- Following an eleven day hearing of an enquiry concerning five jockeys and six men described as bettors and another man who came into an entirely different category to the jockeys and bettors, the Disciplinary Panel found that charges against four of the jockeys and all of the bettors were made out. One of the jockeys, Kristy Milczarek, has appealed, as have four of the bettors: Maurice Sines, James Crickmore, Peter Gold and Nick Gold.
- The charges against the jockeys were brought under Rules 157, 201(v) and 243 of the Rules of Racing. Kirsty Milczarek was charged under all three of the above Rules. The Panel acquitted her of being in breach of Rule 157 in respect of her ride on a horse, OBE GOLD, in the 19.00 race at Lingfield on 15 August 2009. But the Panel found her to be in breach of Rule 201(v) and Rule 243 in respect of the events surrounding that ride.
- The bettors were all charged with breaches of Rule 201(v) in respect of 10 Races, the first being the 12.45 at Lingfield on 17 January 2009 and the last at Lingfield at 19.00 on 15 August 2009. Mr Nick Gold and Mr Peter Gold were involved only in the first seven races. The last race involved Milczarek. The ten races, the horses involved and the trainers and jockeys are set out at Annex A (Table 1) to these reasons. The charge in the case of each bettor was that he was concerned in a conspiracy with the other bettors and the jockeys to commit “a corrupt or fraudulent practice by placing lay bets and/or causing one or more of the Betting Exchanges account holders to place lay bets on the horse listed in Table 1 (the Named Horse) not to win (and/or be placed) in the Race using information he had received directly or indirectly from the jockey or other licensed person. The bettors were also charged alternatively with being in breach of Rule 220(ix) by causing a jockey to be in breach of Rule 243, namely supplying information for reward. The charges under Rule 201(v) were in all cases found to be proved.
- Mr Sines and Mr Crickmore were further charged with a breach of Rule 247 in respect of two of the ten Races (Races 1 and 3) of causing bets to be placed on their behalf on a horse of which they were the owners. Mr Sines and Mr Crickmore were found to be in breach of this Rule in respect of both races.
- The Rules cited above are Rules under the former Rules of Racing as the events happened before the new Rule Book came into force.
The allegations in more detail and the evidence
- The Enquiry focussed on the running and lay betting on the horses in the ten races. The Panel summarised the allegations in paragraph 4 of its reasons:
“In broadest outline, the main case made by the BHA against those charged with a breach of the Rules was that they were doing their part in carrying out agreements to profit by lay betting from Races in which the jockeys either did or would if necessary ride to lose.”
- The allegations were that Mr Sines and Mr Crickmore were the instigators in the conspiracy. It was alleged that they suborned the jockeys into agreeing to ride either to lose the race concerned or ready to prevent the horse from winning if it looked as if it might win. It was alleged that this information was used by Mr Sines and Mr Crickmore to cause lay bets to be placed on betting accounts held by the bettors on various exchanges. The accounts concerned, with other information to which we refer later, are set out in Annex B attached to these reasons. In two of the races (races 2 and 7) it was alleged not that the jockeys agreed to stop the horses but that they gave to Mr Sines and Mr Crickmore some “reliable adverse information” about the horses’ prospects in the race which prompted the lay betting.
- The principal evidence adduced by the BHA at the Enquiry firstly consisted of analysis of the betting on the exchanges in respect of the ten races, together with analysis of the accounts in all other races between a period starting before race 1 and ending after race 2. In broad terms the BHA alleged that this analysis demonstrated that in respect of the ten races the pattern of betting, and in particular lay betting, was different from other days and involved much larger lay bets than on other Races.
- Secondly, the BHA adduced evidence of telephone contact between the jockeys concerned in each race and Mr Sines and Mr Crickmore; telephone contact between Mr Sines and Mr Crickmore and the bettors at or around the times of each of the ten races; and evidence of telephone contact between the bettors and the betting exchanges at times close to the races.
- Thirdly, the BHA relied on video evidence of the ten Races to demonstrate that the ride given by the jockey concerned was in breach of Rule 157 (failure to ride a horse on its merits) and Rule 243 (passing inside information)
- The Panel found that all of the above factors was relevant evidence in determining whether the jockeys were in breach of Rule 157; and whether the bettors were participants in the conspiracy to place lay bets on horses which they knew would not be ridden on their merits, alternatively on the basis of inside information passed by the jockeys to the bettors.
