Panel: Tim Charlton QC (Chairman), Patrick Hibbert-Foy and Sandra Arkwright
1. In determining the appropriate penalties for the breaches of the Rules described in the Reasons published on 23 October 2008, the Panel was concerned first of all to identify the penalty levels suggested in the current Guide to Procedures and Penalties. It was then necessary to ensure that the penalties indicated by that process were fair and consistent, bearing in mind the overall need to protect the integrity of the sport. This two stage process was carried out in respect of each person found to have been in breach of the Rules, and the Panel decided that the penalties set out below were, in overall terms, consistent with each other and necessary for the protection of racing.
2. McKeown is a senior jockey who participated in the conspiracy described in the Reasons to the fullest extent. He was prepared to ride to lose if necessary to ensure the success of lay betting and on four occasions in his eight races with which the Panel was concerned, he did indeed ride in breach of the basic requirement placed on all jockeys – that they ride horses on their merits. The Panel received no impression that he was led into this behaviour. He is a capable man who decided to break the Rules in the most fundamental way possible for a jockey. He did so time and again, to profit from it through cheating bets. He did this with his eyes open and without any indication that he was put under outside pressure. Indeed it is more likely that he taught Clive Whiting the ropes rather than the other way round.
3. The entry point penalty indicated for engagement in at least a single instance of a conspiracy in breach of Rule 201(v) is a disqualification of 18 months, and the entry point for a breach of Rule 157 where the jockey is taking reward and knows that the horse has been laid to lose is 30 months disqualification. Having considered the time over which this conspiracy operated, and the frequency of McKeown’s breaches of Rule 157, (as well as his preparedness to commit other breaches of that Rule if it had been necessary in the other races considered) the Panel determined that he should be disqualified for 4 years.
4. The Panel’s findings in relation to Blockley were that he was involved in the conspiracy through the passing of inside information in all of the eleven races with which the enquiry was concerned, and that he was complicit in the last of the Rule 157 breaches, when HITS ONLY MONEY was given a conditioning race in December 2005. The Panel did not conclude that he was involved in the first three stopping rides by McKeown. The penalty guidance indicates an entry point of 18 months for the Rule 201(v) breach (again, where there is a single instance of breach) and a 30 month disqualification for the breach of Rule 155(ii) which the Panel has found to exist in respect of the last race.
5. On Blockley’s behalf, it was suggested that a suspension rather than the disqualification was appropriate for a number of reasons. Firstly, it was suggested that his involvement came about as a result of naivety rather than dishonesty, at a time when the Rules relating to the misuse of inside information were less clearly understood. Secondly, reliance was placed upon the Panel’s finding that his participation in the conspiracy was more limited, at least for races one to ten. Thirdly, it was pointed out that Blockley had himself brought his relationship with the “Nottingham crowd” (including the Whitings and others involved in this enquiry) to an end shortly before official investigations began in January 2006. Finally, reliance was placed upon Blockley’s personal circumstances. He has only ever worked in racing since the age of 14, and is now 50 years old. He lacks skills for any other work, and the kind of work he might be able to undertake would in any event be limited for health reasons. His house is within the licensed premises that he owns in Lambourn, and he has nowhere else to live if a disqualification is imposed. He has two young children, and no means of support if there is a blanket disqualification. It was also pointed out that he had already suffered heavily financially through the loss of owners and will continue to suffer financially even more so through a suspension.
6. The Panel nevertheless felt that disqualification was the appropriate sanction here. Firstly, it was not accepted that his actions were naive rather than dishonest. He knew full well that information he was providing about the prospects of horses in his care was being used for lay betting purposes, and his making of the “job done” telephone call is perhaps the clearest indication that his participation was dishonest, and not merely unwise. This was not a case of incautious “tipping” to the likes of gatemen or punters who approached him for information. It was the considered passing of inside information to people engaged in a dishonest practice to his knowledge. It was suggested that he did not profit from this, but the Panel again did not accept that assertion. He maintained the continued patronage of Clive Whiting through his supply of information, and, in the Panel’s view, must also have received other rewards, even though it is not possible now to say precisely what they were. The Panel did not feel that suspension would be an adequate form of penalty here, because it would potentially allow him unrestricted participation in racing if he is able to make arrangements for somebody else to take over the licence for his present premises and then to employ him, for instance as a travelling head lad. His breaches of the Rules merit more severe treatment, and it is necessary to send out a signal to others that abuse of the Rules of this kind will ordinarily lead to banishment from racing.
7. The appropriate period of disqualification was judged to be 2 ½ years. While the Panel was prepared to come down from the 2 ½ year entry point for the single Rule 155(ii) breach (which concerned the least serious type of Rule 157 breach – a conditioning ride), it felt that the overall penalty should be pitched at that level because of the length and seriousness of his involvement in the conspiracy.
8. But the Panel did take on board the points about his personal circumstances, and felt that it would be disproportionate to evict him, his partner and his children from their house through a disqualification order. It also recognised that he was probably unemployable outside racing, and could not provide for his family who have no other means of support. The Panel therefore indicated that it would be prepared to allow a dispensation from the full rigour of a disqualification by directing that it should not prevent him from living in his house. In other words, he should be allowed to enter and leave the licensed premises where his house is. Secondly, the Panel indicated that it would be prepared to hear an application that could have the effect of allowing Blockley some limited employment within racing. If an appropriate person applied for and was granted a licence for his existing yard, and was prepared to employ him, he could continue to work at his yard and could also attend gallops locally in Lambourn. However, he would in all other respects remain a disqualified person, with the result that he could not go to any other licensed premises including, obviously, racecourses. It should also be emphasised that this indication from the Panel is a provisional one in relation to the dispensation concerning employment within his yard, and it is subject to an appropriate application made on his behalf with full details.
