1. On 23 March 2015, the Disciplinary Panel of the British Horseracing Authority (BHA) began an inquiry into allegations that the jockey Richie McGrath was engaged in a conspiracy with Mark Aspey, a registered owner, to provide the latter with Inside Information to inform his lay betting. McGrath was additionally alleged to be in deliberate breach of his obligation to ride his mounts on their merits on six occasions.
2. During the inquiry, which occupied five hearing days, the BHA’s case was presented by Philip Evans and Tim Naylor of counsel. McGrath was represented by Robin Leach of counsel. Mr Aspey did not attend, in the circumstances described below.
3. The conspiracy was alleged by the BHA to be in operation from mid-October 2009 until April 2012, though at the hearing before this Panel, the end date was revised to mid-May 2011. In its original form, the allegation covered a total of 57 races. When cut down by the adoption of the May 2011 end date, this was reduced to a total of 51. They are all listed in Annex A to these Reasons. The six races in which it was alleged that McGrath had in fact failed to ride his mounts on their merits are those numbered 10, 12, 30, 31, 36 and 41 in Annex A.
4. The BHA’s basic allegation about Inside Information provided by McGrath to Mr Aspey was that he, McGrath, was prepared to ride to lose. However, some paragraphs of the Case Summary (notably paragraphs 1.5 and 1.6) served by the BHA indicated that there might be an alternative case that McGrath provided more general private information, for instance about the health and prospects of his horses. At the hearing, the position was clarified by Mr Evans. He said that the BHA limited itself to the contention that the information passed by McGrath to Mr Aspey was or included the fact that McGrath was prepared to ride to lose on the horses said to have been the subject of Mr Aspey’s lay betting. Thus, in the three instances (races 47, 49 and 51) where Mr Aspey was in fact backing McGrath’s horse, the Panel was told that these would be relied upon only as evidence to support the BHA’s case that Inside Information was being provided, and that they were not part of the conspiracy itself. Obviously, in cases where Mr Aspey was backing McGrath horses to win (and in two of the three cases the horse did win), an allegation that he had agreed to ride to lose makes no sense. The BHA’s position was formalised by a small amendment to the Topics for Inquiry, where the word “and” was added at the end of paragraph 1 (a). The Topics for Inquiry, containing that amendment in bold type, form Annex B to these Reasons. It follows that, in order to make good the allegation of a conspiracy in breach of Rule (A)41.2, the Panel required to be persuaded that McGrath had agreed with Mr Aspey that he was prepared to ride to lose if necessary in the 48 remaining cases (i.e. races 1-46, 48 and 50).
Procedural history of this inquiry
5. A number of points from the procedural history of this inquiry require mention.
6. When charges were made public in September 2014, there were allegations against four other gamblers in addition to Mr Aspey, and against the trainer Kate Walton. The primary focus of the inquiry was going to be the allegation that RUMBLE OF THUNDER (IRE), trained by Kate Walton and registered as owned by her was in fact owned by Mr Aspey and the other gamblers. It was alleged that she and McGrath were engaged in a conspiracy with them to arrange the results for this gelding, both losses (which occurred in its first three races when lay bets were placed) and wins (which occurred in its fourth and sixth runs, when the gelding was backed).
7. In November 2014, the BHA expanded its case by adding the allegation that there were six races in which McGrath had deliberately failed to ride his horses on their merits. This had not been foreshadowed during the interview which BHA Investigators had conducted with McGrath back in June 2012. Indeed, it emerged during the hearing of the inquiry that the BHA investigators had never been tasked with looking into this. It was evident to the Panel that the lateness of this addition to the inquiry had a number of consequences. Firstly, as already mentioned, it had not been covered in interview with McGrath. Secondly it was not covered in interview with Kate Walton, the trainer on three of the six occasions. Thirdly, no evidence (for instance of instructions to McGrath for the races) was obtained from the trainers in the other three instances. Finally, the full security recordings for five of the six races were unavailable because of the lapse of time since those races. This last point presented a serious difficulty to the Panel in assessing the quality of McGrath’s rides.
8. Shortly before the hearing of this inquiry began, and after the BHA had received the Schedule (A)6 defence of Kate Walton, the BHA withdrew the charges against her. They also withdrew the charges against the gamblers, including Mr Aspey, insofar as they were based upon the assertion that those gamblers were the real owners of RUMBLE OF THUNDER (IRE).
9. That left for decision only the allegation that McGrath and Mr Aspey were involved in a conspiracy and the allegation that on six occasions McGrath had actually ridden to in breach of the Rule requiring a run on the merits to achieve the best possible placing.
