Whatever Happened to the Nimmo Smith Report? – Crosspost from the Scottish Football Monitor

I am privileged to have had the chance to post a “guest” article on TSFM.

In this piece I look at what happened to the SFA commissioned “Nimmo Smith Report”.

The comments on the piece over at TSFM are well worth a look too.

Whatever Happened to the Nimmo Smith Report?

On 21^st February 2012 the SFA announced that it had appointed retired judge Lord Nimmo Smith to chair an independent inquiry into Rangers FC. His panel comprised Professor Niall Lothian, Past President of the Institute of Chartered Accountants of Scotland; Bob Downes, former Director of BT and now Deputy Chairman of the Scottish Environmental Protection Agency, and Stewart Regan, CEO of the SFA.

The Inquiry was commissioned to investigate the potential breach of a number of SFA Articles of Association and to present its findings to the SFA Board within two weeks. Article 62.2 (q) of the SFA Articles of Association allows the SFA Board to appoint “a commission … to attend to and/or determine any matter(s) referred to it by the Board.”

Stewart Regan was quoted saying: “I am delighted Lord Nimmo Smith has agreed to Chair the Independent Inquiry. I am certain the experience contained within the panel will enable us to achieve more clarity on the situation regarding Rangers FC. There will be no further comment on the investigation until it is complete and its findings presented to the Board.”

Lord Nimmo Smith in relaxed mode

One wonders about the use of the word “independent”, bearing in mind that one of the members was the CEO of the commissioning body, and on the Board which would consider it once prepared.

On 2^nd March Mr Regan had more to say, although the investigation was not yet complete.

“We are now in the final stages of our independent inquiry into the situation concerning Rangers FC. The report by The Right Honourable Lord Nimmo Smith is expected to be completed next week and will go to a Special Board Meeting for consideration. It would be inappropriate to make any further comment at this stage in relation to the details gleaned from the inquiry, the potential contents of the report or any possible sanctions.

On 8^th March the Special Board Meeting took place to consider the Nimmo Smith Report. Mr Regan commented:-

“I can confirm that the Scottish FA convened a Special Board Meeting at Hampden Park today to discuss the findings of the Independent Inquiry into Rangers FC, prepared by the Chair, The Right Honourable Lord William Nimmo Smith. 

“Principally, it is the belief of the Board, taking into account the prima facie evidence presented today, that Mr Craig Whyte is not considered to be a Fit and Proper person to hold a position within Association Football.

“The report submitted by Lord Nimmo Smith, having been considered fully by the Board, highlights a number of other potential rule breaches by the club and its owner. The report will now be used as evidence and forwarded to a Judicial Panel for consideration and determination as per the protocol.

As such, the report’s contents will not be published at this time. Nevertheless, I can confirm that the club is facing a charge of bringing the game into disrepute.”

On 24^th April Mr Regan, following the verdict of the Judicial Panel, said the following:-

“It was entirely right that the original inquiry into Rangers FC and Craig Whyte was conducted independently and chaired by the Right Honourable Lord Nimmo Smith. These findings were presented to the Judicial Panel Tribunal, who returned their verdict last night.”

That all seems clear. Lord Nimmo Smith, with the help of distinguished people like Mr Regan, carried out a quick but thorough investigation, and the results were put to the Judicial Panel for consideration.

However Gary Allan QC, who chaired the Panel, made the following comment on page 59 of the Panel’s written decision.

Gary Allan – one of the top Queen’s Counsel in Scotland and Chair of the SFA Judicial Panel which dealt with Mr Whyte and Rangers FC

“It is remarkable that throughout the Judicial Panel Disciplinary Tribunal Process there has been repeated, and regrettably wholly misconceived reference to the Report of Lord Nimmo Smith. For the avoidance of any doubt, the Judicial Panel hearing this disciplinary matter was at no time presented with the report, as evidence or otherwise, nor was it presented with any of its findings. No member of the Tribunal has had sight of it. The report was not mentioned by any party at any time in the course of the proceedings. The determinations which were reached, therefore, were reached entirely independently of any view at which any other person, however senior or eminent, may have arrived in fulfilment of his remit prior to the disciplinary hearing.”

How can the Chair of the Panel deny having seen a document which, according to one of the people who sat on the independent committee, was presented to them?

The answer is two-fold.

Firstly, at pages 2 to 3 of the Judicial Panel decision, the procedural nuts and bolts of the case are discussed:-

“The Tribunal … directed that … it would proceed to hear the evidence and submissions and proceed to Determinations in relation to the complaints against both Rangers FC and Mr Whyte.

The Tribunal … noted that … it would proceed on the basis that there was an absolute denial on (Mr Whyte’s) part of each element of the alleged breach of the rules in all its particulars.

The Tribunal directed that accordingly, and notwithstanding the fact that in its written responses Rangers FC in substantial measure admitted the factual averments and a number of the alleged breaches of the rules, … the Tribunal would require to establish a clear factual basis for its Determination of both any alleged breaches and, if applicable, any sanction against either or both Rangers FC or Mr Whyte. … The commission and the circumstances of the alleged breaches would therefore require to be established by the leading of evidence before the Tribunal …

A discussion in relation to the procedure to be adopted took place. It was agreed that the Compliance Officer Mr Lunny would lead evidence ex parte by submission and reference to documentary material but would lead no witnesses, and would invite the Tribunal to accept the evidence in that form as provided in the Judicial Panel Protocol. Mr McLaughlin for Rangers FC, standing its position on the complaints contained in the written response previously submitted had neither issues with that proposal nor any other objection to the procedure which would be adopted. An opportunity would then be afforded to Rangers FC to lead evidence and make submissions as Mr McLaughlin on its behalf saw fit. Mr McLaughlin intimated that he would be likely to lead evidence from four witnesses previously intimated to the Compliance Officer and the Tribunal in terms of the Judicial Panel Protocol.”

