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ANGLO TRIALS - ENTRAPMENT

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  • 19-04-2014 1:55pm
    #1
    lons3
    Registered Users Posts: 42 ✭


    If this case had been in America would the defence of entrapment have been available to Pat Whealan and Willie McAteer?

    On the grounds that it is a substantive test could they have said that they felt that the financial regulator was putting leading or putting them under pressure to commit the offences in order to fix the crisis?

    I know it isn't really a defence used in Ireland and it is not available at all in England but just trying to work out how much the state agent has to induce them in order for it to constitute entrapment.
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    #2
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    lons3 wrote: »
    If this case had been in America would the defence of entrapment have been available to Pat Whealan and Willie McAteer?

    On the grounds that it is a substantive test could they have said that they felt that the financial regulator was putting leading or putting them under pressure to commit the offences in order to fix the crisis?

    I know it isn't really a defence used in Ireland and it is not available at all in England but just trying to work out how much the state agent has to induce them in order for it to constitute entrapment.

    For it to be entrapment it is necessary that the state encouraged the act with the intention that the criminal act would then be prosecuted.

    A drug agent who discovers a person is trying to buy drugs and the agent offers the drugs after being approached not entrapment. A drugs office offering to sell drugs to a person that's entrapment.


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    #3
    Mr. Incognito
    Registered Users Posts: 9,798 ✭✭✭Mr. Incognito


    No because the Regulator did not induce them to do it. They merely refused to properly investigate the transactions it seems


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    #4
    Victor
    Registered Users Posts: 78,369 ✭✭✭✭Victor


    As I understand it, the regulator didn't know that they were doing exactly what they were doing. It was legal to (a) encourage people to buy the share overhang or (b) loan people money (in the normal course of business). However to loan people money to buy the shares was not.


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    #5
    Marcusm
    Registered Users Posts: 10,275 ✭✭✭✭Marcusm


    Victor wrote: »
    As I understand it, the regulator didn't know that they were doing exactly what they were doing. It was legal to (a) encourage people to buy the share overhang or (b) loan people money (in the normal course of business). However to loan people money to buy the shares was not.

    It will be interesting to see if there is eventually a market abuse investigation into the dealings in the shares. The existence of the large hidden quasi shareholding together with the financial position of the controller of the shareholding and the knowledge of the financial position of the institution by those seeking to place the shares (ie insiders) is fraught with market abuse issues. The Irish Stock Exchange was also subject to regulation by the Financial Regulator.


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    #6
    Mr. Incognito
    Registered Users Posts: 9,798 ✭✭✭Mr. Incognito


    They tried to get them for a section 60 violation, i.e a company buying its own shares. The defence was that they lent money and other individuals owned the shares not anglo and if they were induced by the bank to do so it was immaterial as they were induced to borrow money which is the ordinary commercial practice of the bank.

    They should have been charged with fraud, or any number of financial regulations they trampled but the dpp decided not to pursue this as if the central bank knew would have been a central issue and not merely alluded to. Whether that approach is political or not you can make your own mind up.


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    #7
    Carawaystick
    Registered Users Posts: 8,779 ✭✭✭Carawaystick


    Marcusm wrote: »
    It will be interesting to see if there is eventually a market abuse investigation into the dealings in the shares. The existence of the large hidden quasi shareholding together with the financial position of the controller of the shareholding and the knowledge of the financial position of the institution by those seeking to place the shares (ie insiders) is fraught with market abuse issues. The Irish Stock Exchange was also subject to regulation by the Financial Regulator.

    Having followed the Fyffes/DCC civil trial, and no-one was prosecuted for insider dealing, I'd say no-one will be prosecuted for insider dealing here either.


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