10. Though the formulation of the conspiracy case included the assertion that “others unknown” may have been involved in it, nothing was put forward during the course of the inquiry to demonstrate how this might have occurred. And while it was also said by Mr Evans on behalf of the BHA that the betting activities of the gamblers other than Mr Aspey could be relevant for the case against Mr Aspey at least, again nothing was relied upon specifically from those records. The Panel accordingly proceeded upon the basis that the alleged conspiracy which it had to investigate was one between McGrath and Mr Aspey, and that evidence about the betting by the other gamblers was irrelevant.
11. In mid-February 2015, Mr Aspey, who was not represented at the time, applied for an adjournment of the case against him, citing his health as a reason for this. This application was refused by the chairman of this Panel. In the week before the hearing began, by which time Mr Aspey was legally represented, the application was renewed with the support of a letter from his GP describing his condition. This application was also refused by the chairman, on the grounds that the medical evidence did not show that he would be unable to attend and defend himself and on the further ground that an open-ended adjournment of the hearing of Mr Aspey’s case, leaving only the case against McGrath to continue as planned, created the unacceptable risk of inconsistent decisions in their two cases.
12. At the time of the events with which this inquiry was concerned, Mr Aspey was a professional gambler. He specialised in playing the in-running markets made available by the Betfair and Betdaq exchanges. He also frequently engaged in pre-race trading or “arbing” by backing and laying the same horse in the same event at prices which would (if he was successful) lock in a profit for him.
13. In addition, his Betfair and Betdaq records disclose that he placed many pre-race lay bets. Among these was a substantial number of lay bets against horses ridden by McGrath. These stand out from the accounts in number, in size of liabilities risked and in their success. Also, it is a feature of this lay betting that it began suddenly in mid-October 2009. There had been only the occasional small trade bet (lay and back) on McGrath rides before then.
14. The figures to establish these propositions were not in issue, though their interpretation was. In the period from mid-October 2009 to mid-May 2011, there was a total of 401 lay bets placed on the Betfair account to realise a profit of £43,981. Three quarters of this profit (i.e. £33,084) came from the 37 pre-race lay bets against McGrath rides. For the Betdaq account, seven of the top ten lay bet liabilities were risked on McGrath rides. With Betdaq, Mr Aspey placed 16 lay bets risking a liability over £3000 on McGrath rides. Just one bet, on TURBOLINAS (FR) on 8 February 2011, was unsuccessful. From the 21 lay bets placed on McGrath rides through the Betdaq account, Mr Aspey profited by £21,853 having risked £140,470. This meant that 59% of the total profit was realised from just 10% of the number of lay bets he placed through Betdaq.
15. Mr Aspey was asked about the McGrath lay bets when interviewed in June 2012 by BHA Investigators. He suggested that they may have been part of a wider trading strategy, and that there might be complementary back bets. He said that this was definitely the case for a race of ARCTIC COURT (IRE), where the Betfair records show a lay bet in the win market risking £15,000 to win £7500. But no such complementary back bets appear in either Betfair or Betdaq records, beyond a tiny back bet in the Betfair account. Nor, according to Mr Aspey’s interview, did he have access to traditional bookmaking or spread betting accounts which would have allowed anything like the size of back bets necessary to make the ARCTIC COURT (IRE) betting into a trade or arbitrage transaction. He did not suggest that he was able to place back bets through others’ accounts, whether with the betting exchanges or bookmakers. And again, he did not seek to say that such bets were placed with on course bookmakers. For reasons developed more fully under the “Contacts” section of these Reasons, the Panel formed the clear view that Mr Aspey was telling lies to the BHA Investigators in his interview. This reinforced the conclusion that his story about the McGrath lay bets being part of wider trading transactions was false, and deliberately so.
16. Beyond the rejected notion that the McGrath lay bets were trading transactions, Mr Aspey offered no other possible explanation for them. Indeed, he expressed surprise when told of the extent of his lay betting against McGrath rides. By contrast, he volunteered an explanation for the similar number of lay bets he placed against horses ridden by AP McCoy over the same period (October 2009 to May 2011). The Betfair records show 40 sets of McCoy lay bets and 37 sets of McGrath lay bets in that period. He told the BHA Investigators that he felt that the betting markets generally tended to overrate the chances of horses ridden by AP McCoy, and that he was prepared in principle to “take him on”.
17. Mr Leach (for McGrath) suggested that one could deduce a common theme to the lay betting against McGrath rides. There was a concentration, he said, upon horses having their first or second runs over obstacles, and upon horses out of form which were dropping in the handicap. The Panel accepted that these were sometimes features among the McGrath lay bets. But crucially, this was not an explanation offered by Mr Aspey. If it was his guiding principle, it was an obvious one to identify. And even if one accepts, as the Panel does, that such matters may have been part of Mr Aspey’s thinking, this does not displace the possible inference that emerges from the whole of the evidence on betting – that Mr Aspey was placing such bets upon the basis of Inside Information coming from McGrath.
