The British Horseracing Authority welcomes the judgement of Mr Justice Stadlen in relation to the claim lodged in the High Court by Dean McKeown, a former licensed jockey who was banned for four years for corruption offences. Speaking after the judgement, in which Mr Justice Stadlen overwhelmingly ruled in favour of the Authority, Paul Struthers, Head of Communications, said:
“We are pleased that Mr Justice Stadlen’s detailed judgement dismissed virtually every single claim advanced by Dean McKeown’s legal team. Most importantly, Dean McKeown remains disqualified from racing for participating in a corrupt and fraudulent act, a decision Mr Justice Stadlen ruled was entirely fair and reasonable. Additionally, the award against McKeown to pay 85% of our costs – with an £80,000 interim payment to be made within 90 days – is a clear sign that our processes and Rules, and the decision making and approach of both the independent Disciplinary Panel and independent Appeal Board, are fundamentally correct in law, as well as being fair and reasonable.
“Examining his judgement in more detail, Mr Justice Stadlen has concluded that the Panel and the Appeal Board are experts in dealing with matters in relation to the Rules of Racing, and therefore came to reasonable conclusions regarding the four non-trier races under Rule 157. He found the Panel’s decision to find that McKeown had not ridden four horses on their merits, contrary to Rule 157, was fair and open for a reasonable Panel to make. Importantly, he also concluded that Rule 201(v) was applied correctly and the Panel and the Appeal Board acted reasonably in finding that McKeown was party to a conspiracy to conduct a corrupt and fraudulent practice and therefore in breach of Rule 201(v) and were correct in their approach to the evidence.
“Moreover, we were pleased that the Judge found there to be no evidence whatsoever to support the damaging and baseless allegation made by McKeown’s defence, under the protection of court privilege, that the Authority, the Panel or Appeal Board were biased. Indeed he went as far as to say that the allegations “should not have been made”.
“With regards to the sole point that the Judge has ordered to be referred back to the Disciplinary Panel, we will schedule a directions hearing to take place within 28 days. Whether the Panel feel this small detail affects the four year disqualification penalty is entirely a matter for them.”
Notes for Editors:
SUMMARY OF FINDINGS IN THE BHA’S FAVOUR (“the Lion’s share” or “13 1/2 points out of 14”)
The Judge wholly rejected the allegation that BHA, the Panel or Appeal Board were in any way biased and that there was no evidence to support the allegation. The Judge held that the allegations should not have been made and in making those allegations the Claimant should have “put up or shut up.”
“This was in my view an unfortunate approach: “willing to wound and yet afraid to strike.” was brought to mind. Allegations of actual bias are very serious and should either be supported by evidence or not made. There was no evidence of which I was aware to support a finding of actual bias against either the Panel or the Appeal Board and I reject the allegations.” [Para. 330]
Overall: “In fact for the reasons set out in this judgement I do not consider that the material findings of the Panel were such as no reasonable tribunal could have made or that the conclusions reached by the Appeal Board were such as no reasonable tribunal could have reached. It follows that in so far as those decisions and conclusions are relied on in support of the allegation of apparent bias they fail at the preliminary hurdle.” [Para. 340]
Exoneration of Blockley: “Mr Warby submitted that the logic of that position, which it was not unreasonable of the Panel to accept, was that if the horses were found to be non-triers that was because Mr McKeown had stopped the horses other than in accordance with the race instructions. I accept that submission […] it seems to me not unreasonable for the Panel to have treated Mr Blockley’s evidence that he did not give instructions to stop the horse […] as implicitly including evidence that he gave positive instructions […] to ensure the horse runs on its merits [Para. 346]
“As to the submission that the Panel’s conclusion that (apart from Race eleven) Mr Blockley was involved in supplying horse related information unaware that Mr McKeown was supplying jockey related information, was perverse and therefore demonstrated apparent bias, in my view was not perverse.” [Para. 347]
“The Panels approach […] was based on as review of the evidence and a bona fide weighing of the evidence and arguments pointing in different directions” [Para. 348]
“As to the decision to allow Mr Blockley to continue to live at the stables, it is clear that this was an act of mercy based on his particular personal circumstances. Again this does not seem to me to support a finding of apparent bias.” [Para 351]
“I do not consider that […] as with the other matters relied on in support of the allegation of apparent bias, the allegation is not made good” [Para. 352]
The Panel and the Appeal Board acted reasonably in finding that Mr McKeown was party to a conspiracy to conduct a corrupt and fraudulent practice and therefore in breach of Rule 201(v) and were correct in their approach to the evidence
On the question of whether Mr McKeown would have received rewards for his efforts, the Judge stated that the Panel were entitled to draw the inference they did – that Mr McKeown probably received a substantial reward for his efforts. “The Appeal Board was in my view quite right to say that on those findings the inference of reward would be virtually inevitable […] I have no doubt that this was a reasonable inference to draw” [Para 132]
There was an allegation that the Panel used the betting evidence in respect of the four non-triers for the purposes of deciding whether McKeown failed to ride the horses on their merits (the “boot straps” approach). The Judge stated that he “[did] not consider from the Panel’s Reasons that there is any reason to suppose that they made this error.
