What is willful blindness?

Willful blindness claims to be the denial of the most elementary knowledge that allows the deduction of malice, intention, purpose.

It is no longer worth blaming the lawyers, the consultants. Or maybe it is.

Messi before the Court: “I only played soccer. I signed the contracts because I trusted my dad and the lawyers who had decided to have the matter handled”

Ronaldo before the judge: “I paid for everything in 2014. I don’t understand much about this; I´ve only studied until sixth grade and all I know is how to play soccer. And if my advisors tell me ‘Chris there is no problem’, then I believe them”.

Unfortunately, this quiz has a limited amount of entries it can recieve and has already reached that limit.

Time's up

How far does “deliberate ignorance” go?

After reading the title of this collaboration, it is inevitable to think about recent and still ongoing legal proceedings. These have an important reflection in the media’s headlines.

There is nothing more mediatic than a soccer player from Barcelona or Madrid

But, we are not only referring to the Messi case. Not even if we add the case of Cristiano Ronaldo. Deliberate ignorance does not only reach soccer players. It also affects companies, boards of directors, managers, actors and actresses,

Arturo Fernández (businessman and Bankia’s advisor) before the judge: “if Deloitte says the accounts are fine, I’m not going to read them”.

In connection with these cases, and many others… a very controversial legal concept has emerged, again for discussion. Deliberate Ignorance

Watch out for the following lines. They may be of interest to you.

Recently, you may have heard the following phrase repeatedly: “I didn’t know anything. My advisors took care of everything. What is true about this?

In this regard, the Supreme Court has ruled that this argument is not valid for exonerating responsibility for the crimes committed.

“There is a duty to know that prevents closing one’s eyes to suspicious circumstances. You can’t tell people that it’s better to remain ignorant than to worry”.

Si te ha interesado este artículo no dudes en leer:

Tax Simulations

The Tax simulation responds to the concealment of a real legal business with the aim of reducing the tax burden. It is necessary for the Tax Administration to test the simulation.

Concept

Deliberate ignorance is a strictly jurisprudential concept. Thus, it is used to define the following situation: Who, being able and having to know the nature of the act, remains in a situation of not wanting to know.

By way of example. A student knows that the grades of the last exam are going to be published on Friday. However, he prefers not to see them until Monday so as not to miss the weekend if he has failed.

Another example. One spouse believes the other spouse is unfaithful. However, he prefers not to find out for fear of verifying his suspicions.

The above are examples, without legal relevance, of deliberate ignorance. In short, they show situations in which a subject could have informed himself but did not want to. On the contrary, he has preferred to remain in a state of uncertainty.

Extrapolating to the legal plane, we are faced with situations like that of the soccer players Leo Messi or Cristiano Ronaldo. Both claim that they did not have enough knowledge about the tax fraud they have committed. And consequently, they unloaded all the guilt on their advisors.

However, the Supreme Court (STS 374/2017), is forceful in stating that there was unequivocal knowledge. “The avoidable ignorance, derived from indifference, is not a mistake, and cannot lead to a discharge of responsibility. He who has no interest in knowing cannot be wrong. “

What requirements are required to be appreciated?

Three essential requirements must be met in order to appreciate the existence of deliberate ignorance:

• The subject’s ability to leave the situation if he or she wanted to do so.
• The duty to seek such knowledge.
• That the subject benefits from the situation of ignorance sought by him/her.

Based on the above, the courts may assert that a person has placed himself in a situation of deliberate ignorance. And consequently, the arguments of such subject will be distorted. All of this is based on the fact that if he had wanted to, he could have avoided the infraction or commission of the crime.

A key element must be added to the above. These requirements must lead to an assessment of the direct or possible malice in the commission of the crime.

Therefore, the direct or eventual malice of the subject must be appreciated. In other words, in the case of direct malice, the perpetrator was fully aware of and willing to carry out the criminal action. Therefore, he wanted to commit the action he had developed.

In the case of eventual malice, that the author believes that it is likely that his actions contravene a criminal norm. Nonetheless, he continues to pursue this action without concern.

Conflict point: The violation of the right of presumption of innocence.

This view of “deliberate ignorance” has been strongly criticized in the doctrine.

The origin of this concept comes from the “willful blindness” of American law.

This doctrine understands that the subject who causes his “own blindness” is treated as the one who performs the criminal act intentionally or deliberately.

However, in Spanish law it is considered that is not adequate to the requirements of the principle of guilt. This is what the High Court has stated:

“It should be clarified that there is no presumption of malice under current law. Furthermore, the evidentiary requirements of the cognitive element of the fraud cannot be eliminated. That is, to eliminate the evidence to consider that the author acted with knowledge of the elements of the objective type of infringement”.

Therefore, deliberate ignorance cannot be used alone. There must be objective data that prove the acts that are being said about the accused. Therefore, it is possible to infer that the accused committed the crime or offense with such information.

How can deliberate ignorance impact the business world?

One of the most relevant questions about deliberate ignorance is the following: How can it affect at the business level? In other words, what happens when a Board of Directors makes a decision based on reports from external advisors and it turns out to be illegal?

In principle, it does not seem to make sense for a company to incur responsibility for making a decision by relying on its advisors. In other words, it would answer for having “carelessly” and only having taken into account what its advisors recommended it to do.

It should be taken into account that legal security requires the validity of the principle of trust. And, it is clear that a society cannot be organized on a principle of mistrust.

Consequently, if the principle established by STS 347/2017 is maintained and generalized, the risks in business management will grow.

STS 347/2017

That is, it can become a no-win situation. This is because, on the one hand, the board of directors could be considered “deliberately ignorant”. As a result, it could be held accountable. On the other hand, if decisions are not based on expert reports, it could incur in mismanagement. And this could lead to the crime of mismanagement. All of this is based on the fact that expert advice is not available for complex matters.

Is all this an additional reason to implement a plan to prevent criminal risks in society? It seems to be so. However, uncertainty in this aspect is still more than present.

And what about the advisors, lawyers, auditors… of these offenders? The “unusual attitude” of the Prosecutor’s Office denounced by the Supreme Court

Until now, legal advisors, tax advisors, lawyers… had gotten away with it. However, the aforementioned Supreme Court ruling has opened up a new scenario in this regard.

“It is certainly difficult to understand why the advisors who were called upon have been excluded from any prosecutorial concern by the Public Prosecutor’s Office and the State Attorney’s Office. But such an unusual attitude of these accusations cannot increase the undesirable result of adding to such eventual impunity that of the fraudster here accused”.

We can appreciate the immediate consequence of the above  in the case pursued against Cristiano Ronaldo. Therefore, the Court has already ordered him to  notify the name of his advisors.

We will have to wait to see what the final outcome of the responsibility of these lawyers, advisors, and auditors is…

To conclude

In order to enrich this document, we bring up the Supreme Court Ruling 653/2014 of October 7, 2014. This resolution perfectly explains the “deliberate ignorance”, in the face of a case of money laundering.

We also propose the following reading:

“Better not to know”; On the doctrine of deliberate ignorance in criminal law. Ramón Ragués i Vallès. Pompeu Fabra University – Barcelona. ISSN 1515-7326, no 13, 2|2013, pp. 11 a 38.

If this article has been of interest, we also suggest you to read the following article published on our website: What is fraud? Difference from gross negligence.