18. As for the relative size of the McGrath lay bets, Mr Leach had a number of points. He referred to examples where, on the same day, Mr Aspey would risk similar sums by lay bets against other horses and riders as he would against McGrath rides. Thus, on 9 December 2009, Mr Aspey risked £5874 against SUPER ALLY (IRE) (race 15), £5300 against a Graham Lee ride, and £4200 against HUKA LODGE (IRE). There were a few other examples he cited. He also pointed out that the average size of risk taken by Mr Aspey when placing the lay bets against Paddy Brennan mounts was larger than the average for his McGrath bets. Also, he said, the average size of the lay bets against McCoy rides, though smaller than the McGrath average, was reasonably comparable. From the Betfair records of Mr Aspey’s lay bets provided to the Panel, the following picture emerged for the October 2009-May 2011 period. There were 40 lays of McCoy rides, of which eight risked more than £3000 and another 11 fell in the £2-3000 bracket. There were 36 McGrath lay bets, of which 17 risked more than £3000 and another four were between £2-3000. For Paddy Brennan, there were 16 lay bets. Six risked more than £3000 and another four fell within the £2-3000 bracket. Further, for Howard Johnson horses ridden by Denis O’Regan, there were 14 lay bets of which three risked more than £3000 and another three risked between £2-3000.
19. Despite those features of the betting, one is left with the undoubted fact that, of the top ten lay bets in terms of risk placed by Mr Aspey across both his Betfair and Betdaq accounts, seven were placed against horses ridden by McGrath. These bets are detailed in Annex C to these Reasons. In the Panel’s view, it was not “cherry picking” (as Mr Leach suggested) for Tom Chignell, the BHA’s Principal Betting Investigator, to rely on this as a remarkable feature of the betting. This shows a concentration upon McGrath rides for the largest risks taken which is very striking and which demands explanation. Concentration on the largest risks is a justified approach when trying to deduce what may have motivated these gambles. Were there special reasons for the heavier bets?
20. Turning now to the degree of success of the lay bets, the basic facts were not in issue. Taking the Betfair records for October 2009 to May 2011, three out of 40 McCoy lay bets lost; five out of 14 Howard Johnson/O’Regan lay bets were losers; two out of 16 Brennan lay bets were losers; and there were no losers at all among the McGrath lay bets. For the 21 lay bets placed against McGrath rides on the Betdaq account, just one was lost.
21. Mr Leach focused on a comparison of the McCoy and McGrath outcomes for the Betfair lay bets. It was necessary to look at the average odds, he said, for the McCoy lays on the one hand and for the McGrath lays on the other. For the McCoy rides, there were 15 lay bets in the win market at average odds of 4.8/1 and 25 in the place market at 2.94/1 on average. For the McGrath rides there were seven win market lay bets averaging 10/1 and 29 place market lays averaging 6.3/1. So, in general terms, one would expect a greater failure rate for the McCoy lay bets than for the McGrath bets. He sought to go further than this and relied upon calculations of expected failure rates based upon a formula for calculating the losing runs that can be expected for betting systems with an established strike rate of success. This produced expected runs of successful lays as follows: McCoy in the win market (where the average odds were 4.8/1) – an expected run of 31; McCoy in the place market (average odds 2.94/1) – an expected run of 17; McGrath in the win market (average odds 10/1) – an expected run of 66; McGrath in the place market (average odds of 6.3/1) – an expected run of 43.
22. The Panel found two difficulties with the predictions derived from this formula. First, the use of averages can be deceptive. If one lays ten horses each starting at 9/1, one can expect one failure in each ten lay bets on a simple statistical basis. But if one lays nine horses at evens and one at 90/1 (giving almost the same average price), the outcome is likely to be much worse. Secondly, there was no explanation of the deviation from the arithmetically expected outcomes which the formula must have applied to reach predictions of longer winning or losing runs. Of course, there are deviations from arithmetically calculated chances expressed by a starting price, because otherwise betting odds-on chances would produce a comfortable living. The Panel was not persuaded that the exercise based upon the formula was reliable.
23. That said, the simple arithmetical expectations of losing lay bets implicit in the prices for the McCoy and McGrath lays were both confounded by Mr Aspey’s success. Mr Chignell in cross-examination conceded that the Aspey Betfair account showed a “decent record” for the McCoy bets. The Panel felt it showed more than this. Given the many hundreds of rides which McCoy had during the 18 month period in question, and the hundreds of winners and placed rides within that, the Panel concluded that the record showed very astute selection. For the McGrath bets, the record was more remarkable still, but not so very different as to lead of itself to the conclusion that Inside Information provided by McGrath must have been the reason.
24. For completeness, it needs to be said that there was no suggestion at all that the McCoy lay bet results were explained by Inside Information reaching Mr Aspey. McCoy and Aspey did not know each other. There was and can be no suggestion that the McCoy races on which he placed lay bets were anything other than entirely above board.