- The evidence in respect of the betting and telephone analysis was not in dispute. The context in which the betting and telephone evidence occurred and the inferences to be drawn from this evidence were in dispute.
The ten races
- We set out at this point in summary the Panel’s finding in respect of nine of the ten races. They form the essential background to the issues in the appeals of Messrs Sines, Crickmore and the two Golds. We deal with the tenth race separately. It is the only race in which the jockey has appealed. The three jockeys involved in the other races and who were found guilty of breaches of the Rules have not appealed either the findings of breach or the penalties. The jockey concerned in race 3 was acquitted of all breaches of the Rules with which he was charged.
- Annex A shows that this race involved a horse called IT’S A MANS WORLD, ridden by Jimmy Quinn in the 12.45 Race at Lingfield on 17 January 2009. The horse was trained by Peter McBride. There is no dispute that at the time of the race it was owned by Mr Sines and Mr Crickmore. The horse started at 11/8 favourite but was beaten into second place. There was an allegation that Quinn’s ride was in breach of Rule157. This was rejected by the Panel although it found that Quinn did not ride the horse according to the trainer’s instructions, but followed the instructions of the owners, Mr Sines and Mr Crickmore, who had instructed him to bring the horse late in the Race, contrary to the trainer’s instructions which were to “go forward and make use of him” or similar words to that effect.
- The Panel found that both Mr Sines and Mr Crickmore, despite their denials, were involved in lay betting on this horse contrary to Rule 247, at the time, it being owned by Mr Sines and Mr Crickmore. They further found that Mr Sines and Mr Crickmore had used their position as owners to arrange for Quinn “… to adopt their preferred tactics which helped to give them sufficient confidence to organise the lay betting”.
- The Panel further found that Mr Sines and Mr Crickmore had endeavoured to conceal their ownership of the horse by persuading the trainer to allow it to run in his colours rather than their own colours. In addition, they found that Mr Sines had endeavoured to influence the odds on IT’S A MANS WORLD more favourably for lay betting by making spoof attempts to back the horse with bookmakers for sums which he knew would not be accepted.
- The lay bets placed on the betting exchanges are summarised in Annex B.
- There is no dispute that the following accounts were registered in the names of or used by Mr Peter Gold and Mr Nick Gold: chelseaboy55, goldylocks and Nickgold. The other accounts were registered or used by men associated with Mr Sines and Mr Crickmore.
- The horse, SILK GALLERY (USA), was also ridden by Quinn. This race took place on 7 February 2009 at an evening meeting in Wolverhampton. In respect of this race the Panel found that Quinn passed on to Mr Sines and Mr Crickmore adverse information about the horse’s prospects which caused both men to organise lay betting channelled through Mr Peter Gold’s Betfair account, chelseaboy55. During the course of the day of the Race £50,000 was deposited into this account. As in all the other eight Races the horse did not win and the lay bet was successful.
- We need not deal with this Race in any detail. It involved the running of IT’S A MANS WORLD at a time when the Panel found it was still owned by Mr Sines and Mr Crickmore. The Panel found that Mr Sines and Mr Crickmore had sought to conceal their ownership, no doubt to prevent them from being charged with laying their own horse contrary to Rule 247. The Panel acquitted the jockey of any untoward conduct in respect of his ride on this horse. It found that Mr Sines and Mr Crickmore were inspired to instigate lay bets because of their opinion that the horse was very unlikely to win. Annex B shows that lay bets were placed on the chelseaboy55 account and with a number of accounts used by associates of Mr Sines and Mr Crickmore.
- This Race was run on 1 March 2009 at Lingfield. The horse involved was EDITH’S BOY (IRE), trained by Simon Dow and ridden by one of the jockeys charged as being party to the conspiracy, namely Paul Doe. In the Race the horse started at 9/2 and finished 4th.
- Doe consented to be interviewed by a BHA official but refused to attend the Enquiry. The Panel found that in his interview he lied about his knowledge of Mr Sines and Mr Crickmore. The Panel scrutinised the video recordings of the race with great care and despite a contrary opinion of the Stewards and Dow found that Doe’s riding was in breach of Rule 157. They found that his riding was motivated to ensure lay betting by Mr Sines and Mr Crickmore. They further found that contacts by telephone between Mr Sines and Doe’s girlfriend on the same day but before the race, were made to conceal Mr Sines’ contact with Doe in respect of his riding.
