Hillside Girl – Full Reasons of Disciplinary Panel
Published: 30 September 2004
HILLSIDE GIRL (IRE)
Father’s Day Novice Auction Stakes, Carlisle 15 June 2003
Reasons of the Disciplinary Panel
Introduction
1. This enquiry arises out of the running and riding of Hillside Girl (IRE) (“HG”) in the Father’s Day Novice Auction Stakes 2.10 race at Carlisle on 15 June 2003. HG was trained by Mr Alan Berry, whose yard is at Moss Side Training Stables, Cockerham, Lancashire. The race was for 2 year old novices over 5 furlongs. Mr Francis Norton was originally booked to ride HG, but was replaced on the day of the race by Mr Paul Bradley, an apprentice jockey who works for Mr Berry. HG was forecast at 11-4 in the Racing Post but her odds drifted significantly in the on-course and off-course betting markets before the start of the race. HG was pulled up lame by Mr Bradley soon after the start.
2. The unusual betting patterns prompted a Stewards’ Enquiry, attended by Mr Bradley and Mr Berry. They were each asked questions concerning the running and riding of HG in the race. Following questions put to Mr Bradley, there was the following exchange:
“Mr Tuck: Mr Berry, any veterinary problems that you know of?
Mr Berry. No. She has always been fine at home. I was a little bit worried about the ground, because she had hung a little bit at Beverley. I wish I hadn’t brought her now, it’s a waste of time.”
Having held the Enquiry, the Carlisle Stewards decided to refer the matter for further investigation.
3. Following further investigations, the Jockey Club brought disciplinary proceedings alleging a number of breaches of the Orders and Rules of Racing 2003 (“the Rules”). Breaches of Rule 201(v) were alleged against Mr Berry, Mr Bradley and two other individuals, a Mr Steven O’Sullivan, a farrier who worked at Mr Berry’s yard and a Mr Dale Jewett, an apprentice jockey who worked for Mr Berry. Mr O’Sullivan started work for Mr Berry on 31 October 2001 as a blacksmith. He signed an application made by Mr Berry on 1 November 2001 for “Registration of a Stable Employee”, showing that he was being employed by Mr Berry on a self-employed basis. Mr O’Sullivan, at his own insistence, was subsequently removed from the Register of Stable Employees, but as this occurred after the time of the alleged breaches, it had no bearing on his position with regard to he Rules of Racing.
4. In substance, it was alleged that all 4 individuals had conspired together with a view to running HG at Carlisle when they knew the filly to be lame, in the interests of bets laid by Mr O’Sullivan and Mr Jewett, who both laid HG to lose with Betfair, the online betting exchange. However, the Jockey Club withdrew these allegations after the conclusion of the evidence in this enquiry. Breaches of the Rules were also alleged against Mr Bradley in relation to answers he gave to the Carlisle Stewards. The Panel found Mr Bradley not to have acted in breach of the Rules at this enquiry.
The Remaining Allegations
5. Thus there remained the following allegations of breaches of the Rules. After relevant amendments, the cases advanced against Mr Berry, Mr O’Sullivan and Mr Jewett were in the form set out below. Mr Berry and Mr O’Sullivan were bound by the Rules and Mr Jewett agreed to be so bound. The breaches of the Rules alleged were as follows:
Mr Berry
(i) Rule 220(vii)(b), in respect of his providing the Carlisle Stewards with inaccurate information at the Enquiry held after the Father’s Day Novice Auction Stakes at Carlisle on 15th June 2003, namely statements to the effect that HILLSIDE GIRL (IRE) had never had any veterinary problems and had always been fine at home.
(ii) Rule 220(vii)(c), by omitting relevant information to the Carlisle Stewards at the same Enquiry on 15th June 2003, by failing to mention the visit to the yard and examination of HILLSIDE GIRL (IRE) by the yard’s vet, Mr P Acton MRCVS, on 5th June 2003, after which Mr Acton was of the view that the filly was lame and recommended to him that her left knee be x-rayed.