25. Having considered the betting evidence in isolation from the other issues, therefore, the Panel was left with the following position. The material did not establish the probability (which is the relevant standard of proof) that Mr Aspey’s lay bets against McGrath rides were placed upon the basis of Inside Information from McGrath. However, there were a number of features which show that this was a very distinct possibility. Among these are the sudden start to the lay betting in mid-October 2009, the patently false account (really a non-explanation) given by Mr Aspey when asked to say why he placed the McGrath lay bets, and the preponderance of McGrath lay bets (seven out of ten) found among the largest placed by Mr Aspey.
26. Mr Aspey and McGrath did know each other, but gave very different accounts of how they met and the details of their relationship.
27. Mr Aspey told BHA Investigators that he only ever remembered having met McGrath on a couple of occasions – once at the Lesters award ceremony and once at a pub near JJ O’Neill’s yard. He denied having any other contact with him – by phone or otherwise. The BHA Investigators put some specific suggestions to Mr Aspey about other occasions when they met. He was told that computer logging showed that Mr Aspey’s Betfair account had been accessed from McGrath’s home computer. Mr Aspey denied he had ever been to McGrath’s house and proffered no explanation for how his Betfair account might have been used from there. He was asked if he had ever been on a golfing holiday to Portugal with McGrath and Paddy Brennan. He said that was untrue.
28. In fact, the contacts between McGrath and Mr Aspey were much more extensive than Mr Aspey was disposed to admit. The Panel considered the possibility that Mr Aspey might have forgotten many details – he was after all being asked about events said to have happened up to three years before the date of his interview. But it was concluded that his denials and his account generally of his relationship with McGrath were deliberate untruths.
29. Much of the detail about the greater extent of the relationship came from McGrath himself, when he was interviewed by BHA Investigators in July 2012, a month after their Aspey interview. He said he first met Aspey at a summer race meeting at Perth. When pressed to be more specific he suggested, hesitantly, that it must have been 2009. Since then, by his Schedule (A)6 form setting out his defence for this inquiry, he revised this to say that the Perth racecourse meeting must have been in April 2010. In this document, he mentioned for the first time that he was in the company of Kate Walton and Paddy Brennan when he met Mr Aspey. When giving oral evidence at the inquiry, he revised this again. While sticking by the April 2010 date, he said (for the first time) that the meeting occurred at “That Bar” in the centre of Perth, not at the racecourse.
30. The significance of this issue is obvious. If McGrath did not meet Mr Aspey until April 2010, then the BHA’s case that he was in league with him for the lay bets placed during the period from October 2009 until at least April 2010 would evaporate. There were 25 of the suspect races in that period.
31. It was clear to the Panel that McGrath’s various later versions of events were unreliable. The changes of evidence as to place, time, and those present at the first meeting were dictated by McGrath’s desire to show a later meeting (with the obvious advantage for his case referred to above). They were not the product of his memory. But, even though the Panel discounted this evidence, this does not positively establish that McGrath and Mr Aspey first became acquainted in 2009. The only evidence for that came from McGrath’s hesitant nomination of this date during his interview by BHA Investigators. The Panel was made aware on a number of occasions during McGrath’s oral evidence that dates and numbers are not his strong point. It is not possible to conclude from the fact that Mr Aspey’s lay betting began in October 2009 that they must have met before then: that involves the assumption at this stage of the analysis that the betting was from the outset inspired by information from McGrath.
32. At the end of the day, the Panel was left uncertain from the evidence recited above when McGrath and Aspey first met.
33. But there was much more to the case about the association between Mr Aspey and McGrath. After he met Kate Walton in April 2010, Mr Aspey made several visits to her yard. He dangled the carrot of moving his horse ACKERTAC (IRE) to her from N Twiston Davies’s yard. He used to ride out at Kate Walton’s yard on occasion, and after that he would sometimes drive to McGrath’s house for a shower before going off to a northern race meeting. He seems to have been a welcome guest – as already pointed out his Betfair account was accessed from the McGrath’s home computer. There is little doubt that Mr Aspey did this himself. On one occasion these log-ins were over three hours apart, indicating his presence at their home was for much longer than the quick stop for a shower might indicate. They would see each other on occasions at racecourses. In summer 2010 (probably August or September) McGrath and Mr Aspey went with a group of others including Paddy Brennan on a golfing holiday to Portugal. McGrath went there on the same plane as Mr Aspey and they stayed in the same house. Though the Panel accepted that as a non-golfer, McGrath did not associate much with Aspey during the day, it was not accepted that they had no real contact, as McGrath said, during this trip. They must have become much closer friends during this time.
