cellino v fl ltd pcc decision
TRANSCRIPT
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THE FOOTBALL LEAGUE LIMITED
PROFESSIONAL CONDUCT COMMITTEE
DECISION ON THE APPEAL OF MR MASSIMO CELLINO
Tim Kerr QC, Chairman
(sitting alone)
Introduction
1. This is the appeal of Mr Massimo Cellino against the written decision of the
Football League Limited (“the League”) dated 24 March 2014, that Mr Cellino
is disqualified from acting as a director of a League club. Mr Cellino is entitled
under the League’s Regulations (“the rules”), Appendix 3, rule 6.1, to appeal to
the Professional Conduct Committee. The parties have agreed that the appeal
should be determined by me in that capacity.
2. The League decided that Mr Cellino was subject to a “Disqualifying Condition”
under its rules on the ground that he had been convicted on 18 March 2014 by a
court in Cagliari, Sardinia, of an offence relating to non-payment of import tax
in respect of a boat, the Nélie, and that the conviction was for a “Dishonest Act”
since a reasonable person would consider the conduct for which he was
convicted to be dishonest.
3. The appeal was heard in London on Monday 31 March 2014. Mr Cellino was
represented by Mischcon de Reya, solicitors in London, through Mr Adam
Morallee, partner, and Ms Sarah Infante, trainee solicitor; and by Mr Tim Owen
QC and Mr Aaron Watkins of counsel. The League was represented by Bird &
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Bird, solicitors in London, through Mr Jonathan Taylor, partner; and by Mr
Nick Craig, the League’s Director of Legal Affairs; assisted by Mr Antonio
Carino, a senior associate in the Milan office of DLA Piper, solicitors.
4. The representatives contributed with skill and professionalism to secure an
early hearing of the appeal, and provided written and oral submissions of high
quality for which I was very grateful. Written evidence and oral argument was
presented. I also heard oral evidence by telephone from Professor Stefano
Maffei, Professor of Criminal Procedure at the University of Parma. By
agreement between the parties, Professor Maffei also provided a written report
dated 28 March 2014.
5. The appeal is governed by English law (rule 6.8 of Appendix 3 to the rules,
incorporating rule 83.1). The two main issues of substance I have to determine
are, first, whether the decision of the court in Cagliari on 18 March 2014 was a
“conviction”; and second, if so, whether it was a conviction for an offence
which can reasonably be considered to fall within the category of a “an offence
involving a Dishonest Act”, i.e. “any act which would reasonably be considered
to be dishonest”. Those words are the relevant parts of the definitions of
“Disqualifying Condition” and “Dishonest Act” in Appendix 3, rule 1.1.
6. If the answer to both questions is yes, then the League’s decision is correct, Mr
Cellino is subject to a “Disqualifying Condition” and by rule 2.1 of Appendix 3
he is “disqualified from holding office or acting as a Club Director at a Club”
unless there are “compelling reasons” (see rule 6.2) why that should not be so.
If the answer to either question is no, then he is not subject a “Disqualifying
Condition” and is not disqualified from acting as a director of a League club.
7. By rule 6.2 of Appendix 3, Mr Cellino’s appeal can only succeed if he satisfies
me (a) that he is not subject to a Disqualifying Condition, and/or (b) that if he
is, there are “compelling reasons” why his conviction in Cagliari on 18 March
2014 should not lead to his disqualification from holding office or acting as a
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director of a League club. At the hearing, Mr Cellino’s counsel made it clear
that he relies on both arguments, the second as an alternative to the first.
The Facts
8. Mr Cellino did not give evidence and his lawyers did not have instructions on
the background facts. The following account is inferred from later documents
and later known events. Mr Taylor, for the League, invited me to draw
inferences adverse to Mr Cellino’s honesty from his omission to give evidence
and explain his conduct. I shall return to this when considering the issues. At
present I confine myself to setting out the known facts.
9. It appears that Mr Cellino, or someone for whose conduct he was later
considered responsible, must have brought the boat Nélie to Italy; it is not clear
when but probably before 10 June 2012 (a date appearing on the subsequent
charge sheet). The Nélie is a single masted 20 metre white fibre glass sailing
boat with an auxiliary diesel engine, flying the flag of the USA and registered
on 6 October 2011 in Florida under the ownership of a limited liability
company called Freetime Miami LLC.
10. I infer that Mr Cellino probably has or had some association with that company,
but I do not know the details. It is likely that some indication was given by or
on behalf of Mr Cellino that the Nélie’s presence in Italian waters was
temporary. This meant that VAT (“IVA” in Italian) would not be payable in
respect of her importation into Italy. If she had been permanently imported, the
amount of VAT payable would be €388,500. That amount was not paid.
11. There must have come a time when the Italian tax authorities came to regard the
presence of the Nélie in Italy as permanent and not merely temporary, and the
VAT in respect of her importation consequently due. The public prosecutor in
Cagliari, Sardinia, decided to bring a charge against Mr Cellino. It appears
likely that the Nélie was seized at some point before the subsequent
determination of the charge, but the evidence on this point is not clear.
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12. The charge was brought on 4 March 2013. It accused Mr Cellino under article
70 of Presidential Decree of 1972, and under article 292 of Presidential Decree
43 of 1973 (“PD 43/1973”). The former deals with (among other things)
importations made without paying VAT, and in particular with false
declarations enabling receipt of an unjustified exemption from VAT, and
prescribes penalties which are applicable unless “the fact constitutes an offence
under the customs law”.1
13. The latter, article 292 of PD 43/1973, provides that a person who “subtracts”
(sottrae) goods from payment of customs duties, is punishable with a fine not
less than twice nor more than ten times the amount of duty payable. I would
expect, therefore, that in the present case the range of possible fines was from
€770,000 to €3.885 million, being respectively twice and ten times the amount
of VAT due, stated by the prosecutor to have been €388,500.
14. The PD 43/1973 is also, I understand, known as the “TUIR” or Italian
Consolidated Tax Law (Testo Unico delle Imposte sui Redditi). I understand it
is now common ground that, while in Italy some instances of non-payment of
tax are visited by financial penalties which are in the nature of administrative
sanctions, offences charged under article 292 of PD 43/1973 are criminal in
nature and not merely civil or administrative offences. This is consistent with
the high maximum fine, of up to ten times the tax due.
15. According to Professor Maffei, the likely criminal conduct of which Mr Cellino
was accused was either submitting false statements about the boat to obtain an
unlawful tax benefit, or failing to report relevant circumstances about the boat
to obtain an unlawful tax benefit. The detailed facts alleged against Mr Cellino
are not known but I infer that he was accused of obtaining an unlawful tax
benefit either by falsely stating that the presence of the Nélie in Italian waters
1 Translations from Italian in this decision are my own responsibility but owe much to the invaluable
assistance of some helpful informal translations provided to me.
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was temporary, or by failing to report, at some point, that it had ceased to be
temporary.
16. The hearing date was initially set for 9am on 13 June 2013 before the judge, Dr
Sandra Lepore, at the Palace of Justice in Cagliari. The case must have not
been disposed of on that date. I have no evidence of further relevant events
until March 2014. As already noted, although the evidence is not clear it is
likely that the Nélie had been impounded by the Italian authorities and I
understand she is still in Italian waters.
