Appeal Board findings regarding an application for a stay of penalty by Kevin Ackerman
On 23 October 2015 the Chairman of the Appeal Board of the BHA heard an application by Kevin Ackerman for a stay of implementation of the penalty of a six month disqualification imposed upon him by the Disciplinary Panel on 12 October, until the conclusion of his pending appeal.
The following represents the findings of the Appeal Board Chairman in relation to this application:
1. At a hearing on 23rd October 2015 I gave directions, including as to the date of hearing of the appeals, which will commence on 14th December. A direction was made that an application by Mr Ackerman for stay of implementation of the penalty imposed upon him by the Disciplinary Panel on 12th October be adjourned with liberty to restore upon the filing of further evidence. That evidence has now been produced. The British Horseracing Authority (“BHA”) opposes the application, whilst submitting in the alternative that, in so far as it may be granted, any stay should be limited and the subject of strict conditions.
2. At the oral hearing I briefly articulated my rationale for my (then) reaction to the applications for stay made by, in fact, three of the four Appellants. In the interests of framing one, integral, decision on Mr Ackerman’s application, I will in this document repeat the substance of the conclusions then expressed, some of which, certainly, bear repetition.
3. Paragraph 15 of Schedule (A)7 of the Rules of Racing provides as follows_
15.1 There shall ….. be a right to apply to an Appeal Board
15.1.1 to stay the implementation of a decision, or
15.1.2 to vary any conditions upon which a stay may have been granted by the decision maker, pending the Appeal Board’s own decision on an appeal brought under this Schedule.
15.2 There are two grounds for an application under Paragraph 15.1
15.2.1 that no application for a stay was made to the decision maker and it is appropriate to grant a stay, or
15.2.2 that the refusal of the decision maker to grant a stay was unfairly made or is otherwise unjust, or that the conditions attached to the grant of any stay are unreasonable.
15.3 An application to stay or vary a decision must be made within 48 hours of the decision.
15.4 The application will be determined by an Appeal Board Chairman acting alone and normally only in writing, but in a sufficiently urgent case a Chairman may allow an application for an expedited hearing before him.
15.5 As much notice as practically possible will be given to the Authority when an application is received.
15.6 The Chairman may grant a stay subject to such conditions as he considers appropriate.
15.7 In reaching his decision the Chairman will take into account
15.7.1 whether there is a good arguable case for the substantive appeal succeeding, at least to the point where the Appeal Board would be likely to substitute a Disciplinary Penalty or an award, order or other sanction which would have attracted a stay under Rule 85 had it been originally imposed by the Authority,
15.7.2 whether the reason given by the applicant for not applying to the decision maker for a stay is sufficient, and
15.7.3 the fairness to the applicant and the interests of racing in the context of the time likely to be taken by the substantive appeal and any other relevant circumstances.
4. It is to be recognised that the existence of the power to stay, and the language by which it is conferred and structured, manifests the proposition that there certainly will be cases in which the exercise of that power will be the appropriate course of action, sometimes in harness with the imposition of conditions, whether voluntarily proffered by an appellant or imposed upon him by the Appeal Board.
5. It is elementary that the power is discretionary, to be exercised judicially and after the conduct of a careful balancing exercise. The considerations to be weighed will, as to some of them, be specific to the case in question; but a core tension which will exist in virtually every instance is obvious. On the one hand an appellant with a sufficiently arguable case will always be able to say that implementation of penalty prior to the hearing of his appeal risks injustice to him in the event that the appeal succeeds. In an appropriate case, on the other hand, the regulatory authority can be expected to assert, and with good reason, anxiety about the damage which will be caused to the reputation and integrity of horseracing if the appellant is permitted to continue operating as if he had been acquitted rather than found guilty of wrongdoing.
6. Such a response by the BHA is particularly to be expected where a case has involved a finding of corrupt and/or fraudulent practice; and the more so the greater the length of disqualification or exclusion imposed and therefore the gravity of the offence. In my judgment the cases involving corrupt practice where a stay of penalty is to be considered appropriate will, as a general proposition, be few and exceptional.
7. Paragraph 15, and common sense, dictate, therefore, that the judicial task in a case of this type will require consideration of, amongst all relevant circumstances:
(i) the question whether the appellant has what is termed in paragraph 15 “a good arguable case for the substantive appeal succeeding”;
(ii) the nature of, and facts underlying, the transgression;
(iii) the particular role that has been played in the sport of horseracing by the Appellant;
(iv) an assessment whether the reputation and/or integrity of horseracing will indeed be damaged if the Appellant is allowed to continue in his role;
(v) any potential prejudice to the Appellant if he is refused a stay, but ultimately succeeds in overturning the penalty. Such prejudice may well be, but will not necessarily be, financial;
(vi) the period of time which will elapse between the Board’s decision as to stay and the hearing of the appeal itself. It is notable that Paragraph 15.7.3 mandates that the balancing exercise already referred to (as between fairness to the Appellant and the interests of racing) must be conducted in the context of the anticipated timetable.
