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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 Nélies 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

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of Presidential Decree of 1972, and under article 292 of Presidential Decree

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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 latters 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 Leedshad 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 Maffeis 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 (7 th 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

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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

19

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

20

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.

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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

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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

23

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 (5 th edition, 2003) dealing with criminal law in the field of business enterprise, and Leggi

24

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 7 th edition of 2011, rather than the 5 th edition of 2003 produced at the hearing. The brief passage

25

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

26

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

27

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 5 th and 7 th 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

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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 categoryof 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

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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

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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

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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-

32

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.

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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,

34

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

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