“Taken at face value the Panel’s reasons for conceding that Mr McKeown failed to ride his horses on their merits were confined to their viewing and interpretation of the video footage and their assessments of Mr McKeown’s and Mr Blockley’s explanations based on their views of their credibility. There is nothing to suggest that their conclusions were influenced by their awareness of or conclusions on the other evidence in the case such as the betting evidence. Nor, in my view, is there any basis for concluding that there is any reason not to take the Panel’s reasons at face value. As already mentioned, the pleaded allegations of actual bias were not pursued by Mr Winter at the hearing.” [Para. 258]
“What the Panel members did do, as it seems to me, was, having found, on the basis of their interpretation of the video evidence and their view of Mr McKeown as a witness of truth or otherwise based on his oral testimony, that he was not trying in the four allegedly non-trier races, to go on to conclude that the only plausible explanation for his having not tried in those four races was that he was involved in the lay betting conspiracy by giving the lay betters assurance that he would if necessary ride to ensure that the bet succeeded. They no doubt reached that conclusion partly because no alternative explanation as to why he was not trying was put forward by Mr McKeown…” [Para. 263]
“… the Panel plainly did and in my view was entitled to find that, in the absence of an alternative non-conspiratorial explanation for Mr McKeown having deliberately failed to ride the horses on their merits … the only plausible explanation was that it reflected the fact that he was involved in the lay betting conspiracy by giving the lay betters assurance that he would if necessary ride to ensure that the bets succeeded. Any other explanation would have involved an implausible coincidence that on four of the eleven races on which there was overwhelming evidence that the lay bets were influenced by inside information it just so happened that the jockey, for quite unconnected (but unexplained) reasons, decided not to try his best to achieve the win or place which would in fact( but on this hypothesis unknown to him) have led to the lay bets being lost.” [Para. 264]
“…[The Panel] was in my view plainly entitled to draw such inferences particularly in the absence of any alternative explanation, let alone any plausible explanation, having been proffered by Mr McKeown. I have already set out in an earlier part of this judgment my reasons for concluding that if, as I find is the case, the Panel’s findings that Mr McKeown failed to ride the horses on their merits and disguised his lack of effort were neither perverse nor unfair, it was open to a reasonable Panel to find that he was in breach of Rule 201 (v) by giving for substantial reward assurances that he would if necessary ride so as to protect the lay bets. Such conduct if proved is accepted by Mr Winter to constitute a breach of Rule 201(v).” [Para. 265]
“…the absence of evidence of telephone contact between Mr McKeown and the Whitings and/or gamblers is by no means inconsistent with a finding that Mr McKeown gave an assurance that he would if necessary try to protect lay bets on this race.” [Para. 273]
“…There was evidence, to which I will refer that Mr McKeown passed inside information relating to horses belonging both to Clive Whiting and others to the Whitings and that Clive Whiting used Mr McKeown’s inside information to cause lay bets to be placed.” [Para. 281]
“Mr McKeown admitted to the Panel that the information he gave Clive Whiting was the type of
information that would allow someone to lay a horse.” [Para 287]
“In my judgment the Panel’s findings in relation to the relationship between Mr McKeown and Clive Whiting were justified by the evidence and were open to a reasonable tribunal to make.” [Para. 296]
“In my view the Panel was entitled to conclude from his use of the expression: “in the end we did take the horses away” (emphasis added) in interview that it was a revealing insight into the role he had come to play as adviser, perhaps even informal manager of Clive Whiting’s racing string and was entitled to reject his evidence that it was a slip of the tongue.” [Para. 297]
“I have carefully considered Mr Winter’s submissions in support of his challenge to the reasonableness of the Panel’s finding that Mr McKeown knew that his horse-related information was being used by Clive Whiting for lay betting. In my judgment they do not show that no reasonable tribunal could have made that finding. They do not identify evidence which is inconsistent so as to make such a finding irrational. Nor in my view do they demonstrate that the evidence relied on by the Panel was so weak as to characterise the Panel’s reliance on it as speculative as distinct from a reasonable inference.” [Para. 298]
“So far as the finding by way of inference that Mr McKeown received substantial reward for supplying horse-related information to the Whitings knowing that it would be used for lay betting in my view this was a finding open to a reasonable Panel to make. The same considerations apply as in the context of the assurances that he would ride so as to protect the lay bets.” [Para. 310]
“For all these reasons I reject the submission that the Panels findings of fact were perverse or such as no reasonable Panel could have made. Given that the findings which I hold to have been reasonably made as to Mr McKeown’s involvement in supplying horse-related information for the purpose of lay betting include a finding that he did so for substantial reward, it follows that even on the restricted construction of Rule 201(v) for which Mr Winter contended the Panel was entitled to find that the breached Rule 201(v) in this regard.” [Para. 311]
The BHA applied Rule 201(v) correctly
The Judge conceded that it was not necessary for him to give a detailed opinion on this aspect of the case but did so “in deference to the arguments raised” [Para. 319].
