Vot Fraud ?

It's 31 July. You are a managing director. Your company has no cash on hand, but in your confident opinion that is a temporary situation. In October, €5m will definitely come in.

The company owes a lot of money, including

€300k to Revenue for VAT collected. Due today.
€100k to employees for wages. Due today.
€400k to suppliers. €200k overdue (60 days+)
€1.7m to Bank A (current account overdraft)
€40m to Bank B. (€2 m overdue)

So, what do you do ? Why, you pay €300k to the Revenue with a cheque using the last €300k of your overdraft facility from Bank A, of course. What else ? After all, it was never your money.

When your employees come to you for their pay, and hear about your choice of how to use your last €300k, they call you a thief. You took their services for the month, but used the money which could have been paid to them to pay some-one else.

The suppliers of goods to you say the same and try to seize your stocks.

Bank B says: that was our money, never yours. You had the use of it on strict condition that you would repay in accordance with a schedule. You didn't. You are a thief.

How do you answer them ?

Residential Mortgage Arrears Strategy Issues

The estimable Constantin Gurdgiev comments here on this speech earlier this week by Governor Honohan.(Hat-tip to the Ballyhea Bondholder bailout protest page on FaceBook.)

It may surprise some readers, but I pretty much agree with his comments.

"Strategic" is very rarely a term properly applicable to defaulters in Ireland. "Tactical" might be a better one, but,for me, whichever term is used, it is not appropriate to regard it as always a derogatory one. Such defaulters are not all trying to "game" the system or escape scot-free from their obligations. In a significant number of instances, lenders are still unable or unwilling to engage realistically or at all with their troubled clients.

Faced with unresponsive or unrealistic creditors, some debtors are "defaulting" as a negotiation move.

However, this is a dangerous course for many, whose circumstances are often too precarious to enable the requisite discipline and clear-sightedness to be maintained. They may start with a lump-sum in a separate account, and adding monthly payments to it, but may not be able to resist drawing from that account for other more immediately pressing needs, for example.

And of course many - not all, or even most - debtors continue to pretend that hard decisions can be put off for ever, that the mistakes of others excuse all of their own, and generally that "the world owes them a living". When one reads suggestions that someone who isn't paying for the roof over his head "deserves" a foreign holiday, one has to wonder how farther we still need to go to approach collective sanity.

Still, I repeat that we won't get there by pretending that taking every debtor case-by-case through a fantasy attempt to get blood out of stones is doing anything but indulging an alternative - and, really, less forgiveable - fantasy. I am disappointed that the Governor appears to be flirting with this.

[UPDATE: The full text of Prof. Honohan's speech is now available here. As usual with utterances from that source, the speech repays close reading, and is full of useful information and comment.]

As For Moral Issues ...

Note that I have not mentioned moral issues yet. If we "go there", though, again the position is that both extremes, and many who do not accept that they are extremists, are propagating positions which, in my view, do not stand up to moral scrutiny.

The notion that you can take other peoples' money, agreeing that, if necessary, you will have to lose your home to pay them back, and then use violence to obstruct execution of that agreement, is hard to justify in moral terms.

But it is even harder to so justify the "meme" that says "I paid all my loans back, so must everyone else, whatever it takes" or "I didn't borrow at all" or "I didn't borrow foolishly", "so why is it my problem ?"

Nor does the call that "it's not our debt" stand up to moral scrutiny, except with many qualifications and reservations.

Finally, the idea that all bondholders deserve to be "burned", whether on the nonsense basis that they were only gamblers, or on any other basis, while other creditors suffer no loss at all, is devoid of moral reasoning.

Thoughts on an Arrested Series

In the old, originally French (I think), sense of "halted", my 10-part series (the first 8 parts are here) has itself been arrested for some time now.

I will explain why in due course, but some interim observations may be of interest

Yes, Irish bankers are just as liable to commit criminal offences as any other occupational group, and I have no reason to suppose that they are more virtuous than, say, journalists,lawyers, politicians, priests or academics. However, once again, I must emphasise that in this series I am looking only at the issue of crimes which may have been causative of the collapse of the Irish banking system.

Greed - which many see as the fundamental cause - is not in itself a crime, and I cannot see any workable manner in which it, simply as such, could be made one.

Fraud and insider trading are crimes, and their incidence increased in the period up to the Collapse, but they neither caused the Crash nor significantly contributed to the cost of it in Ireland (it may have been otherwise elsewhere e.g. in Iceland).

There is no evidence - that I have seen - of involvement in such nefarious activity by prominent individuals in the Irish financial institutions, civil service, regulatory establishment or politics, with the possible exception of the Anglo/Quinn debacle. (And in that sub-story, most of the credible allegations relate to what was effectively an increasingly desperate and always futile campaign to prevent the Collapse which had already become inevitable, probably from the beginning of 2007 or even earlier).

Journalists such as Matt Cooper (in many ways otherwise admirable) react by saying that if we cannot prosecute them, then "we" must excoriate them using "our" ability to "name and shame". What is meant is not even "trial by media" - trials have rules - but more or less ignorant demagoguery, which tells us more about the moral standards of those engaging in it than about the guilt of its targets.

More serious commentators, in particular Colm McCarthy, refer constantly to "lack of clear answers" and, while acknowledging the possible lack of criminal behaviour, persist in suggesting that there must have been an original "sin", committed by an individual or by a small number of people, which drove the banks "onto the rocks". They say that the Nyberg and its preliminaries dodged this question and point to the Bankruptcy Examiner's Report into Lehman Brothers in the U.S. as a model.

