Anglo Tapes

jmayo · 27-06-2013 01:10PM

maninasia wrote: »

Chopping away the jokes and getting to the core of the conversations, would these two actions not be cause for criminal investigation

1. Deliberately misleading central bank as to how much money would be required for bailout?

2. Admitting that the 7 billion bridging loan would never be paid back?

I know it may be simplistic, but could they be done for Fraudalent, Reckless Trading or failure to keep proper accounts under the Companies Acts ?
I think people need to think of creative ways of trapping these miscreants rather like the way al capone was done in the end.

Floppybits wrote: »

What these tapes highlight for me is just how inept the State was at protecting the State from people such as those on the tapes or in other such institutions. We pay our politicians and our civil servants well and what we should be demanding from them is that they have robust rules and regulations in the place to stop this carry on and they failed to do that.

This is Ireland where even when there are rules and regulations they are not enforced.

For example see how long the Central Bank/IFSRA ignored the lax policies adopted in INBS single handily run by the cretinous supremo michael "fingers" fingleton.
A KMPG report in 2000 highlighted the shoddy and lax practices regaridn lending and risk assesment.
Yet nothing was done and we the taxpauyer ended up loosing around 10 billion (recap and NAMA) when INBS went down the sh*tter.

AFAIK IFSRA cheif liam o'reilly ignored his duties (obligations and rules) when he sided with AIB when overcharging, rather than with his duty of care to the Irish consumer as laid out in the formulation of IFSRA.

Speaking of fingers has he ever repaid the 1 million bonus he received, when as according to latest court case, he should have been sumarily fired ?

It doesn't matter what rules and regulations you have if they and warnings are ignored.
The US, German and Austrian authorities all warned CB/IFSRA of various dodgy behaviour happening within the remit of CB/IFSRA yet they were ignored.

Lbeard · 27-06-2013 01:31PM

Rightwing wrote: »

I'm stunned at the public reaction to all of this. Everyone knew that €7bln wouldn't be next or near enough.

The only thing I'm surprised at is the odd bit of humour that's coming out.

No. The public at the time, believed the cash to be short term for the purpose of stabilizing the bank.

Remember it was the "credit crunch". What the public believed to be happening was the state temporally backing up the bank, and once "normal" credit conditions returned, the state could get its' money back.

Anyone else would just have a suspicion Anglo "assets" were all dog ****. Anglo weren't being straight with the Central Bank. Had they, the CB would have had to let Anglo go bang.

The result is, the Irish public took the hit to protect the European banking system. There's a very dubious morality to getting the innocent to pay for the scum, but with these tapes its' even more dubious. This is why Merkle has said straight off, the ESF won't pay retroactively for what Anglo did. Had the mechanism existed at the time, Anglo would had to go there. It would have been a very different situation.

One thing we've really learned from the tapes, is not only were assets of the bank dog ****, the people running the bank were scaldy bags of dog **** too.

eigrod · 27-06-2013 01:39PM

Rightwing wrote: »

I'm stunned at the public reaction to all of this. Everyone knew that €7bln wouldn't be next or near enough.

The only thing I'm surprised at is the odd bit of humour that's coming out.

I don't think people are stunned at the figures at all. We're well past being stunned by the vast sums of money the banks got swamped under.

What I find intriguing about these tapes is how these guys come across as having an extremely low intellect. They come across as being crude and quite frankly, a bit thick.

I would have expected conversations between the very highest level of management of a bank to be on a far higher plain and far more professional than what we've been listening to the last few days, irrespective of the level of crisis the bank was in. Bowe comes across as being massively out of his depth.

Cody Pomeray · 27-06-2013 01:40PM

Scofflaw wrote: »

The summary of that is that we don't have a general offence of "conspiracy", and we don't have "Cheating the Public Revenue" either. The vital bits are highlighted above:

No we don't have a specific provision for conspiracy to defraud the revenue and we don't have a common law provision for general conspiracy.