(iii) Rule 220(viii), endeavouring by an overt act to mislead the Carlisle Stewards by means of providing the Stewards with inaccurate information at the Enquiry on 15 June 2003, namely statements to the effect that HILLSIDE GIRL (IRE) had never had any veterinary problems and had always been fine at home and (2), by giving answers which omitted relevant information, namely by failing to mention the visit to the yard and examination of HILLSIDE GIRL (IRE) by the yard’s vet, Mr P Acton on 5 June 2003, after which Mr Acton was of the view that the filly was lame and recommended to Berry that her left knee be x-rayed.
(iv) Rule 51(i), in respect of his failure to train with reasonable care and skill and with due regard to the safety of the horses in his charge, by allowing HILLSIDE GIRL (IRE), which he knew or should have known to be lame, to go untreated, and by allowing the filly to run at Carlisle on 15th June 2003 when he knew or should have known that she was unfit.
(v) Rule 54(ii), by failing to register Mr Jewett as a stable employee at his yard within 24 hours of the commencement of his employment.
Mr O’Sullivan
(vi) Rule 241 (i) (b), in respect of his hindering and obstructing Mr P Walker, a Jockey Club Investigating Officer, who was engaged in carrying out an investigation into the running and laying of HILLSIDE GIRL (IRE), which ran in the Father’s Day Novice Auction Stakes at Carlisle on 15th June 2003, by refusing to answer questions put to him in an interview on 10th July 2003.
(vii) Rule 201 (v), by being guilty of a corrupt or fraudulent practice in relation to racing, namely using information known to him by reason of his position as a stable employee at Mr Berry’s yard, but not publicly available, that HILLSIDE GIRL (IRE) was or was suspected of being lame in its left fore and therefore had little chance of winning or being placed in the Father’s Day Novice Auction Stakes (Class E) at Carlisle on 15th June 2003 in the interests of bets laid by him in the ‘win’ and ‘placed’ betting exchange markets.
Mr Jewett
(viii) Rule 241(i)(b) of the Rules of Racing, in respect of his hindering and obstructing Mr R King, a Jockey Club Investigating Officer, by falsely stating that he had placed a £20 bet on HILLSIDE GIRL (IRE) to win at the bookmakers “William Hill” on the day the filly ran at Carlisle on 15th June 2003; and by omitting to mention when interviewed by Mr King on 1st July 2003 that he had on 15th June 2003, successfully laid bets on HILLSIDE GIRL (IRE) in the ‘win’ and ‘placed’ betting exchange markets.
(ix) Rule 220(viii), by means of the above, endeavouring by an overt act to mislead an Official of the Jockey Club;
(x) Rule 201(v), by being guilty of a corrupt or fraudulent practice in relation to racing, namely using information known to him by reason of his position as a stable employee at Mr Berry’s yard, but not publicly available, that HILLSIDE GIRL (IRE) was or was suspected of being lame in its left fore and therefore had little chance of winning or being placed in the Father’s Day Novice Auction Stakes at Carlisle on 15th June 2003 in the interests of bets laid by him in the ‘win’ and ‘placed’ betting exchange markets.
6. The allegation against Mr Berry under Rule 220(vii)(c) was withdrawn during the closing stages of the enquiry. In relation to the surviving allegations under Rule 201(v) against Mr O’Sullivan and Mr Jewett, the Panel decided to make findings in respect of all the elements of these charges, save in each case as to whether or not the conduct alleged amount to a corrupt or fraudulent practice. That course was taken in order to give those parties a proper opportunity to consider and if necessary adduce relevant evidence in respect of that latter issue. That arose because the Jockey Club notified Mr Jewett and Mr O’Sullivan shortly before the start of this enquiry of its intention to allege these new breaches of Rule 201(v).
The Panel’s Findings and Summary Reasons
7. On the evening of 4 June 2003 HG ran at Beverley. The following day, a Mr Peter Acton, a veterinary surgeon, in practice with J.B Johnson & Partners at Oakhill Veterinary Centre, Langley Lane, Goosnargh, Preston, visited Mr Berry’s yard in respect of a routine matter. Whilst there, the Head Girl, Mrs Helen Cooper, spoke to him about HG, because she was unhappy with the filly’s movement.
8. Mr Acton examined the horse. The knee was swollen and flexion proved to be very painful to the filly. On walking, he found her to be weight bearing and he explained in evidence that the degree of lameness at the walk was mild. However, he during his examination he observed that when the filly was trotted, lameness to her left fore was obvious. Mr Acton assessed the degree of lameness at 3/10 at the trot. He suspected that she had a chip fracture and in his opinion evidence of bony damage would be found in the knee.