- As with other races, evidence of telephone contact between Mr Sines and Nick Gold shortly before the race, followed by lay betting, was found by the Panel to confirm use of the information given to Mr Sines by Doe, inspired the lay bets.
- On 5 March 2009 at an evening meeting at Wolverhampton, Gregg Fairley rode a horse called THE STAFFY (IRE). The horse did not win and lay bets on it were successful. Fairley attended interviews with the BHA investigators. Initially he denied any knowledge of Mr Sines and Mr Crickmore. But after being shown a photograph of Mr Sines he said he knew a man called Fred who spoke to him about horses and telephoned him from time to time.
- The Panel found that Fairley’s riding of THE STAFFY (IRE) in this race was in breach of Rule 157. They also found that Doe was used as an intermediary in telephone contact between Fairley and Mr Sines to transmit information from Fairley to Mr Sines. Again, the Panel found that this was to conceal Mr Sines’ contact with Fairley.
- This race involved a horse called KING OF LEGEND (IRE) which ran in the 19.20 on 20 March 2009 at Wolverhampton and ridden by Fairley. In respect of Fairley’s riding in this race the Panel did not find that his ride was in breach of Rule 157. However, they did find that it was unnecessary for Fairley to take any steps to prevent the horse from winning, but that if it had been necessary he would have done so. Again, in respect of this race the Panel found Doe was used as an intermediary between Mr Sines and Fairley. Brief details of the lay betting in this race appear in Annex B.
- The horse in this race was SHERJAWY, ridden by S Hitchcott in the 18.50 at Kempton Park on 8 April 2009. Doe was alleged by the BHA to have passed on inside information given to him by Hitchcott in an unguarded moment. The Panel found Hitchcott was innocent of all wrongdoing in respect of his part in this matter but they found Doe was not entitled to pass this inside information on to Mr Sines. Lay bets were made in respect of this race on the three accounts set out in Annex B.
- The race concerned was a Race at Bath on 23 July 2009. The horse, TERMINATE (GER), was ridden by Doe. In respect of this race the Panel found that Fairley was used by Mr Sines as an intermediary between him, Mr Sines and Doe; the reverse of the process in Races 5,6 and 7.
- The Panel found that Doe’s ride was in breach of Rule 157. They further found that they “… were sure that Doe was passing on information for reward …” in breach of Rule 243 (the prohibition on passing inside information).
- This race was run at 19.55 at Catterick on 14 August 2009. The horse involved was OBE GOLD and was ridden by Fairley. The Panel found Fairley’s ride was in breach of Rule 157. They found that Fairley’s dealings were made directly with Mr Sines, which led to the conclusion that Fairley deliberately failed “… to make the necessary substantial effort” when riding the horse in the race. The Panel was also “sure” that Fairley was, for the races in which he rode, passing information and riding to lose if necessary in return for reward from Mr Sines and Mr Crickmore.
- We leave the Panel’s findings in respect of race 10 to the appeal of Milczarek.
Further findings in respect of Mr Sines and Mr Crickmore and their connection with Mr Nick Gold and Mr Peter Gold
- It was common ground before the Panel that towards the end of 2008 Mr Sines and Mr Crickmore had entered into a partnership with Mr Nick Gold to place bets on Mr Nick Gold’s and his father’s betting account. This partnership, as it was described, provided a way for Mr Sines and Mr Crickmore to place bets on the exchanges, their accounts having been stopped. The agreement was that Mr Sines and Mr Crickmore nominated the horses and the bet and Mr Nick Gold arranged for bets to be placed either on his own account or with his father’s accounts. Mr Nick Gold said that the bets were made on a fifty-fifty split between Mr Sines and Mr Crickmore on the one hand and him and his father on the other. The Golds provided the credit for the bets.
- Mr Nick Gold’s description of the partnership was that the bets were principally to be lay bets, although some back bets were also made. He said the first of the lay bets was made on race 1. Both Mr Sines and Mr Crickmore denied being concerned with this bet. Indeed Mr Sines said he had never made lay bets. The Panel preferred the Golds’ evidence on this issue for reasons which are set out in paragraph 70 of their decision.