Let me (again) make a few additional pertinent points:

1. As the regular visits to Gárda stations by Mr FitzPatrick and a few others demonstrate, arresting is, among other things, in itself an idle recourse.
2. Charging and then bringing to trial are what matters.
3. I am not opposed to imprisoning bankers if they are convicted of serious crimes.
4. There is little reason to believe that the Irish banking disaster was caused by any Irish banker committing a serious crime known to Irish law.
5. Note that this does not equate to saying that no Irish banker has committed a crime known to Irish law. It also does not, of course, mean that Irish law may not have been lamentably lacking
6. As to whether breaches of the law were serious or otherwise, most were not, as far as I can see. The evidence on serious alleged crimes is not yet in the public domain (leaks do not count: they are usually inaccurate). My guess – not all that educated – is that at least one Irish banker is guilty of at least one of the serious alleged crimes. But the crimes in question did not contribute to the occurrence of the banking catastrophe for which we are all paying.
7. I believe that we need to legislate for more banking crimes, but we cannot in 2013 make something that happened in 2008 (or before it) into a crime now if it was not one at the time. The argument that the "common law" would have always regarded some relevant behaviour as criminal has proven impossible to sustain.
8. Furthermore, I am sympathetic - just a little - to Nassim Nicholas Taleb’s idea that we should perhaps reconsider the virtues of the death penalty, as in China, for disastrous errors of bank management.
9. There is no need for you - I am addressing the vocally impatient among us - to wait for the Director of Public Prosecutions, if you think – understandably – that she is too slow. The option of private prosecution, though of limited utility, is available if anyone thinks that there is enough available to proceed against anyone.(Read the recent English case of Gujra which includes a discussion of the merits of this procedure. The position in Irish law is very similar.)
10. But the truth, which those who shout loudest on this will not admit, is that you don’t have such a basis. Or else, you’re too lazy and prefer to shout than to do something useful, while complaining that others owe you a duty to do what you will not do yourself.
11. You are not alone. For years now, I have been offering to help anyone who wants to do something about it. Want to guess how many have even enquired about the possibility ?
12. The answer is: 1. No, not one hundred or one thousand. Yes, I mean the number between 0 and 2. I have had a single enquiry.
13. More correctly, the answer is still: zero, because that query – which only came in a few months ago – turned out to be from a bank shareholder who wanted to seek personal compensation from a former bank director.

On "Getting Away With It"

Any resemblance of any hypothetical characters mentioned hereinafter to real persons, living or dead, is purely coincidental.

Consider this scenario:

It is a "stark and dormy" night. (Who said Bulwer-Lytton is forgotten ?) On an unlit road, a tanker's valve somehow spontaneously opens - nobody ever provides a satisfactory explanation as to how or why - and the road surface is soon covered in a black-ish, smelly, viscous liquid. Some minutes later, a motor-car encounters the liquid, the driver - whom I shall call Mr Cooper - loses control and a very nasty accident happens, resulting in several deaths.

Cooper survives, however.

Is he jailed ? Prosecuted ? Arrested, even ?

No. Instead, he lives on, a free man "without a (legal) stain on his character". As Pat Rabbitte once asked, though, is he happy ?

Many people consider this to be outrageous. Four years later, some - and not just the predictably ignorant or intemperate - still mutter about how "the crook got away with it" (and believe it).

Now, unless you are new here, you will not be surprised to learn that my natural inclination is to resist such talk. I will ask to know which crime the unfortunate Cooper is supposed to have committed, why his broken tail-light or out-of-date driving licence had anything to do with the tragedy, even though they were criminal offences - albeit very minor - and so on.

My guess is that, even if you did not "buy" similar arguments already made by me in this series, you might see some value in them in the context of the hypothetical Mr Cooper.

It's an interesting exercise to discuss - as I have done with some people - why "the Coopers" are likely to get more sympathy (and, in my view, more justice) than "the bankers". Let us not detain ourselves with that discussion now. (We can return to it if there is a desire to do so).

However, in this article, I am going to explore the other side of that argument.

Let's go back to Cooper, and make the picture painted of him a little less straightforward, and thus, arguably, more realistic.

Breathalysed at the scene, he tested positive and while the subsequent blood test showed the alcohol in his blood was well below illegal levels, it also showed traces of psychotropic substances. At the time, however, the law did not specifically make it a criminal offence to drive in this condition.

Police investigation also revealed that Cooper's vehicle had at least two tyres marginally "bald", and that he had almost certainly been both driving too fast for the conditions and, worse, had been doing so with a telephone clamped to an ear with one hand.

All that said, the police had no doubt that none of these circumstances contributed to the tragedy, in which Cooper lost not only his only two children but several close friends who happened to be on the road at the unfortunate time. Even if Cooper's vehicle had been in perfect condition, even if he had had no alcohol or other intoxicants in his blood, had had his licence up to date, and had been driving with perfect care and attention, the people would have all died anyway.

Despite these circumstances, should the police charge Cooper with DDCD ("dangerous driving causing death") or less serious offences under the Road Traffic Acts because, otherwise, he will "get away with it" ?

Am I alone in wondering how a man involved in such a horrific scenario will ever get over it ? To me, the question of him getting away with it is out of place.

I would like to hear from those with a contrary view.

(We are not going to detain ourselves at this point with exploration of the culpability of Lehman Brothers, the haulage firm which owned the oil-tanker - imagine that ! - or of any other dei ex this particular machina. But don't forget the disclaimer above.)