8. What does “good arguable case” mean? Plainly, it cannot mean simply a good case, in the sense that it is regarded as being more likely than not to succeed. If that were the intended meaning, the word “arguable” would have been omitted. It must mean a case which is firmly arguable or, to put it another way, a case of real substance rather than being flimsy or even ephemeral. As I recite these reasons, I have done much reading; but, inevitably, there remain lacunae, some substantial, in my knowledge of the facts by virtue for example of (i) the unavailability as yet of evidential transcripts and (ii) my inability thus far to view the relevant videos. For the purpose of the stay applications, however, and based upon my current even if interim evaluation, I do, as I indicated on 23rd October, proceed upon the basis that the Appellants have a “good arguable case” within the meaning that I have identified. Equally, I cannot emphasise too strongly that I am giving not the slightest indication, one way or the other, of any preliminary view as to the ultimate merits of the appeals, or any of them, as to which I have no pre-conception.
9. I turn to Mr Ackerman’s application for stay specifically.
10. On paper, it was poorly expressed and was not easy fully to comprehend. Much of the written argument concentrated on establishing the proposition that, as to his appeal generally, he has a good (he says strong) arguable case. Turning, however, to the matter of potential prejudice, it was stated that the racecourse, Towcester, of which he is Chief Executive Officer “has now concluded that [he] should continue in his post … until such time, at least, [as] an appeal is heard”. Towcester Racecourse runs three greyhound meetings a week as well as 18 horse race meetings annually. After mention of his heavy current involvement in certain media rights negotiations it was stated that, if he cannot attend the racecourse, he will not be able to fulfil his functions as CEO and “will inevitably have to be replaced”, which prima facie was in contradiction of what had been said as to continuation in his post pending determination of the appeal. Moreover, there was no written evidence from Mr Ackerman – quite the wrong approach, and tactic.
11. On 23rd October, however, there were two significant developments. First, Mr Weale, counsel for Mr Ackerman, proffered the concession that, if implementation of the penalty was stayed, the stay should be subject to the condition that Mr Ackerman must not attend Towcester Racecourse on the day of any horserace meeting. Secondly, I was presented at a very late stage with a written Statement from Lord Hesketh and did hear some oral evidence from him, which was in some aspects helpful and illuminating, but was inadequate without more to found a favourable reaction to the stay application. It did, however, demonstrate that there might be merit in the application for a stay, on strict conditions: but ultimately I agreed with Mr Weston for the BHA that there was insufficient chapter and verse as to what exactly the prejudice would be to Towcester, or to Mr Ackerman himself, if he were not to enjoy some relaxation from the effect of the exclusion order, at least to the extent of the minimum required to enable him to perform, with a low profile, tasks which are truly substantial and in areas where he has knowledge and expertise for which there is no substitute; or which, if not wholly irreplaceable, can only be replaced with great difficulty.
12. I therefore indicated my sense that, if Mr Ackerman’s house were to be put in order by the presentation of cogent written evidence, he might be able to persuade the Appeal Board, exceptionally, to grant a stay with conditions. I mentioned that, in giving that indication, I was mindful of the now established timetable. The appeals will, as I say, be heard on 14th December (estimate up to 3 days – final day in fact the Friday of that week, 18th December). It would certainly be the Appeal Board’s hope and intention to reach and convey a decision upon the appeals by 18th December or very soon thereafter; but that cannot be absolutely guaranteed. Were it not to be achieved, the decision would perhaps not appear before the first half of January. It follows that the decision upon Mr Ackerman’s appeal will probably arrive some 10 weeks (nearly 40%) into the 26 week period of exclusion, but could conceivably be dated even later.
13. Thus, whereas Mr Ackerman’s appeal relates to a serious offence as found by the Disciplinary Panel, with a 6 month period of exclusion (which has not been appealed as to its severity) 1, there is a distinction to be drawn between his case and a case where, for example, the perpetrator of a corrupt practice, first, has a higher public profile role in racing than he has (e.g. a trainer or jockey) and, secondly, has been handed a disqualification or exclusion of some years’ duration
14. Mr Ackerman’s written Statement dated 30th October is long and detailed. I take its full content into account. In the Statement he acknowledges that life will go on at Towcester – and for him personally, without loss of his job (thanks to Lord Hesketh’s tolerance and support) – if the exclusion penalty is not relaxed. He does, however, explain in a manner which I have found measured and cogent the very great difficulties and potential resultant prejudice for the Towcester business if he remains fully excluded. He now sets out in suitable detail various specifically identified prospective meetings, at the racecourse, which (even if life would not be extinguished otherwise) really do need, he explains, to take place with him present and fully involved. For identification, they are as follows, described in headline terms by reference to the other parties or subject- matter, as the case may be:-
(1) Greyhound trainers;
(2) Wireless connectivity;
(3) Tote betting;
(4) Planning permission;
(5) New heating system;
(6) A significant outside contractor;
(7) A client re a charity event at the racecourse;
(9) The brewery company with which Towcester does business;
(10) Certain sponsors / advertisers;
(12) Engineers re an LED advertising scheme;
(13) Another client re an event at the racecourse;
(14) Towcester’s food suppliers;
(16) A marquee company in connection with an important project;
(17) A building contractor and quantity surveyor re a new car park;
(18) The local Council Enforcement Officer re late night disturbance and local complaint.