9. Mr Berry was not in the yard at the time of the visit. On his return the same day, Mr Berry was told by one of his staff that Mr Acton had found the horse to be lame. Mr Acton phoned Mr Berry, told him of his concerns and advised him that the horse should be x-rayed, because there was an obvious problem with the horse’s knee.
10. During that call, Mr Berry was made aware by Mr Acton that the horse was showing signs of potential serious injury. Mr Acton also recalls Mr Berry as having said that he would need to speak to the owners when the prospect of an x-ray was raised. We accept Mr Acton’s account of this conversation. Mr Acton booked the horse in at his clinic for an x-ray the following day.
11. Mr Berry’s evidence to the Panel was that he thought that the problems with HG had cleared up by the following day. He said that the horse was a “scratchy mover” and had been “jarred up” following the race at Beverley. He believed that these were the reasons for its apparent lameness. Mr Berry says that on the morning of 6 June Mrs Cooper told him that the filly was fine. However, he did not ask her what, if any, examination she had conducted. The horse had been turned out in a field by the yard with other horses. Mr Berry saw the horses in the field, including HG, but conducted no examination of that horse.
12. We accept Mr Acton’s evidence that it would have made no difference to his opinion that the horse had been run at Beverley the day before. As he put it, “[t]he clinical signs were just so obvious … Any suggestion that this horse’s injury would be likely to clear up the next day so completely so as to render the x-ray unnecessary would, in my opinion, be highly unlikely”. Moreover, as Mr Acton said, a proper examination of the horse on 6 June would still have revealed her knee to have been sore and painful, even if the degree of lameness might have lessened.
13. In the event, the horse was not taken to Mr Acton’s practice for an x-ray and this was not because the owners had instructed Mr Berry not to take this step. Instead, the filly was cantered at the gallops by jockeys working for Mr Berry. One such instance was when Mr Bradley took her for a “blow-out” the morning of the day before the race. He found no signs of lameness. However, later that day the filly was examined by Mr William Keenan, who had very recently accepted the position in Mr Berry’s yard, advertised in the Racing Post as Assistant Trainer/Head Lad. Mr Keenan felt HG’s injured leg and found a lot of heat around the knee area. However, Mr Berry did not conduct such an examination. Mr Keenan considered her to be lame on this occasion. We accept Mr Keenan’s evidence on these points. As Mr Acton stated, galloping the horse would aggravate the lameness, although the degree of lameness would not necessarily be apparent during such a work-out.
14. In addition, during the period between 5 and 15 June the horse was cantered three times before the race, as Mr Berry informed the Panel.
15. As we have recorded, the filly pulled up lame. The horse was later seen by Mr Acton in his practice clinic on 16 June. She had a heavily bandaged left fore. He removed the bandages before performing an x-ray, which showed chip factures to the left knee. The examination showed to him a similar condition to that he had found on 5 June. On 3 July 2003, the horse was referred to Dr Jean-Michel Vanderweerd, a Lecturer in equine orthopaedic surgery at the Liverpool University Philip Leverhulme Large Animal Hospital. Dr Vanderweerd took further x-rays and performed surgery to remove the fragments to the joints in the left knee. He found the horse to be 2/10 lame at the walk and 5/10 lame at the trot in the left fore. These matters were recorded in his letter to Mr Acton of 21 July 2003.
16. Dr Vanderweerd also gave two statements to assist the Jockey Club’s investigations into the circumstances of the Carlisle race. He also gave evidence at the enquiry and we accept that evidence. He expressed the view that he would be very surprised if the filly had been fit to race on 15 June and also considered that the lameness would certainly not have disappeared in the period between Mr Acton’s visit on 5 June and the race. Dr Vanderweerd expressed the view that the knee condition might have improved slightly with box rest, but would manifest itself once exercised.