34. But the most disturbing material concerned the use of a phone registered to Mr Aspey’s partner, Michelle Wood. Only the record of calls and messages from McGrath to her number are available, and this partial record only stretches from November 2010 to May 2011. In the Panel’s view, there plainly will have been calls and messages going the other way. McGrath’s explanation, buttressed by the transcript of the BHA Investigators’ interview with Michelle Wood, was that he had met her when she visited the Walton yard with Mr Aspey and that the calls and messages are likely to have been about acquiring an ex-racehorse, about treatment for an injured ankle, and about getting racecourse badges as well as general “conversation”. Yet it was McGrath’s case that he felt a need to keep his distance from Michelle Wood, as he felt she was flirting with him. That is damningly contradicted by the record of his calls to her number. There were many calls and texts, and some calls of considerable length. On 19 March 2011, a few hours after he had won for the first time on RUMBLE OF THUNDER (IRE) at Newcastle, there was a call of 14½ minutes. When cross-examined at the inquiry, McGrath said, for the first time, that this call was to tell her that RUMBLE OF THUNDER (IRE) had turned out well, and to try to interest her in buying the horse, or perhaps to get her to persuade Mr Aspey to buy it. The Panel viewed this, and his answers generally about his calls to the Michelle Wood number, as deliberate falsehoods. Her interview transcript gives no currency to the notion that she was ever interested in owning horses to race. McGrath’s solicitor, Andrew Chalk, had sent the BHA a considered reply to questions about the subject matter of the calls and texts, no doubt after careful consultation with McGrath, and there was no hint of the explanation which he gave to the Panel. There were other calls and texts which bracket the days and times of the suspect races.
35. The Panel felt driven to conclude that McGrath and Mr Aspey used the Michelle Wood phone to communicate directly with each other, and that calls and messages will have been going both ways. It is significant that Mr Aspey used the phone with the number he registered with the BHA as an owner to speak with Kate Walton, yet there is no traffic between that phone and McGrath’s number. As McGrath said on many occasions, it is easy to get hold of a jockey’s number, yet Mr Aspey never used that, at least with the phone registered to him. It defied belief that neither of them had the other’s “official” number, given the closeness of their contacts revealed by such matters as the Portugal holiday and Mr Aspey’s visits to the McGrath house. In the Panel’s view, the use of the Michelle Wood phone by McGrath and Mr Aspey shows a degree of planning. They intended it as a private means of communication which they no doubt hoped would escape detection.
36. The story of the contacts between McGrath and Mr Aspey recited above explains why the Panel decided that Mr Aspey’s account in his interview was a deliberate concealment of the truth. But Mr Leach for McGrath submitted that a different approach should be taken with his client, since McGrath admitted (often without prompting) much of the evidence which showed how false Mr Aspey’s version was. In principle, that is a sound point. But in the light of the Panel’s conclusion about the use of the Michelle Wood phone, it is inescapable that McGrath too was engaged in a concealment of his dealings with Mr Aspey, even though he may have made more realistic admissions than Mr Aspey about some of their contacts when interviewed.
37. In the light of this conclusion, the Panel revisited the dispute about when McGrath first met Mr Aspey. Though it stands by the conclusion that McGrath had no real recollection of when and where he first met Mr Aspey, it was decided that they must have met by no later than October 2009. While there is no evidence for the use of the Michelle Wood phone before November 2010, the critical point is that this was a concealed means of communication. It could have been in use as early as October 2009. Or it could be that they had some other or additional means of communicating privately. Whichever explanation is the truth, the Panel was ultimately persuaded that the sudden start of Mr Aspey’s pre-race lay betting against McGrath rides in October 2009 came after they had met, and was influenced by some sort of information from McGrath. In other words, the Panel came to the view that the possibility (referred to when analysing the betting evidence) that information from McGrath inspired the lay bets was indeed a probability.
38. The vital question, however, for the Panel was – what sort of information? The existence of a private route of communication between McGrath and Mr Aspey does not of itself establish that McGrath was agreeing or indicating his preparedness to ride to lose where necessary. It is equally consistent with a supply of some “lesser” information. Such “lesser” information could of course fall within the definition of Inside Information, though it could also consist of information that falls outside that definition. This issue is addressed under the next heading of these Reasons.
The races and Inside Information
39. The BHA’s case was that the lay betting was conducted on the basis of Inside Information from McGrath, which was or included his agreement with Mr Aspey to ride to lose if necessary. As a result of the clarification of the BHA’s case referred to in the early paragraphs of these Reasons, there was no alternative argument that some form of “lesser” Inside Information than an agreement to ride to lose may have inspired the lay bets.
40. To support the argument that McGrath was prepared to ride to lose, the BHA relied upon six separate allegations that McGrath rode in breach of Rule (B)59.2. This Rule identifies, as an example of a breach of the general Rule (B)58 (requiring that a horse is run and seen to be run on its merits), the case where a rider intentionally fails to ensure a run on his horse’s merits. These six examples were the races for AUTUMN HARVEST (race 10), MARDOOD (race 12), MR SYNTAX (IRE) (race 30), RUMBLE OF THUNDER (IRE) (race 31), RUMBLE OF THUNDER (IRE) (race 36) and, again, RUMBLE OF THUNDER (IRE) (race 41).
