Guilty verdicts in the trials of former Anglo officials

conorh91

Three former Anglo officials who had been prosecuted for fraud in Dublin Circuit Criminal Court were today found guilty.

http://www.irishtimes.com/business/financial-services/three-ex-anglo-irish-bank-officials-found-guilty-of-trying-to-hide-accounts-1.2302032

The convictions alone are not very interesting, except for this bit:

Referring to the contacts with the DPP, after the jury had left, the judge said the events before lunch gave him considerable concern and he regretted to say the accused must remain in custody before sentencing.

The defence teams then made applications on why the three accused should not be remanded in custody pending sentencing. They highlighted the defendants’ ages and their previous clean records.

But the judge said the primary consideration was that they had been found guilty. The consequence of a conviction was custody and being sentenced. He remanded all three in custody pending a sentence hearing tomorrow at noon.

I am aware it there is nothing unusual about remanding the accused in custody following conviction where he had previously been on bail. But what strikes me is the comment made by the trial judge, if accurately reported, that "the consequence of a conviction was custody and being sentenced".

Yes, that is a consequence that is available, but where the accused person has led an otherwise blameless life, does not consent to revocation of bail, poses no serious risk of absconding, and no risk of reoffending, this smells like de facto sentencing, which is contrary to the convicted person's constitutional right to fair procedures. (Devoy v Goveror of the Dochas Centre [2009] IEHC 380; Howard v District Judge Early [Supreme Court, unreported, 4 July 2000])

The only explanation is that the trial judge has decided that tomorrow's sentencing hearing can be effectively disposed of, and any term of imprisonment, that he has already determined shall be imposed, will be backdated by one day.

Not expecting a chorus of agreement on this: remanding these people on continuing bail even for a day would be unpopular. But popular or not, I don't fully understand what's just happened here.

coylemj

Sometimes in the case of 'white-collar' crime, the judge remands the accused in custody pending sentencing to give them a fright, then imposes a suspended sentence a day or so later. It certainly does seem strange because if he intends to give them a jail sentence, you'd expect them to be allowed continuing bail for a day or so to 'put their affairs in order'. There is no particular reason why they couldn't get bail for the duration between the end of the trial and sentencing.

I was on a jury in a rape case in the CCC several years ago, we found the accused guilty and he was remanded on bail pending sentence, he got seven years a couple of weeks later.

michael999999

Community service all around then?

Shep_Dog

coylemj wrote: »

Sometimes in the case of 'white-collar' crime, the judge remands the accused in custody pending sentencing to give them a fright,

The media did not mention if they had brought their jammies & toothbrushes to the hearing...

conorh91

coylemj wrote: »

Sometimes in the case of 'white-collar' crime, the judge remands the accused in custody pending sentencing to give them a fright, then imposes a suspended sentence a day or so later.

White collar crime convictions are rare in Ireland. Most company law offences have never been prosecuted; personally I've never witnessed any such trials, let alone convictions. But what you describe is a classic description of de facto sentencing, which to describe as injudicious is an understatement. I'm not convinced it does happen, or go unchallenged, at least not in similar circumstances to today's.

Carawaystick

The judge initially remanded them in custody until the 28th August...

Was it Carney who let a rapist out on bail before sentencing and there was a commotion so the bail was revoked?

NUTLEY BOY

Just out of technical curiosity, does the sub-judice rule expire after a verdict has been rendered or does it still apply until sentencing in a case is complete ?

hullaballoo

There are opposing views on that point.

Technically, it is still sub judice because the purpose of the rule is to prevent interference with the function of the courts to dispense justice.

The question turns on whether the Court might be influenced by public opinion one way or another. Where the Court comprises judge and jury, there is a concern that jury members might be unduly influenced by what is reported or stated publicly. Where it is just a judge, there is less of a concern but I think it is arguable that judges could feel the pressure of public opinion bearing down on them. Particularly where they are now open to having their salaries reduced for political economic reasons.

Other people have disagreed with me on that point in the past by saying that judges would never be influenced by public opinion, therefore, the matters can be openly discussed post-verdict but pre-sentencing.