Scofflaw, I don't generally see the point in engaging with your monothematic position, except in this instance where you erroneously suggest that I am mistaken. In fact, you are mistaken here - you are incorrectly reading that judgement as having struck down the relevant common law offence of conspiracy to defraud, by referring to the specific charges captured in the forms before the court.

You should address Corporate Crime (2012) by Prof. Shelley Horan for a detailed introduction to the common law offence of conspiracy to defraud in this jurisdiction, or refer to the CCABI's recent paper on corporate crime

http://www.cpaireland.ie/UserFiles/File/Technical%20Resources/Law%20and%20Regulation/CCABI%20Docs/Criminal%20Justice%20Act%202011.pdf

Dannyboy83 · 27-06-2013 01:41PM

Rightwing wrote: »

I'm stunned at the public reaction to all of this. Everyone knew that €7bln wouldn't be next or near enough.

The only thing I'm surprised at is the odd bit of humour that's coming out.

The Irish reaction isn't very surprising imo; but I've had friends from France, Germany, Lithuania, Poland and even Russia write to me to pass comment.
That has surprised me.

Our reputation is in tatters again.

If the Irish government aren't seen to do justice soon, we are fcuked.

Rightwing · 27-06-2013 01:47PM

eigrod wrote: »

I don't think people are stunned at the figures at all. We're well past being stunned by the vast sums of money the banks got swamped under.

What I find intriguing about these tapes is how these guys come across as having an extremely low intellect. They come across as being crude and quite frankly, a bit thick.

I would have expected conversations between the very highest level of management of a bank to be on a far higher plain and far more professional than what we've been listening to the last few days, irrespective of the level of crisis the bank was in. Bowe comes across as being massively out of his depth.

I've never really bought into the 'pay low wages and you get monkeys'. This is the proof, similarly over in AIB/BOI. Where are those tapes?

But the tapes are a bit of a banter between these guys, not much else. They knew the ship was going down at that stage.

Scofflaw · 27-06-2013 02:34PM

PlainP wrote: »

DD: Well based on what John Hurley said, the importance of what was going on was going right to the minister for finance and most likely the Taoiseach was fully aware of it at the time as well . Put it this way, I cannot imagine, there was so much fear amongst everybody about the consequences for the country, that is the Taoiseach didn’t know about it, he should have.

He is saying here that the Minister and Taoiseach did know what was going on, that the Central Bank and the regulator had told them the bank was in dire straights.

Er, yes - the Taoiseach would have been informed by the Regulator and/or CBI when the bank started talking to them. What has that to do with the claim that Cowen knew something the Regulator and CBI didn't?

still puzzled,
Scofflaw

Scofflaw · 27-06-2013 02:39PM

Cody Pomeray wrote: »

No we don't have a specific provision for conspiracy to defraud the revenue and we don't have a common law provision for general conspiracy.

Scofflaw, I don't generally see the point in engaging with your monothematic position, except in this instance where you erroneously suggest that I am mistaken. In fact, you are mistaken here - you are incorrectly reading that judgement as having struck down the relevant common law offence of conspiracy to defraud, by referring to the specific charges captured in the forms before the court.

You should address Corporate Crime (2012) by Prof. Shelley Horan for a detailed introduction to the common law offence of conspiracy to defraud in this jurisdiction, or refer to the CCABI's recent paper on corporate crime

http://www.cpaireland.ie/UserFiles/File/Technical%20Resources/Law%20and%20Regulation/CCABI%20Docs/Criminal%20Justice%20Act%202011.pdf

It's an, um, entertaining read, but I can't see the relevance. What it describes is "conspiracy" in the case where a relevant offence has been committed, and my point was that no relevant offence had been committed in the act of asking the Central Bank for less than Anglo executives knew the bank would need. I don't have a problem with the idea that if an offence has been committed, the taped conversations are prima facie evidence of conspiracy - but you cannot have a conspiracy where there is no criminal act, and while stating a lower requirement than they knew was needed looks like fraud, I don't see how it is. A higher requirement, sure, but asking for less than they needed, no.

