The Court of Appeal quashed the convictions of former Anglo Irish Bank officials Tiarnan O’Mahoney and Bernard Daly after finding that a substantive tax offence was brought outside the statutory time limit and that key business records were admitted without the evidence required to establish their admissibility.
The judgment, delivered on 15 March 2016, concerned convictions entered at Dublin Circuit Court in July 2015. Daly had received concurrent two-year prison sentences and O’Mahoney concurrent three-year sentences.
The court held that section 1078(7) of the Taxes Consolidation Act 1997 imposed a ten-year limit on bringing both indictable and summary offences. The November 2013 charges against the men alleged an offence under a different subsection from the “furnishing incorrect information” count on which they later stood trial. The court found the reference in the original charges to an account required to be disclosed under a High Court order was material, and that the later count was not the same offence. It concluded proceedings on the trial count had not begun within the ten-year period. The appellants should not have stood trial on that count.
That ruling did not end the conspiracy counts, which had no applicable time limit. The Court of Appeal also found the trial judge had wrongly admitted documents under the Criminal Evidence Act 1992 without hearing evidence on contested factual requirements, including whether the records were compiled in the ordinary course of business. The prosecution bore the burden of establishing admissibility, and the defendants had objected to the certificate relied on for the records. The appellate court said the documents were, for the most part, vital to the prosecution case, particularly on the conspiracy counts, and upheld the appeals on this ground.
Daly separately succeeded on his challenge to the conspiracy convictions. The prosecution relied in part on a brief conversation in October 2003 in which a bank colleague said Daly had asked whether he would delete an account if asked by a senior bank figure. The court described the evidence linking Daly to later attempts to delete records as thin and too remote, and said the conspiracy case against him should have been withdrawn from the jury. It ruled that a retrial did not arise for Daly on that basis.
O’Mahoney’s challenge to the conspiracy-to-defraud count failed: the court said a jury could find that the alleged aim was to keep material from Revenue and disadvantage it, without proof that an actual loss occurred. The court said the grounds on which O’Mahoney succeeded did not rule out a retrial and directed that the parties be heard on whether one should be ordered. The judgment does not record a final decision on retrial.