News & Events

Statement by Mary Mitchell O'Connor TD, Minister for Jobs Enterprise and Innovation, regarding the Office of the Director of Corporate Enforcement

Check Against Delivery

First off – The people of Ireland suffered severely in the last decade due to the financial collapse. That happened for a number of reasons, one of which was absolute disregard for financial governance and fair practice.

I agree that the shortcomings here are very serious. I agree that they are unacceptable. It is infuriating for the public. And we need to get to the bottom of it. This fell far short of the standard impartial, unbiased and thorough investigation we demand. And accept.

With this in mind I've ordered a report from Mr. Drennan, the current Director of the ODCE, into exactly what went wrong here.

That has to be our starting point: the start of understanding what exactly occurred; we must know exactly what happened and exactly what failed, we must be open to any and all new measures and solutions to fix this.

And I do not accept that this is entirely an issue of funding and resources.

So as the Minister, as a Department, as a Government, as the Dáil, we must now divise solutions. Be they in areas of procedure, organisational change, enhanced powers or indeed legislative change. If the report leads me to conclude we need an entirely new model, then so be it.

We owe it to those who suffered during the crash to never, ever allow something of this nature happen again.

I am deeply frustrated and share the disappointment and annoyance felt by members of the Oireachtas and the public following yesterday’s ruling by Judge John Aylmer. Judge Aylmer considered that as a result of shortcomings in the investigative process undertaken by the Office of the Director of Corporate Enforcement, he could not allow the charges go before the jury for decision. As a result, Judge Aylmer directed the jury to acquit Mr. Seán FitzPatrick of all charges against him. I share the Judge’s view that the shortcomings identified are serious and unacceptable.

As the Minister inheriting this long-drawn out and difficult case, I intend to complete a full review and examine all possible options – nothing is off the table.

This has been the longest running criminal case in the history of the State at almost 10 years and has resulted in a significant legal bill footed by the taxpayer.

As the trial in now complete, I am now in a position to comment and review the results. As you know, although I was briefed by my officials when I took office, I was totally precluded from commenting on any case before the Courts.

Now, and immediately on hearing the ruling, I have acted. Yesterday I formally requested the Director of Corporate Enforcement to provide me with a full and detailed report under section 955(1)(a) of the Companies Act 2014. This should address the chronology of events, the specific issues and criticisms raised by Judge Aylmer and any other relevant issues. I expect this report to be provided to me as a matter of urgency, and no later than 23rd June.

The functions assigned to the Director include enforcing and encouraging compliance with company law, investigating and prosecuting breaches of the Companies Acts, referring cases to the Director of Public Prosecutions for prosecution on indictment and exercising a supervisory role over the activities of liquidators and receivers. As you know, it is the Director of Public Prosecutions who is charged with the prosecution of criminal offences and the DPP’s Office operates independently of Government.

Mr Ian Drennan was appointed Director of Corporate Enforcement in August 2012 and he is statutorily independent in discharging his compliance and enforcement role. It is important to note that the criticisms directed at the ODCE by Judge Aylmer regarding the investigative procedures pre-date Mr Drennan’s appointment as Director. When Mr Drennan took office, the file relating to the case of Mr FitzPatrick had already been forwarded to the Director of Public Prosecutions who took the decision to prosecute. However, when he was informed of particular difficulties in the case in May 2015 including the discovery of documents and the shredding of documents, he took immediate and appropriate action in informing the Director of Public Prosecutions of those matters.

Following his appointment, Mr. Drennan undertook a review of the organisational structure and management of the ODCE, together with the staffing and skills mix available to him. That review identified, in particular, a significant skills deficit in the area of accountancy expertise. Following that review, the Director sought, and was granted, sanction to recruit seven new forensic accountants. Five accountants have now been recruited and the process of recruiting a further two is in progress. Additionally, the Director sought, and received, sanction to recruit a digital forensics specialist. This specialist is due to start work next month.

The ODCE also has an approved complement of seven members of An Garda Síochána. Vacancies exist for two of the Garda posts following retirements. The secondment of Gardai to the Office is a matter for the Garda authorities and the Director has been in communication with them to expedite these vacancies. The ODCE has recently been advised that one of the vacancies is to be filled shortly.

I now want to briefly comment on the trial. Under the proceedings initiated by the Director of Public Prosecutions, Mr. Seán FitzPatrick, the former Chairman and Chief Executive of Anglo Irish Bank Corporation plc, was charged with 21 alleged breaches of section 197 and 6 alleged breaches of section 242 of the Companies Act 1990.

The trial, in respect of Mr. FitzPatrick, began on 13 April, 2015. A jury was sworn in, before whom Mr. FitzPatrick was arraigned on alleged breaches as outlined earlier.

I understand that substantial legal arguments, which included the issues regarding witness statements and shredding of documents took place in the absence of the jury. The trial Judge delivered a ruling on the range of issues on 2 June, 2015. She discharged the jury and directed that a new trial be held, in October, 2015. Subsequently, in August, 2015, the High Court ordered that the trial date be deferred to 25 May, 2016.

Mr. Fitzpatrick's retrial in connection with those charges began before Judge Aylmer and a jury in the Dublin Circuit Criminal Court on 21 September 2016. At that time, it was envisaged that the trial would be likely to conclude by the end of 2016. However, the bulk of the Court's time between September and December was taken up with legal arguments which were required to be dealt with in the absence of the jury, and in respect of which no reporting was permissible for that period. Again, I understand that many of the arguments related to the issues now in the public arena. The trial continued and the legal argument in the absence of the jury meant that hearing of evidence began in December 2016.

On Wednesday, May 24th, in the Circuit Criminal Court, Judge Aylmer directed the jury to acquit Mr FitzPatrick of all charges. It is clear from Judge Aylmer’s comments that there were serious and totally unacceptable deficiencies in the investigative practices used by the ODCE in this case. In particular, the manner in which two witness statements were obtained and the shredding of documents were cited. The Judge’s comments were highly critical and highlight a number of areas of concern.

I note that the ODCE has already accepted the criticism directed at it by Judge Aylmer and outlined some of the actions it had already taken long before the ruling which addresses these criticisms. This includes the appointment of new professional experts and an absolute assurance that investigative procedures now in place will prevent such a case arising again. This assurance is provided by members of An Garda Síochána now always acting as the lead on all criminal investigations.

As I outlined earlier, I have written to the Director requesting a detailed report into the issues highlighted by the Judge. I expect this report to be finalised as a matter of urgency. I will review this report very carefully, with the support of the Office of the Attorney General. This is my number one priority which I will take most seriously. I want to reiterate that all possible options are on the table and I will take all actions necessary to ensure that the lessons are learned. I would like to assure the House that I will return here at the earliest opportunity and update you on this matter and the actions I deem necessary.

 

Back to Top