AB Appeal Board
AS Mr Alexander Starret
CK Charlotte Kerton
DP Disciplinary Panel
GP Mr George Prodromou
MC Michael Clare QC
LW Louis Weston
1. The AB had little or no hesitation in rejecting Points 1, 3, 4 and 6 made by MC (whose submissions generally, it may be said, could not have been put better, an observation which also applies to AS). Point 2 (cooperation) was of course abandoned.
Point 1 – character
2. The argument advanced by LW was broadly accepted by the AB.
2.1 The DP did refer / have regard to GP’s character, as testified by the references before it (none of which, it is safe to conclude, would the DP have held against GP).
2.2 The references demonstrated that GP is an amiable and amongst his friends and associates a popular individual. This is nice to know, and to acknowledge; but it can carry very little weight in the context, in particular, of the offence contrary to Rule (C)45.4.1.
2.3 The c. ten additional references added nothing of substance. The strongest thread through both sets of references was in fact GP’s asserted honesty – which, again, was of no use to GP in the context of Rule (C)45.4.1.
Point 3 – not a determined conspirator
3. The argument advanced by LW was broadly accepted.
3.1 This (“not a determined conspirator”) was the DP’s own conclusion, which it took into account. That the DP did so to an extent which was plainly inadequate, and therefore unjust, is an unsustainable proposition, a fortiori given that the associated adjectival descriptions of GP (“reckless …. far too free ….. cavalier”) could, self-evidently, apply only to his passing of inside information, not his instruction to CK to ensure that TIMETEAM (IRE) did not run on its merits. As LW has repeatedly emphasised, this latter offence, much the most serious committed by GP and the one which attracted the harshest penalty, strikes at the very core of racing and its reputation.
Point 4 – low financial reward
4. The argument advanced by LW was broadly accepted. Moreover, the DP did expressly acknowledge that GP was not “seeking large financial rewards”.
Point 6 – guidelines: their applicability and application
5. The argument of LW was broadly accepted.
5.1 A trainer has a contractual relationship with the British Horseracing Authority (BHA), upon which his licence depends. He is, elementarily, subject to the Rules of Racing. He is thus vulnerable to the penalties which the BHA has the power to impose and to the application in practice of the guidelines prevailing at the time of adjudication. Every DP is enjoined by Guide to Procedures and Penalties to have regard to the current guideline at the date of its decision on penalty (provided that it must not impose a penalty greater ….than that which it would have the power to impose … at the time of the offence}.
5.2 Note that this regime cuts both ways. In any instance where a recommended penalty is reduced, an offender can reasonably expect to be penalised by reference to the more favourable guideline prevailing at the time of adjudication.
5.3 This matter was considered by the AB in Burke in 2009, when the Board, with Sir William Gage presiding on that occasion, made the key observations (Reasons #31) relied upon by LW, with which this AB concurs.
5.4 If GP had admitted his guilt at an early stage, and that admission had been followed by a delay in the proceedings during which there had been a change in guideline, that might well have been a different matter.
Point 5 – the significance / validity of the finding by the DP that GP had taken advantage of and indeed “preyed” upon CK
6. “Preyed” is a strong word, with manifestly pejorative connotation. It tends to portray CK as a defenceless victim.
6.1 It is true to say that at GP was cross-examined to the effect that CK was dependent upon him for rides, and he agreed with that proposition.
6.2 Further, he himself volunteered that CK had been known to cry and to plead with him not to withdraw the ride upon a horse (or, apparently, horses).
6.3 But, as MC submitted, there was no evidence from CK herself, and no other evidence which threw much light upon her own character / personality or upon her willingness to participate in the TIMETEAM (IRE) and TRIP SWITCH conspiracies. It was thus well arguable by MC that the DP, in using the word “preyed”, went at least some distance too far. This point did engage the AB, who gave it very careful consideration. However, the clear ultimate conclusion was reached that it would not be correct to hold that the DP had arrived at an overall penalty which is “so disproportionate that no reasonable decision maker could have decided upon it”.
6.4 As to the assertion of advantage over CK, it was, to repeat, GP who had described CK’s distress as mentioned above. But, in addition and importantly, the AB felt that the adoption of the entry point tariff was from other viewpoints favourable to GP, most particularly because
(i) he fell to be penalised for two offences contrary to Rule (C)45.4.1 and
(ii) he had transgressed earlier (VALMARI (IRE)).
(That the DP chose, in their discretion, to make the penalty re MISTER FROSTY (IRE) concurrent did not surprise the AB).
6.5 The AB did of course take into account MC’s other points on the subject, including re the absence of cross-examination of GP expressly along the lines of “preying” etc.