Nothing in the document addresses that point, unless of course I'm missing it?

cordially,
Scofflaw

McTigs · 27-06-2013 02:56PM

Scofflaw wrote: »

It's an, um, entertaining read, but I can't see the relevance. What it describes is "conspiracy" in the case where a relevant offence has been committed, and my point was that no relevant offence had been committed in the act of asking the Central Bank for less than Anglo executives knew the bank would need. I don't have a problem with the idea that if an offence has been committed, the taped conversations are prima facie evidence of conspiracy - but you cannot have a conspiracy where there is no criminal act, and while stating a lower requirement than they knew was needed looks like fraud, I don't see how it is. A higher requirement, sure, but asking for less than they needed, no.

Nothing in the document addresses that point, unless of course I'm missing it?

cordially,
Scofflaw

There is a duty on parties to a contract to act in good faith, doesn't matter whether it's a central bank or a regular bank. To mislead another party to a contract is an offence. They misled on the amount needed, they misled on the reason (insolvency not liquidity) and they misled on the ability and intention to repay. These are all concrete offences, nothing to do with whether it's taxpayers money or not.

Scofflaw · 27-06-2013 03:14PM

McTigs wrote: »

There is a duty on parties to a contract to act in good faith, doesn't matter whether it's a central bank or a regular bank. To mislead another party to a contract is an offence. They misled on the amount needed, they misled on the reason (insolvency not liquidity) and they misled on the ability and intention to repay. These are all concrete offences, nothing to do with whether it's taxpayers money or not.

They're not criminal offences, though, but breaches of civil law. And, again, asking for less than they needed is not any kind of fraud that I can see.

In case time has clouded the waters here, let me repeat that there were two questions I was addressing, posed by maninasia. The first was whether asking for less than they needed in order to draw the CBI in was a criminal act, the second whether their lack of intent to repay was a criminal act.

The second, I would say, falls under 'fraudulent trading', but the former just doesn't fall under anything I can see. There is no requirement for Anglo to have asked for everything they needed from the Central Bank, or everything they thought they needed straight away. As far as I can see, it's one of those things that looks like it ought to be a crime, but isn't - it's just immoral, and bad faith. It might form the basis for a civil case for breach of contract, but what would we get out of that, exactly, and how culpable would the bank be given their contract was with their supposed regulator, who should have been in a position to see through their bluff had they been doing their job properly?

So I'd agree with you that there are probably concrete offences under "ability and intention to repay", but not on the "amount needed" and also probably not on "reason (insolvency or liquidity)". That's just my opinion, but I can't help but note that nobody in the public debate has been able to point to any legislation that covers those issues, which makes the claims of "conspiracy" misplaced. Sure, they're conspiring, but as long as what they're conspiring to do is not a crime, they're entitled to conspire all they like.

cordially,
Scofflaw

Cody Pomeray · 27-06-2013 03:28PM

Scofflaw wrote: »

It's an, um, entertaining read, but I can't see the relevance. What it describes is "conspiracy" in the case where a relevant offence has been committed, and my point was that no relevant offence had been committed in the act of asking the Central Bank for less than Anglo executives knew the bank would need.

Yes I am aware of your eternal opinions, I have replied to clarify a simple point that contrary to your statement "Or possibly not, because it seems we don't have that one", conspiracy to fraud has been, is and remains a common law offence in this jurisdiction, which is known to the circuit and the superior courts where criminal charges have been successfully brought and upheld - especially in relation to financial and insurance crime, as it happens.