41. In brief, the Panel decided that the allegations failed in five of the six cases, and that the one case where a breach of Rule (B)58 occurred was not linked to or part of any conspiracy with Mr Aspey. The chief foundation for the BHA’s case that McGrath was willing to ride to lose was the case mounted in relation to these six races. As this failed, the Panel saw no other material which could justify a conclusion that McGrath agreed to ride to lose if necessary.
42. The main evidence about the rides came from McGrath and from the recordings of the races. The Panel also heard from Jim McGrath (who is no relation of Richie McGrath). He was called by Mr Leach as an expert witness. Traditionally, such expert evidence is not put forward in running and riding cases. But the BHA raised no objection to it in this instance, and the Panel was prepared to receive it without deciding if this should in principle be allowed. That may be for debate on a future occasion. Jim McGrath provided a detailed witness statement which analysed all 57 races, though only six of these were alleged to involve a breach of the running and riding Rules. He also attended the hearing and gave evidence orally. While it is true that he sometimes became annoyed when dealing with questions put to him by Mr Evans for the BHA during cross-examination, the Panel did find his evidence overall to be of very real help and value. Initially, the Panel was concerned by one passage in his written statement, which could be read as casting doubt upon the independence of his judgements. This says that before he agreed to act for McGrath, he “quizzed him repeatedly as to whether he was guilty”. Ordinarily, an expert witness would not and should not engage in such exchanges, but having heard Jim McGrath’s explanation of the context for this and considered the whole of his evidence, the Panel was entirely satisfied that Jim McGrath was providing his unbiased and independent opinions of the races, uninfluenced by private conversations with Richie McGrath.
Race 10 – AUTUMN HARVEST – Hereford 19 October 2009
43. This was the horse’s first outing over hurdles for eight months. Having been led into the start, McGrath raced at the rear of the field, keeping a stronghold in an attempt to settle a palpably headstrong horse. The BHA’s criticism was that the horse was never put into the race, and that the only real effort came after the last, when it was too late to challenge for places. The pointed comment in the Racing Post was also relied upon – that “it was not too difficult to believe that he would have been challenging for third under a more prominent ride”.
44. There is no doubt that AUTUMN HARVEST was an extremely difficult ride. The Panel had some initial concern that McGrath might have been better advised to let the horse go half a stride quicker when it was continuing to fight for its head in the early and middle part of the race. That was allayed by the film which Jim McGrath produced of the horse’s previous run over hurdles, when it blazed off in front, almost beyond the control of its jockey S Durack (a strong rider), went into a huge early lead, was then caught by the field before falling when tired at the last. Though there was no evidence of the riding instructions for the Hereford ride under McGrath, it was clear to the Panel that a new approach was being taken, to try to get the horse to settle. It did not. It is an exercise in hindsight to suggest that McGrath should have abandoned that attempt and raced more prominently.
45. For the critical part of the race (from about 3 furlongs out and until jumping the last, following which no criticism of the ride was or could be made), the Panel was not persuaded that McGrath’s ride was deficient. For one thing, it is not always easy from the composite film, which is all that was available, to see AUTUMN HARVEST clearly in this period. He jumped indifferently, and McGrath was not hard on him, but this did not amount to a failure to make sufficient effort. It was significant for the Panel that McGrath kept the ride on this JJ O’Neill trained horse for its next outing, when it was ridden in similar fashion but produced a poorer effort still.
Race 12 – MARDOOD – Sedgefield 24 November 2009
46. MARDOOD was having its first outing for six months. The horse settled well, jumped neatly, and ran well up with the leaders until about two hurdles out. Thereafter, the eventual first and second pulled quickly away and MARDOOD finished ultimately in sixth. The BHA said that McGrath had generally run wider than others in the field, did nothing to cover the move by the first and second horses and then simply gave a gentle hands and heels ride to the finish.
47. The Panel saw nothing in the criticism that McGrath raced too wide. It accepted his evidence that he was looking for the better ground, and in any event other horses took a similar route. The effort which he put in from 2 furlongs out was sufficient to comply with the Rules. The horse’s stride did shorten after the second last and this showed to the Panel that it needed the run. The supposed failure to cover the move by the winner and second was unrealistic. An earlier more vigorous effort could have been made, no doubt, but that is a tactical criticism. The riders of the other horses in touch with MARDOOD at this stage (which finished eventually in the third, fourth and fifth) did not show any more appreciable effort than McGrath.
Race 30 – MR SYNTAX (IRE) – Catterick 14 December 2010
48. This was the horse’s second race over fences, and the Racing Post commentary tells the story in summary – “led to 2nd, lost place 7th, soon behind, tailed off 3 out”. Mr Evans for the BHA relied upon the fact that McGrath “took the horse very wide throughout”, allowed it to drop back in the back straight so that the leaders got away, and failed to make any meaningful effort.
