RESULT OF AN ENQUIRY HELD BY THE DISCIPLINARY PANEL ON 24TH, 25TH AND 26TH JUNE AND 1ST AND 2ND JULY
Fergal Lynch and Darren Williams
1. The Disciplinary Panel of the BHA has been conducting an Enquiry into allegations of breach of the Rules of Racing made against Fergal Lynch, Darren Williams, Karl Burke and Miles Rodgers relating to various supposed dealings between them between March and August 2004. As the cases against Lynch and Williams were finally concluded on 25 June 2009, before the Enquiry into Burke’s and Rodgers’s activities had ended, the Panel gives the following reasons for the decisions taken so far.
2. The allegations against him were, in summary:
(1) breach of Rule 243 over the supply of inside information to Rodgers about 6 of his rides (these having been laid on Betfair through accounts controlled by Rodgers).
(2) breach of Rule 157 for a stopping ride on BOND CITY at Ripon on 31 August 2004.
(3) breach of Rule 244 for betting through Miles Rodgers
(4) breach of Rule 220(iv) for associating in relation to horseracing with Rodgers, who was a disqualified person for two years from 2 April 2004.
3. On 15 and 16 June the Panel heard an application by Lynch to throw out the allegations of breach of the inside information rule and of “stopping” BOND CITY. It was argued that it would be unfair to conduct any enquiry into these matters because of Lynch’s acquittal at the Old Bailey, where the conspiracy charge he faced included an allegation that he had stopped BOND CITY.
4. The Panel dismissed those applications.
5. A few days later, Lynch and the BHA came to a provisional agreement. Lynch would admit certain breaches of the Rules in return for which the BHA would recommend a penalty to the Panel. The procedures recently developed in the criminal courts for considering plea bargains of this kind were followed (see Notes for Editors). The Panel’s role was to consider separately whether it was prepared to act in accordance with the plea bargain between Lynch and the BHA. The Panel was prepared to go along with it for the following reasons.
6. The admissions of breach of the Rules made by Lynch were comprehensive. Only the allegation of failing to cooperate with the investigation (which was something of a make weight in the context of the case overall) was dropped.
7. The admissions made were undoubtedly admissions of serious breaches of the Rules. Indeed, by the admission of breach of Rule 157 because he “stopped” BOND CITY at Ripon on 31 August 2004 , Lynch was admitting the most serious form of Rule 157 breach: that he deliberately rode to lose knowing that it had been layed to lose by Rodgers. This admission came after denials of any such conduct both in the Old Bailey trial and in these disciplinary proceedings. Though it was clear from the transcripts of telephone calls between Rodgers and Lynch that Lynch was put under pressure by Rodgers to stop BOND CITY, it was equally clear from their conversation shortly after the race that Lynch did what he was asked. As he said – “I’ll tell you what, I don’t really want to do that again ….It’s cost me a winner that ….”
8. The admitted breaches all now carry recommended entry points for penalty purposes of various periods of disqualification or suspension. The most serious – the Rule 157 breach – has a recommended entry point disqualification of 30 months. In principle, and without the mitigating features and the plea bargain terms referred to below, Lynch would have been looking at a disqualification for considerably more than 30 months because of his giving of inside information to a disqualified person and because he conducted betting through him.
9. From that starting point, considerable reductions to the length of a disqualification would have been required because:
1) Lynch had already suffered a suspension of about 18 months from the time when he was charged with conspiracy until his acquittal by direction of the Judge at his Old Bailey trial. Though he received financial compensation for this, it came at a time when his career was on an upswing and it involved in his case a serious loss of opportunity.
2) The delay in bringing these disciplinary proceedings was not Lynch’s (or the BHA’s) fault. It arose because of the protracted police investigation which led to a long criminal trial at which Lynch was acquitted. In that period of delay, the recommended penalties for the now admitted breaches of the Rules have increased. It was suggested that this should lead to a reduction of penalty to reflect the gentler regime that was in operation in years gone by. But that approach does not accord with the principle that the Panel should apply the guidance current at the date of the enquiry (see page 41 note 5 of the Guide to Procedures & Penalties). However, the Panel was prepared to recognise that a reduction was appropriate simply because of the long delay.
3) He admitted (though very late in the day) his breach of the Rules.
10. It is in that context that it was necessary to examine the proposed plea bargain. The critical parts were that Lynch would pay a fine of £50,000 and that he would undertake not to apply for a UK licence for 12 months and not to ride in the UK for 12 months in reliance upon a foreign licence.
11. The Panel was prepared to approve this because the undertaking not to ride here for 12 months was the practical equivalent, so far as UK racing is concerned, of a suspension for that period. The BHA gave an undertaking, as part of the deal, not to “invite any other jurisdiction to impose any restriction on Lynch’s licence to race as a result of these proceedings” unless he fails to pay the fine. But it was made plain that the BHA was still obliged to inform other jurisdictions of the action taken in this case. The Panel’s obligation is to consider penalties proportionate to the breaches for the protection of racing in Britain. In the circumstances the undertaking not to race here for 12 months plus the £50,000 fine was an acceptable alternative to the ban which would have been imposed if Lynch still wanted to race here.
