The Supreme Court has reserved judgment on an appeal by former Irish Life & Permanent chief executive Denis Casey over his conviction for his role in a multibillion-euro conspiracy to deceive people about the true financial state of Anglo Irish Bank in 2008.
Mr Casey, who attended the appeal before the five-judge court on Thursday, has served a sentence of two years and nine months imprisonment imposed in July 2016 after he was found guilty of a conspiracy to defraud.
A jury at Dublin Circuit Criminal Court found he conspired with Anglo's John Bowe and Willie McAteer to engage in transactions between Anglo and ILP aimed at fooling people into thinking Anglo had received an extra €7.2 billion in customer deposits.
The appeal centres on whether Mr Casey was entitled to use the roles of the Financial Regulator, the Central Bank and the Department of Finance as a defence in his trial.
Mr Casey contends he authorised the transactions on the basis the regulator was fully aware of them and they were encouraged as part of the “green jersey agenda” involving Irish banks supporting each other during the financial crisis.
He says he honestly believed that, in September 2008, Anglo could not have approached IL&P for support without the knowledge of the regulator.
That defence of officially induced error was not permitted to go to the jury after the trial judge ruled it could only be used in seeking to mitigate a sentence, rather than as a defence.
The trial judge also ruled Mr Casey had produced no evidence to support such a defence.
Mr Casey had told the trial judge, during arguments in the absence of the jury, that he did not inform the regulator about the transactions giving rise to his prosecution before the occurrence of those transactions in March and September 2008 with Anglo.
After he lost an appeal to the Court of Appeal, the Supreme Court agreed to hear a further appeal on a point of law of general public importance.
The core legal issue is whether or not a defence of officially induced error is available under Irish law to Mr Casey. If the Supreme Court finds such a defence is available under Irish law, it will also consider the parameters of that defence and whether, on the evidence, it was open to Mr Casey.
Submissions
In submissions for Mr Casey on Thursday, Michael O’Higgins SC agreed with Ms Justice Iseult O’Malley the essence of his case was that the State cannot prosecute or convict Mr Casey for this offence because a State agent got him “into this mess”.
The trial judge had accepted, in the jury’s absence, that Mr Casey had given believable evidence asserting he would not have authorised the disputed transfers but for the role of the regulator, Central Bank and Department of Finance, counsel said.
Given the size of the September 2008 transaction leading to Mr Casey’s prosecution, and its timing, Mr Casey was confident the transaction would be scrutinised by various “gatekeepers”, the Anglo board, its audit committee, internal auditors and its statutory auditors to ensure obligations that the accounts presented a fair and accurate view would be met.
The “green jersey” agenda involved “unashamedly” massaging key elements of balance sheets and, in the case of Anglo, boosting that bank’s corporate deposits and the message amounted to “do what you have to do”, he submitted.
Paul O’Higgins SC, for the Director of Public Prosecutions, argued the defence of officially induced error relied on a representation having been made, in advance of the alleged offence being carried out, as to the legality of the alleged offence.
There was no such representation here and the defence was thus not available to Mr Casey, he argued.
The green jersey agenda was to the effect the banks should support each other regarding liquidity, he said. It was a "perfectly legal" strategy and could not be seen as having any role in precipitating this offence.