17. On 13 March 2014, the Board of the League met to consider a proposed change
in the ownership of Leeds United Football Club, a project in which Mr Cellino
was intended to have a significant role. The League was aware that the
proceedings against Mr Cellino were due to conclude the following week, on 18
March 2014. The League’s lawyer, Mr Craig, was in correspondence with Mr
Cellino’s lawyer in England, Mr Morallee, about the nature of the proceedings
and any impact their outcome might have under the League’s rules.
18. Mr Craig alerted Mr Morallee to a possible issue under the rules if Mr Cellino
should be convicted under article 292 of PD 43/1973 which, he pointed out, is
of a criminal and not merely administrative nature. He noted that the League
needed to see the judgment of the Italian court before the League could decide
whether there could be a conviction for an offence that could reasonably be
regarded as dishonest.
19. A public hearing of the charge took place before the judge, Dr Lepore, in
Cagliari on 18 March 2014. I was told that Mr Cellino was represented by an
Italian lawyer, Professor Cocco, who had been assisting Mr Cellino and Mr
Morallee in the latter’s correspondence with the League. I do not know
whether Mr Cellino was present at the hearing and, if so, whether he gave
evidence. I was told by Mr Owen QC, for Mr Cellino, that he denied the
charge, but it was unclear what the nature of his defence was.
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20. As it happened, the Italian Supreme Court issued a reasoned judgment in a
criminal matter the same day, to which I shall return (Cass. pen. Sez. III, Sent.,
(ud. 22-01-14) 14-3-2014, n. 12248). In that case, the Supreme Court
considered the nature and content of certain criminal conduct of a fiscal nature,
including the required mental element for the criminal conduct under
consideration. A copy of this Sentenza and a translation of parts of it were
provided to me after the oral hearing.
21. Dr Lepore issued her written summary decision dated 18 March 2014. In
accordance with the relevant provisions of the Criminal Procedure Code, she
declared Mr Cellino guilty of the offence charged and “given the generic
mitigating circumstances” (concesse le attenuanti generiche), imposed a fine of
€600,000 and ordered him to pay the costs of the proceedings.
22. She further ordered that the impounded vessel (i.e. the Nélie) be confiscated.
She stated that the reasoned judgment would follow within 90 days. This was
in accordance with article 111, paragraph 6 of the Constitution of the Italian
Republic which requires that all judicial decisions shall include a statement of
reasons. The 90 day period is due to expire in June 2014. The reasoned
judgment is not yet available.
23. It was common ground that, under Italian law, the fine and costs were not
immediately payable and would not become payable until expiry of the time
limit for an appeal or, if an appeal was brought, until the disposal of the appeal.
I shall return to this point when considering the parties’ arguments. The
essential reason for this is found in article 27 of the Constitution, which
includes: “[a] defendant shall be considered not guilty until a final sentence has
been passed.”
24. Correspondence and debate then ensued between lawyers (English and Italian)
acting for the League and for Mr Cellino. Lawyers acting for the company
which owns Leeds United Football Club were also consulted. Reference was
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made to the “Owners’ and Directors’ Test”, known as the OAD test, provided
for in Appendix 3 to the rules. On 22 March 2014 Mr Morallee, for Mr Cellino,
informed Mr Taylor, for the League, that an appeal “against the decision of the
[S]ardinian court in relation to Nelie is on foot”.
25. I do not have details of that appeal. I do not know the scope of the appeal, if it
has yet been formally filed, and on what grounds the appeal is brought or is
intended to be brought. Mr Owen did not have instructions on these points and
no documents evidencing the appeal were before me. There was no dispute that
an appeal does not have to be brought in advance of the reasoned judgment and
can be brought after it is received.
26. The League was not willing to accept the contentions of Mr Cellino’s lawyers
that he had not been convicted of an offence of dishonesty, or indeed of any
criminal act, and that he was therefore not disqualified in accordance with the
OAD test. The League proceeded to issue its written decision dated 24 March
2014, against which Mr Cellino now appeals. The decision was to disqualify
Mr Cellino from acting as a director of a club, applying the OAD test.
27. The particular grounds of the decision were, firstly, that Mr Cellino had been
convicted of a criminal offence before the court in Sardinia, despite the effect of
article 27 of the Constitution; and secondly, that the summary decision of the
judge showed that the offence “involves findings of conduct that a reasonable
person would consider dishonest”. On the latter point, the League noted that
the offence was criminal in nature, not administrative, and that negligence
(colpa) was not enough to sustain the offence charged; a finding of “intent”
(dolo) was required.
28. As to the mental element of the offence, the League reasoned (at paragraph
3.1.2-3 of the written decision) that the guilty verdict necessarily meant Mr
Cellino must either have “failed to file the necessary tax declaration or filed [it]
but with the facts in it misstated”, and must have done so “knowingly and with
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intent to avoid complying with his tax duties, i.e., with intent to avoid paying
tax that was properly due from him”; and that “any reasonable person would
consider such conduct to be dishonest”.
The Proceedings
29. Mr Cellino indicated that he wished to appeal to the Professional Conduct
Committee (“PCC”). The next day, 25 March 2014, it was agreed in a
telephone conference attended by myself, Mr Taylor and Mr Morallee, that I
would act as the PCC and hear the appeal on Monday 31 March 2014.
Professor Maffei had been identified as an independent Italian law expert
acceptable to both parties.
30. It was also agreed during the telephone conference that an agreed list of written
questions would be put to Professor Maffei and that he would be asked to
answer them in writing, and to assist me on any other matters of Italian law that
might arise. He helpfully did so, producing a written report dated Friday 28
March 2014, consisting of answers to the questions asked of him. During the
oral hearing on Monday 31 March 2014, he answered additional questions from
the parties and myself, by telephone from Parma.
31. Professor Maffei’s report and subsequent oral and written contributions were
detailed and fully reasoned. In briefest summary, his main conclusions were as
follows. He considered that the offence charged was criminal, not
administrative. He noted that there had been a finding of guilt and that it was
not a nullity: it would stand unless appealed, and it allowed procedural
measures such as confiscation of the boat, or (in other cases) preventive
detention or even compensation, to be made or continued.
32. He agreed that the finding of guilt brought the first instance proceedings to an
end. However, he noted that under the Italian constitution (article 27,
mentioned above), the presumption of innocence survives a first instance
conviction and that the status of the person convicted remains that of a person
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accused (imputato) rather than a person convicted (condannato) until the final
disposal of the case. Consequently, the person found guilty is not required to
undergo the punishment directed by the court unless and until the finding of the
court becomes final.
33. He disagreed with the League’s proposition that procedural consequences such
as confiscation of the boat flowed from the finding of guilt, pointing out that the
boat would have been confiscated before the court hearing and the confiscation
merely continued after the hearing. He expressed the view that, in general,
contrary to the League’s analysis, the court’s procedural powers over the
accused, including that of imprisonment before trial in appropriate cases, and
confiscation of the boat in this case, result not from conviction but from the
prior bringing of the charge.
34. On the question of the mental element required to commit the crime of which
Mr Cellino was found guilty, he drew a distinction between dolo diretto, where
“the person is fully aware of the elements of the crime and is reasonably certain
that the actus reus will cause the offence to occur”; and dolo eventuale, where
“the person, albeit not specifically directing his conduct to commit the actus
reus, willingly takes action while accepting the risk that the offence may
occur”.
