Michael Lynn argues €18m theft conviction should be overturned as money was not ‘property’

Disgraced former solicitor Michael Lynn has argued that his conviction for stealing more than €18 million from six financial institutions during the Celtic Tiger era should be overturned, as the money stolen was not property under Irish theft laws.

“The issue is whether this is property that is capable of being stolen in the legal sense,” said Lynn’s senior counsel, Barra McGrory, at the Court of Appeal on Monday.

However, State barrister Karl Finnegan said that there had been no consent from the banks under the Theft Act, as the consent Lynn obtained was by deception and dishonesty.

Lynn (58) was jailed for obtaining multiple mortgages on the same properties in a situation where banks were unaware that other institutions were also providing finance. These properties included Glenlion – Lynn’s €5.5 million home in Howth – and multiple investment properties.

He had to be extradited from Brazil in 2018 after spending years resisting attempts to have him face charges. As part of the extradition agreement with Brazil, Lynn was to be given credit for the prison time he had already served.

Lynn, of Millbrook Court, Redcross, Co Wicklow, had pleaded not guilty to theft contrary to section 4 of the Criminal Justice (Theft and Fraud Offences) Act, but he was found guilty by a jury of 10 people of the 21 theft counts against him following a second Dublin Circuit Criminal Court trial. The jury in his first trial in 2022 failed to reach a verdict.

The former solicitor was originally sentenced by Judge Martin Nolan to 5½ years in prison, having been convicted of stealing €18.1 million. In March of last year, Lynn lost an appeal against this sentence.

The financial institutions involved were Bank of Ireland Mortgages Bank Ltd, Danske Bank, Irish Life and Permanent, Ulster Bank, ACCBank plc, Bank of Scotland Ireland Ltd and Irish Nationwide Building Society.

In launching an appeal against Lynn’s conviction, McGrory cited the case of English criminal law, R v Preddy (1996). In this case, the defendants engaged in mortgage fraud by making false statements to lending institutions to secure mortgage advances, with the funds transferred to their accounts via electronic transfers or cheques.

The House of Lords unanimously quashed the convictions, ruling that when funds are electronically transferred from a victim’s bank account to a fraudster’s bank account, no property is actually “transferred” or “obtained” in the eyes of the law.

McGrory said that the identification of the property that was appropriated by Lynn was not properly grounded in law or fact. He said that Lynn had been convicted of theft contrary to section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001, as opposed to the separate offence of obtaining property by deception.

McGrory said that the essence of the submission was that the prosecution failed to properly identify the legal interest in the property Lynn was convicted of stealing, which was the proceeds of loans from banks.

He submitted that the funds that rested in Lynn’s accounts were new properties. He said that a credit in a bank account is “a chose in action” (an intangible personal property right – such as a debt or a bank balance – that can only be claimed or enforced through legal action rather than by physical possession), so when a bank agrees to lend someone money the chose in action is extinguished and a new chose in action is created.

McGrory said that this meant that the funds were a separate entity.

Counsel went on to say that when an agreement is reached between a borrower and the bank, this becomes a liability and not property. He submitted that a chose in action is no more than a credit, so when extinguished, this action is gone and a new action is created. Counsel said it was a question of whether the construction of section 4 of the Theft Act was broad enough for Lynn’s prosecution.

McGrory said that the prosecution case opened on the assumption that the chose in action was the bank’s property, meaning that this was the bank’s money in Lynn’s account.

“The jury was left with the impression that that’s the bank’s money sitting in his account for him to do certain things which he didn’t do, therefore he appropriated it,” said counsel.

On behalf of the State, Finnegan said that the prosecution had to prove there was an appropriation of property, adding that this money was property under the definition of the Theft Act.

Counsel said there was an absence of consent from the banks to give Lynn the funds, as there were quite clearly fraudulent documentations used to get those funds. He added that there was a purpose for the supplying of this money and Lynn was meant to carry out certain actions with it.

Finnegan submitted that the prosecution does not have to prove that Lynn intended to permanently deprive the banks, as under the law the depriving can be temporary or permanent.

The appeal will continue on Tuesday.