Bits_n_Bobs · 27-06-2013 03:30PM

Third consecutive decline in GDP
Inept clowns in HSE paying the same amount for generic drugs as non-generic ones
Banks being let loose like a bunch of rabid dogs on people buried under financial stress
A Taoiseach more interested in scoring cheap political points against an already disgraced bunch of ****,
An electorate who seem to prefer the already disgraced bunch of **** to the current bunch of **** in power
Politicians wasting breath over abortion bill that only the fundamentalists on either side of the argument could care about

....and everyone is still obsessing about pinning the blame on a few dick head bankers of a bank which no longer exists.

Even if these guys are shoved into a sack and beaten, this will not materially benefit anyone at all. At this stage everyone's focus really should be on fixing our democracy, our economy and our society.

jobeenfitz · 27-06-2013 03:45PM

Bits_n_Bobs wrote: »

Third consecutive decline in GDP
Inept clowns in HSE paying the same amount for generic drugs as non-generic ones
Banks being let loose like a bunch of rabid dogs on people buried under financial stress
A Taoiseach more interested in scoring cheap political points against an already disgraced bunch of ****,
An electorate who seem to prefer the already disgraced bunch of **** to the current bunch of **** in power
Politicians wasting breath over abortion bill that only the fundamentalists on either side of the argument could care about

....and everyone is still obsessing about pinning the blame on a few dick head bankers of a bank which no longer exists.

Even if these guys are shoved into a sack and beaten, this will not materially benefit anyone at all. At this stage everyone's focus really should be on fixing our democracy, our economy and our society.

Maybe many of the people in this country need to see some punishment dished out for any wrongdoing before they can move on. If these people know there is no consequence for their actions what is to stop this happening again.

Lets move on and at the same time inflict a little justice on these untouchables.

Mr.Micro · 27-06-2013 04:38PM

jobeenfitz wrote: »

Maybe many of the people in this country need to see some punishment dished out for any wrongdoing before they can move on. If these people know there is no consequence for their actions what is to stop this happening again.

Lets move on and at the same time inflict a little justice on these untouchables.

Yes indeed and make some laws that cover what these types do that and get away with. Its 2013 and Ireland needs to have laws that are up to date. Too many corner boys in Ireland.

eisseb · 27-06-2013 04:41PM

What did the people who in their stupidity voted for & got elected a Fianna Fail government led by scum & fools of the highest ignorant order (Offaly Hero ) expect to happen ??
Such people should not now be complaining. You voted for corruption, greed and ignorance

SpaceTime · 27-06-2013 04:48PM

It just sickens me to the point that I don't want to pay tax in Ireland anymore as it does nothing except pay down debts run up by the likes of these two bankers.

I mean, seriously? What's the point!

Your pension's likely to be cut, your public services cut, my parents will probably have to sell their house to pay for their own nursing home care in future years, the health service is a disaster, nobody regulates anything properly, there's no accountability for anything ever. It's all pass the buck, 'ah sure it's grand' nonsense.

Yeah, grand there's a few nice aspects to living in Ireland, but there's a huge number of really negative factors like rubbish public services, huge levels of indirect taxes (which hit poor people hardest) and endless turning blind eyes to totally repugnant behaviour by various vested interests.

This stuff sickens me and to see how the state behaved in just allowing all sorts of ridiculous things to happen to people in the past sickens me - abusive 'care' institutions, Magdalene laundries, symphisotomies being carried out on women for no logical reason.
All of that stuff was down to 'see no evil, hear no evil' policies and complete corruption of the system of Governance.

Every one of us is footing the bill for banking disasters, insurance disasters, regulatory disasters that led to serious abuses of the vulnerable.

It's not good enough and I'm completely sick of it. Nothing changes. It's the same old same old rubbish again and again and again and again!

I can only conclude that the electorate has some kind of self-persecution complex or has some S&M fetish of some sort because they keep re-electing the same people who abuse them over and over again.

To say I'm disillusioned would be a gross understatement.