35. He noted that dolo eventuale was first developed by the Supreme Court in 1982
and is now well established. He noted that it is contrasted with mere colpa or
gross negligence, which is not punishable where some form of wrongful intent
is required. He said that the line between the two mental states (colpa and dolo
eventuale) had proved difficult to draw on the facts of some cases and had been
debated in the jurisprudence. He gave two examples of dolo eventuale: a drunk
driver who decides to drive, accepting the risk of injury to pedestrians; and a
person who indiscriminately throws a bottle into a crowd, again accepting the
risk of injury to others.
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36. In oral evidence, he explained that dolo eventuale is not a phrase that appears in
the Italian Penal Code, while dolo generico does, the latter being a residual
category of wrongful intent (falling within the compass of dolo diretto),
contrasted with dolo specifico (also within the scope of dolo diretto) where a
particular state of mind forms part of the definition of the crime in question. He
further explained that while there was some disagreement among academic and
other lawyers about the existence and scope of dolo eventuale, it had developed
in order to prevent defendants from being acquitted too easily in cases where
dolo diretto could not be proved.
37. In his report and in oral evidence, he said he believed dolo eventuale would be
sufficient in Mr Cellino’s case for a finding of guilt and would prevent his
acquittal on the basis that he lacked sufficient knowledge of the circumstances
in which the non-payment of VAT occurred and relied on the advice and
actions of others in his entourage. He reasoned that dolo eventuale was a likely
possibility here because of the reference in the summary decision to mitigating
circumstances (attenuanti generiche), the relatively low amount of the fine and
the complexity and sophistication of the mechanisms of VAT and customs
duty.
38. Finally, in oral evidence he explained that in some reasoned judgments the
analysis of the mental element is weak and superficial, and leaves unclear the
precise mental state found in the accused, and the precise mental state that
suffices to establish the particular crime. He said that this can quite often lead
to appeals and is a source of uncertainty in the criminal law.
39. After the hearing, at my request Professor Maffei produced a small number of
additional documents relevant to the Italian law issues, including the Supreme
Court decision of 18 March 2014, referred to above, which makes specific
reference to dolo eventuale in the context of the tax offence of non-payment of
VAT. The parties were given permission to make further brief written
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submissions confined to comments on those additional materials (although not
all of them were so confined).
40. The League then complained that after the hearing Professor Maffei had
engaged in inappropriate online social media conversations about the case,
including one which included the words “Ciao, & forza Leeds”. I allowed the
parties to include written argument about Professor Maffei’s role. The League
submitted that he had demonstrated an absence of impartiality and asked me to
place no further weight on his opinion. Mr Cellino submitted that the remark
was merely indiscreet and did not demonstrate a bias in favour of Mr Cellino,
who should not be equated with Leeds United.
The Tribunal’s Conclusions, With Reasons
41. The following matters were either formally agreed or not contested and were
uncontroversial:
(1) that the League’s rules apply to this case, including in particular the
“Owners’ and Directors’ Test” in Appendix 3; and that the burden is on
Mr Cellino under rule 6.2 of Appendix 3 to the Rules to satisfy me that
the appeal should succeed on one or more of the grounds there set out;
(2) that the court in Cagliari which decided on 18 March 2014 that Mr
Cellino had committed an offence was a “competent court having
jurisdiction outside England and Wales” (within the definition of
“Disqualifying Condition” at e) ix), Appendix 3, rule 1.1);
(3) that the Professional Conduct Committee’s role in this appeal is not to
consider whether it was open to the League on the evidence before it to
reach the conclusion it reached, but to decide the issues on the evidence
before me, including evidence not before the League when it made its
decision.
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42. The written and oral submissions of the parties made it clear that the issues I
have to decide, or may have to decide, are:
(1) the status and standing of Professor Maffei’s evidence; in particular
whether and to what extent it should be accepted or rejected either on the
ground of lack of impartiality and acting as advocate for Mr Cellino’s
cause, or for other reasons;
(2) whether the decision of the Cagliari court on 18 March 2014 was a
“conviction” within e) ix) of the definition of “Disqualifying Condition”
in rule 1.1, Appendix 3 to the rules;
(3) if so, whether it was a conviction for “an offence involving a Dishonest
Act”, within e) i) of the same definition, i.e. “any act which would
reasonably be considered to be dishonest” (ibid., rule 1.1);
(4) if so, whether there are “compelling reasons” (see rule 6.2, Appendix 3)
why Mr Cellino should not (under rule 2.1 of Appendix 3) be
“disqualified from holding office or acting as a Club Director at a Club”.
43. There is also a subsidiary issue about the costs of these proceedings, but I
propose to deal with these at a later stage after hearing further argument from
the parties, if and to the extent that those matters cannot be agreed between the
parties in the light of this decision on Mr Cellino’s substantive appeal.
The first issue: the status of Professor Maffei’s evidence
44. Mr Taylor, for the ITF, submitted that Professor Maffei’s evidence was
unreliable: he had cited no authority for his concept of dolo eventuale until the
hearing itself and had omitted in his report to include the point that it was
controversial. The authorities he subsequently cited, said Mr Taylor, related to
tax offences not customs offences, and did not support his proposition that dolo
eventuale was sufficient mens rea for the offence committed by Mr Cellino.
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45. More fundamentally, Mr Taylor submitted that Professor Maffei had departed
from the required standard of independence and impartiality and had acted as an
advocate in Mr Cellino’s cause, by engaging in online social media
conversations which included an expression of support for Leeds United and
thereby, necessarily, for Mr Cellino who was the preferred incumbent to
become owner of the club. In consequence, the League invited me to place no
weight on his evidence.
46. Mr Owen, for Mr Cellino, submitted that I should be very slow to reject the
evidence of an eminent expert appointed on a proposal from both parties to
assist the tribunal, who had signed a statement of truth and independence; that I
could only do so for compelling reasons; that none existed here; that Professor
Maffei had given evidence favourable to the League’s case as well as against it;
and that the League had not hesitated to rely on his evidence where it supported
the League’s case.
47. Mr Owen further submitted that the League’s subsequent attack on his
impartiality was unfair and attributable to the inconvenient content of his
evidence where it did not support the League’s case; and that while the
Professor had committed an indiscretion by unwisely engaging in social media
conversations, he had carefully declined to comment on the substance of the
case, had correctly pointed to his limited role, and in using the expression “Ciao
& forza Leeds” had merely expressed good wishes to the club which is not a
party, and that this cannot not be equated with support for Mr Cellino.
48. In my judgment, the League’s attack on the impartiality of Professor Maffei is
considerably overstated. It was certainly inappropriate, unwise and
undiplomatic for the Professor to engage in social media conversations about
the case. It may seem impolite to leave legitimate enquiries unanswered but
that is what an expert should do, just as a judge or arbitrator must. But I do not
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think the content of his replies is such as to call into question his impartiality or
independence; nor the fact that he sent them at all.
49. The League had not questioned his integrity or impartiality on the basis of his
written report or subsequent oral evidence. It was not until it discovered the
social media conversations that it did so. Until then, it had challenged the
content of his evidence but not the propriety of his conduct. Yet, the
information he gave about the case and his involvement in it was circumspect
and accurate. It was not intemperate or one-sided.
