DPP v Bowe

• Jurisdiction: Ireland
• Judge: the President
• Judgment Date: 30 June 2017
• Neutral Citation: [2017] IECA 250
• Court: Court of Appeal (Ireland)
• Docket Number: [2016 Nos. 258 and 244]
• Date: 30 June 2017

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

JOHN BOWE

AND

DENIS CASEY

APPELLANTS

[2017] IECA 250

Ryan P.

The President

Birmingham J.

Edwards J.

[2016 Nos. 258 and 244]

COURT OF APPEAL

Conviction – Conspiracy to defraud – Jury directions – Appellants seeking to appeal against convictions – Whether trial judge properly directed the jury

Facts: The appellants, Mr Bowe and Mr Casey, were each convicted of a single count of conspiracy to defraud in a trial in Dublin Circuit Criminal Court. It began with the prosecution opening on 20 January, 2016, involving four accused and culminated on 9 June in jury verdicts of guilty in the cases of three accused including the appellants and the acquittal of a co-accused. On the 29th July, 2016, the court sentenced Mr Bowe to two years imprisonment in respect of the offence. Mr Casey received a sentence of two years and nine months imprisonment. They appealed to the Court of Appeal against conviction. The grounds of appeal for both appellants were extensive, with many overlapping issues. Mr Casey’s grounds numbered 18, some with sub-grounds. For Mr Bowe there were 24, also containing some sub-grounds, although counsel for Mr Bowe did not proceed with nine grounds. They included arguments about the role of the State authorities, among them the Financial Regulator; objections to the admissibility of the expert evidence of Mr Hunt; challenges to decisions of the trial judge as to evidence of events that occurred after Anglo Irish Bank Corporation’s year end accounts and also after the interim results were published; submissions on rulings by the trial judge and directions by him to the jury; a ground based on the acquittal of the co-accused; and other evidence issues.

Held by the Court that the lengthy and complex trial ultimately turned on issues for the jury that were properly identified by the trial judge; he exercised his function carefully and correctly. The Court found no fault with his rulings and directions; the jury came to conclusions that were open to them to find. The Court was satisfied that the convictions of the appellants were safe and satisfactory.

The Court held that the appeals against conviction must accordingly be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered by the President on 30th June 2017

Contents

2 Introduction

5 The Financial Regulator

29 Evidence of Mark Hunt FCA

51 Evidence as to Events subsequent to September 2008

62 Jury Directions and Rulings

120 Acquittal of Co-Accused

133 Telecommunication Evidence

138 Conclusion

Introduction

1 The appellants were each convicted of a single count of conspiracy to defraud in a trial in Dublin Circuit Criminal Court that was one of the longest in the history of the State. It began with the prosecution opening on 20 January 2016 involving four accused and culminated on 9 June in jury verdicts of guilty in the cases of three accused including these appellants and the acquittal of a co-accused. They were sentenced to terms of imprisonment on 29 June 2016. Their appeals to this court against conviction also were exceptionally protracted and lengthy, extending over five days. The severity of the sentences remains as an issue depending on the outcome of this part of the appeal.

2 The case has its origins in the global banking catastrophe of 2007/2008 and its impact on the Irish financial sector. More specifically, it relates to the existential crisis that befell Anglo-Irish Bank Corporation plc that ultimately resulted in its demise. Mr Bowe was a senior official in Anglo and Mr. Casey was the Chief Executive Officer of Irish Life and Permanent plc. They were accused of conspiracy to defraud in the following factual circumstances. Between 25th and 30th September 2008, and prior to the financial year-end of Anglo Irish Bank Corporation plc. on the 30th September, 2008, a series of back-to-back transactions took place between Anglo Irish Bank Corporation plc. (hereinafter “Anglo”), Irish Life & Permanent plc. (hereinafter “IL&P”) and Irish Life Assurance Limited (hereinafter “ILA”) in the total amount of €7.2 billion. The details of the sequence of money transfers is described in the section of the judgment dealing with the evidence of the prosecution's expert witness, Mr Mark Hunt FCA. They had the effect of significantly increasing Anglo's accounts in regard to deposits as at 30th September, 2008.