17. As we have found, Mr Keenan discovered a lot of heat around the knee area following its blow-out with Mr Bradley, and found the horse to be lame. The horse was also cantered on other occasions between 5 and 15 June 2003, as we have found. Furthermore, Mr Acton had, as we have already concluded, found the horse to have a serious knee condition. As was agreed between Mr James Main (the veterinary surgeon who gave evidence on behalf of Mr O’Sullivan) and Dr Vanderweerd, HG’s was a chronic, progressive condition of osteo-arthritis, which was likely to worsen after each piece of work that she performed.
18. In the light of the foregoing paragraphs we therefore find that the horse was unfit to race.
19. We also accept the evidence of Mr Donohoe, one of the jockeys who rode out HG between 5 and 14 June, to the extent that if a horse was lame and was entered for a race, the whole yard would know about the horse’s lameness. Mr Bradley’s evidence was to similar effect. Even Nikki Guider, who worked at the stable part-time, knew about the horse’s lameness. We do accept Mr Keenan’s evidence on the substance of two conversations, which Mr Keenan says that he had with Mr O’Sullivan between 11 and 14 June. In those conversations, Mr O’Sullivan was informed by Mr Keenan that (notwithstanding Mr O’Sullivan’s expressed view to Mr Keenan in the first of those conversations that the horse had a bad set of knees) Mr Keenan was of the view that the horse was lame. Mr O’Sullivan also accepted that, as the yard’s farrier, if a vet had identified a problem or a potential problem with a horse, he would know about it. Mr O’Sullivan examined the horse before it raced. We find that he knew the horse to be lame before the examination and that such lifting of the horse’s leg as he did was not such as to lead him to conclude that the horse was no longer lame.
20. We therefore find that Mr O’Sullivan did know that the horse was lame to the degree that there was a serious concern about her condition which led him to conclude that the filly had little chance of winning or being placed at Carlisle. We also find that Mr Jewett was likewise aware, because of the general knowledge in the yard and also because he spoke to Mr O’Sullivan on more than one occasion in the days shortly before the race by phone, including in a telephone conversation that took place at 12.20 on the day of the race. We find that during one or more of those conversations it is likely that Mr O’Sullivan gave a sufficient indication of the horse’s lameness to indicate to Mr Jewett that it was worth placing a bet on the horse to lose. In the event, Mr O’Sullivan bet on the horse with Betfair, betting £75,620 in the “win” market and £2,302 in the “place” market, for the horse to lose. He returned a profit of £10,443 overall. Mr Jewett also laid the horse to lose on Betfair in the “win” and “place” markets, albeit in very much smaller amounts to the bets placed by Mr O’Sullivan. Both Mr O’Sullivan and Mr Jewett used the information as to the horse’s lameness that they had acquired whilst working for Mr Berry (information known to nobody outside the yard) in backing the horse to lose with Betfair.
21. We have already mentioned the Stewards’ Enquiry. Following referral of the matter to the Jockey Club for further investigation, Mr King and Mr Walker (each being a “person duly approved and authorised by the Stewards of the Jockey Club” within the meaning of Rule 241(i)(b)) made various investigations, during the course of which they interviewed Mr O’Sullivan and Mr Jewett.
22. Mr Jewett was interviewed by Mr King on 1 July 2003. The subject of the interview, as we find Mr Jewett to have been well aware, included what bets he, an employee of Mr Berry at the time, had placed on HG for the race at Carlisle. He stated:
“I thought she would do well and told my friends so. I had a £20 win bet on Hillside Girl. I was with five friends; we all had £20 on the horse. I would not say I am a regular gambler but I do bet occasionally. To me a large bet would be about £50. I do not have any betting accounts with a bookmaker. I do have a betting account with the Internet betting exchange Betfair … I give my consent to Investigators of the Jockey Club to examine this account.”
The assertion that Mr Jewett had put bets on HG to win was untrue, as Mr Jewett accepted subsequently when asked about this by Mr Walker on 17 November 2003. He said he had no explanation for having told Mr Walker that lie. Furthermore, although he gave a consent to the Jockey Club to gain access to his Betfair records, the impression given at the interview on 1 July was that he had bet on HG to win, not, as was the case, to lose.
23. On 1 July 2003, Mr O’Sullivan was interviewed by Mr Walker, who asked him for permission to inspect his accounts with Betfair. Mr O’Sullivan gave his permission to Mr Walker during that interview on the understanding that the information was to be treated in confidence.