NUTLEY BOY

hullaballoo wrote: »

There are opposing views on that point.

Technically, it is still sub judice because the purpose of the rule is to prevent interference with the function of the courts to dispense justice.

The question turns on whether the Court might be influenced by public opinion one way or another. Where the Court comprises judge and jury, there is a concern that jury members might be unduly influenced by what is reported or stated publicly. Where it is just a judge, there is less of a concern but I think it is arguable that judges could feel the pressure of public opinion bearing down on them. Particularly where they are now open to having their salaries reduced for political economic reasons.

Other people have disagreed with me on that point in the past by saying that judges would never be influenced by public opinion, therefore, the matters can be openly discussed post-verdict but pre-sentencing.

I am inclined towards the more cautionary view of saying nothing until the entire trial is complete - saves a trip to the Circuit Court to explain yourself

Somewhat frustratingly, I have a notion that there was a view expressed some years ago that the sub-judice rule might be considered to operate whilst an appeal is pending but I cannot locate the source. It might have been an observation obiter dicta. The essence of it was exactly what you outlined in that even an appeal court judge could be influenced or at least feel cognisant of public opinion on a given case.

conorh91

It's very technically sub judice, but for any practical effect to arise, Judge McCartan would have to say he spent last night poring over our posts on boards.ie, and couldn't get them out of his mind. I don't flatter myself. As a former TD he knows better than to take much notice of public opinion!

Anyway terms of imprisonment of between 18 months and three years have been imposed which renders my original question moot, but still mildly concerning (imo)

http://www.irishtimes.com/business/financial-services/ex-anglo-officials-jailed-for-between-3-years-and-18-months-1.2303179

Three former Anglo Irish Bank officials have been jailed for between three years and 18 months for conspiring to conceal or alter bank accounts being sought by Revenue.
Former chief Operations Officer Tiarnan O’Mahoney, former company secretary Bernard Daly and former assistant manager Aoife Maguire were found guilty by a jury on Thursday on all charges after nearly seven hours deliberations and a two month trial.
O’Mahoney, who was second in command at the bank, received a three year sentence. Daly was sentenced to two years and Maguire got 18 months.

All sentences are to begin immediately. Judge McCartan said it was clear the accused engaged in a deliberate and ongoing fraud to stop the accounts of their employer, Anglo chairman Sean FitzPatrick, from being disclosed to Revenue.

conorh91

Carawaystick wrote: »

Was it Carney who let a rapist out on bail before sentencing and there was a commotion so the bail was revoked?

That was bizarre, but he did apologize for that. And if the worst examples of injustices in Irish sentencing are an event 8 years ago, which was later addressed, I think the administration of justice is doing alright...

hullaballoo

conorh91 wrote: »

It's very technically sub judice, but for any practical effect to arise, Judge McCartan would have to say he spent last night poring over our posts on boards.ie, and couldn't get them out of his mind. I don't flatter myself.

I certainly don't believe we're in any particular danger in our relatively quite corner of the media circus. :pac:

I was referring to higher profile public discussion. Admittedly, there are not many cases in which this is ever going to be a real issue to be decided.

Victor

conorh91 wrote: »

White collar crime convictions are rare in Ireland. Most company law offences have never been prosecuted; personally I've never witnessed any such trials, let alone convictions. But what you describe is a classic description of de facto sentencing, which to describe as injudicious is an understatement. I'm not convinced it does happen, or go unchallenged, at least not in similar circumstances to today's.

I imagine many people receive sentences of up to a few years with only modest deliberation by the judge. It's quite possible that the judge had an idea yesterday of what type of sentence should be imposed, but like many things wanted to hear from the lawyers and sleep on it first.

Then there was the very real possibility that someone, somewhere, tried to sabotage the trial. That someone had that level of knowledge of the social lives of the jury and defendants and popped the question at the last moment is interesting.

Ultimately, it isn't unreasonable to send convicted people to prison.

conorh91

Victor wrote: »

I imagine many people receive sentences of up to a few years with only modestly deliberation by the judge.

