Are we craven or inept in the face of arrogant financial malpractice?


Too many questions have been left unanswered by the Central Bank in the wake of the Davy affair, writes Colum Kenny

Did Ireland’s Central Bank break the criminal law by failing to report to the Garda certain behaviour by senior employees and Davy shareholders when they learnt of its general nature in 2014 and 2015? Why did Davy itself not report it?

ection 19 of the Criminal Justice Act 2011 states: “A person shall be guilty of an offence if he or she has information which he or she knows or believes might be of material assistance in… securing the apprehension, prosecution or conviction of any other person for a relevant offence and fails without reasonable excuse to disclose that information as soon as it is practicable to do so to a member of the Garda Síochána.”

However, in her evidence on March 9 last to the Oireachtas Committee on Finance, Derville Rowland of the Central Bank adamantly insisted that, “in the course of this very meticulous and careful investigation, we did not form suspicion to support reports to other agencies”.

Why not? The phrase about not forming a suspicion seemed carefully chosen as she used it more than once. The bank last week declined to elaborate on its criteria for forming suspicion.

A fraud offence has been defined as follows in section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001: “A person who dishonestly, with the intention of making a gain for himself or herself or another, or of causing loss to another, by any deception induces another to do or refrain from doing an act is guilty of an offence.”

Ms Rowland says that the Central Bank considered this very act.

Some of the behaviour that Davy or the Central Bank might have reported, had they been suspicious, is now set out in an “Enforcement Action Notice” issued by the Central Bank on March 2.

That notice was issued in agreement with Davy. But the general facts were known long ago.

It is remarkable that the only formal statement being issued about the Davy affair by the Central Bank is by agreement with Davy, the firm that – according to the bank – first responded to it with “vague and misleading details” and that “wilfully withheld information that would have disclosed the full extent of the wrongdoing as was known to Davy at the time”.

The particular behaviour, as now widely reported, involved 16 Davy employees, some of them senior, trading as a consortium with a client where “no disclosure was made to the client as to the identity of the consortium members” and where members of that consortium acting as Davy representatives advised other potential buyers on the alleged value of the bonds that they themselves subsequently purchased – and from the sale of which they stood to make a profit.

If knowing such facts does not constitute “information of material assistance” to what might be fraud, then what would? To say this is not to make an allegation or to prejudge any possible trial in the case of any Davy employees. They are entitled to a presumption of innocence. But it is to express an opinion as to what was might be an offence.

The phrase about no “suspicion” of crime is missing from the enforcement notice issued by agreement with Davy. So too is any information about the scale of any profit made on the transaction, and the names of those involved.

The bank now says it intends “to have a proactive discussion with a number of agencies about this, including An Garda Síochána and the Office of the Director of Corporate Enforcement, to sit down with them in the full facts of the information so that, from their perspective, they could consider this matter”. Does “this” include possible fraud by individuals at Davy?

Is the public not entitled to a clearer explanation of why what was known or suspected six years ago did not raise a suspicion of fraud at the Central Bank and Davy? Davy itself has been fined for its corporate regulatory failure, but only a relatively small amount in proportion to its great wealth.

Maybe yet unknown harm or loss could have been avoided at Davy or elsewhere had the bank or someone at Davy “formed a suspicion” before now – and had the gardaí then gone to the DPP.

The Central Bank’s appearance before the Oireachtas Committee left too many questions unanswered, or only partly answered. The bank’s spokesperson pleaded that she was “confined to the details we have agreed in the outcome of the enforcement case” notice and said, “I cannot be drawn on specifics of firms.” That’s Irish regulation law for you.

The Oireachtas hearing seemed rushed. It did not give itself enough time to answer its own questions, including ones about the ownership of Davy and role of Isle of Man and Gibraltar companies in respect to this “Irish” firm.

Are we Irish craven or inept in the face of arrogant and continuing malpractice by financial and other institutions? The law seems more often to favour those who chance their arm than to protect clearly the State and its people.

Dr Colum Kenny is professor emeritus at DCU

Source: Irish News