It could turn out to be the longest criminal trial in Irish history, but even the dimensions of the scene itself feel outsized, its small dramas amplified by its unusual scale.
Almost 150 people pressed into court 19 yesterday, filling every inch of space on the public benches and spilling all the way out the door to an overflow viewing room elsewhere in the building. More than a dozen lawyers, including a strikingly male-dominated line-up of some of Ireland’s best-known criminal barristers, were arrayed across two rows below the judge’s dais. Elbow-room is at a premium; even the 15 jurors – the most there has ever been for a trial here – squeeze into a space designed for 12.
The room had fallen silent by the time the three defendants in suits stood side-by-side in the dock, their hands clasped in front of them like footballers defending a free-kick, and confirmed their pleas. “Not guilty,” each man said as the charges were read out as a prelude to the swearing in of a new juror, a procedure necessitated by the withdrawal of a member of the original 15 for personal reasons.
From then on the defendants were onlookers. They listened intently as Paul O’Higgins SC opened the prosecution’s case with a two-hour speech that ranged across basic principles of the jury trial before sketching an outline of the version of events the State plans to unfurl over the coming months.
With his right leg propped on his bench, O’Higgins told the jury about the history of companies and gave a primer in corporate structure and the role of directors.
Summarising the relevant sections of the Companies Act, O’Higgins explained that the three defendants were charged with providing unlawful financial assistance to 16 individuals to buy shares in the bank in July 2008. But the law that prohibits that allows for one exception: when the lending of money is part of the “ordinary course of business”. This will be a “very important part of the case”, O’Higgins remarked.
'Maple 10'
The prosecution will argue that the loans were not in the ordinary course of business; that this was lending "in very extraordinary circumstances". He listed a few reasons for this; for one, in this case it was the bank that chased down the "Maple 10" borrowers, not the other way around. In one case they approached a customer who was on holiday in the south of France. "A lot of people, if they were on holiday and saw their banker in the distance, they might head for the nearest sand dune," O'Higgins said. In the dock, Seán FitzPatrick and Pat Whelan couldn't help but smile.
The act also states that an officer of a company shall be presumed to be in default unless it can be proven that he or she took “all reasonable steps” to prevent the breach by the company or could not do so due to reasons beyond their control. According to O’Higgins, not only did the defendants not take all reasonable steps to prevent the transaction, “they did it, authorised it, carried it out”.
FitzPatrick put on his dark-rimmed glasses and jotted the odd note as he listened to O’Higgins give the court a potted history of Anglo and his involvement with it since the mid-1970s. He listened to an account of his own rise through the ranks, of Pat Whelan’s arrival in 1989, of William McAteer being brought in as a director in the early 1990s.
"The bank grew very substantially between those days and the days of which we speak," O'Higgins told the jury. The court was also told that FitzPatrick moved from the position of chief executive to chairman in 2005 and was replaced by David Drumm, "who is not before the court but of whom you will hear quite a lot in evidence".
By now it was mid-afternoon and the courtroom had grown stuffy; the only background sounds were the tap-tap of keyboards and the scraping of pens on paper. A juror scrunched her eyes shut.
Scene-setting
The focus of O'Higgins's scene-setting was 2007-08, as turmoil hit the financial markets and Anglo started to run into problems – not least when the bank discovered, at a meeting in a hotel near Navan, that Sean Quinn and his family had contracts for difference in respect of 25 per cent of the company. Anglo were "not at all keen on that situation" and were determined to bring it to an end or "damp it down".
They couldn’t. We heard of Anglo’s unsuccessful efforts to find buyers for its shares in the US and the Middle East, of the pummelling taken by its share price on St Patrick’s Day 2008 – all against a background of dramatically fluctuating markets. “The whole financial world was jittery,” as O’Higgins put it.
And then to the transaction itself. “Around July 8th [2008], Anglo decided to do something which the prosecution says was absolutely illegal.” The loans were “always a choreographed situation” orchestrated and funded by Anglo, he said.
That, O’Higgins concluded, was the “very broad” background. “You’ll hear a lot more about it.” On that, at least, all parties are agreed.