49. The Panel did not accept that reading of the race. MR SYNTAX (IRE) raced freely at the outset of the race, and jumped in a novicey fashion. He ballooned a couple of fences. He took a perfectly normal position on the track during the race and did not race “very wide”. He lost his place in the back straight because of his poor jumping. The horse certainly appeared in trouble when it last appeared on the film of this part of the race, but then when it re-emerges into view it was well adrift and finished tailed off. There is no basis for the argument that McGrath had not ridden with the effort that the Rules require.
Race 31 – RUMBLE OF THUNDER (IRE) – Fakenham 1 January 2011
50. This was the horse’s first run over hurdles. It is also the only one of the six alleged stopping races for which the full security recordings survive. Having made a reasonable start to the race, RUMBLE OF THUNDER (IRE) was held up towards the rear of the field and was taking a strong hold. His jumping was adequate, but it was evident that he did not handle the tight bends at Fakenham. After jumping the third hurdle from the finish, RUMBLE OF THUNDER (IRE) (still at the rear) was hampered by a collision between the two horses just in front of him. Approaching 2 furlongs out, the horse suffered some interference from the runner which eventually finished second, and which was beginning a concerted move forward at this point. When about 30 yards or so from the second last, McGrath stood up in the saddle. He then steered the horse through the gap created by a flattened hurdle (a course which a couple of other runners also took) and began to ride again. He free wheeled down the hill from the second last and eventually pulled up when meeting the rising ground before the turn into the finishing straight. At this point, he was tailed off. McGrath reported at scales that his horse “ran too free”.
51. The Panel of course accepted that when McGrath eventually brought RUMBLE OF THUNDER (IRE) to a halt just before the finishing straight, he was tailed off and out of the race. But there was real concern about what he was doing when he stood up in the saddle before the second last. His evidence on this contained inconsistencies. He at first denied that he was intending to pull up at this point but could not then explain what he was doing. In answer to later questions, he said that he may have intended to pull up at that stage, but changed his mind when he saw that he would not have to jump the second last but could go through the gap made available by the flattened hurdle. This later account seemed to the Panel to be more realistic. But it raises the obvious question as to why he then intended to pull up, when he had never asked a real question of RUMBLE OF THUNDER (IRE). He said the horse was very tired as the going was “very heavy”. Yet the official going description was “soft”. The Panel did acknowledge that RUMBLE OF THUNDER (IRE) had been unsettled by the bump he received about 100 yards or so before the second last. Yet that cannot excuse a failure to ask the horse for a real effort at some relevant point in the race. Certainly, his downhill freewheel after passing over the flattened hurdle did not amount to a real effort and was to some extent inconsistent with McGrath’s evidence that the horse was very tired before then.
52. So the Panel concluded that McGrath was in breach of Rule (B)58 in this instance, and that this was a “Case 1” breach as described in Rule (B)59.2. This was a classic instance of a schooling run. As McGrath himself said – “this was a stepping stone to building a career, and that was enough for one day”.
53. Does this conclusion lead to the inference that the breach was committed in furtherance of a conspiracy with Mr Aspey? The Panel thought long and hard about this. It was of course entirely possible that McGrath told Mr Aspey that he was not going to be trying in this race, as they had their secret route for communicating with each other. But in the light of other evidence (see especially the ARCTIC COURT (IRE) and TURBOLINAS (FR) races below), the Panel stopped short of making any finding that this did happen. It preferred the view that this schooling run was not planned or notified in advance to Mr Aspey but was something that was unpremeditated. On this occasion, Aspey had one of his smaller lay bets.
54. Though it cannot be said with precision how RUMBLE OF THUNDER (IRE) would have fared in the race if McGrath had asked for a real effort rather than standing up before the second last, the Panel thought there was no appreciable chance that it could have finished in the first three. If there had been a more realistic prospect, and McGrath had recognised this, then the Panel may well have decided otherwise. But in the end, the view was taken that this was a free-standing breach by McGrath, unrelated to his dealings with Mr Aspey.
Race 36 – RUMBLE OF THUNDER (IRE) – Wetherby 24 January 2011
55. On this occasion, the horse’s second run over hurdles, McGrath rode more prominently during the race. The BHA said that “McGrath did not want to get too close to the front two”, but was going well in third or fourth on the final turn, when he allowed the leaders to get away. It was alleged that he did not ask for full effort from the top of the straight to the last hurdle. On this occasion, RUMBLE OF THUNDER (IRE) started at 50/1 and Mr Aspey had no lay bets. So it would be a thoroughly puzzling conspiracy for McGrath actually to ride to lose on this occasion.
56. Again, the Panel saw no merit in the BHA’s argument. The eventual first and second were plainly much better horses and they moved easily away from RUMBLE OF THUNDER (IRE) and the other runners. It was unrealistic to expect that McGrath could or should have covered their run. He eventually finished third, ahead of all the other runners.