His observations were that: “proof of a breach of Rule 201(v) does not require proof of the breach
Of another Rule…For example knowledge of the purpose for which the information is to be used is
capable of rendering what might otherwise be conduct permitted by Rule 243 a breach of Rule
201(v). In my view a corrupt practice is not confined to a transaction involving a bribe. In my judgment Rule 201(v) is widely drawn to encompass conduct which may not constitute a breach of other Rules.”
[Para. 320]
The Panel and the Appeal Board are experts in dealing with matters in relation to the Rules of Racing, and therefore came to reasonable conclusions regarding the four non-trier races under Rule 157 Rules of Racing.
“In my judgment in those circumstances it would be wholly unrealistic to suggest that it was not open to a reasonable Panel to conclude that the reason why Mr McKeown failed to ride those horses on their merits was so as to protect the lay bets of the gamblers. No other explanation for the breaches of Rule 157 was suggested by Mr McKeown to the Panel and a reasonable Panel would in my judgment have been entitled to discount any alternative explanation as wholly unlikely.” [Para. 130]
The judge stated that the Panel adopted: “…a fair and conscientious approach to assessing the allegations and the video evidence” [Para 180]
And that in making their decision: “It is also necessary for me to bear in mind that it is to be assumed that the members of the Panel and in particular the non-legal members applied their very considerable knowledge and experience of how racing is conducted and how jockeys ride horses in races…” [Para 188]
“I [the Judge] was at a very significant disadvantage compared to the members of the Panel and the Appeal Board” [Para 193]
“…an experienced observer would be likely to be able to spot significant details which would be wholly lost on a layman such as myself” [Para 196]
On expert evidence: “There is in my view no general requirement flowing from the overriding requirement to conduct disciplinary proceedings fairly either for the prosecuting body to adduce and tender for cross examination or for the disciplinary Panel to ensure the attendance of expert witnesses as a necessary condition for respectively bringing and finding proved against a member of a sporting body. There is in principle no reason why a tribunal including members with relevant experience and knowledge of the sport in question should not draw on their knowledge and experience of viewing and interpreting video evidence and drawing inferences from it and from the evidence relating to such things as the nature and record of the contestants. Indeed there is every reason why they should be free to do so.” [Para. 212]
“The corollary of Mr Winter’s submission as it seems to me is that if it requires an experienced eye to form the necessary judgments and draw the necessary inferences from what is visible on the video as to whether Mr McKeown was deliberately not trying, given that both the Panel and the Appeal Board included two members with relevant experience, this is a classic case which illustrates why it is that where this court is exercising what is supervisory jurisdiction it should not submit its own lay, inexperienced and uninformed impressions for those of the tribunal of fact.” [Para. 214]
The Panel’s decision to conclude that McKeown had not ridden four horses on their merits, contrary to Rule 157, was fair and open for a reasonable Panel to make.