I am mindful, for avoidance of doubt, of the lack of jurisdiction point as to the purported £5,000 ”fine”.
Those which appear in italic type are meetings which Mr Ackerman says actually have been or will have to be deferred, to await the situation where he is no longer subject to exclusion.
15. These are apart from everyday general meetings, for example with senior management, which, as Mr Ackerman describes, are currently conducted in or from a coffee shop off site.
17. Mr Weston on behalf of the BHA continues to oppose a stay. In the alternative, he says that any stay should be subject to tightly framed conditions, viz:-
a. Mr Ackerman is permitted until the conclusion of the Appeal to attend at Towcester only on days when there is no horseracing at Towcester;
b. During the period of the stay, Mr Ackerman shall not (i) make or intentionally cause to be made any comment to the press or member of the press (whether via a written or verbal statement or in answer to any questions put to him by any member of the press) or (ii) intentionally make any statement in any other forum that is accessible to the public that could reasonably be construed as publicising to the world at large his attendance at Towcester. For the avoidance of doubt, a reference in the press to a refusal to comment by Mr Ackerman shall not constitute a breach of this requirement;
c. In the event that the Appeal is dismissed, the period of exclusion imposed by the Disciplinary Panel will run from the date of dismissal of the Appeal for a period of 6 months, but with credit given for the period between the imposition of penalty by the Disciplinary Panel and the granting of a stay.
d. For all other purposes Mr Ackerman remains an excluded person and in particular
i. He should not attend any licensed premises other than Towcester.
ii. He remains an ‘excluded person’ for the purposes of Rule (A)30.3.2. – which precludes association with an excluded Person (unless prior permission of the Authority has been obtained).
18. Having balanced the competing arguments rehearsed in these Reasons, I take the view that a limited and conditional stay, designed to enable Mr Ackerman to continue, until the appeal is decided, to operate at Towcester (only, and on days when there is no horseracing), is the appropriate resolution of the issue before me. In making this decision I bear in mind that it is clear from Mr Ackerman’s evidence that in practice the greater part of his professional activities will be directed to the greyhound rather than horse racing side of the business, although one appreciates that much of the work described at paragraph 14 above will be common to both sports.
19. I note that there is a horseracing meeting at Towcester this coming Thursday, 5th November, but then no meeting until after commencement of the appeal hearing.
20. I add two further comments. First, it is conceded that Mr Ackerman’s job is not currently at risk. I do not need to decide the (hypothetical) question whether, if it had been at risk, a stay would have been granted; but, given the obvious prejudice that in those circumstances would result if, in the absence of a stay, the appeal were granted, the argument for some sort of stay would have been strong.
21. Secondly – for completeness and the avoidance of doubt – I hold that the reason given for the omission to apply to the Disciplinary Panel for a stay is sufficient.
22. There will be a stay accordingly, subject, with one proviso, to the conditions tabulated at paragraph 17 above, with which I find favour.
23. The proviso relates to paragraph 17b, as to which there needs to be further consideration. Mr Ackerman was innocent until proven guilty prior to the Disciplinary Panel’s decision. Now the converse applies. There is thus a clear element of indulgence in the grant of a stay; and I do take the view that it is reasonable to expect Mr Ackerman to maintain a dignified and low profile, methodically and quietly going about his business to the extent that these Reasons permit and awaiting the Appeal Board’s consideration of his appeal. That is what I do expect of him; and indeed I anticipate his broad concurrence with this approach.
Michael Stainton and Kenneth Mackay
At the same hearing on 23 October the Appeal Board heard an application from Michael Stainton for a stay of penalty for his two-year disqualification, and an application from Kenneth Mackay for a part-stay of penalty regarding his six-month disqualification and his ownership of a horse.
In both cases a stay was not granted at the hearing. Michael Stainton was given permission to make a further application should he wish to present further evidence, but no such application has been received as yet. The Chairman adjourned Kenneth Mackay’s application with leave to re-apply. Kenneth Mackay has since applied to the BHA for approval to lease his horse.
The appeals lodged by Kevin Ackerman, Michael Stainton, Kenneth Mackay and David M Greenwood (who did not submit an application for a stay of penalty) will be considered by the Appeal Board on 14 December, with three working days set aside for the hearing (14, 15 and 18 December).
Notes to Editors
- The Chairman of the Appeal Board for this case is Bruce Blair QC
- The full findings and reasons of the Disciplinary Panel can be found here: http://www.britishhorseracing.com/press_releases/disciplinary-panels-full-written-reasons-regarding-david-m-greenwood-michael-stainton-claire-murray-kevin-ackerman-and-kenneth-mackay/