- On 24 May 2010, the Disciplinary Panel of the British Horseracing Authority (“the BHA”) reconsidered the appropriateness of the 4 year disqualification it imposed on Dean McKeown on 23 October 2008. This reconsideration took place for the following reason. After the Panel’s decision to disqualify McKeown for 4 years for what it found to be his involvement in a corrupt betting conspiracy with Clive Whiting and others, McKeown challenged this decision before the BHA’s independent Appeal Board. All his complaints were dismissed. He then began legal proceedings in the High Court against the BHA, alleging that the decisions of the Panel and of the Appeal Board were unlawful for a number of reasons. The outcome of this action was a dismissal of all his claims except for one.
- The Panel had recorded in its Reasons its understanding that Clive Whiting had moved his horses from Paul Blockley to Jeff Pearce at the end of 2005. When the Disciplinary Panel conducted its enquiry in September and October, 2008, Blockley’s evidence was that the horses had moved in January 2006, and neither McKeown nor anyone else at the hearing sought to challenge or correct this. When the matter came before the Appeal Board, it was agreed by all that the correct date was in fact July 2005, and this led to the raising of a new argument on McKeown’s behalf. The date of the move was said to be significant because McKeown continued to ride Whiting’s horses transferred to Pearce, yet there was no evidence of “inspired” lay betting against them. Thus, it was argued, Blockley was the only source of information which caused Whiting and his associates to place lay bets: McKeown was not a source. (The Panel had found that both were providing information to Whiting and his associates).
- In the High Court proceedings, Mr Justice Stadlen decided that the Appeal Board was acting lawfully in refusing to allow McKeown’s appeal on this new argument, because the Appeal Board was not the appropriate forum to consider whether this new argument and any further relevant evidence justified different findings of fact or a different penalty. He did decide, however, that this question should be remitted to this Panel to hear such further evidence and to reconsider penalty in the light of it.
- It should be noted that this remitted matter leaves untouched the Panel’s conclusions (upheld by the Appeal Board and not interfered with by Mr Justice Stadlen) that McKeown was in breach of Rule 157 over four of his rides of Blockley trained and Whiting owned horses and that he was in breach of Rule 201(v) because he provided the lay betters with the assurance that he would ride to lose if that proved necessary.
- When the enquiry was reconvened on 24 May 2010, Blockley attended to answer further questions. He said that the date he gave for the removal of Whiting’s horses to Pearce (January 2006) was an error and not a deliberate untruth designed to conceal that he was the sole supplier of inside information to Whiting. Significantly, McKeown did not challenge that. Having reviewed the transcripts of relevant evidence from the original enquiry hearings and considered the further material put before it on 24 May 2010, the Panel accepted that Blockley gave a mistaken recollection originally and had not lied.
- Does this mistake nevertheless cause the Panel to change its original conclusion that McKeown was a source (along with Blockley) of “horse-related information” for Whiting and his associates? It does not. There was other evidence (quite separate from the date on which horses were transferred to Pearce) which supports the decision. Both in interviews by BHA investigators and in his evidence to the Panel in October 2008, McKeown admitted that he had passed such information to Whiting, and Whiting himself accepted that McKeown was one of his sources. The fact that lay betting on Whiting’s horses stopped after the July 2005 move to Pearce, does not demonstrate that Blockley alone was the information source (and that McKeown was not) before then. It merely indicates that McKeown was less prepared to indulge in serious breaches of the Rules when the horses were the responsibility of a different trainer. His caution then does not demonstrate that he was innocent and did not pass “horse-related information” when they had been with Blockley. On the contrary, he was at that stage (i.e. when the horses were with Blockley) prepared to take the serious step of stopping horses if necessary to ensure that lay bets succeeded, and the Panel was therefore left in no doubt that his admissions that he also supplied “horse-related information” were correct.
- In these circumstances, there was no reason to reduce the 4 year disqualification imposed on McKeown.
- But even if the Panel had concluded that its decision that McKeown was a source of “horse-related information” was wrong, there would have been no reduction in the penalty. The Panel had imposed a global penalty on McKeown. As the Reasons for this dated 6 November 2008 show, the critical findings which led to the 4 year disqualification were his repeated breaches of Rule 157 and his engagement in a conspiracy with corrupt lay betters to whom he gave the assurance that he was prepared to ride to lose if necessary.
- The Panel raised with the parties the question whether it was possible to increase the penalty at the 24 May 2010 hearing. Reference was made to Paragraph 5) of the section of the Guide to Procedures & Penalties relating to Disciplinary Panel matters. It reads:-
“5) The Panel should have regard to the current guideline at the date of its decision on penalty provided that it must not apply a penalty greater in its effect or different in kind from that which it would have the power to impose under the Rules of Racing in force at the time of the offence(s).”
- For the BHA, Mr Louis Weston submitted that the Panel did not have the power to raise the penalty, and in this he was supported (unsurprisingly) by McKeown. It was said to be unfair to judge McKeown’s actions by the tougher standards set out in the 2010 Guide, when (but for the one small procedural error eventually found by Mr Justice Stadlen’s decision of March 2010), he would have been finally penalised under the kinder regime applying 2008.
- The Panel nevertheless decided that it did have the power in principle to increase the penalty, in accordance with the practice to deal with such questions by reference to the Guide in force at the time of the hearing. In general, it is not open to Rule breakers to contend that they should be penalised in accordance with the terms of the Guide which existed when they broke the Rules or which existed when they were originally dealt with. As the nature of the remission ordered by the judge required a wholesale reconsideration of the penalty imposed (and not just a reconsideration of the element of the penalty attributable to McKeown’s passing of “horse-related information”), it was open to the Panel to impose a higher sanction.
- However, the Panel ultimately decided, as a matter of its discretion, not to do so in this case, because the common assumption of the parties in the High Court litigation and, it would seem, of the judge also was that the review being ordered could only lead to a downwards revision. It would be unfair for the Panel to act on its different interpretation in this circumstance. The entry point for a single breach of what was Rule 157 is now 5 years (and not 2½ years as it was in 2008). As there were 4 breaches here as well as McKeown’s participation in the corrupt betting conspiracy, the penalty would have been 8 years. But for the reasons given, it stays at 4 years.