Absence of all the video angles: the Panel adopted a “fair and conscientious approach” [Para. 180 and Para. 184]. In fact, the Panel adopted “a higher standard than that required to justify an adverse finding against Mr McKeown” [Para. 186]
ONLY IF I LAUGH: “It did seem to me that Mr Warby’s submission that as Mr McKeown’s arm came down it appeared to come down slowly as though he were restraining it was correct. It did not appear that after the whip came down that his horse made up any ground in catching up the forth horse immediately in front of him…” [Para. 195]
“Mr Winter submitted that you can see the whip bouncing off the rear of the horse in the alleged air shot. This submission was inconsistent with the submission in the Details of Claim in which it was submitted that it is impossible to conclude whether or not Mr McKeown made contact with the horse from the video.” [Para. 205]
“In relation the first adverse finding that the horse was strongly restrained which caused it to rear and that the restraint appeared more vigorous than was required by the riding instructions to drop him out settle him and come with a light run, I have come to the clear conclusion that nothing which I saw or did not see would justify a conclusion that no reasonable tribunal could have made the findings made by the Panel. In relation to the alleged air shot I have come to the same conclusion…there are enough aspects of what I did see at the time of the alleged air shot to make it not only possible but very likely that an experienced observer would be able to interpret them in a way which would enable them to reach a clear conclusion as to whether there was an air shot”. [Para. 216]
SMITH N ALLEN OILS: “…there was enough video footage to make it entirely likely that someone with the relevant experience and knowledge would have been able to interpret it so as to come to a clear view. Put another way I did not conclude that the video was so obviously obscure as to rule out the possibility that an experienced trier of fact could reasonably have made the findings made by the Panel and endorsed by the Appeal Board” [Para. 230]
“I was not satisfied based on my own observation that it is clear from the video that he [McKeown] was trying” [Para. 233]
“In summary I was not satisfied that the adverse findings made against Mr McKeown in respect of this race were not open to a reasonable Panel to make” [Para. 237]
HITS ONLY CASH: “All in all I was not satisfied from my own viewing of the video that no reasonable Panel could have reached the conclusions which the Panel did in respect of this race. I was certainly not able to accept Mr Winter’s submission that it is obvious from the video that Mr McKeown rode the horse on its merits” [Para. 247]
HITS ONLY MONEY: “I was certainly not satisfied by either Mr Winter’s submissions or by my own observation and impressions that no reasonable Panel could have reached the conclusions which the Panel reached.” [Para 254]
Overall: “Thus in respect of none of these four races was I satisfied that the findings made by the Panel and upheld by the Appeal; Board were perverse or such as no reasonable Panel could have made” [Para. 255]
SUMMARY OF THE TWO NEW ARGUMENTS RAISED BEFORE THE APPEAL BOARD
Mis-shoeing
“Apart from anything else if the fact that the horse was later found to have lost both front shoes pointed so unequivocally to Mr Blockley and a farrier having deliberately mis-shoed it thereby knowingly exposing Mr McKeown and others to serious peril […] to make any other conclusion perverse it is in my view simply not credible that Mr McKeown would not have appreciated this and raised it with the Panel at the hearing and indeed with Mr Blockley after the race. Instead he was content to carry on racing his horses. Nor do I accept that the evidence proves beyond doubt that the horse was deliberately mis-shoed, that Mr Blockley must have known that or that the only reasonable inference is that he communicated this to the gamblers” [Para. 362]
“In my view the Appeal Board was reasonably entitled to take the view that there was no realistic prospect of the evidence of the two front shoes having come off leading the Panel to find that Mr Blockley and an unidentified farrier deliberately mis-shoed the horse and for that reason the adverse findings against Mr McKeown of breach of Rule 201 (v) were wrong.” [Para. 369]
Mr Blockley lied before the Panel & mislead them. The BHA were not at fault for the actions of Mr Blockley:
“The Panel’s findings in relation to Mr McKeown and Mr Blockley were based on all the evidence before it including the Panel’s assessment of them as witnesses of truth or otherwise, a benefit not available to the Appeal Board. The fact that there were no lay bets between July and December 2005, while no doubt a relevant piece of evidence does not in my view carry the weight suggested by Mr Winter. It would certainly not in my view have required the Appeal Board to allow the appeal under Regulation 32 A (b)… In my view a reasonable Appeal Board could have failed to be satisfied in the light of the evidence relied on by Mr Winter that the Panel’s decision was wrong.” [Para. 372]
“The Appeal Board was right in my view to hold that even if it had been persuaded by Mr Winter’s submissions concerning Mr Blockley’s role in this affair it would not have detracted from the clear findings against Mr McKeown in respect of his breaches of Rule 157 which the Panel obviously felt were the clearest indication of his full involvement.” [Para. 373]
“It is notable […] that Mr McKeown heard Mr Blockley’s incorrect evidence as to the date and did not challenge it either in his closing submission or in cross examination” [Para. 376]
“The question remains whether it was unreasonable of the Appeal Board not to remit the matter back to the Panel in light of the fact that the Panel proceeded on an incorrect factual basis. I do not consider that because of this development there is any realistic prospect that on a rehearing the Panel would change its findings in relation to the non-trier races” [Para. 378]
“Whereas I agree with the Appeal Board that the mis-shoeing allegation even if accepted would not have detracted from the clear findings against Mr McKeown in respect of his breaches of Rule 157 and the consequential breaches of Rule 201 (v), I cannot say with equal confidence that the evidence of and argument based on the cessation of lay betting following the July move, coupled with any finding that Mr Blockley lied about the date might not have led to different findings in relation to his supply of horse related information in breach of Rule 201 (v)” [Para 380]
“The Panel […] might decide that the period of disqualification should have been lower.” [Para 384]