9. Clive Whiting was the central figure in the conspiracy, who is and was a registered owner. He was both laying his own horses to lose and the orchestrator of lay betting against horses in the ownership of others on the back of inside information from McKeown and Blockley. Furthermore, as he recognised at the outset of the enquiry (but not earlier) he had told a pack of lies to investigators about his relationship with Rook, one of the people whom he used to place the lay bets. Racing can do without him just as much as he now says that he can do without racing, and he will be disqualified for 8 years.
10. Although the lay bets placed on his personal Betfair account were small, he was a critical figure in the conspiracy, regularly relaying information from Blockley and McKeown to his brother and to others to enable the lay bets to be placed. As he is not subject to the Rules of Racing, the appropriate sanction is exclusion, and this will be for a period of 4 years.
11. Wright was a registered owner but was no longer one at the time of the enquiry. Nevertheless, Rule 2(v) operates to treat him as subject to the Rules of Racing, and he is therefore liable to disqualification. He was the most regular participant of those actually placing lay bets through his account, on the basis of information relayed to him by Clive and Vinnie Whiting. He knew that this information was being improperly used, and he was prepared to cheat the punters on the other side of the bets by placing them. The period of disqualification for him must be 6 years.
12. Rook was another prolific user of his Betfair accounts to place lay bets on the suspect races. He has never been a registered person, and is therefore only liable to exclusion. There is no reason for treating him materially differently to Wright, so the period of exclusion will be 6 years.
13. Reeder is a registered owner and his single instance of a lay bet attracts an entry point penalty of 18 months disqualification. The Panel determined that it was appropriate in the circumstances. The bet was a large one. Reeder already has a period of disqualification behind him for laying his own horse, but his conduct which the Panel was looking at in this enquiry occurred a few days before the conduct which attracted his other disqualification.
14. Wakefield is a registered owner and he too was involved on just one occasion, and he too will be the subject of disqualification for 18 months. It was pointed out on his behalf that he continues to have interests in horses at this time, and the Panel was disposed to allow a short period of dispensation to enable him to dispose of these interests. By dispensation, the Panel means only that he should be entitled to deal with licensed persons to arrange the sale of those interests, for a short period to be discussed and agreed with the Disciplinary Department of the BHA. His disqualification will otherwise apply in its full effect.
15. Lovatt is a registered owner and participated only once, and then to a relatively small degree, in the lay betting. As the Panel has already found, it was to his credit that he recognised that something nasty was going on and pulled out of involvement in Clive Whiting’s informal afternoon racing club in late 2004, over a year before investigations brought a sudden halt to the lay betting activity of others. Apart from his evidence about his one lay bet, which the Panel did not fully accept, the Panel recognised that he was essentially a straightforward person who provided valuable evidence at the enquiry. He retains an interest in racing through his ownership of racing stables in Nottingham where he employs a trainer with seven staff. The horses trained at this yard are all at least part owned by him. If he were to be disqualified, it is likely that, in the absence of anybody to take over the licence, trainer and staff would lose their jobs and the trainer would lose his house. Although the entry point penalty for Lovatt was, as for Reeder and Wakefield, a disqualification of 18 months, the wholly different degree of his involvement, plus his withdrawal from the conspiracy and his personal circumstances cited above, persuaded the Panel not to go down this route. It decided that a hefty fine of £20,000 should be imposed.
Commencement of penalties and postscript
16. At the hearing on 23 October 2008, the Panel informed all parties that their penalties would not take effect until the expiry of their 7 day period for lodging an appeal, which would itself begin when these reasons were delivered. The thinking behind this was that fairness required that these individuals should know the basis upon which they were being penalised to enable them to decide whether to appeal, because these were heavy penalties and an appeal could of course lead to a different result. If they do appeal, it will then be up the Appeal Board to decide whether the penalties should come into effect while the appeal is pending.
17. The Panel remains of the view that this was the correct course to take with all but one of the persons concerned in this enquiry. It would be wrong in principle to require Blockley, for instance, to take some irrevocable step like selling his yard before he had seen the reasons the Panel gives for imposing penalties that he might wish to appeal.
18. But since these Reasons were drafted, the recent events concerning McKeown at Southwell show that the Panel was wrong to allow a similar indulgence to McKeown. If he is eventually found to have been in breach of Rule 157 over his ride on 4 November 2008, then it is clear that he has been permitted an opportunity to abuse the Rules that it was wrong to give him. Even if he is eventually found not to have been in breach, then it is nevertheless the case that the interests of racing have been compromised by allowing a jockey to continue riding in circumstances which have at least raised serious questions about what he was up to at Southwell. For the future, it is likely that a Panel’s decision to disqualify will come into effect immediately it is announced unless there are exceptional reasons for not doing this (which is after all what the Rules presently contemplate). A jockey subject to this procedure is not put at such a severe disadvantage over his decision on an appeal as is somebody in Blockley’s position. A jockey will only lose rides for a week or so while taking his decision on whether to appeal, and the protection of racing will generally require this rather than letting him damage the integrity of the sport with further rides that are either breaches of the Rules or which raise serious questions about his conduct.
19. Accordingly in respect of those parties who have had a period of disqualification imposed upon them, and therefore the right of appeal under Appendix J, their disqualification will commence on Thursday 13 November 2008. In respect of Rook and Vinnie Whiting who were ordered to be excluded from all premises licensed by the BHA, the penalty takes effect immediately.