RTÉ payments controversy: ‘Very hard to see how a criminal case could be made’

In his lengthy statement on the RTÉ pay scandal, the broadcaster’s interim deputy director general Adrian Lynch said a review of the matter made no finding of wrongdoing against Ryan Tubridy or Renault.

He also stated external legal advice based on the review, which was carried by Grant Thornton, states that there is no question of illegality and the payments to Tubridy were made “pursuant to an agreed contract”.

That may all be correct but it leaves out the fact that Grant Thornton was not asked to make any finding on wrongdoing or culpability. “For the avoidance of doubt the Review and Report shall be limited to findings of fact,” stated its author, forensic accountant Paul Jacobs.

During a combative hearing before an Oireachtas Joint Committee on Wednesday, Independent TD Mattie McGrath suggested the Garda Fraud Squad should be involved, echoing previous calls from Fianna Fáil TD Willie O’Dea.

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An Garda Síochána has confirmed it is not examining any of the issues raised “at this time”.

[ Do politicians have it in for RTÉ, or does RTÉ have it in for politicians? ]

[ Ryan Tubridy rejects RTÉ’s claim he is out of contract as pay controversy deepens ]

That could change, of course but, from the information currently available, it appears unlikely any of the controversies surrounding the undeclared payments to Tubridy reach the threshold of a criminal offence.

First, take the question of Tubridy’s salary being understated by RTÉ to the tune of €345,000 over a six-year period. As enraging as it may be, it is not an offence to mislead the public or indeed the Oireachtas in this way.

False accounting is a crime, however, and a serious one at that. Just ask former Anglo Irish Bank chief executive David Drumm who was jailed for six years for falsely presenting the bank’s accounts, along with other offences.

We know from the Grant Thornton report that two invoices for €75,000 each for payments from RTÉ to Tubridy were described as being for “consultancy fees”.

On the balance of probabilities, this description “did not reflect the substance of the transactions”, Jacobs concluded, as neither Tubridy nor his agent provided consultancy to the broadcaster, he said.

So does that constitute false accounting on behalf of any of the parties? Probably not, according to legal experts, including some involved in the cases against Anglo Irish Bank and other financial institutions.

For an offence to be committed, false accounting must be carried out with the intention of making a gain for the perpetrator. This is a high bar and the gain must be of a concrete and defined nature.

[ RTÉ at the Oireachtas committee: as it happened ]

[ ‘Not tenable’ for Tubridy to return to air amid ongoing controversy, RTÉ acting DG says ]

There is certainly no evidence of RTÉ making a financial gain from the payments. Quite the opposite; the arrangement left the broadcaster (and by extension, the licence fee payer) significantly out of pocket.

Furthermore, the use of “consultancy fees” as a catch-all term for payments for ill-defined services is extremely common in the business world and does not usually attract the attention of enforcement authorities.

According to the review, Tubridy’s agent told Jacobs “they have identified a substantial number of invoices on behalf of various other clients where the term ‘consultancy fees’ is used, particularly in the context of commercial dealings with non-broadcaster or third parties”.

The review also said it could not say if the agent, the broadcaster or someone else came up with the idea to describe the payments as “consultancy fees”.

“This is of a different scale and nature to the Drumm case. It’s very hard to see how a criminal case could be made, especially as, according to RTÉ, the final accounts are in order in respect of the figures,” said one legal expert.

For now, it seems none of the parties involved are criminally liable, despite the view of some TDs.

However, the matter is far from over. Grant Thornton is scheduled to deliver another review concerning the understatement of Tubridy’s earnings between 2017 and 2019, while a Government-established review of “governance and culture” at the broadcaster is to get under way in the near future.