I have a wee post re the possibility of an appeal against the Nimmo Smith decision ready for tomorrow morning, but I thought I would pop in to add a short (yes – it will be short) post in response to some comments today.
Adam has been fighting the corner for his team, looking to correct those who, in his view, are misrepresenting the decision of Lord Nimmo Smith.
Sadly I think he may be falling into the same error he is identifying in others.
The following are quotes from Adam tonight:-
Yes, so the Board decided the letters did not require to be disclosed because in their opinion, they were loans. Lord Nimmo Smith has confirmed in writing that he believes the decision making process was done in an honest manner, however he disagreed with the conclusion they reached.
In other words, in his opinion, they never cheated, they simply got it wrong.
That is exactly what his report says.
That’s the facts!
We know Celtic fans will never believe it was an honest mistake, but the fact of the matter is that Lord Nimmo Smith’s judgement was that it was an honest mistake.
An unconscious and honest breaking of the rules is not cheating. That’s what LNS found. That’s what he ruled.
I am sorry Adam, but there is a difference between there being no evidence of dishonesty on one hand, as the Commission found, and “unconscious and honest rule breaking” to which you refer.
I note that you are adopting the mantra of “it was all an innocent administrative mistake”.
But, as the Commission decided, the decision not to disclose the details was “deliberate”.
Something can be wrong without being dishonest. As I mentioned in an earlier post, dishonesty could have involved forgery or alteration of documents. It could have involved telling lies to the football authorities. Instead Rangers was guilty of a “sin of omission” but one entered into wide eyed, with no thought as to the consequences of its decision.
The Commission did NOT say that this was an “honest mistake” lasting over 11 years. It was a result of “deliberate non-disclosure” over 11 years.
Lord Nimmo Smith was not asked to decide if Rangers “cheated”. There is a good reason why criminal prosecutions and disciplinary matters like this do not ask if the accused “cheated”. Instead they detail an allegation and test whether, in fact and law, the charge is made out to the required standard.
In this case Rangers were found, over an 11 year period, to have broken the rules about disclosure of information to their regulatory body.
The Commission did NOT say that it was satisfied that the “decision making process was done in an honest manner”.
The Commission did NOT say “that it was an honest mistake”.
The Commission did NOT say “they never cheated, they simply got it wrong.”
The Commission did NOT find that it was “an unconscious and honest breaking of the rules”.
The Commission was NOT asked to decide if Rangers “cheated”.
What About Advice?
There was no evidence produced that Rangers had taken any accountancy, legal or football authority advice that the details should be disclosed. Ignorance of the law is no defence although it can mitigate a penalty.
However wilful ignorance will not be mitigation.
How many issues of finance, law and corporate governance did Rangers seek advice on in this 11 year period? Maybe none. Maybe the Board, consisting as it did of many eminent business people, did not need any advice, being entirely confident in its combined wisdom.
On the other hand one feature of good businessmen is that they get advice, although they may decide not to follow it. Informed decision-making is generally a good thing.
Now, I am NOT suggesting that Rangers did take advice at any time regarding this issue. If they had, and it had been to the effect that there was no need to disclose the details of the EBT scheme, then this would have been shouted from the rooftops as part of its defence.
It might not have been a defence to the charges, but it would have been very useful mitigation – after all, if one acts on the advice of experts, the culpability is greatly reduced.
However, if advice had been taken that the details ought to be disclosed, then clearly it would have been of no assistance to Rangers to disclose this to the Commission.
There would have been no way of forcing Rangers or its advisers to disclose if advice had been given and what the nature of it was.
And I am very conscious that, in the words of the saying, “Absence of evidence is not evidence of absence”.
What the Commission said at paragraph 107 is noteworthy:-
There is no evidence that the Board of Directors of Oldco took any steps to obtain proper external legal or accountancy advice to the Board as to the risks inherent in agreeing to pay players through the EBT arrangements without disclosure to the football authorities.
That statement does NOT say that no advice was taken, but that there was no evidence that it had. Remember too the the Commission decided there was no evidence to it of what advantage the non-disclosure would have given, which is different from saying that there was none.
Adam’s thesis (and I know many more than him are plugging this line) would have it that this was a simple lapse of paperwork which lasted for ELEVEN YEARS.
In addition, it lasted for around three years after HMRC levied tax assessments on Rangers. Maybe at that point someone might have thought “Hang on – shouldn’t we check if we should be telling the SFA and SPL about this?”
I leave with the full quote from the Commission. Adam earlier said that Lord Nimmo Smith decided that there was “no question of dishonesty, individual or corporate”.
I think the full quote gives a better reflection of what the Commission found:-
“The directors of Oldco must bear a heavy responsibility for this. While there is no question of dishonesty, individual or corporate, we nevertheless take the view that the nondisclosure must be regarded as deliberate, in the sense that a decision was taken that the sideletters need not be or should not be disclosed.”
Sorry Adam, but the FACTS are not as you report them.
Posted by Paul McConville