The Weekly Grapevine

A Matter of Perception

"It is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done." - Lord Hewart, Britain's Lord Chief Justice, 1922-40.

Perception and reality can be one and the same thing; equally, they can be poles apart. One thing, though, remains certain: to the human mind, that which is perceived, is deemed to be reality until categorically disproven. The same dictum holds true in the dispensing of justice: not only must it be done (reality), but it must also be seen to be done (perception).

It follows, therefore, that when the powers vested in an organisation - be it political, administrative, or sporting - permit it to act as detective, prosecutor, court recorder, judge, jury and executioner rolled into one all-powerful body, it is not only vital that the execution be just, but utterly crucial to its standing that it is seen to be thus.

Precedents play a role in all judicial orders. They come into play when justice is meted out. And, of course, precedents heighten public expectation, particularly when similar cases are heard. Therefore, when penalties identical in all salient respects are handed down by the FIA to two different teams less than five months apart, it is utterly logical to assume that the 'crimes' committed by the two were in all major aspects identical.

But, of course, no two cases - whether in the real world or in Formula One - can be identical. By imposing identical sanctions in the spying affair on McLaren (on July 26th 2007) and on Renault, the FIA is effectively stating that their transgressions were similar in nature, or at least perceived so by the World Motor Sport Council at the time of each team's first hearing.

In reality, though, these are two totally different cases.

When word first spread of Renault's alleged misdemeanour just six weeks after McLaren's first hearing, Renault's Flavio Briatore squashed speculation by threatening legal action against any media outlet that dared suggest Renault's 'crimes' were similar to those for which McLaren had earlier been found guilty of breaching article 151c of the FIA's International Sporting Regulations.

A week later came McLaren 2 - the second McLaren hearing at the WMSC, on September 13th - which ended with a record $100 million USD fine and the team's exclusion from 2007 constructors' championship. For a while, Renault's predicament was forgotten.

Then came news that the French team had been summoned to the same dock to answer the same charge, and doomsayers predicted dire straits for Renault, with some speaking of the team's withdrawal from Formula One, and one or two suggesting the company would cease supporting GP2 should it be fined anywhere near McLaren's figure.

It is, of course, logical for McLaren 1, McLaren 2 and Renault 1 - and, if it ever happens, Renault 2 - to be compared and similarities sought. And while there exist some - not least that information was transmitted to a competitor - the three hearings and subsequent verdicts are utterly dissimilar, with any points of commonality adding a twist and little more.

For starters, in McLaren 1 it was found that the perpetrator was a disaffected yet current Ferrari employee who had handed a large Ferrari dossier to a McLaren employee, ostensibly in order to enhance the duo's career prospects. Incredible as it may now seem, there was at the time no concrete evidence that the information had been used within McLaren, or even loaded on to McLaren's systems.

Against that background, the WMSC had no choice but to hand down a guilty verdict (yes, a party within the team had been guilty of fraudulent conduct), but the governing body also elected to not penalise the team due to "insufficient evidence that this information was used in such a way as to interfere improperly with the FIA Formula One World Championship."

The WMSC did, however, add the following: "If it is found in the future that the Ferrari information has been used to the detriment of the championship, we reserve the right to invite Vodafone McLaren Mercedes back in front of the WMSC where it will face the possibility of exclusion from not only the 2007 championship but also the 2008 championship."

McLaren 2 (September 13th) was, of course, a totally different matter: the WMSC found that reams of live information had flowed between the Ferrari employee and McLaren; that this information had been disseminated within the Woking outfit and at times been specifically requested; that, crucially, strategic information had been used by McLaren personnel during race weekends; that an element of performance enhancement could be discerned after the information flow began; and that, above all, these activities had been hidden from the WMSC first time around.

In many respects, the WMSC already made a controversial move by imposing no penalty on McLaren on July 26th. To many onlookers back then, it was inexplicable that a team could be in breach of article 151c - arguably the most serious charge in the sport - and escape unpunished. But the WMSC's sensational penalty after finding the same team guilty for transgressing the same article less than two months later was no less controversial, to say the least.

Understandably, Ron Dennis deftly turned the first situation to his team's advantage by suggesting that no punishment equalled no crime; equally understandably, his team looked absolutely shattered when the second verdict was handed down.

Yes, as explained, the two hearings disclosed totally different breaches - and hence the contrasting verdicts - but, to many, 151c had been breached, full stop. Any surprises, therefore, that a similar penalty for Renault had been widely expected, and when the perceived crime did not fit the expected punishment, with Renault receiving no more than a slap on the wrist, all hell broke loose - particularly among McLaren-sympathetic media outlets?

In the cold light of day - and setting emotions aside - the reasons for the Renault verdict are quite straight forward: Renault's source, Paul Mackereth, was an ex-McLaren employee who transferred to Renault; his information was 'dumped' on a one-time basis; there was no ongoing live flow of information; and, let's face it, Renault appear to have been, effectively, incapable of putting much of the information handed them to good use.

Think about it: can a team - the reigning champion, at that - putting in only the fourth-best performance of the overall season be deemed to have committed an act prejudicial to competition?

The problem is that, whereas in reality the Renault case should be judged based on the precedent of McLaren's first verdict, the overwhelming perception seems to rely on a comparison between the Renault case and McLaren's second verdict.

In actual fact, to find a more equitable comparison of Renault's transgression, look rather to the Ferrari/Toyota affair some three years back, in which the FIA was never involved.

The parallels between the two cases fit perfectly - in both cases an ex-employee transferred confidential IP information to another team, who in reality was unable to make use of such information to improve their position in the world championship.

Crucially, though, in the case of the Toyota affair, Ferrari sought (and secured) a criminal conviction against its ex-employees through the Italian legal system. Toyota as a team - the recipient of the information - was in fact exonerated of any wrong-doing by the German prosecutors, as were the team's three senior employees, who were called upon to make statements.

Applying this precedent to Renault makes it obvious that if the team are unlikely to found guilty of criminal activity on the basis that they did not solicit or apply information, the FIA could hardly find otherwise.

However, given that the ex-Ferrari employees were found guilty in a court of criminal law, questions must be asked as to why McLaren have not pressed criminal (or even civil) charges against their former employee Mackereth. Equally, it must be asked why no more than subdued comment emanated from McLaren in response to the Renault verdict.

In fact, immediately after Renault's verdict was handed down last week, McLaren CEO Martin Whitmarsh told BBC Radio: "We made the case to the World Motor Sport Council that we thought it wasn't appropriate to put on any team the sort of penalty that we suffered. We made that very clear, we weren't pushing for that, but we believe it to be a serious case."

Consider, too, the aftermath of McLaren 1: the Italian ASN immediately took up its dissatisfaction with the verdict with the FIA, causing president Max Mosley to refer the matter to the International Court of Appeal.

Events then overtook the ICA hearing, leading to McLaren 2, but the fact remains that the Italian federation did protest on behalf of its competitor. The RAC Motorsports Federation in Britian has not acted similarly on behalf of McLaren.

So, in the final analysis, based upon the evidence before it and the analysis above, the WMSC had no choice but to hand down Thursday's verdict on Renault.

The true litmus test, however, will be Renault 2, should it come to pass. For, in its statement, the WMSC specifically left the door open for such proceedings if new evidence come to light.

The question is, will anyone be as tenacious and diligent in seeking such new evidence against Renault, and they have been against McLaren?

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- The Autosport.com Team

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