50. The remark “Ciao & forza Leeds” represents the high point of the League’s
argument against his impartiality. Read in the context of his other replies, and
the manner in which he prepared his report and gave his oral evidence by
telephone, I do not think the remark provides a sufficient basis for impugning
his impartiality. As Mr Owen points out, all concerned in this process,
including the League, would be expected in general terms to support the
attempts of the club, with its illustrious history, to overcome its current
financial difficulties, with or without Mr Cellino as a director.
51. Professor Maffei’s expression of support for the club and its future at this
difficult time for it, was unfortunate while acting in the role of impartial and
independent expert, but in my judgment cannot be treated as if it were an
expression of support for Mr Cellino becoming a director of the club, still less
of a willingness to tailor his expert evidence to achieve that end. His written
and oral evidence was in my view given objectively and was worthy of respect.
52. Moreover, the main point of difference between Professor Maffei and the
League is over the concept of dolo eventuale. It appears from the League’s
decision, which does not distinguish between different types of dolo, only
between dolo and colpa, that the League was taken by surprise at the inclusion
of reference to dolo eventuale in Professor Maffei’s report. Yet it is plainly not
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an invention of Professor Maffei’s. It is an expression used by the Supreme
Court the day Mr Cellino was found guility, as we shall see.
53. The concept of dolo eventuale is described in Professor Maffei’s report as
having been “first developed by the Italian Supreme Court in 1982 and … now
extensively and systematically referenced in both case-law and academic
jurisprudence”. So it is not accurate to say he cited no authority in support of
its existence. He gave examples of its nature. He had no reason to cite more
detailed and referenced authority until confronted, probably against his
expectation, with critical cross-examination by Mr Taylor at the hearing. He
then cited further materials, at my request, to which I shall return below.
54. For those reasons, I reject the invitation of the League to place no weight on
Professor Maffei’s evidence. That does not, of course, mean that I accept his
evidence uncritically, without evaluation. It means only that I treat it as
admissible evidence properly given and worthy of respect. I shall return below
to the substance of Professor Maffei’s evidence and its relevance to the issues
before me.
The second issue: was the Cagliari court’s decision a “conviction”?
55. For Mr Cellino, Mr Owen submitted as follows. Sub-paragraph ix) of the
relevant rule, dealing with foreign convictions, required the League to look at
the substance of the proceedings abroad to see whether the person had been
convicted according to that country’s legal norms. It cannot be right to adopt a
“parochial” English understanding of what a “conviction” is when one is
considering the nature of proceedings brought under a different system of law
in a different country.
56. Mr Owen denied that his interpretation was technical, as the League suggested.
In Italy, he said, it was obvious that a person found guilty by a first instance
court is not considered to have been convicted and therefore is not required to
serve the sentence imposed by the court and does not (or not normally) acquire
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a formal criminal record. Such a person is considered to be an imputato
(accused), not a condannato (convicted person), as confirmed by Professor
Maffei in his report and indeed not disputed by the League.
57. Mr Owen submitted that English law recognises this difference between those
found guilty at first instance in England, and their counterparts in Italy, relying
on Caldarelli v. Court of Naples [2008] UKHL 51, in which the House of Lords
upheld an extradition warrant which sought extradition of a person in the
category of an accused person and not a convicted person even though he had
already been found guilty in absentia in Italy, and sentenced at first instance,
not being required under Italian law to serve his sentence pending appeal.
58. In oral submissions, Mr Owen submitted that the League could have chosen to,
but had not chosen to, adopt rules similar to those of the Comitato Olimpico
Nazionale Italiano (“CONI”, the Italian Olympic Committee), and the Italian
equivalent of the FA, the Federazione Italiana Giuoco Calcio (“FIGC”), which
make express provision for suspension or disqualification on the strength of a
first instance finding of guilt in Italy, despite the constitutional presumption of
innocence and the continuing status of such persons as imputati (accused).
59. Mr Owen supported the evidence of Professor Maffei, that procedural
consequences such as preliminary detention or confiscation of goods do not
flow automatically from a first instance finding of guilt, but generally arise
from the bringing of the charge and can be imposed before a first instance
finding of guilt. He submitted that there was no escaping the need to examine
the substance of the matter under the law of the country where the proceedings
take place, as the League had, unlike CONI and the FIGC, chosen to draft its
rules in that way.
60. Mr Taylor, for the League, emphasised that the purpose of the OAD test was to
protect the League’s clubs from unsuitable people and thereby protect the
integrity of football, but that it did so by adopting objectively verifiable criteria
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which were fair and proportionate rather than by a subjective judgment that a
person was “dodgy” and should be excluded on that dubious ground without
objective evidence to support the person’s unsuitability.
61. Mr Taylor emphasised that, while sub-paragraph ix) was dealing with foreign
convictions, it was a provision governed by English law like the rest of the
League’s rules. He referred me to well known authorities for the
uncontroversial proposition that a sports body’s rules should be interpreted in a
manner that accords with the purpose of the rules and with common sense, and
not in a technical way.
62. He contended that Mr Cellino’s invocation of his status under Italian law was
technical and that the Cagliari court’s finding of guilt fell squarely within the
plain English meaning of the word “conviction” according to its definition in
ordinary dictionaries and in the Oxford Dictionary of Law (7th
edition, 2013).
He submitted that the Caldarelli case had nothing to do with sports law and was
an extradition case which ought not to deflect the tribunal from interpreting the
rules in a manner that accorded with their purpose and with common sense.
63. Mr Taylor pointed out that the League’s interpretation did no violence to Italian
law, since CONI and the FIGC had adopted rules expressly making provision in
similar terms (albeit for different offences), preventing participation in the sport
concerned while an appeal is pending. In oral argument he submitted that the
League ought not to have to employ experts in foreign legal systems to consider
the differing qualities of legal processes in numerous countries and the status of
persons found guilty in those countries.
64. He said that Mr Cellino was seeking to read in the word “final” before the word
“conviction” and there was no warrant for adding this gloss. He said it was
difficult to understand how a person could be treated as innocent and yet have
been found guilty, and (in answer to questions from me) that if cases of extreme
procedural unfairness were to arise – for example, under a legal system where
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the accused’s right to be heard arose for the first time on appeal, or where a
fatwa was pronounced in the absence of a fugitive – the defendant would be
rescued by the “compelling reasons” provision in rule 6.2(b).
65. Mr Taylor disputed the proposition that Professor Maffei’s evidence was
inconsistent with his submissions. He relied on the Professor’s confirmation in
his report that the Cagliari court’s decision was a formal finding by a court of
competent jurisdiction, following due process, that Mr Cellino is guilty beyond
reasonable doubt of the offence charged, and that the finding brought to an end
the proceedings before that court. That, submitted Mr Taylor, was easily
enough to constitute a “conviction” under sub-paragraph ix).
66. He added that in an English law governed document such as the League’s rules,
express words would be needed to prevent the finding of guilt here from being
a conviction and to treat it as merely provisional. He noted that in article 3.2.3
of the World Anti-Doping Code that course had been adopted: it was a
provision that findings of fact by a court of competent jurisdiction are
irrebuttable evidence unless they are “the subject of a pending appeal”.