While that may be the case, it is usually because the sentencing judge has a readily available yardstick at his disposal (often, in the case of the Circuit Court, having sentenced multiple people for like crimes that week, or even that day).

Nevertheless, even in 'run-of-the-mill' cases where a probation report is due to come before the Court, there would need to be good reasons to revoke bail, i.e. to remand in custody a person who has not consented to a revocation of bail. It should not happen lightly.

It's quite possible that the judge had an idea yesterday of what type of sentence should be imposed, but like many things wanted to hear from the lawyers and sleep on it first.

That would be fine if the individual concerned has consented to a revocation of bail, or failing that, were reasonably considered at risk of absconding or committing further crimes if remanded on bail.

Otherwise, I already provided citations on the position of the Supreme Court with regard to the individual's constitutional right to fair procedures. Imprisoning a non-risk person against their consent while you "mull it over" does not seem to me to be in keeping with the case law on de facto sentencing and the constitutional rights of the Accused.

It's not particularly relevant anymore, so I hesitate to even dwell on it, but unnecessary constraints on personal liberty in our legal system should not go unremarked.

Fleawuss

I re read the OP several times. When I first read the judges comments elsewhere I was appalled. Appalled by the expression of regret.
The OPs points about case law are illuminating. The legal system seems to think that deliberation is needed before sentence. Fine. But deliberation does not mean that a guilty criminal should be allowed freedom while deliberation is made. But apparently in the case law quoted there may well be the extraordinary legal practice of just that. Illuminating.

conorh91

Fleawuss wrote: »

The legal system seems to think that deliberation is needed before sentence. Fine. But deliberation does not mean that a guilty criminal should be allowed freedom while deliberation is made.

Absolutely, and that is well-understood by the courts.

If I created an impression that judges must never remand convicted persons in custody pending sentencing, then it was misleading.

Often the Accused will consent to being remanded in custody. There is a presumption that they will otherwise be released, but this presumption is easily overcome if the convicted person is dangerous or a fight risk.

You might think this is all very abstruse so far but consider this:

You are an elderly widower convicted on a number of alocohol-related road traffic offences in the District Court. The Court wants to see that you are engaging with alcohol rehabilitation services, and to do so, requires a probation report prior to sentencing. When the report comes before the Court, some pages are missing, through no fault of your own. The Judge commits you to Mountjoy Prison until he has clarification from the person who made the error.

This is almost word-for-word something that has happened, and thankfully reached the Supreme Court.

Do you see how vital it is that a court's ability to imprison a person should not be so capricious?

One of the things that most amazed me about criminal law when I was a student, was what seemed like the Judiciary's almost unbelievable obsession with personal liberty. The more you consider the possible abuses of process that might exist, the more thankful you become of that tradition of vigilance.

hullaballoo

conorh91's posts are almost always illuminating but the above is very much one that I would like to see again.

There are legal structures in place to govern what a judge can and cannot do. Most people assume, wrongly, that judges can just lock someone up and throw away the key. Often what happens in Ireland is that people who believe that think that judges sentences are too lenient. Most of these people, I would imagine, have never visited an Irish prison.

Prison Isn't nice. It's hellish. Spending one day more than you have to inside a prison is certainly a breach of your rights, no matter what you have done. Irish courts take a fairly unusual approach to sentencing, I'll go that far. In saying that, though, I have to also add that our constitution means that prison is regarded as a very serious penalty here. Rightly so; our main prisons are nothing short of medieval detention centres but without the God aspect.

Courts recognise this and it's taken into account in sentencing whether the convict will be able to bear prison and to what extent. We don't want a society in which everyone who has committed a crime is put away and then released after having been transformed into a total psychopath. And we seemingly don't have the resources to deal with crime another way.

Either way, the point is that liberty deprivation is regarded as a serious breach of human rights and that's why there's a question over detaining people by renaming them on continuing bail pending sentencing.

michael999999

Its rather enlightening seeing the views of the legal people in here (solicitors and barristers I presume), and how there against any jail time for these bankers!

Its no wonder white collar crime is hardly ever prosecuted, if these same people go on to be judges in this country!