At the hearing the positions of Rangers FC and of Mr Whyte were totally at odds. Mr Whyte did not appear nor lodge any substantive reply. He denied everything. On the other hand, Rangers FC “in substantial measure admitted the factual averments and a number of the alleged breaches of the rules”. As the Panel determined, they needed to be satisfied of the right verdict based on the evidence, but as the “prosecution case” was generally admitted, there was less rigour about this than if, for example, Mr Whyte had attended and denied the charges.

If Mr Whyte had appeared to deny the allegations, or if Rangers FC had disputed them, then evidence would have had to come from witnesses, who could have been cross-examined. In that event it would not have been sufficient to present the Nimmo Smith report, because, for all his experience, expertise and eminence, he is not guaranteed to be infallible.

One important principle in judicial and quasi-judicial procedure is the “Best Evidence rule”. If possible, original documents should be produced, rather than copies. Items of physical evidence should be brought to the court, rather than photographs of it. Witnesses should give evidence rather than having witness statements provided to the hearing.

This, I think, provides part of the explanation for the apparently mysterious absence of the Nimmo Smith Report.

The facts of the case had been admitted by the only party who attended the hearing, namely Rangers FC. Therefore Mr Lunny led “evidence ex parte by submission and reference to documentary material”. The Panel made 108 separate “findings in fact” derived from the evidence he put forward and that of Rangers FC.

Where Lord Nimmo Smith’s committee had, for example, analysed documents and offered a conclusion upon their import, the documents would be evidence but His Lordship’s conclusion would not. Similarly where a witness had been interviewed by the Nimmo Smith commission, or provided a statement, the former judge’s views on that would not be evidence, but the witness statement would be.

Mr Lunny, the Compliance Officer, was acting as prosecutor. Effectively Lord Nimmo Smith played the role of a senior detective co-ordinating an investigation, but not actually obtaining any evidence himself. In a criminal trial, where the officer in charge of the investigation has taken no part in the accumulation of the evidence, then their relevance as a witness is very small at best. It is up to the judge or the jury to decide what the totality of evidence means as far as guilt or innocence is concerned.

Therefore whilst I am sure that Lord Nimmo Smith’s report was on Mr Lunny’s table as he went through his presentation, ticking off the relevant parts as he led the primary evidence, the Report itself was not “relevant” evidence for the Panel. It is likely that, in discussion prior to the hearing, Mr Lunny and the solicitor for Rangers FC agreed whether the Nimmo Smith report would be used or not.

Mr Regan said prior to the Panel sitting “The report will now be used as evidence and forwarded to a Judicial Panel for consideration and determination as per the protocol.“ The presentation of the case of course was independent of him, and whilst the Report would have formed the basis for the charges laid against Rangers FC and Mr Whyte, it was not evidence itself, as agreed between the parties.

The second aspect which accords with this explanation is the precise phrase used by Mr Regan. He said, after the decision, “These findings were presented to the Judicial Panel Tribunal.”

He did not say that the report was presented, rather that the findings were. As the findings would form the basis for the “charges” admitted by Rangers FC, then to that extent the Nimmo Smith report played a part in the proceedings.

This issue has relevance now for the forthcoming SPL proceedings involving player payments and registrations which might have broken the rules. To great clamour and consternation from Ibrox direction, Harper MacLeod, the widely respected and highly rated form of solicitors, have carried out an investigation for the SPL into Rangers FC.

Mr Green has made clear that, as far as possible, the case will be fought, and no past titles will be stripped if he can do anything about it. Expect calls for the Harper MacLeod report to be produced.

However, it is in exactly the same position as the Nimmo Smith report was, except this time the accused is not accepting guilt. In that case, the relevant documents and witnesses will need to attend for scrutiny and examination.

On the basis that the First Tier Tax Tribunal, which looked at different but related issues, took many days to conclude, it is highly likely that the SPL case will not have a quick conclusion.

As a final aside, I must compliment Mr Green. All of the media speculation about punishment in the event that the independent commission find guilt on the part of Rangers repeats the mantra from Ibrox that the most severe penalty, namely stripping of titles, is the aim of the SPL.

I suspect that the SPL might believe that too now, on the basis that something which the club and the fans oppose so vigorously must be a draconian penalty.

But, of all of the various penalties listed, stripping titles would not cost the Rangers FC a single penny. The issue has already seen the supporters unite behind their team. Even if the commission finds the case proven, and as a result Rangers lose some of their historic titles, this will be seen by the Ibrox faithful as yet more treachery by the football authorities. Bearing in mind that the SPL rules allow various penalties, including the power to expel the club, impose unlimited fines and place a registration embargo on the club, altering the history books is the best thing for Rangers as a business, rather than a penalty which affects them just now.

Posted by Paul McConville

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