67. I turn to consider these opposing arguments. In my view they are finely
balanced. First, I do not accept the League’s argument that Mr Cellino’s
construction is technical. A presumption of innocence guaranteed by the
Constitution itself would better be described as fundamental. Nor do I accept
that is it difficult to understand why the presumption of innocence should
outlast a first instance finding of guilt. This conclusion flows from the nature
of criminal justice in Italy, where the first instance trial is part of a continuing
process and is not an event.
68. To an English criminal lawyer, it may be difficult to understand why a
defendant should not be treated as convicted and serve the sentence properly
pronounced by the court, merely because there is a right of appeal. But to an
Italian criminal lawyer, it may be equally difficult to understand why in
19
England we routinely incarcerate defendants who on appeal may turn out to be
innocent. Neither legal system has more inherent merit than the other; they are
simply different.
69. Italians and others in Italy can be expected to regulate their conduct according
to the legal norms and culture prevailing there, and would expect to be treated
accordingly when going about their business in Italy. On the other hand,
English and other people in England, and in particular sports regulators such as
the League, can be expected, at least up to a point, to adopt rules and
procedures derived from the legal culture in which they operate, i.e. that of
England.
70. I do not find the decision of the House in Caldarelli to be of much assistance.
True, it confirms the status of Mr Cellino as imputato (and therefore not
“unlawfully at large after conviction” under certain statutory provisions related
to extradition) notwithstanding the Cagliari court’s finding of guilt. But the
League does not deny him that status; what it denies is that his status as such
under Italian law means he has not been convicted.
71. Nor do I find it surprising that in the rules of Italian sports bodies clear words
are needed to alter the prevailing constitutional position, by rendering ineligible
for office those who have only been convicted at first instance, and remain
imputati who are presumed innocent and not required to serve the sentence
decided upon by the court. The presence of such provisions shows merely that
it is acceptable within Italian sports law to ban such persons from office. It
leaves open whether the provisions in Appendix 3 to the League’s rules do so,
on their true construction.
72. I accept Mr Owen’s point that in rules which do not expressly provide for a
foreign conviction to be a conviction in the English sense, it is inevitable that
the nature and substance of the foreign proceedings must be examined. Indeed,
the League examined them in this case. Nevertheless, after careful thought, I
20
have come to the conclusion that the League’s construction of the provisions is
correct on this issue, and that the finding of the Cagliari court made on 18
March 2014 is a “conviction” within sub-paragraph e)ix) of rule 1.1, within
Appendix 3.
73. It seems to me that whereas in an Italian law instrument such as the rules of
CONI or the FIGC, the default position is the constitutional position and
express words are needed to displace it, in an English law instrument such as
the League’s rules, the default position is the other way round, which is also the
constitutional position, but the English one not the Italian one. Here, there are
no relevant added words to qualify or expand the meaning of the word
“conviction” in sub-paragraph ix).
74. I do not think I should read in any such words. I consider that even though the
word “conviction” in sub-paragraph ix) necessarily refers to a finding of guilt
made outside England and Wales, the better view is that it refers to a conviction
in the same sense of the word as that used earlier in the rule 1.1 e), where the
word is clearly used in an English law sense. If use of Latin is permissible, the
eiusdem generis canon of construction is not ousted by the nature of the penal
system in the lex fori.
75. I would not accept Mr Taylor’s suggestion that any foreign “conviction”
amounting to such under local law, however repugnant to our sense of justice,
would necessarily amount to a “conviction” under paragraph ix). It seems to
me that the process leading to a finding of guilt outside England and Wales
must satisfy certain minimum standards of procedural fairness. It would have
to be a conviction worth the name by English standards of justice.
76. The finding of guilt against Mr Cellino met those standards. As Mr Taylor
correctly pointed out (at paragraph 21 of his main skeleton argument),
Professor Maffei has confirmed that the court’s decision was a formal finding
by a court of competent jurisdiction, following due process, that Mr Cellino is
21
guilty beyond reasonable doubt of the crime with which he is charged, and that
finding brings to an end the proceedings before that court. That is sufficient.
The third issue: can Mr Cellino’s conviction reasonably be considered to fall within the
category of an offence involving a “Dishonest Act”?
77. I have to determine this issue on the evidence before me, which does not
include the forthcoming reasoned decision of the judge, Dr Lepore.
Understandably in view of the background to this case, the parties require a
decision as soon as reasonably possible and I therefore do not have the luxury
of adjourning the appeal to await Dr Lepore’s reasoned decision.
78. For Mr Cellino, Mr Owen submitted that there is no or insufficient evidence to
support the conclusion that the conviction (as I shall now call it) was for an
offence involving a “Dishonest Act”, i.e. one that “would reasonably be
considered to be dishonest”. He developed that argument by making the
following further points.
79. He submitted that the judge has made no finding about Mr Cellino’s mental
state. There is sufficient mens rea, according to Professor Maffei, if the
defendant’s state of mind is that of dolo eventuale, i.e. in the Professor’s words,
if “the person, albeit not specifically directing his conduct to commit the actus
reus, willingly takes action while accepting the risk that the offence may
occur”.
80. Mr Owen submitted that the judge may well have convicted Mr Cellino on that
basis and, if she did, his conduct would not reasonably be considered to be
dishonest. The League’s contrary conclusion did not address the quality and
degree of the defendant’s dolo, wrongly equating dolo in general with
dishonesty and contrasting it with colpa (fault) which everyone agrees is not
enough to amount to dishonesty.
22
81. Mr Owen relied upon Professor Maffei’s support for that view and argued that I
had no good reason to reject his expert evidence. Professor Maffei had actually
gone further and (as explained above) reasoned that dolo eventuale was the
most likely form of mens rea here, given the reference in the summary decision
to mitigating circumstances (attenuanti generiche), the relatively low amount of
the fine and the complexity and sophistication of the mechanisms of VAT and
customs duty.
82. The League’s challenge to Professor Maffei’s view in oral cross-examination,
said Mr Owen, did not lead him either to alter his view, nor succeed in
undermining the cogency of his reasoning. It was not proved wrong merely
because no case prosecuted under article 292 of PD 43/1973 with identical facts
could be found; nor by the fact that two other learned academic lawyers,
Professors di Amato and Padovani, whose publications were put to Professor
Maffei, had referred to dolo generico and not mentioned dolo eventuale as
sufficient for crimes charged under article 292.
83. Mr Owen submitted that the Supreme Court decision of 18 March 2014,
referred to above and sent to me by Professor Maffei after the hearing, is clear
authority that dolo eventuale is sufficient mens rea for the crime of non-
payment of VAT at least in some cases, and that Professor Maffei had also cited
good authority for the same mental element in other comparable offences such
as false invoicing (Galasso on fatture per operazioni inesistenti (false
invoicing)), citing a passage from a Supreme Court decision of 27 April 2000,
(third session, number 6228).
84. That, said Mr Owen, was a sufficient basis to support Professor Maffei’s view
that dolo eventuale was sufficient here. Mr Owen and Mr Watkins put their
point thus in their written reply to the League’s skeleton argument (emphasis in
original): “[t]here are no available findings of fact from the Italian court at all.
Either relying upon the ingredients of the offence as conduct or speculating
about findings the judge may have made is obviously insufficient.” They
23
submitted that a reasonable person would not regard Mr Cellino’s conduct as
dishonest without knowing what it was.