- The findings on the partnership in the seven races in which they were involved are set out in paragraphs 72-80. The Panel found that all the lay betting through Mr Nick Gold on the Gold accounts and through a commission agent, Mr John Loftus on race 4, were lay bets by Mr Sines and Mr Crickmore in partnership with Mr Nick Gold. The Panel further found that “… there is a wealth of evidence to show that Mr Mr Crickmore either used directly himself those other accounts identified as carrying out heavy lay betting in the ten races – see Annex B – or arranged for these bets to be placed by others using those accounts”; and that the bets were made on behalf of himself and Mr Sines.
- Save for the first ground of appeal, the standard of proof, there is no challenge on behalf of Mr Sines and Mr Crickmore to these findings.
- So far as Mr Nick Gold is concerned, the Panel, correctly in our judgment, posed the crucial issue in the following terms; “Ultimately, the question whether Nick Gold was a part to the conspiracy … depended upon whether he knew that the lay bets … were inspired by inside information”. In paragraphs 191 to 197 the Panel set out their reasons for concluding that Mr Nick Gold did not know that Mr Sines and Mr Crickmore had secured the agreement of jockeys to stop horses, but did know that the bets were inspired by inside information adverse to the horses’ prospects in these ten races.
- In paragraph 204 the Panel set out its reasons for concluding that Mr Peter Gold also was a party to the conspiracy on the same basis as his son. The Panel further concluded that the three other bettors involved in the Enquiry, Liam Vasey, David Kendrick and Shaun Harris, were parties to the conspiracy on the same basis as the Golds.
By the Grounds of Appeal: Standard of Proof
- There is one ground of appeal which is common to all the Appellants. The Rules of Racing provide at Schedule (A)6 paragraph 16:
“Where any fact or matter is required to be established to the satisfaction of the Authority, the standard of proof shall be the civil standard which is to say the standard applied in the civil courts of England in a dispute between private Persons concerning a matter of comparative seriousness to the subject matter of the enquiry.”
This provision, as the Panel recorded, first entered the Rules of Racing in 2001
- It was submitted by counsel for Mr Sines and Mr Crickmore and leading counsel for the Golds, that the appropriate standard for proving the breaches of the Rules of Racing alleged by the BHA was the criminal standard. The Panel rejected these submissions and ruled that the appropriate standard was the balance of probabilities. In so doing the Panel specifically referred to the decision of the House of Lords, In re Doherty 2008 UK HL and in Re B (Children)(FC)  UKHL 35. All of the appellants challenge this ruling by the Panel and submit that the standard of proof for these breaches ought to have been the criminal standard.
- Mr Jason Bartfeld submitted that the Rule should be construed on the basis of the law in 2001 and not 2011. He submitted that the part of the Rule which reads: “ … in a dispute between private Persons concerning a matter of comparative seriousness to the subject matter of the enquiry” indicates that the standard to be applied depends upon the subject matter of the case in hand. As such, the charges against his clients were, he submitted, so serious that the criminal standard of proof should have been applied. This was the position, he submitted, before the decision In re B. He submitted that the Rule applies a flexible standard of proof to be tailored to the nature of the charge and the seriousness of the consequences. Thus it is submitted the Panel should have applied the criminal standard of proof.
- Mr Jonathan Caplan QC, counsel for the Golds, submitted that the speeches in the House of Lords In re B left open some categories of dispute which despite being subject to the civil standard of proof required the application of the criminal standard. He submitted the charges against his clients, being allegations of corruption and fraudulent conduct, together with the consequences of a finding of such conduct by the Golds, are so damaging to their reputation that they should have been proved to the criminal standard. Mr Caplan pointed out that, unlike the other Appellants, the Golds were not licensed under the Rules of Racing and were not strictly bound by them. In the alternative Mr Caplan relied on a passage in the speech of Baroness Hale In re B in which she cited with approval a passage in a judgment of Ungoed-Thomas J In re Dellow’s Will Trusts  1 WLR 451,455:
“The more serious the allegation the more cogent is the evidence required, to overcome the unlikelihood of what is alleged and thus to prove it.”