It seems your address plays a big part in how dangerous you are deemed to be, to society in this country!

goz83

Victor wrote: »

Ultimately, it isn't unreasonable to send convicted people criminals to prison.

Fleawuss

I'm finding this thread fascinating and horrifying in equal measure.

It is illuminating to see where the judiciary and the legal process is coming from in regard to remand after a criminal has been found guilty. As a layman it is very different from what I would have expected. And that leads me to one area of further fascination: the roots of the internal self understanding of the law (treating it as an entity in its own right) and the collapse of any shared sense of enterprise between that and wider society. Big claims yes but Houston we have a problem, whether everyone sees it or not. And I suspect that is probably beyond the remit of the charter of this forum so I'll leave that there.

So back to the first thing and the one that causes horror. Conorh has pointed out the case law and the circumstances in which remand does and does not happen after verdict. And he has couched it in the applicable language, I assume. So I am horrified by the implication, if I am reading it right, that the courts need the permission of the guilty criminal to remand them. I am horrified that the grounds of remand seem so narrow. The law seems to regard there as being no change in status of the person after a guilty verdict and that it must have particular grounds and permissions for remand. What's horrifying about that is the reluctance to coerce; why on earth should the permission of a criminal be needed to make them do x, y or z. I know rights will be stated to be inalienable and antecedent or some such but that needs to be reconsidered. Yes I know the European and the UN declarations etc but these are human constructs and subject to revision.

I can see that not all convictions need custodial sentences and that if it is not likely that the judge is going to impose one then remand is not needed. But the assumption seems to be legally that a custodial sentence is a last resort. Tied to precedent as to when these are appropriate. So it is very easy to see how white collar criminals walk. And why the discussion across Boards is so divided.

This is a very interesting forum and another corner of Boards to have a good rummage in. Or probably, in which to have a good rummage.

hullaballoo

michael999999 wrote: »

Its rather enlightening seeing the views of the legal people in here (solicitors and barristers I presume), and how there against any jail time for these bankers!

Its no wonder white collar crime is hardly ever prosecuted, if these same people go on to be judges in this country!

It seems your address plays a big part in how dangerous you are deemed to be, to society in this country!

This is totally off the wall. I know that it suits your site-wide agenda to make impossible logical leaps like this bit it is entirely inappropriate to make accusations against members of this forum in such a way.

Firstly, none of us are saying these people would not be imprisoned for their crimes. None of us has expressed a view either way on whether they should, or if they should, for how long.

Secondly, I grew up in a council housing estate at the rough end of Bray so I don't have anything like the preconceptions that you're imputing all legal professionals must have.

It's rubbish to suggest we're in any way on the side of people whose crimes were amongst those that have crippled the Irish economy when the legal profession was one of the worst-hit by the recession.

I'd suggest you go about getting some understanding of the people you are openly insulting rather than shooting your prejudices at us without any reason so to do.

In the above post, Fleawuss is equally as alarmed but at least the post is sensible and attacks the tenets of law that give rise to the concerns legal professionals have about the decision to remand pending sentencing here. (Fair play as well, a very good post that's worthy of debate. Unfortunately, my small mind is otherwise occupied today but I will hopefully have a chance to reply soon.)

Victor

hullaballoo wrote: »

the legal profession was one of the worst-hit by the recession.

But it was also an industry that was amongst those that benefited the most from the boom, albeit the expansion of numbers meant that, while the top end was hit hardest by percentage cuts, the lower ranks ended up on beans and toast.

conorh91

michael999999 wrote: »

It seems your address plays a big part in how dangerous you are deemed to be, to society in this country!

In what way? It's important to remember that Judge McCartan quite rightly paid no heed to the social position of these people when he revoked their bail.

It is also worth remembering that the case law on this topic has developed from convictions for 'ordinary' crimes like s.3 assault causing harm and road traffic offences.

If the individuals convicted in the instant trial had been remanded on continuing bail, they would have been availing of exactly the same established principle that is available to those 'ordinary' convicted criminals who are remanded on continuing bail by the courts courts every working day.

pablo128

In my mind (with no legal experience) I have presumed that they were jailed because of the zero co-operation with the authorities. They denied everything right until the very end. I have no doubt they could have helped bring down some big names, but out of misguided loyalty, they now find themselves behind bars.