85. The League, for its part, mounted a sustained attack on the quality and
credibility of Professor Maffei’s expert evidence, in addition to the attack on his
impartiality which I have rejected for reasons already given. Mr Taylor
challenged his authority to speak to questions of substantive criminal law, given
that his specialist field was criminal procedure. He submitted that the judge’s
finding of guilt necessarily entailed a finding of dishonesty. He invited me to
reject the Professor’s contrary view. In support of the League’s position, he
made the following main points.
86. He agreed with Professor Maffei’s opinion that the charge was criminal in
nature and that negligence (colpa) was not enough to establish the offence
charged. However, he criticised the absence from his report of any mention of
dolo generico and dolo specifico and submitted (at paragraph 32 of his main
skeleton argument, emphasis in original) that the League’s Italian lawyers had
advised the authorities “tend[ed] to suggest that dolo eventuale would not be
sufficient to convict a person of a tax crime, rather dolo generico is required”.
87. Mr Taylor noted that in answering one of the questions asked of him (“… has
there been a finding in the [S]ardinian court that Mr Cellino has been
dishonest?”), Professor Maffei had answered by noting that “[d]ishonesty is a
concept alien to Italian criminal law” and had gone on to consider the concept
of dishonesty in English law and clearly expressed the view that a finding of
dolo diretto, but not one of dolo eventuale, would satisfy that English law test.
88. Mr Taylor criticised the Professor’s foray into English law, which is outside his
expertise; but the Professor had no Italian law standard by which to answer the
question and was therefore driven to answer it by reference to the English law
concept of dishonesty (see R. v. Ghosh [1982] QB 1053, per Lord Lane CJ at
1064), which he approached with circumspection and did not misstate. I do not
24
think Professor Maffei can be criticised for straying beyond his brief. He was
merely doing his best to interpret a question infused with English law.
89. In any case, it turned out to be common ground that the test of dishonesty in the
League’s rules could be approximately equated with the first, objective, limb of
Lord Lane’s test in Ghosh, but not the second, subjective, limb; and that a
finding of dolo diretto would satisfy the requirement of dishonesty in the
League’s rules. Mr Owen, rightly, did not contend that dolo diretto was less
than dishonesty in the objective sense set out in the League’s rules (“any act
which would reasonably be considered to be dishonest”).
90. Mr Taylor’s main submission was that dolo eventuale (an expression not
appearing in the Italian penal code) was not sufficient mens rea for the offence
charged against Mr Cellino, despite Professor Maffei’s view that it was. His
alternative, fallback submission (at paragraph 37.3 of his main skeleton) was
that if dolo eventuale was enough to sustain a finding of guilt:
“a reasonable person would consider that it was dishonest for Mr Cellino to
submit a false statement that his boat was only entering Italian waters temporarily
(or to make it false by failing to update it when that entry stopped being
temporary and became permanent for tax purposes) in order to claim a tax
exemption to which he was not in fact entitled, where (even if he did not know
with certainty) he was aware of the clear risk that what he was doing amounted to
unlawful evasion of tax properly due, and accepted that risk and went ahead
anyway”.
91. Mr Taylor submitted in the further alternative that if that was reading too much
into the summary decision, Mr Cellino should “not be considered to have
passed the OAD Test until he can demonstrate that the Judgment only involves
a finding of dolo eventuale and no finding of dolo diretto. Otherwise, he might
be installed as a director only to be forced to stand down two months later”
(main skeleton, paragraph 37).
92. He relied on the point that neither Professor di Amato nor Professor Padovani
in their publications - respectively, Diritto Penale dell’ Impresa (5th
edition,
2003) dealing with criminal law in the field of business enterprise, and Leggi
25
Penali Complementari, dating from 2007 - mention dolo eventuale in their
description of the mental element required for crimes charged under article 292.
93. In a brief passage in the 2003 edition of his book, dealing with the mental
element (elemento soggettivo) required for article 292 offences, Professor di
Amato described the required mental element as dolo generico, citing a passage
from a Supreme Court decision in November 1974 to the effect that the
required mental element can be inferred from the fact of “subtracting” the
goods from payment of the tax due, committed voluntarily and with awareness
of not performing the tax obligation.
94. Professor Padovani wrote in his book that the dolo is that of (as approximately
translated) intending consciously and willingly to import goods into the
national territory, evading the customs duty owed to the state, which (according
to a Supreme Court decision in 1983) in the context of imports of cars
manufactured abroad, can be inferred from a false declaration of foreign
residence made for the purpose of obtaining the exemption for temporary
imports enjoyed by foreign residents but not Italian residents, and achieving the
purpose using such fraudulent means.
95. At the oral hearing, when that passage was put to Professor Maffei, he said that
in Italian legal parlance, the notion of consciousness and willingness referred
to, can include or embrace the notion of acceptance of risk forming part of the
concept of dolo eventuale. He did not therefore accept that he necessarily had a
profound disagreement with Professor Padovani. He said that if Professor di
Amato intended to exclude dolo eventuale in the passage cited, which he does
not expressly state, then Professor Maffei disagreed with him.
96. In written submissions after the hearing, Mr Taylor produced (at my request)
the relevant extract from the most recent edition of Professor di Amato’s
“seminal work”, as Mr Taylor described it. This was the 7th
edition of 2011,
rather than the 5th
edition of 2003 produced at the hearing. The brief passage
26
referred to at the hearing had not been updated and the 1974 authority (cited in
slightly different format) remained the same, eight years later.
97. As to the Supreme Court’s decision of 18 March 2014, Mr Taylor submitted in
writing after the hearing that a distinction was to be drawn between the mental
element required for tax offences and that required in the case of customs
offences. He produced the index to Professor di Amato’s book to show that it
treated tax offences (reati tributari) separately from customs offences (reati
dogonali). He submitted that the Supreme Court decision could not be relied
on as authority in respect of the mental element required for an article 292
offence.
98. In his supplemental written submissions Mr Taylor sought to isolate article 292
offences from tax offences and cited general provisions of Italian law, the penal
code and even the Constitution to support his thesis that it was impermissible to
apply the mental element for a tax offence to that required for a customs
offence such as enacted by article 292. He pointed out that there is no case law
later than the 1974 Supreme Court decision (dealing with the materially
identical predecessor to article 292) directly addressing the mental element
required for article 292 offences.
99. In answer to Mr Owen’s point that the League should have awaited the
reasoned judgment before concluding that Mr Cellino failed the OAD test, Mr
Taylor submitted that Mr Cellino had not even told the League or myself what
his defence was, nor what evidence, if any, was called on his behalf at the
hearing in Cagliari; and that if necessary I should be prepared to draw an
inference against Mr Cellino’s honesty as a result. Mr Owen said in response
that I would be wrong to do so as Mr Cellino is not obliged to help the League
by filling the gap in its knowledge which invalidates its conclusion.
100. I turn to my reasoning and conclusions on this issue. First, I accept the
evidence of Professor Maffei that the concept of dolo eventuale, while not
27
appearing in the penal code, forms part of Italian law and has done since 1982.
The very words were used by its highest criminal court only last month and are
found in learned commentaries and case law. I do not think there is room for
any argument that the concept is unrecognised in Italian law.
