It could take up to two years to complete any criminal prosecution arising out of the Director of Corporate Enforcement’s investigation into the affairs of State-owned Anglo Irish Bank, the Commercial Court heard today.
Paul O’Higgins SC, for the ODCE, said no charges have yet been brought and it was likely to be “a year or two” before any prosecution is completed, including any appeal which may be taken.
Mr Justice Peter Kelly also heard the board of Anglo, following concerns expressed by the court and the Minister for Finance, has now agreed to limited disclosure of a number of electronic documents, seized by the ODCE over which it had previously asserted privilege.
The electronic material and data relates to some 20 persons, employees of the bank, and covers the period January 2008 to February 2009.
The judge was dealing with procedural matters related to the conduct of the director’s investigation into Anglo.
Last month, the court heard Minister for Finance Brian Lenihan had urged the bank “at the highest level” to look again at whether it should maintain its assertion of legal professional privilege (LPP) over certain electronic documents seized.
The Minister’s intervention came after Mr Justice Kelly expressed concern the LPP claims were delaying the Director’s investigation.
The director’s applications to court arise out of amending company law enacted last July to address legal issues relating to search warrants and claims of LPP. The general nature of the Anglo investigation is into possible offences under the Companies Acts involving the giving by a company of financial assistance for the purchase of its own shares.
Shane Murphy, for the director, told the court today the Anglo board had considered the Minister’s request and offered limited disclosure. This would entitle gardai and experts access to the documents, including for the purpose of a prosecution, but would not allow for disclosure to third parties contemplating or already taking civil actions against the bank.
This was not a general waiver because the bank, as a publicly funded institution, had to protect its commercial interests as well as the public interest, counsel said.
Mr O’Higgins said he was concerned such limited disclosure could be meaningless if it meant it could not be used as part of any prosecution by the DPP. A Garda Bureau of Fraud Investigation (GBFI) into Anglo’s affairs was closely harmonised with the director’s investigation and a Garda inspector had been seconded to the director’s office for that purpose.
Mr Justice Kelly said the offer from the bank would substantially advance the investigation and he would grant an order on the terms of limited disclosure. He gave the parties a week to agree the wording of that order.
He noted Anglo was prepared to waive, not generally, but “in a significant way” the LPP attaching to certain documents. These were to be disclosed to the director, those working with him, whether police officers or experts, and any person subject of a prosecution.
“The net effect is the director will now be apprised of a great deal more material than would otherwise be the case,” the judge said.
The judge said he was glad the bank had been able to make the decision it had as he noted, in an affidavit yesterday from the director’s legal advisor, Adrian Brennan, the investigation had been delayed for several months because of the privilege issue.
It was curious the director had never formally asked the bank to waive that privilege and it had only been done at the court’s request, he said. The best that could be said was the director had raised the question of LPP in an informal way and never took a stance on it, he added.
The judge refused the director’s application to extend to six months the period for retention of the documents. He said he would extend the time to November 19th when the court should be informed of what progress was being made.