7. It is expedient to refer to the grounds of appeal in a different order from that appearing in the Grounds of Appeal:-
Standard of proof
8. A non-starter: see the decision of the AB in Sines et al.
9. In his Appeal document AS set out a number of factors which according to him should, taken in combination, have led the DP to find in his favour. They included, by way of example:-
- 11.36 telephone call preceded by bets on TIMETEAM (IRE) already made.
- A dithery sequence of betting, with various cancellations.
- His lay liability the 296th highest overall / 7th pre-race / would have taken out only 11% of the credit on his Betfair account: all these indicia would have been higher if he had had the inside information alleged.
- Similarly, he would surely have maximised profit by employing his Betdaq facility.
- CK a female jockey for whom he had no regard – 3 wins in 5 years – none on all weather.
- Denied opportunity to hedge.
- TIMETEAM (IRE) opened on Betfair at little more than 3/1 )( the Racing Post forecast = 6/1.
- He very nearly lost 70% of his TIMETEAM (IRE) profit on NAHEELL.
- He has always bet on the strength solely of his own opinion.
9.1 But all this was known to the DP, AS having articulated the points forcefully in the course of the hearing [opening address, oral evidence and closing address]; and it is reasonable to conclude that, substantially, these matters were not lost on the DP. The fact is that the DP had before it the other material referred to in their Reasons, including e.g. the unusual betting transactions made by the various conspirators and the juxtaposition of those transactions to various key telephone calls, the purported explanations for which the DP disbelieved.
9.2 Key collateral findings made by the DP included:
- GP had instructed CK not to ride TIMETEAM (IRE) on its merits;
- CK rode the horse in that manner, deliberately cocking its head at the start and then not making any sufficient effort;
- GP gave inside information re the horse’s prospects to Sergides, Hogan and Compton.
9.3 As to AS specifically, those facts alone would not establish his involvement; but the DP had in addition to analyse a situation where, GP and AS having had two telephone contacts the previous day, they spoke at 11.36 am on 22/1/2010, a conversation as to which they both gave various explanations, first in interview and later at the hearing.
9.4 The stark reality is that the DP, whose task it was to assess the credibility of GP and AS, simply did not believe their story on this centrally important issue.
9.5 That was a conclusion which, in the opinion of the AB, was palpably available to the DP on the material which it had to consider (quite apart from which the DP had the advantage of observing the demeanour of the witnesses when giving oral evidence). There were serious inconsistencies between
(i) the explanations/descriptions given at interview (it is noteworthy in this area that AS’s interview was less than 8 weeks later than 22/1/2010) and
(ii) the presentation made by GP/AS during the hearing.
9.6 The evidence as to the alleged lunch invitation was highly suspect. LW submitted that there had been a common lie followed by a common change of lie. The DP plainly agreed, and it cannot validly be said that that was a view which no reasonable DP could form. Given the juxtaposition of the 11.36 call with the subsequent lay betting before the “off” which risked more than £4,000 on top of the sum already wagered (see below), the conclusion of the DP that GP had given inside information to AS was, again, properly available to the DP.
10. As to the new evidence which the AB admitted (because, as explained, the documents in question had inadvertently been read by Bruce Blair QC), it has no probative value. It would establish only that Lingfield had a free lunch scheme, with the requirement to book a table the previous day, and that GP made a lunch reservation. Contrary to AS’s submission the documents do not establish that lunch was discussed as asserted by him on 21/1/2010 and / or 22/1/2010.
11. A matter which did engage the AB’s earnest consideration was AS’s information to the effect that the total of the sums bet by him pre-11.36 am was such as to risk a liability not of £44, as thought at the hearing, but of £490. The erroneous figure of £44 had appeared in LW’s Opening Note. Documentary material revealing the error was in fact before the DP, but no one, including AS, tumbled to that fact.
11.1 Would, or might, the DP have reached a different decision re AS’s guilt, had they known the true figures? The AB is satisfied that the answer to that question is in the negative. On one scenario AS laid TIMETEAM (IRE) to lose him £44 before and £4,627 after 11.36 am. On the other (correct) alternative, the figures were £490 and £4,181 respectively. The difference is not nearly great enough for AS’s purpose.
11.2 One also observes that, if the true figures had been known, there would without doubt have been keen and critical analysis of the content and substance of the 21/1/2010 telephone calls between GP and AS.
12. In all the circumstances the AB, having conducted its review, was clear in their decision that there was sufficient material upon which the DP could make its decision and that no irregularity of the nature countenanced by the Appeal Board Rules had occurred.