They are free to get on with life knowing they are not going to face prosecution. It amounts to a seal on everything they know.
The warning from the DPP about not prejudicing is a sad joke. One that reveals what justice is about in Ireland.
Bear in mind one last thing. Mr Moran never stood up and said, ‘ask me, I know who the guilty people are, I know what they did.’ Yet two years ago he was quietly given immunity and he has said not a word, not a murmur of a deposition since. Mr Jonathan Sugarman did stand up and say, ‘help me please I know of wrong doing at the bank where I hold a senior position.’ He went to the regulator and asked for help. He told them in a letter what his conerns were. He got others to independently verify his concerns.
He was ignored. He approached senior people in every Irish political party. They ignored him took, no action and some even tried to deny they had ever heard of him.
He was not offered Immunity. He was threatened with prosecution if he revealed what he knew.
Compare Mr Moran’s and Mr Sugarman’s treatment and you tell me what being granted Immunity looks like it’s for.