The cold hard reality will be kicking in right about now, as they have between now and around 7.30 in the morning with just themselves, their thoughts, and of course 4 walls of a jail cell to occupy them. I would expect their respective solicitors to be summoned within the week for in-depth statements to be made.

Victor

conorh91 wrote: »

In what way? It's important to remember that Judge McCartan quite rightly paid no heed to the social position of these people when he revoked their bail.

I have no idea where these people live.

However, like it or not, in Ireland, one's address is a strong indicator of income and social grouping. Income and social group are strong indicators of the likely outcome of an adverse situation, whether educational, socio-economic, medical or criminal justice.

Tom is an abusive alcoholic. He is from a poor background, has difficulty articulating his issues due to his limited education, hasn't been afforded psychiatric & medical care and legal support is basic. This results in persistent conflict, including with the criminal justice system.

Tom is an abusive alcoholic. As he is from a well-off background, he has a good education, can afford psychiatric & medical care and legal support to minimise the adverse results. Tom kills someone while speeding and running a red traffic light and gets off with a steep fine, which he can well afford.

conorh91

Victor wrote: »

Tom is an abusive alcoholic. He is from a poor background, has difficulty articulating his issues due to his limited education, hasn't been afforded psychiatric & medical care and legal support is basic. This results in persistent conflict, including with the criminal justice system.

Tom is an abusive alcoholic. As he is from a well-off background, he has a good education, can afford psychiatric & medical care and legal support to minimise the adverse results. Tom kills someone while speeding and running a red traffic light and gets off with a steep fine, which he can well afford.

It would be inhuman to show no sympathy to a person whose life has consisted of a series of disasters of circumstance.

Nevertheless, the courts' role in public policy cannot extend to rebalancing the ordinary consequences of government action. Citizens control the allocation of resources through their political choices; the courts' role in correcting citizens' choices is highly constrained: whilst the courts will take account of addiction and family circumstances, they are not appointed to correct with paintsaking accuracy the grave errors of public policy.

It is our Legislature and the Government who should be accountable for the injustice inherent in community life. Expecting the courts to correct all their mistakes would not alone be anti-democratic, it would relieve the political institutions of their political responsibility.

Victor

conorh91 wrote: »

Expecting the courts to correct all their mistakes would not alone be anti-democratic

Yet many a judge will say "That's not really a serious matter", especially in road traffic matter, and ignore the will of the Oireachtas.

Marcusm

Perhaps I have misinterpreted the judge's comments but I got the impression that he was reflecting a general feeling that these people were on trial for derivative offences, ie covering up for actions which might themselves be triable such as defence counsel suggestions that the accounts in question were not managed by the account holder who was resident in Australia but by Irish residents who may have been using them to circumvent share dealing restrictions. Those offences may be the subject of a future case or might never be instated/reinstated following the recent mistrial.

conorh91

Victor wrote: »

Yet many a judge will say "That's not really a serious matter", especially in road traffic matter, and ignore the will of the Oireachtas.

I can't think of any examples of that offhand. There are cases where legislative drafting is unclear or even downright contradictory, or where it has to be read harmoniously with the constitution. The most obvious area, I would have thought, where the courts have had to push back against the intentions of the Oireachtas, has been in sentencing for drugs offences.

All I'm saying is the courts' ability to direct public policy is constrained, i'm not saying that have to show complete deference. But the doctrine of the Separation of Powers applies in each direction.

Marcusm wrote: »

Perhaps I have misinterpreted the judge's comments but I got the impression that he was reflecting a general feeling that these people were on trial for derivative offences, ie covering up for actions which might themselves be triable such as defence counsel suggestions that the accounts in question were not managed by the account holder who was resident in Australia but by Irish residents who may have been using them to circumvent share dealing restrictions. Those offences may be the subject of a future case or might never be instated/reinstated following the recent mistrial.

Not sure how that would have any bearing on a decision to remand on continuing bail?