The view as to whether Judge Martin Nolan would jail any of the former bankers convicted in the Anglo Irish Bank/Irish Permanent case was always a tussle between the weight to be given to comments the judge made in the absence of the jury during the trial, and the sheer size of the numbers involved.

There were six days of legal argument in February over the extent to which the jury should be allowed hear evidence about what the Central Bank and Financial Regulator had been telling the banks in the midst of the 2008 banking crisis. The view of the two state authorities, dubbed the “green jersey agenda”, was that the banks should do what they could to help each other get through the storm.

Legal argument

It was understood by everyone that these “green jersey” actions should be kept secret lest news that the Irish banks were giving one another dig-outs might make matters worse by creating further reputational damage in the midst of what was a massive international liquidity crisis.

Having listened to the arguments made in the absense of the jury, Judge Nolan said the fact that the four accused bankers might have believed the authorities had encouraged them in their actions, was not a defence.

He also ruled that the actions of the regulator and the Central Bank did not constitute “entrapment” as that had to include an intention to prosecute.

However while the accused might not be able to argue that they shouldn’t be convicted because of what they had been urged to do by the Central Bank and the Financial Regulator, at a time when it was feared that the Irish banking system might collapse, it was allowed by the judge that the jury could hear something of the background against which the acts at the heart of the trial took place.

While no witnesses would be called on the matter, it would not be right or practical to try to stop the jury hearing about the issue in the course of other testimony, he said.

While the clear view that the accused could not plead as a defence that they felt they were doing what the authorities had urged them to do, no doubt came as a disappointment to the four men, they presumably took some heart from what Juge Nolan added.

He said the attitude of the regulator and the Central Bank might serve as mitigation in the event of the conviction of the accused.

Earlier trial

This point by the judge was something he’d already considered in an earlier trial.

In a separate 2014 trial he presided over, Judge Nolan decided not to jail two former Anglo directors, Patrick Whelan and Willie McAteer, because they had been "led into error and illegality". To imprison them would be unfair as, he said, the financial regulator had given the "green light" to the illegal transactions for which both men had been convicted.

Having been convicted for giving illegal loans to developers to buy shares in Anglo, McAteer and Whelan were sentenced, at the end of a very lengthy trial, to 240 hours of community service.

While both the cases involved the green jersey agenda, the transactions involved in each were entirely different as was the detail of the involvement and knowledge of the State authorities.

The case involving McAteer, John Bowe and Denis Casey, as well as Peter Fitzpatrick, who was found not guilty, was always notable because of the size of the sums involved.

Experienced bankers

The three convicted men were found guilty of misleading the public, and investors, in relation to the financial health of Anglo Irish Bank, arising from circular transactions that had a total positive effect of €7.2 billion on Anglo's year end figure. That is such a huge figure that it was always hard to see how a judge could respond to a conviction in relation to fraud on such a scale, with anything other than imprisonment.

In his February ruling, the judge described the transactions as “classic back-to-back transactions, done for public optics only,” and said there was ample evidence that they were “totally illegal and fraudulent”.

All of the convicted men were senior, experienced executives. Not to have jailed them would have sent out a peculiar message in respect of the enforcement of the law in relation to powerful figures in positions of great responsibility.