101. Secondly, I accept that the scope of dolo eventuale and its applicability or
otherwise to various kinds of offence is a matter of debate in Italian legal
circles, both in its relation to colpa at one end of the spectrum, and in its
relation to dolo generico and dolo diretto at the other. It is not surprising that
the calibration of mens rea should generate debate about where the boundaries
lie between more and less blameworthy states of mind. This is also a familiar
feature of English law and probably of all developed legal systems.
102. Next, I derive from the Supreme Court judgment of 18 March 2014 the
proposition that, for the offence of non-payment of VAT, dolo generico is
enough and dolo specifico is not required. This is clear from the passage
which, in a translation helpfully provided by the League’s Italian lawyers,
states:
For the crime to have occurred, it is also necessary to find in the active subject
the existence of intent, which needs not be specific, as dolo generico is enough
(see, in particular, what has been convincingly stated by Joint Sessions,
judgement no. 37424 of 28/03/2013, filed on 12/09/2013, Romano, in the reasons
for the decision). The law therefore requires no other aims, as it is instead the
case with many other offences referred to in Legislative Decree No. 74 of 2000,
in which an evasion purpose for oneself or others is required.
103. Next, I derive from the same Supreme Court decision the proposition that, for
the offence of non-payment of VAT, the person presenting the VAT declaration
and the person who omits to pay the VAT must do so with what is called by the
Supreme Court coscienza e volontà, which the League’s Italian lawyers
translate as “awareness and will”, in the (translated) passage immediately
following in the judgment:
Therefore, it is necessary and, at the same time, enough that the active subject
submits with “awareness and will” a VAT declaration and omits to remit within
the set term, i.e., within 27 December of the following fiscal period, the amounts
28
indicated in it in favour of the revenue agency. Moreover, the active subject must
be aware that such amounts exceed the threshold of Euro fifty thousand, the
exceeding of which has been considered by the abovementioned Joint Sessions as
a constitutive element of the crime, which calls for a demonstration of intent also
on this element.
104. It seems to me that this description of the mens rea for this particular crime is
similar to the description of Professor di Amato in the 5th
and 7th
editions of his
book of the dolo generico required for an offence under article 292. It is also
similar to Professor Padovani’s description of the mental element required for
an article 292 offence, supported by a case law example where import duty was
evaded by obtaining an unjustified exemption for temporary imports by means
of a false declaration of foreign residence. Both learned commentators refer to
the concepts of consciousness and will in their expositions.
105. Next, I accept the evidence of Professor Maffei founded on the same Supreme
Court decision, that it supports the proposition that dolo eventuale is sufficient
mens rea for the tax offence of non-payment of VAT, although this could only
be, as the court held, in cases where the person who makes the relevant VAT
declaration is the same person as the one who fails to pay the VAT due.
106. This is clear from the words of the decision itself. The Supreme Court clearly
contemplated that such a person who fails to pay VAT would be guilty on the
basis of dolo eventuale, in the following circumstances (again in the same
translation):
… cases in which, for example, the non-payment is in order to overcome
temporary liquidity crisis of the company or to create undue financial resources
for the commission of other offenses.
…
Article 10 ter (Non-payment of VAT), is punishable at the presence of dolo
eventuale in the case of sameness between the subject which submits the VAT
declaration and the subject which fails to pay the declared VAT within the terms.
Consequently, the criminal liability shall be excluded in the event that the person
obliged to the fiscal fulfillment (ie, to pay declared VAT) is an entity different
from which has submitted the VAT declaration, except that the Public
Prosecution did not prove either the existence of an unequivocal subjective
foreknowledge of criminally relevant conduct in relation to the omission
provided by the Article 10 ter of the Legislative Decree n. 74 of 2000…. .
29
107. Although Professor Maffei’s evidence was to the effect that dolo generico is
normally understood to fall within the concept of dolo diretto rather than dolo
generico, it appears from the translated passages just quoted from the Supreme
Court’s decision that the “residual category” of dolo generico, as Professor
Maffei described it, would co-exist with dolo eventuale in such a case. This
tends to support the Professor’s assertion that the notion of “consciousness and
will” is understood to embrace, in appropriate cases, the acceptance of risk and
willingness to run it which is the hallmark of dolo eventuale.
108. In the light of the above, I conclude that the extent of disagreement between
Professor Maffei and other commentators is probably overstated by the League.
I do not think Professor Maffei’s view can properly be characterised as
eccentric or maverick. It seems to me to fall within the mainstream of Italian
legal discourse. However, as Mr Taylor rightly pointed out, the fact remains
that there is no case law directly supporting a conviction under article 292 on
the basis of dolo eventuale.
109. I accept Professor Maffei’s evidence that case law on mens rea is relatively
common in tax offence cases and rare in article 292 cases. Professor Maffei
told me that prosecutions under article 292 are rare. This is supported by the
fact that Professor di Amato’s cited authority on the point dates back as far as
1974. That was before 1982 when (according to Professor Maffei’s evidence
which I accept) dolo eventuale emerged from the Supreme Court. It is also
supported by the fact that the passage in Professor di Amato’s book citing the
1974 authority remains unchanged through eight years from 2003 to 2011, and
two editions of his book.
110. I ask myself whether there is a satisfactory basis for Mr Taylor’s submission
that the Supreme Court’s decision last month does not assist Mr Cellino
because it deals with a tax offence and lacks all authority in the case of a
customs offence. I accept that the index to Professor di Amato’s book shows
30
that he treats the two categories of offence in different chapters. However, it
seems to me that absent a crime-specific requirement of dolo specifico, the
notion of dolo generico is a feature common to both tax offences and customs
offences.
111. This is demonstrated by a comparison between the Supreme Court decision of
March 2014 and the commentary of Professor di Amato on article 292 offences.
As I have said, they are similar; both refer to consciousness and will; and both
refer to dolo generico. Yet one is about tax offences and the other is about a
customs offence.
112. This tends to undermine Mr Taylor’s constitutional argument founded on the
right of the defendant not to be fixed with the transposition of the mental
element of one crime, to the mental element of a different crime with which the
defendant is charged. I cannot see any reason in principle why some tax
offences should not share the same mental element with some customs
offences. If it be the law already that they do, no constitutional right of a
defendant is violated by so holding, merely because no previous case has so
decided.
113. Further, despite access to expert Italian law advice, the League did not rely on
this argument until confronted with the March 2014 Supreme Court decision.
Mr Taylor’s questions to Professor Maffei did differentiate between tax
offences and customs offences, but he did not suggest to the Professor there
was a qualitative or principled difference between tax offences and customs
offences rendering only the former and not the latter suitable for dolo eventuale.
Nor did he put to Professor Maffei that Mr Cellino had a right under the
provisions subsequently cited not to be punished on the basis of dolo eventuale.
114. In the light of the jurisprudence discussed above, there was surely scope for
legal argument before the Cagliari judge about the nature of the mens rea which
the public prosecutor must prove beyond reasonable doubt. I think it unlikely
31
that Mr Cellino was in a strong position before the Cagliari court to secure an
acquittal on the basis that his dolo was only eventuale and not diretto. His
interest before that court was, presumably, to argue for that proposition, which
is the opposite of what he is arguing now.
