Last May a very disturbing event occurred in this country which went almost completely unnoticed by the media.
The Director of Public Prosecutions, James Hamilton, publicly rebuked a High Court judge.
Some weeks earlier the judge in question, Mr. Justice Peter Kelly, had strongly criticised the long delay in the Anglo Irish Bank investigation.
The judge was angrily responding to an application from the ODCE for yet another extension of the investigation, this time for six months.
In his judgement, judge Kelly did not mince his words: (This short judgement is worth reading in full).
I am not, however, prepared to grant an extension of six further months as sought. I will grant an extension until Thursday, 28th July, 2011.
On that occasion, I expect much progress to have been achieved.
If a further extension is to be sought, I expect to be furnished with much more detailed information as to the progress of the investigation of these various issues.
In particular, I will require to know what progress has been made in respect of the material sent to the D.P.P. in December 2010.
I will also expect more accurate estimates of time as to the completion of these investigations than have been furnished to date.
Two years investigation without any appreciable result was not at all satisfactory, I am not a rubber stamp, said the judge.
The Director of Public Prosecutions (DPP), Mr. James Hamilton, and by extension, the State, was not at all happy with this upbraiding by an upstart judge.
In a clear reference to Judge Kelly’s remarks the DPP said that there were some ‘current misunderstandings’ regarding how the Anglo case was being handled.
In our system, investigators investigate and prosecutors decide whether to prosecute.
The prosecutor does not direct the investigation and, except in minor cases delegated to them, the investigators do not decide whether to prosecute. Only the prosecutor has this function.
Following the completion of an investigation, the prosecutor prosecuted, the defence defended and the judge adjudicated between the parties.
The message to Judge Kelly is crystal clear: Get back in your box and keep your mouth shut. We’ll call you when we next need your rubber stamp.
Mr. Appleby (ODCE) must have been greatly relieved by this ‘timely’ intervention by such a powerful officer of the state.
While agreeing with Judge Kelly’s demand for a report by the end of July Mr. Appleby said that he would be looking for yet another extension of time.
Clearly, Mr. Appleby is confident, after the DPPs intervention, of getting his extension.
If granted, it will be the 8th extension to the Anglo Irish Bank investigation.
So, let’s be clear about what’s going on here.
The state is, apparently, employing one of its most effective strategies in response to allegations of white collar crime – delay, delay, delay until the entire matter becomes historical and irrelevant.
The intervention by judge Kelly cannot be tolerated as it could force the state to actually take effective action, for the first time, against suspected white collar criminals.
The big question is – will judge Kelly fold under state pressure?
We’ll know next week.