At the Turner Prize Sir Nicholas Serota defended the purchase on the basis that it was really good art and a bargain, obtained at a greatly reduced price. Lord Smith (former Culture Minister) has also defended it on a similar basis. This justification is disingenuous as it ignores many of the other unanswered points about this purchase.

THE LAW

The Charity Commission says: "The law states that trustees cannot receive any benefit from their charity in return for any service they provide to the charity unless they have express legal authority to do so." This includes: "the award of a contract to another organisation in which a trustee has an interest and from which a trustee will receive a financial benefit." There is no record that any such legal authority was obtained. The sale of The Upper Room by the Victoria Miro Gallery to the Tate obviously resulted in a direct financial benefit to Chris Ofili, a trustee.

Christopher McCall QC wrote to The Times to say that it is an absolute rule of trust and charity law that a trust may not enter into a contract with one of its trustees unless higher legal authority has been obtained.

THE FALSE DECLARATION BY SIR NICHOLAS SEROTA

Sir Nicholas Serota signed a grant application to the Art Fund (NACF) in November 2004 stating that there was no prior commitment to purchase The Upper Room. In fact eight months previously £250,000 had already been paid to the Victoria Miro Gallery as an instalment towards it.

OTHER CONSIDERATIONS

Ethics

1) the duplicity of the Tate asking other artists to donate work (backed in the press by Ofili) in 2004 because of a shortage of funds, while secretly on a major fund-raising drive to buy Ofili's work

2) the bad example set by a trustee that work donated to the Tate is not the artist's most important work, but secondary work, thus undermining the Tate's appeal

3) The Nolan principles of conduct in public life by which trustees are bound: these include Openness and Selflessness

Disinformation

4) In 2003 Serota said the price would have to come down (i.e. he thought it was too high). It didn't come down, and now he says it is a very low price.

5) Serota now praises Ofili for selling the work to the Tate at below the market value. The market value at the time was 12 paintings @ £50,000 and 1 @ £150,000, which makes £750,000. It was initially offered to the Tate with a 20% discount on this price. The Museums Association says "expect to negotiate a museum discount of at least 10 per cent". From 1998-2004 (i.e. covering the period of negotiations) Ofili's auction prices fell by 24%. His auction prices are now double what they were previously. The work is now below the market value, because the purchase of it has boosted Ofili's market value. The low price has become a self-fulfilling prophecy.

6) Serota stated that Ofili had no other income for three years when he was making the Upper Room. However, when the Upper Room was exhibited in 2002, four other large paintings were sold for in the region of £200,000 each (i.e. around £400,000 to Ofili). Fabrication dates for the Upper Room are stated as 1999-2002. In this period he had four solo shows and was in a dozen group shows.

"Insider trading" from privy Tate knowlege

7) A trustee's spouse purchased an Ofili painting after the purchase was decided but before it was announced. Serota said this was not privy information as it was common knowledge in the art world. Tate Chairman Paul Myners said mention of the Ofili purchase was omitted from trustee minutes on the Tate website because it was confidential information.

8) Five benefactors giving over 50% of the purchase price also bought their own private Ofili painting, according to trustee minutes, and were able to do so on the basis of insider knowledge with the obvious presumption that the price of the work would go up through the Upper Room purchase which they were enabling.

9) Two months before the purchase of the Upper Room was announced there was an unprecedented auction result in New York, when an Ofili painting sold for £550,000, over four times his previous record (which had been in 2001). As Serota has stated that news of the purchase had been leaked, it should be ascertained if "insider knowledge" played a part in this auction. The seller was Charles Saatchi, a client of Victoria Miro's; one of the underbidders was Ofili's New York dealer.

The Tate's contradictory evaluation of the status of the work

10) The Tate justified the purchase of a trustee's work on the basis that it was a "unique opportunity ... not likely to come again". The Tate then initially refused to divulge the price of this work on the basis that they might need to buy "similar" work in the future (this assertion has still not been withdrawn).