3 The Prosecution submitted that these transactions were circular in nature and had no commercial substance. It was further submitted that the purpose of the back-to-back transactions was to deceive the market (potential and actual investors, depositors and lenders) by giving the false impression that Anglo had received customer deposits to that amount and therefore that the state of health of Anglo at that time was better than it actually was.

4 The indictment charged Mr Bowe as follows and Mr Casey's count was similar:-

‘John Bowe did between the 1st of March 2008 and 30th of September 2008, both dates inclusive, within the County of the City of Dublin, conspired with Denis Casey, Peter Fitzpatrick, William McAteer and others to defraud by engaging in transactions between Anglo Irish Bank Corporation plc., Irish Life & Permanent plc and Irish Life Assurance dishonestly to create the false and misleading impression that deposits from a non-bank entity to Anglo Irish Bank Corporation plc during the year ending 30 September 2008 were approximately 7.2 billion larger in amount than they really were, with the intention of inducing existing and prospective depositors with, existing and prospective investors in, and existing or prospective lenders to, the said Anglo Irish Bank Corporation plc to make decisions concerning their deposits or investments in, or loans to, the Bank on the assumption that the said Bank received larger deposits from a non-Bank entity during the year ending 30 September 2008 than it really did.’

5 On the 29th July, 2016, the court sentenced Mr. Bowe to two years imprisonment in respect of the offence. Mr Casey received a sentence of two years and nine months imprisonment.

6 The Grounds of Appeal for both appellants are extensive, with many overlapping issues. Mr Casey's grounds in respect of conviction number 18, some with sub-grounds. For Mr Bowe there were 24, also containing some sub-grounds, although counsel Mr. Bowe did not proceed with nine grounds. They include: arguments about the role of the State authorities, among them the Financial Regulator; objections to the admissibility of the expert evidence of Mr Hunt; challenges to decisions of the trial judge as to evidence of events that occurred after Anglo's year end accounts and also after the interim results were published; submissions on rulings by the trial judge and directions by him to the jury; a ground based on the acquittal of the co-accused; and other evidence issues. The court endeavours to deal with every ground of appeal.

7 Counsel for the appellants deserve credit for their assiduity in the interests of their clients, their industry and ingenuity in setting up novel bases of defence and the comprehensive submissions and oral arguments that they made in the trial court and on this appeal. This Court has concluded however that despite these herculean efforts by counsel and there were myriad issues raised, it is satisfied that the trial was satisfactory and the convictions safe and that the appeals against conviction must be dismissed.

8 This judgment sets out the Court's reasons for the decision. The issues are addressed as follows in order to cover in a thematic manner all the points raised by counsel in their submissions, whether they are common to both appellants or individual. There are of course many overlapping issues, as well as submissions that only apply to one case or the other. The order is: 1) the financial regulator; 2) the admissibility of the expert evidence of Mr Mark Hunt; 3) evidence of events subsequent to the 30th September 2008; 4) the trial judge's directions to the jury and other rulings; 5) the intent required for the offence charged; 6) the acquittal of the co-accused; 7) and issues concerning telecommunications evidence.

Ground 11 John Bowe

The learned trial judge erred in law in holding that, against a documented and accepted background of transparent interaction with the Financial Regulator, there was no defence of Entrapment nor Officially Induced Error open to the appellant or his co-defendants.

Ground 1

The learned trial judge erred in law and fact in ruling to exclude certain evidence in respect of the involvement of State authorities, in particular, the Financial Regulator, in the matters giving rise to the prosecution of the appellant. In doing so, the learned trial judge acted in a manner inconsistent with basic fairness.

Ground 3

The learned trial judge erred in law and fact in determining that the involvement of the Financial Regulator in the matters giving rise to the prosecution of the appellant did not afford him a defence. In doing so, the learned trial judge acted in a manner inconsistent with basic fairness.

Ground 4

The learned trial judge erred in law and fact in determining that the involvement of the Financial Regulator in the matters giving rise to the prosecution of the appellant did not afford him a defence, in particular (but not limited to) given the relevance to the appellant's state of mind of the Financial Regulator's statutory role and involvement in the said matters. In so determining, the learned trial judge acted in a manner inconsistent with basic fairness.

Ground 5

The learned trial judge erred in law and fact in determining that the involvement of the Financial Regulator in the matters giving rise to the prosecution of the appellant was only relevant in mitigation. In doing so, the learned trial judge acted in...