The Muppet · 27-06-2013 04:49PM

jobeenfitz wrote: »

Maybe many of the people in this country need to see some punishment dished out for any wrongdoing before they can move on. If these people know there is no consequence for their actions what is to stop this happening again.

Lets move on and at the same time inflict a little justice on these untouchables.

I'd agree provided we can do that without making multi millionaires out of the legal profession at the taxpayers expense.

Scofflaw · 27-06-2013 05:07PM

Cody Pomeray wrote: »

Yes I am aware of your eternal opinions, I have replied to clarify a simple point that contrary to your statement "Or possibly not, because it seems we don't have that one", conspiracy to fraud has been, is and remains a common law offence in this jurisdiction, which is known to the circuit and the superior courts where criminal charges have been successfully brought and upheld - especially in relation to financial and insurance crime, as it happens.

Then I thank you for your unnecessary clarification contradicting a point I didn't make. It would probably have been quicker to have asked me to clarify what I was saying rather than refuting something I wasn't, since you seem to have exposed yourself to my eternal opinions anyway.

amused,
Scofflaw

Scofflaw · 27-06-2013 05:08PM

Mr.Micro wrote: »

Yes indeed and make some laws that cover what these types do that and get away with. Its 2113 and Ireland needs to have laws that are up to date. Too many corner boys in Ireland.

It's not 2113 yet, I think. But, yes, we could do with an offence like "cheating the public revenue".

cordially,
Scofflaw

Lbeard · 27-06-2013 05:11PM

Bits_n_Bobs wrote: »

Third consecutive decline in GDP
Inept clowns in HSE paying the same amount for generic drugs as non-generic ones

This was a little concession, a sweetener, to the pharma industry ......who are an incredibly MAJOR supplier of bread and butter to the Irish people. If all the generic manufactures were here, and the non-generic weren't we would have been buying generics.

It wasn't inept clowning........At least now we have an excuse to claim we have to purchase generics......because we're broke.

Banks being let loose like a bunch of rabid dogs on people buried under financial stress
A Taoiseach more interested in scoring cheap political points against an already disgraced bunch of ****,

Taoiseach?.......Taoiseach?.......We don't have a Taoiseach.....We're under Troika occupation. Kenny is only really like Petain, in France during the war.

An electorate who seem to prefer the already disgraced bunch of **** to the current bunch of **** in power

It's not the whole electorate. Remember, 50% of people have below average intelligence. And the bottom 25% are really thick. The people FF call the party faithful.

Politicians wasting breath over abortion bill that only the fundamentalists on either side of the argument could care about

Unfortunately there are a lot of fundamentalists in Ireland - bottom 25% - the Fianna Fail party faithful.

....and everyone is still obsessing about pinning the blame on a few dick head bankers of a bank which no longer exists.

We have unfinished business. As they say in the drugs business, a body in jail, or a body on the floor.

Even if these guys are shoved into a sack and beaten, this will not materially benefit anyone at all.

No. But it will make us feel good. You don't have to join in if you don't to. But there's quite enough of us who'll be happy to give them a Gaddafy like send off.

At this stage everyone's focus really should be on fixing our democracy, our economy and our society.

It's like this, we could have been out of the crisis years ago, if it wasn't for the thick bog savages, who took a disaster and turned it into a catastrophe.

The way the scummers of Anglo behaved, meant instead of being able to put our hands up and let Europe take the pain of Anglo, the scummers threw us a concrete life saver. And maybe just so the chief scummers could grab the last few fistfuls of cash before it went bang.

This is worse than terrorism. The IRA may have been misguided, but they acted with what they believed to be the best of intentions. The scummers at Anglo did not. And they caused way way way more damage to the country than the IRA ever did.

Something I'm trying to find out but can't get the info. One of the scummers from Anglo, Peter Fitzgerald. He's currently the "interim" CEO for the Irish alcohol and addiction counselors of Ireland. HE HAS A JOB. This is the certifying body for couselors who want to work for the HSE. HE MAY BE ON THE HSE PAYROLL -

Is he on the HSE payroll?.........Could this be true?....All the people loosing their jobs and the roofs over their heads and we're still paying for the parasites services.