115. But I venture to doubt whether the argument would impress Dr Lepore. If
widely accepted, (as Professor Maffei pointed out) acquittals could be too
easily secured. As to the facts, much would also depend on the case put by the
prosecution and the defence, the evidence called by both sides, and the extent to
which the judge believed that evidence. Of these matters, I know next to
nothing.
116. I see force in Mr Taylor’s forensically attractive proposition that I should draw
an adverse inference against Mr Cellino’s honesty because of his omission to
tell me what happened in the Sardinian court proceedings. But after careful
thought I have concluded that I should not do so; firstly, because Mr Cellino is
entitled to bring his appeal on the basis of the same factual information about
the case as that which was before the League when it made the decision
appealed against; and secondly, because it is not for me to retry the issues in the
Cagliari proceedings and second guess the judge’s decision.
117. In my judgment, it is quite possible that the judge’s detailed reasons may
include a decision that dolo eventuale is enough to establish the mental element
of the offence. For the reasons given above, the prospect of such a decision is
far from fanciful and would not be obviously unsustainable in law.
118. As to the facts: the judge may find that Mr Cellino, or someone acting on his
behalf or on behalf of Freetime Miami LLC, failed to correct a statement that
importation of the Nélie was temporary; that Mr Cellino knew that tax could be
due depending on the circumstances; or that he knew it would be due but only
after a certain period; or that he knew it would become due but not when; or
that he knew it could be due but did not trouble to enquire about the scope of
32
the exemption in article 216 of PD 43/1973 (to which I was not referred, though
Professor Maffei mentioned it); or that he did not care whether it was due or
not, and so forth.
119. The €600,000 fine was, for some unexplained reason, less than the apparent
minimum of double the amount of tax avoided. The factual permutations are
numerous. Some of the possible factual scenarios would amount to conduct
which would reasonably be considered to be dishonest. Others would not. If
the facts were along the lines indicated above, I am far from persuaded that
Professors di Amato and Padovani would argue for an acquittal, or that the
Supreme Court, if seised of the matter, would allow an appeal against
conviction.
120. For those reasons, Mr Cellino has satisfied me that on the facts before me, what
he was convicted of was not conduct which would reasonably be considered to
be dishonest. There is not enough factual information to reach the conclusion
that what he was convicted of was conduct which would reasonably be
considered to be dishonest. I do not accept Mr Taylor’s submission that the
case against him, even put at its lowest, would be regarded by reasonable
people as a case of dishonest conduct.
121. Still less do I accept his alternative submission that he ought to be taken to have
failed the OAD test pending receipt of the judge’s full reasons, in order to avoid
him having to stand down in a short time once they become available. That is
not what the rules say. If the League had wanted to secure that outcome, it
could have asked for an adjournment of the appeal, but it did not do so.
122. I add by way of postscript that I do not reach my conclusion with particular
surprise or regret. The notion of criminal liability founded on dolo eventuale or
its common law equivalent, recklessness, is a very familiar one. The 2015
World Anti-Doping Code will, from 1 January next year, treat as a “cheat” any
athlete who “engage[s] in conduct which he or she knew constituted an anti-
33
doping rule violation or knew that there was a significant risk that the conduct
might constitute or result in an anti-doping rule violation and manifestly
disregarded that risk”.
123. Similarly, in England there is an offence where a person “dishonestly ... makes
a false statement or representation… with a view to obtaining any benefit or
other payment or advantage under … relevant social security legislation…”
(Social Security Administration Act 1992 section 111A, as amended); and a
similar but lesser offence, not requiring proof of dishonesty, under section 112,
as amended. Degrees of mens rea are commonplace in both common law and
civil law jurisdictions.
124. I conclude that it would not be reasonable on the evidence before me to
consider Mr Cellino’s conduct to be dishonest and that accordingly he is not
subject to a Disqualifying Condition. It follows from my reasoning above that
if the reasoned ruling of the court in Cagliari discloses that the conduct of Mr
Cellino was such that it would reasonably be considered to be dishonest, he
would become subject to a Disqualifying Condition. But that is not a matter
that is before me.
The fourth issue: if Mr Cellino is subject to a “Disqualifying Condition”, are there
compelling reasons why his conviction should not lead to disqualification?
125. This fourth and final issue does not arise, in view of the conclusion I have
reached, for the reasons already given, that Mr Cellino is not subject to a
“Disqualifying Condition” and is not disqualified under rule 2.1 of Appendix 3
from being a director of a League club. However, I propose to address this
final issue anyway, since it is a short point and was argued before me at the
hearing.
126. Mr Owen submitted that if, contrary to his main submissions, Mr Cellino is
subject to a Disqualifying Condition, there are “compelling reasons” within rule
6.2 b) of Appendix 3 why his conviction should not lead to disqualification.
34
Those reasons are, in Mr Owen’s submission, the same matters which he has
advanced in support of his main case: namely, that under Italian law he remains
innocent until the final disposal of his case and that therefore it would be unfair
for the League to treat him as a person who has been convicted of dishonesty.
127. Mr Taylor pointed out, however, that the constitutional status of a person found
guilty by a first instance court in Italy has not led sports governing bodies there
to treat such persons as necessarily fit to participate in the sports concerned, as
shown by the rules of CONI and the FIGC, mentioned above. It would be
wrong to permit Mr Cellino to act as a director in this country in circumstances
where Italian sports bodies think it appropriate to ban persons found guilty at
first instance of certain offences (albeit not this particular one) from taking part
in the sport, even pending final disposal of their case.
128. If this issue arose, I would have no hesitation in rejecting the submission of Mr
Cellino that there are compelling reasons why his conviction should not lead to
disqualification in the present case. The premise of his submission is that he
has been convicted of an offence (as I have found), and that the offence is one
involving conduct that would reasonably be considered to be dishonest
(contrary to what I have found).
129. I think it would be wrong to treat Mr Cellino’s constitutional status as an
innocent person as a compelling reason why he should not, despite the above,
be disqualified. It is unattractive to suggest that a person who has dishonestly
evaded payment of import duty should be allowed to act as a club director when
other persons convicted of similar offences of dishonesty are properly excluded
from doing so.
130. Moreover, Mr Cellino’s argument would, if accepted, in practice require more
favourable treatment of persons who happen to be convicted of dishonesty in
Italy (and possibly other civil law jurisdictions) than of those unfortunate
enough to be convicted of similar offences in the United Kingdom, the USA,
35
Canada or other common law jurisdictions where a person convicted at first
instance does not enjoy the benefit of a presumption of innocence.
The Tribunal’s Ruling
131. Accordingly, for the reasons given above, I determine Mr Cellino’s appeal as
follows:
(1) the decision of the Cagliari court dated 18 March 2014 is a “conviction”
within sub-paragraph e) ix) of the definition of “Disqualifying
Condition” in rule 1.1 of Appendix 3 to the rules; but
(2) I am satisfied on the evidence that the conviction was not for a
“Dishonest Act” as there defined, i.e. for “any act which would
reasonably be considered to be dishonest”.
(3) Mr Cellino’s appeal accordingly succeeds. He is not, at present, subject
to a Disqualifying Condition and is not disqualified from holding office
or acting as a Club Director at a Club.
Tim Kerr QC, Chairman
Dated: 5 April 2014