Race 41 – RUMBLE OF THUNDER (IRE) – Kelso 17 February 2011
57. This was the horse’s third outing over hurdles. It finished fifth, having started at 25/1. The BHA’s complaint was that McGrath’s effort in the long run to the finish after the last was “highly questionable”. They say that McGrath did not ask for the same degree of effort from the horse as his rival jockeys in the race.
58. On this occasion, the Kelso Stewards held an inquiry into RUMBLE OF THUNDER (IRE)’s run. They received a report that the horse had finished lame on its left hind, and they noted the explanation tendered by McGrath that he had made an effort in the straight and pushed the gelding out all the way to the line.
59. Having viewed the available remaining recording of the race, the Panel can well understand why the Stewards held an inquiry. McGrath did ride less vigorously than a number of the jockeys around him. But the Panel concluded that the effort which he made was sufficient to comply with the Rules. He did push out hands and heels, and held on to keep fifth place. McGrath did not rely upon the lameness reported at the inquiry, as he was unaware of it during the race and it seems not to have affected the horse’s performance.
60. It needs to be recalled in McGrath’s favour that in none of the other 51 races was any criticism made of his riding. But there are two important instances in which the point available to him goes well beyond an absence of criticism. These are the races of ARCTIC COURT (IRE) (race 29 at Kelso on 6 November 2010) and the race of TURBOLINAS (FR) at Sedgefield on 8 February 2011. This latter occasion is not one of the races said to be part of the conspiracy by the BHA, though it was the subject of the third-largest of Mr Aspey’s lay bets
61. ARCTIC COURT (IRE) began the race as favourite, and was the subject of the second largest lay bet placed by Mr Aspey. He risked £14,970 to win £7472. The horse’s jumping was sketchy, but after the last McGrath made vigorous efforts to win the race. He used his whip 11 times – the race predated the modern-day whip Rules. Despite this, he was beaten a fast diminishing neck into second place. Mr Evans for the BHA characterised this performance as a finely calculated failure. He mentioned by analogy the cases of Pakistani cricketers who bowled no-balls to order when overstepping the bowling crease by small amounts.
62. The Panel did not accept this analysis. ARCTIC COURT (IRE) was given every chance by the strength of McGrath’s ride, and would easily have won but for the winner’s resolution. The cricket analogy overlooks the fact that a bowling crease is inanimate and fixed, whereas ARCTIC COURT (IRE)’s rival was both alive and unpredictable from McGrath’s perspective in how it would respond to McGrath’s challenge. This race provided a plain indication that McGrath was not engaged in riding to lose when necessary to land Mr Aspey’s lay bets.
63. TURBOLINAS (FR) ran in the bumper at Sedgefield on 8 February 2011. Mr Aspey placed lay bets risking over £13,000. In the race, TURBOLINAS (FR) ran up with the pace. About a furlong from home, McGrath put the horse into the lead, and it eventually won the race. The BHA said that this was an unavoidable win, in the sense that McGrath would have attracted dangerous attention if he had failed to win. It was said that he had to do little more in order to win than sit on the horse. This was not how the Panel saw the race. In the early stages, McGrath had to take steps to ensure that he was not squeezed against the running rail, hence he kept TURBOLINAS (FR) towards the head of the field. And when the horse hit the front, it ran noticeably green, and twice shied away awkwardly when distracted. McGrath had to handle the horse firmly to cope with these problems. He did so and he won. Again, particularly given the size of the lay liability which Mr Aspey risked and lost on this occasion, the nature of this ride indicated to the Panel that McGrath was not engaged in riding to lose when necessary.
64. It follows from the analysis given above that the Panel did not accept that McGrath and Mr Aspey were engaged in a conspiracy to exploit an agreement or indication from McGrath that he would if necessary ride to lose on horses against which Mr Aspey placed lay bets. The Panel decided that it was not open to it to make any finding that some “lesser” form of Inside Information provided to Mr Aspey by McGrath may have been the basis of the lay bets.
65. Therefore, the allegation that they were in breach of Rule (A)41.2 is dismissed.
66. McGrath alone was in breach of Rule (B)58 in the sense explained in Rule (B)59.2, because of the schooling run given to RUMBLE OF THUNDER (IRE) at Fakenham on 1 January 2011.
Notes to editors:
1. The Panel for the hearing was: Tim Charlton QC (Chair), Hopper Cavendish and Didi Powles.
2. The result following the hearing can be seen here: https://www.britishhorseracing.com/press_releases/result-of-a-disciplinary-panel-hearing-richie-mcgrath-and-mark-aspey/
3. The Annexes can be seen here: https://www.britishhorseracing.com/wp-content/uploads/2015/05/McGrath-Aspey-annexes.pdf