SpaceTime · 27-06-2013 05:12PM

We really need some kind of 'economic treason' law.

Mr.Micro · 27-06-2013 05:27PM

Scofflaw wrote: »

It's not 2113 yet, I think. But, yes, we could do with an offence like "cheating the public revenue".

cordially,
Scofflaw

OOPs, I getting carried away there. It will probably take until then to get some adequate laws.

I will amend my post.

Cody Pomeray · 27-06-2013 06:21PM

Scofflaw wrote: »

Then I thank you for your unnecessary clarification contradicting a point I didn't make. It would probably have been quicker to have asked me to clarify what I was saying rather than refuting something I wasn't, since you seem to have exposed yourself to my eternal opinions anyway.

amused,
Scofflaw

Then what exactly was your suggestion that 'we don't have that one' about?

In the UK, 'conspiracy to defraud' and 'conspiracy to defraud the Crown of Revenue' are two distinct offences at Common Law. The latter offence did not survive the Constitution of the Free State, the former did, and is used in a similar, albeit less extensive, manner to its use in the UK.

The former common law offence shares case law with the UK, in which jurisdiction it has been called 'the prosecutor's darling' for its flexibility. It has been used to prosecute conspirators to fraud in the UK and in Ireland, includes bodies corporate (including Anglo Irish Bank, in once historical case), with Irish trials occasionally borrowing from British case law.

The term 'fraud' is therefore known to law in its own right, through the common law.

clairefontaine · 27-06-2013 06:39PM

Does it come down to fudging the books?

It might be illegal to say you need more than you need but not less than you need?

Looks like a business tactic and that's all.

Crime here is government subsidising private banking.

BuilderPlumber · 27-06-2013 07:01PM

A major trend here is that everyone hates the banksters and no one likes the politicians much better only they hate whichever shower are in power at a given time. Yet, people will vote for one shower or another. The reasons ...

One:-There is little choice or difference between Fianna Fail, Fine Gael and Labour. ALL supported the existence of property banking like Anglo, all approve of austerity, all approve of hitting the people with the payback.
Two:-There is no credible moderate alternative to the above. The Indos like Mattie McGrath are basically Fianna Fail, whereas Mick Wallace, Ming Flanagan and John Halligan are all more or less Labour, and Shane Ross is Fine Gael. ALL would support either of the above in government if the chips were down.
Three:-The rest of Irish politics is the dregs: scraping the bottom of the proverbial barrel. The Jintos, the Dissos, the Eirigis, the Pro-lifers, the Pro-Choicers, the Shell to Seaers and all the other hardline nutcases out there.
Four:-Less and less people vote at all meaning that the unaffected party loyalists for the main parties are in a stronger position. If 50% of the people don't vote, then the FF, FG, Labour, Jinto and other diehards can have a great chance of success.

What kills me is that there is not ONE party (be it a reformed FF, FG, Labour or an all new one) willing to lead Ireland is a direction where wealth is given to the people, the banksters and corrupt politicians like Bertie Ahern are disowned and punished, the siphoned money is taken off all of the corrupt banksters and developers, and the politicians give up their expenses and excess salaries. I would guarantee that 95% of the electorate (even those claiming to give solid FF, FG, Labour, etc. support) want reform in the country and their parties. But the scumbag politicians are able to use the fact that some people do not vote at all and that disgruntled Fianna Failers will either not vote or vote for someone like Mattie McGrath (who can go into coalition with FF) to their own advantage and know it.

That's the way things are. And it is sickening. By right, all these Anglo banksters should be in jail by now and many politicians with them. In other countries, these guys would not be as free that's for damn sure!!