12. Accordingly the only penalty as such which is imposed on Lynch is a fine of £50,000, but it is imposed in the light of the information and undertakings contained in the plea bargain agreement between the BHA and Lynch dated 24 June 2009.
13. When Williams filed his Appendix S form (which gives formal answers to allegations that are to be the subject of an Enquiry) he admitted breach of Rule 243 over 5 of the 6 instances alleged against him and also admitted wrongly associating with Rodgers, a disqualified person.
14. On 25 June 2009, the Panel was due to consider whether Williams was in breach of the Rules in the remaining aspects alleged, namely over supply of inside information for the run of HARRY POTTER at Haydock on 5 June 2004, and over non-cooperation with the enquiry.
15. At the outset, however, the BHA and Williams (who was represented by Mr Christopher Stewart-Moore) agreed a “Basis of Admission” which accepted that he was not guilty of any wrongdoing beyond the admissions made by Williams in his Appendix S form.
16. The Panel was also prepared to act on this basis, because a contested hearing about the HARRY POTTER matter and the non-cooperation allegations was not going to make any material difference to penalty even if found proved.
17. The starting point for penalty in William’s case was, therefore, the entry point recommendation for a Rule 243 breach, which is a disqualification of 18 months. To that must be added a considerable amount to reflect two aggravating features – the repetition of the breaches and the fact that these concerned supply of inside information to a man whom he knew to be disqualified, for which he sometimes used a phone he kept secret from the Jockey Club.
18. Against that needs to be set the fact that Williams too has suffered a near 18 month suspension of his licence while awaiting and undergoing the Old Bailey trial. He too was paid compensation at Injured Jockey Fund rates for this time, so by no means all of the 18 month period can come off Williams’ penalty. Furthermore, in his case, the opportunity lost was not perhaps as significant as it was in Lynch’s case: there is reason to believe that his loss of earnings compensation was a nearer match for the lost chance to progress his career.
19. The Panel also recognised that the delay itself provided reason to reduce penalty here, as it did with Lynch.
20. Williams also had a number of important points in his favour compared with Lynch. First, and foremost, his was not a case of stopping any horse, as Lynch admitted he had done with BOND CITY. Secondly, his admissions came at an early and appropriate stage of the enquiry (in his Appendix S form). Thirdly, this “Basis of Admissions” agreed by the BHA accepted that Williams supplied Rodgers with inside information in return for the favour of rides rather than for cash payment.
21. The BHA addressed the Panel on the appropriate penalty, because there had simply been agreed admissions by Williams, not a full blown plea bargain as there was with Lynch. The suggestion was a disqualification of between 4 and 6 months. Williams’ representative told the Panel that his client lacked any means to pay any fine, and drew attention to the mitigating features referred to already. But he did not suggest that disqualification (or even suspension, which the Panel raised as an option) were wrong in principle.
22. The Panel’s judgement was that the fair penalty in all the circumstances canvassed above was a disqualification of 3 months, to run from 26 June 2009 to 25 September 2009, both dates inclusive.
8th July 2009
Notes for Editors:
1. The Panel was: Tim Charlton QC, Nicky Vigors and Didi Powles.
2. R v Goodyear  EWCA Crim 888 – set out a procedure for allowing the defence to seek an indication of likely sentence once a guilty plea had been entered.
3. Page 41, note 5 of the Guide to Procedures & Penalties states: “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 kin from that which it would have the power to impose under the Rules of Racing in force at the time of the offence(s).”
4. The races in question were:
HORSE DATE JOCKEY TRAINER COURSE SP RESULT
Bonjour Bond 30.03.04 Lynch Bryan Smart Southwell 5/1 4/9
John O’Groats 21.05.04 Lynch Michael Dods Ayr 14/1 14/14
Little Biscuit 29.05.04 Williams Karl Burke Musselburgh 4/1 5/9
Harry Potter 05.06.04 Williams Karl Burke Haydock 13/2 9/10
Vanbrugh 16.06.04 Williams Denise McHale Southwell 9/1 9/13
Tinian 18.06.04 Williams Karl Burke Ayr 4/1 4/10
Romil Star 25.06.04 Williams Karl Burke Southwell 5/1 2/9
Wares Home 30.06.04 Williams Karl Burke Yarmouth 5/1 3/11
Kristikhab 16.07.04 Lynch Alan Berry Carlisle 9/2 7/10
Bond Babe 31.08.04 Lynch Bryan Smart Ripon 9/2 3/13
Familiar Affair 31.08.04 Lynch Bryan Smart Ripon 9/1 1/7
Bond City 31.08.04 Lynch Bryan Smart Ripon 9/2 2/8