- Mr Ian Winter QC, leading counsel for Milczarek, supported the submissions of Mr Caplan. He accepted that following In re B there are now only two standards of proof: the balance of probabilities and beyond reasonable doubt. He accepted that the effect of In re B was to disapprove preceding authorities which indicated that the balance of probabilities might have gradations of different standards. He submitted that the seriousness of the allegations against Milczarek and the consequences to her of being found in breach of the Rules made it appropriate to apply the standard of beyond reasonable doubt.
- In his skeleton argument Mr Winter referred the Board to decisions of the High Court in proceedings involving a number of different circumstances and facts where the court held that the standard of proof was the criminal standard. In the alternative Mr Winter relied on a passage in the speech of Lord Nicholls In re H (Minors)  AC 563 at 586:
“ … the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”
- Mr Mark Warby QC, counsel for the BHA, submitted that the Panel adopted the correct standard of proof, namely a balance of probabilities. He relied on the words of the Rule in Schedule (A)6 paragraph 16 as making it clear that the civil standard of proof was applicable and that this was further made clear by the reference to disputes between private Persons, not public bodies. He further submitted that the fact that jockeys were licensed each year on terms which included an undertaking to abide by the Rules of Racings, imported into the Rule the law as it is today.
- In our judgment the standard of proof in these proceedings before the Panel is the balance of probabilities. The Rule in paragraph 16 makes it clear that the standard of proof is the civil standard. Lord Hoffman and Baroness Hale made clear in their speeches that the so-called heightened standard of proof in civil proceedings was no longer good law. We do not accept that this standard must be adopted because paragraph 16 was promulgated before In re B was decided. The House of Lords, now the Supreme Court, declares what the law is and always has been. There is, in our judgment, no room for construing paragraph 16, as importing, and bound by, the law as it was or may have been in 2001.
- We accept Mr Winter’s submission that Lord Hoffman swept away the gradations of different standards of the civil burdens of proof. What he and Baroness Hale stressed was that in applying the balance of probabilities, “Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities” (see In re B at page 21 paragraph 15). Baroness Hale similarly said:
“When assessing the probabilities the court will have in mind as a fact (to whatever extent is appropriate in the particular case (emphasis added by Baroness Hale) that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.” (In re B page 33 paragraph 62)
- Although, as we accept, the charges against these appellants were serious and the consequences, particularly for the jockeys were serious, they were not criminal proceedings. They do not come into any of the cases in the first category referred to by Lord Steyn in R (McCann) v Crown Court at Manchester  1 AC 787. Further, we are not helped by standards adopted by other bodies or standards applied where the penalties followed criminal proceedings. The BHA has a duty to ensure that the integrity of racing is preserved. In our judgment it is entitled to provide for a standard of proof, namely the civil standard of proof which in our opinion is appropriate and, as we find, fair.
- We accept that in making its findings the Panel should use its common sense in the way explained by Lord Hoffman. We further accept that these were serious allegations and that cogent evidence was required to prove the allegations. However, it is clear that the standard of proof was debated before the Panel. In re B was referred to in the Panel’s reasons and we are quite satisfied that the Panel had in mind the observations made by Lord Hoffman and Baroness Hale to which we have referred. In our judgment the Panel applied the correct standard of proof.
The appeal of Mr Sines and Mr Crickmore
- In addition to the ground of appeal relating to the burden of proof Mr Sines and Mr Crickmore relied on a second ground. This ground alleged that there was insufficient evidence on which the Panel could reasonably have found, as it did, that the lay betting was extraordinary and founded on corrupt and/or inside information. Alternatively the Panel ignored undisputed evidence to the contrary which resulted in their reasons being insufficient.
- This ground can be divided into three parts. Firstly, it was submitted that the Panel relied on evidence of lay betting by Messrs Sines, Crickmore, Nick Gold and Peter Gold on the ten Races which represented only a snapshot of lay betting carried out by the partnership. It is submitted that there was unchallenged evidence of many more bets being made by four men (the wider picture). If these bets were taken into account it was submitted that any statistical analysis would or might provide an entirely different picture of the betting. It was argued that the Panel’s finding that the lay bets in respect of the ten races was extraordinary was made on a false basis.
- Mr Warby on behalf of the BHA submitted that this submissions failed to take into account a number of factors. Firstly, the betting on the Races was not confined to bets made by the partnership. The evidence, which the Panel accepted, shows tha