Legal advice will be a crucial issue in the pending criminal trial of Sean FitzPatrick and two other former senior executives of Anglo Irish Bank, the Circuit Criminal Court was told yesterday.

Judge Martin Nolan was hearing an application from Brendan Grehan SC, for former Anglo chief financial officer Pat Whelan, in relation to the taking of depositions from four potential witnesses, and on access to tens of thousands of pages of documentation.

Mr Whelan, of Coast Road, Malahide, Co Dublin, is facing charges along with Mr Fitzpatrick, of Whitshed Road, Greystones, Co Wicklow, the former chairman of the bank, and Willie McAteer, Auburn Villas, Rathgar, Dublin 6, Anglo's former head of compliance.

They have been charged with providing unlawful financial assistance in July 2008 to 16 individuals – 10 long-standing customers of the bank and six members of Seán Quinn’s family – to buy shares in the bank, using the bank’s own funds. The hearing is scheduled to begin next year.

Mr Grehan, supported by counsel for the other two defendants, said he wanted depositions to be taken from Matt Moran, former chief financial officer with Anglo; Fiachre O'Neill, former head of compliance at Anglo; Robert Heron, of Matheson solicitors; and Con Horan, formerly with the Irish Financial Services Regulatory Authority.

The court was told the four men were intimately and intricately involved with matters connected with the transactions at issue.

Expert advice
Mr Grehan said that, certainly in so far as his client was concerned, the factual matter of the transactions themselves were unlikely to be an issue in the trial. The trial was more likely to concern who knew about and authorised what and when, and what expert and legal advice was provided.

Three of the four persons from whom depositions were being sought did not feature in the book of evidence as proposed witnesses, and the person who did, he had recently learned, was being provided with immunity from prosecution.

Paul O’Higgins SC, for the DPP, said he had no objection to the application, which was granted by Judge Nolan.

Mr Grehan said the defendants were awaiting a large amount of documentation which may be relevant and which was being sought from third parties such as Anglo (now the Irish Bank Resolution Corporation, in liquidation), the Central Bank, the Department of Finance and legal and accountancy firms. The material was being sought from the third parties via the Director of Public Prosecutions.

He said he was “underwhelmed” by the amount of documentation that had come from the Department of Finance and was awaiting confirmation from the DPP that it had been told by the department that this represented all that there was.

Professional privilege
He said legal professional privilege was being claimed by the IBRC in relation to documents created after December 2008, when the bank's board was replaced, and that responsibility for this went "all the way" to Minister for Finance Michael Noonan.

Legal advice was going to be crucial in the trial, he said. If advice given after the event stood over or supported advice given prior to the event, that would be relevant, he said.

When asked by Judge Nolan if he was saying that bad legal advice provided a defence, Mr Grehan said he did not want to answer that question. “I will plead the fifth for the moment.”

However, he said, the question as to whether it would influence a jury was a very live issue. People might think it was an issue of some standing if you got your advice from a top firm of solicitors, and not a “corner shop”.

He said he agreed that getting legal advice that you could shoot a troublesome neighbour would not be a defence at a subsequent murder trial.

The matter was adjourned to next week.