The relationship of the Tate and the Art Fund (NACF)

11) David Verey was the Chairman of the Tate who initially endorsed an incorrect grant application to the NACF. By the time Serota wrote to the NACF to admit this "mistake", David Verey was the Chairman of the NACF. He withdrew from the NACF meeting that discussed this, but its trustees must have been aware of the embarrassing position of their Chairman. One of the NACF trustees is Professor Michael Craig-Martin, who was previously a Tate trustee in the same position as Ofili of having his work bought while he was on the Tate board. There is no record that Craig-Martin withdrew from the meeting. William Govett, another NACF trustee, was also a Tate trustee during Serota's directorship. The Hon. Felicity Waley-Cohen is an NACF trustee who is shown on the NACF web site as a serving trustee of the Tate Gallery Foundation since 1987, and Founder Chairman of Patrons of New Art. She is listed in the Tate Report (2002-4) as a member of the Tate International Council. Jon Snow is a current Tate trustee and a member of the Art Fund's Committee of Honour.

12) The fact that the NACF declined the refund of its grant offered by Serota means that £75,000 cannot be made available to a genuinely deserving cause that would otherwise not be able to afford the money. When the prospective purchase of the Upper Room was first minuted in January 2003, the Tate was willing to pay £150,000 (£176,250 including VAT) of its own money. When the purchase was completed it paid £120,000.

The relationship between the Tate Director and trustees

13) Serota has stated his preference for trustees who are "erring on the younger side". Artists in early or mid-career are of necessity in a more vulnerable position than major established artists. This is a policy that has courted trouble.

14) The trustees employ the Director, who is thus by definition in a compromised position when it comes to considering the acquisition of a trustee's work.

The relationship between Tate Chairman, David Verey, and Ofili

15) The Tate trustees elect their own Chairman. Ofili was a trustee when David Verey was re-elected Chairman in March 2002. Negotiations for The Upper Room began later in that year. Chairman of the Tate trustees is considered a 'glamorous' position for a businessman and can also bring honours. In 2004 David Verey received CBE for services to art.

Purchase procedures

16) There is no record in the trustee minutes that any comparative evaluation was made as to whether it might be preferable to use the resources on any other artist's work. A special case is made to buy Ofili's work above others who were put in a less privileged category of being asked to donate it. Other artists whose offer to donate work was accepted included Frank Auerbach, Peter Blake, Louise Bourgeois, Anthony Caro, Patrick Caulfield, Tony Cragg, Michael Craig-Martin, Richard Deacon, Lucian Freud, Gilbert and George, Douglas Gordon, Antony Gormley, Richard Hamilton, Damien Hirst, David Hockney, Howard Hodgkin, Rebecca Horn, Anish Kapoor, Leon Kossoff, Richard Long, Paula Rego and Rachel Whiteread.

17) The Museums Association states a basic requirement: "research the value of the item and seek at least one independent valuation". There is a record that an independent valuation took place after payment was made for the work and only in order to seek an Art Fund (NACF) grant.

18) A conservator's report was scheduled before the purchase of the work, but it was only after it had been installed that another conservator's report found that lighting levels were causing damage and said the work may have to be kept off display for several years.

19) The Museums Association states, "Acquire an item only after thorough consideration of ... how it will be used". Curators' notes prior to the purchase state "the works would find a sustained context for display across the four sites". Ofili has now barred the work from being shown in Tate Liverpool.

Conflict of interest

20) DCMS (Department of Culture, Media and Sport) guidelines were ignored: "Even the perception of a conflict of interest in relation to a board member can be extremely damaging to the body's reputation .... no-one should use, or give the appearance of using, their public position to further their private interests. This is an area of particular importance, as it is of considerable concern to the public and receives a lot of media attention."

21) It has been stated that Ofili took no part in the process of buying his work. A curators' report for January 2003 states: "in discussion with the artist and his representatives, a joint acquisition is being negotiated".

22) In the January 2003 trustees' minutes Chairman David Verey said, "negotiations with Chris Ofili would continue".

23) The January 2003 trustees' minutes show information being communicated about the purchase after Ofili had rejoined the meeting.

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