Scofflaw · 27-06-2013 07:37PM

Cody Pomeray wrote: »

Then what exactly was your suggestion that 'we don't have that one' about?

In the UK, 'conspiracy to defraud' and 'conspiracy to defraud the Crown of Revenue' are two distinct offences at Common Law. The latter offence did not survive the Constitution of the Free State, the former did, and is used in a similar, albeit less extensive, manner to its use in the UK.

The former common law offence shares case law with the UK, in which jurisdiction it has been called 'the prosecutor's darling' for its flexibility. It has been used to prosecute conspirators to fraud in the UK and in Ireland, includes bodies corporate (including Anglo Irish Bank, in once historical case), with Irish trials occasionally borrowing from British case law.

The term 'fraud' is therefore known to law in its own right, through the common law.

That we don't have an equivalent to defrauding the public revenue, which is the only charge that might stick in regard to Anglo's strategy to pull in the CB by naming a lower figure than they needed. Such a tactic is in no other way fraudulent that I can see, legally anyway, so the idea of a charge of conspiracy to commit something that's not fraud makes "conspiracy to defraud" irrelevant.

All I've been saying here is that there is no known Irish crime that would apply to the use of the €7bn figure as a negotiation strategy, specifically in answer to, or comment on, maninasia's question as to whether anything would.

If that wasn't clear, I regret the confusion, but I did think it was clear from the context of the original question. I was not claiming either that there is no offence of fraud in Irish law, or of conspiracy to commit fraud, only that we don't have a measure that would make a crime of Anglo's strategy - that's why I sought and quoted a case not about fraud in general, but specifically about cheating the public revenue.

cordially,
Scofflaw

Cody Pomeray · 27-06-2013 08:01PM

Scofflaw wrote: »

That we don't have an equivalent to defrauding the public revenue, which is the only charge that might stick in regard to Anglo's strategy to pull in the CB by naming a lower figure than they needed.

I have never suggested we have that equivalent. That was not the law I raised.

The law I raised was the straightforward offence of Conspiracy to Defraud.

Conspiracy to Defraud, I said, is used by the Crown prosecution, and others - to significant protest - because of its immense flexibility.

The flexibility that it lends to prosecuting financial and other corporate crimes is derived through case law. This all applies to Ireland.

UK cases indicate that Conspiracy to Defraud, as defined in R v. Cooke and affirmed in the Irish High Court, is: an agreement by two or more persons by dishonesty to deprive a person of something which is his or to which he is or would be or might be entitled, or to injure some proprietary right of his.

There are two important tests to be met, developed in case law.

1. economic prejudice. There must be evidence of a dishonest agreement to expose the proposed victim to some form of economic risk or disadvantage, or

2. There must be a dishonest agreement by two or more persons to defraud another by deceiving him into acting contrary to his duty.

Since the CB has a duty to essentially safeguard the Irish financial system within the Eurosystem, and it and the Government may demand that they would have acted otherwise if they had not been deceived as to Anglo's requirements, I would completely reject the idea that this offence might not be suitable for prosecuting an agreed course of action by individuals, as strongly implied in the Bowe-FitzGerald conversation.

GCU Flexible Demeanour · 27-06-2013 08:12PM

Scofflaw wrote: »

I doubt the former is in any way illegal, but the latter might constitute fraudulent trading.

Apologies, as I haven't followed every post. But isn't the pertinent point right there. Expanding it out

http://www.dilloneustace.ie/download/1/Directors%20Duties%20when%20a%20Company%20is%20Facing%20Insolvency.pdf

Fraudulent Trading

If in the course of a winding up of a company, or where company has been shown to be insolvent but is not being wound up, or in the course of an examinership; any person found knowingly a party to the carrying on of the business of a company with intent to defraud its creditors or for any fraudulent purpose, may be guilty of fraudulent trading under Section 297 of the Companies Act 1963. Section 297 provides for a maximum penalty of imprisonment for a term not exceeding seven years or a fine not exceeding €63,487 or both. In addition, any such person may be personally responsible for all or any of the debts of the company as the Court may direct.

