The jury in the trial of former Anglo Irish Bank directors Sean FitzPatrick, William McAteer and Pat Whelan will be "the first in the history of the State" to have 15 members.
Opening the trial, Paul O'Higgins SC for the State, told the 15 jurors that legislation had been passed to allow larger juries to be chosen in lengthy cases.
This was to prevent the risk of a trial collapsing should more than two jurors “get sick” or “die” or be unable to continue.
The three men have been charged with 16 counts of providing unlawful financial assistance to 16 individuals in July 2008 to buy shares in the bank, contrary to Section 60 of the Companies Act.
Mr Whelan has also been charged with being privy to the fraudulent alteration of loan facility letters to seven individuals.
Mr FitzPatrick (65) of Greystones, Co Wicklow, Mr Mc Ateer (63) of Rathgar, Dublin, and Pat Whelan (51) of Malahide, Co Dublin, have pleaded not guilty to the charges.
The start was delayed after one juror, from the jury sworn in last Friday, gave a letter to presiding judge Mr Justice Martin Nolan. After reading it, the judge said he would excuse him from service.
Another juror asked if he was fit to serve as he had discovered his sister had worked with the Irish Bank Resolution Corporation. He said he had not discussed matters with her. There were no objections from any of the counsel involved.
Public controversy
The judge told a panel of potential jurors from which the replacement was to be drawn that what happened in Anglo Irish Bank had become "a matter of public controversy". He warned them they should not serve if they had strong views on the subject or if they had expressed their views on Facebook or other websites. He also warned them the trial would be a long one and listed more than 100 witnesses who would be giving evidence. He said if potential jurors knew any of them, they should not serve. They should also not serve if they had shares in a bank, were serving as gardaí, were members of the Defence Forces or served a jail term in the last 10 years.
More than 10 jurors were excused before the new juror was selected, making a jury of eight women and seven men. They are likely to sit until the end of May.
The court registrar read all 23 charges to the jury, listing the names of those who were allegedly given “unlawful financial assistance” and those who received loan facility letters that had allegedly been fraudulently altered.
In his opening statement, Mr O’Higgins said at the end of the evidence, a public ballot would take place and 12 jurors would be selected from the 15 to consider the case and reach a verdict. He acknowledged that it was “a savage system” given the time the jurors would afford to the case and it might be frustrating for those who did not get to deliberate, or it might be liberating.
He apologised in advance to the jury if he sounded “patronising or repetitive” during his explanations and went on to outline the role of the judge, jury and counsel in the trial.
He described the presumption of innocence to jurors as the “bedrock of the law” which applies in favour of every citizen that comes before a court in Ireland. He also explained that the trial judge was the arbiter of the law and would direct them in matters of law.
He told the jurors they were “the 15 judges of every matter of fact” in the case. While they were supreme in all matters of fact, the judge was supreme in all matters of law.
Company structures
He also explained the nature of a company. He said they enabled individuals to do things which did not put everything they had at risk. "Companies are structures which can do great good and considerable damage at times," he said.
The “keynote” of a company was its limited liability, Mr O’Higgins said, and a person could not go behind it. Therefore it was important for those dealing with a company that they got an accurate sense of the personality of the company. One of the things that may be “a key indicator” of a company was the price of its shares.
“It is a vital thing that a company’s shares are dealt with in the way they should be and if they are not, that can amount to a criminal offence,” he said.
Mr O’Higgins told jurors the worth of a company was the number of shares in the company multiplied by the value of those shares.
He explained that some people who ran companies were employed by them while others were not. A director on a company board could be paid but may not be employed, he said, and so would be a non-executive director. A director who also was involved in running the business would be an executive director.
“All those on a board of directors have a right to say yes or no to anything,” Mr O’Higgins said. They could vote on issues and make a decision.
He said the board of Anglo Irish Bank was divided into executive and non-executive directors. And the three accused were all directors.
Under the Companies Act, in certain circumstances if a company committed an offence then officers of that company may become liable along with the company.
Mr O’Higgins said sometimes there was no point in pursuing the company and this was the case with Anglo Irish Bank because it had “no money of its own”, but the officers could be prosecuted for what the company had done.
“This case is about what happened regarding the shares in Anglo Irish Bank and what happened in July 2008,” he said.