I'm obviously not saying it's an open and shut case; but it is worth to observe that a body can't just run a bank like he was Bart Simpson.

Scofflaw · 27-06-2013 08:39PM

Cody Pomeray wrote: »

I have never suggested we have that equivalent. That was not the law I raised.

The law I raised was the straightforward offence of Conspiracy to Defraud.

Conspiracy to Defraud, I said, is used by the Crown prosecution, and others - to significant protest - because of its immense flexibility.

The flexibility that it lends to prosecuting financial and other corporate crimes is derived through case law. This all applies to Ireland.

UK cases indicate that Conspiracy to Defraud, as defined in R v. Cooke and affirmed in the Irish High Court, is: an agreement by two or more persons by dishonesty to deprive a person of something which is his or to which he is or would be or might be entitled, or to injure some proprietary right of his.

There are two important tests to be met, developed in case law.

1. economic prejudice. There must be evidence of a dishonest agreement to expose the proposed victim to some form of economic risk or disadvantage.

2. There must be a dishonest agreement by two or more persons to defraud another by deceiving him into acting contrary to his duty.

I would completely reject the idea that this offence might not be suitable for prosecuting an agreed course of action by individuals, as strongly implied in the Bowe-FitzGerald conversation.

A good summary, which makes the view that there's potentially a case to answer more credible. However, it retains the major issue with respect to Anglo's strategy, which is that there is nothing dishonest about the request for €7bn itself, and that the Central Bank retained the freedom not to throw good money after bad.

Anglo certainly needed the €7bn, and provided sufficient collateral to cover it, so that's not fraud, and it didn't expose the Central Bank to any form of economic risk or disadvantage in itself that was not visible. Any risk to the Central Bank resulting from Anglo's strategy would arise through further decisions of the Central Bank itself.

In other words, the €7bn represents an agreement entered into by the Central Bank in order to keep Anglo afloat, for the reasons given by Anglo and accepted by the Central Bank - which reasons could well have been, and likely were, honestly believed by Anglo - with the collateral that Anglo provided. Anglo is not defrauding the Central Bank out of the €7bn in any way, or otherwise injuring the bank by choosing the figure of €7bn.

The Central Bank is not being tricked into believing that Anglo needed €7bn when they didn't - they certainly did - and is not being bound by any agreement or undertaking to continue providing drip feed as Anglo hope they will. That was up to the Central Bank, was a Central Bank decision that could be freely made. If the Central Bank decided to throw good money after bad by "protecting their investment", that would make them fools, but it does not imply fraud or conspiracy to defraud - they retained the free option to say "look, we gave you €7bn, we said it had to be enough, you can't have any more and that's that".

Anglo's intent not to repay, or disbelief in their own capacity to repay, may make any request for loans to keep trading fraudulent, but that's a separate issue.

I would say that to make a charge like that stick, the judge has to set aside the ability of the Central Bank to back out of supporting Anglo at any point - in effect, to say that the Central Bank was somehow vulnerably ignorant, a poor sad bewildered ignorant who could be taken in by a simple strategy. And who knows, that might work.

cordially,
Scofflaw

Scofflaw · 27-06-2013 08:42PM

GCU Flexible Demeanour wrote: »

Apologies, as I haven't followed every post. But isn't the pertinent point right there. Expanding it outI'm obviously not saying it's an open and shut case; but it is worth to observe that a body can't just run a bank like he was Bart Simpson.

I'm pretty happy with the idea that the tapes show clearly that senior Anglo executives believed they hadn't the capacity to repay the debts they were contracting on behalf of Anglo, and believed that the business was no longer a going concern.

Even if you cobble together a defence of "we could have made a go of it", the conversation about what would happen to the bank is pretty damning.

cordially,
Scofflaw

Anglo Tapes

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