24. Following publicity in the Racing Post, on 10 July 2004 Mr Walker interviewed Mr O’Sullivan. By that time, he still did not have the Betfair accounts relating to Mr O’Sullivan. There was the following exchange between them:
“Q. The allegations made by the newspaper are that you laid Hillside Girl on Betfair. Is this true?
A. No comment.
Q. The same newspaper also alleges that you lost between £100,000 and £120,000 by laying “Nearly before Time” to lose at Wolverhampton on 6th June this year, when in fact the horse won its race. Is this allegation true?
A. No comment.
Q. What other horses have you laid on the betting exchanges?
A. No comment.”
A further series of “no comment” answers were given to Mr Walker when he interviewed Mr O’Sullivan on 24 July 2003, the first four of which were in response to further questions put to him about his betting activities, including with reference to HG.
25. We therefore turn to the particular breaches of the Rules alleged by the Jockey Club.
Mr Berry
Rule 220(vii)(b)
26. The Panel finds that the information provided by Mr Berry to the Carlisle Stewards was inaccurate. The truth was that he was aware of “veterinary problems” associated with HG because he was aware of the visit of Mr Acton on 5 June and the results of his examination as disclosed to Mr Berry in the telephone conversation we have referred to. We do not consider that Mr Berry’s various explanations as to why he did not mention these matters amount to exceptional circumstances within rule 220(vii)(b).
Rule 220(viii)
27. However, we do not consider that Mr Berry deliberately provided inaccurate information to the Carlisle Stewards in relation to the information that he did give them.
Rule 51(i)
28. Any trainer exercising reasonable care and skill would have seen to it that HG was x-rayed and treated. Furthermore, such a trainer would have taken a more direct personal interest in the welfare of the horse between 6 and 15 June. Mr Berry should have examined the horse on the morning of 6 June and after those subsequent occasions when it was ridden out, for example after Mr Bradley’s ride on 14 June. Mr Berry should have been aware that the horse was lame and either himself examined the horse or taken steps to ensure proper examination of the filly in the period between 5 and 15 June with adequate reporting to himself as to the condition of the horse. His mistaken belief in the cause of the lameness was not a justification for failing to follow Mr Acton’s advice.
29. We would have found Mr Berry to have been in breach of Rule 51(i) by simply failing to follow Mr Acton’s advice and not taking sufficient steps (such as an examination on 6 June) as would have revealed the need for it to be treated. It was also alleged by the Jockey Club that Mr Berry knew or should have known that the horse was unfit to run at Carlisle on 15 June 2003. We find that the horse was unfit and that any reasonable trainer should have been aware of that fact by taking appropriate steps to discover its unfitness between 6 and 15 June, which (as we have found) Mr Berry failed to do. We therefore find Mr Berry to have been in breach of Rule 51(i).
Rule 54(ii)
30. Mr Berry has admitted that he failed to register Mr Jewett as a stable employee at his yard within 24 hours of the commencement of Mr Jewett’s employment. Therefore, Mr Berry has acted in breach of Rule 54(ii).
Mr O’Sullivan
Rule 241(i)(b)
31. It was said on Mr O’Sullivan’s behalf that the privilege against self-incrimination applied so as to excuse him from answering Mr Walker’s questions. We disagree. Mr O’Sullivan was subject to the Rules. By submitting to the Rules, and to rule 241(i)(b) in particular, as a matter of construction of that rule Mr O’Sullivan waived any privilege that he might have wished to, but did not in fact invoke. Even if the privilege applies to enquiries of the present description, we consider that the plain public interest in the due administration of racing requires that a person who submits to the Rules waives any privilege against self-incrimination – see R v The Institute of Chartered Accountants in England and Wales, ex parte Nawaz (Unrep) 25 April 1997, C.A.
32. We find that as a matter of fact Mr O’Sullivan’s “no comment” answers both hindered and obstructed Mr Walker’s investigations. Mr Walker had received information in the form of intelligence with regard to Mr O’Sullivan’s betting activities, but he needed to turn that into material that could be used as evidence. Mr O’Sullivan argued that the personal distress caused by the press coverage indicated to him that the undertaking of confidentiality which had been given to him by Mr Walker on behalf of the Jockey Club in relation to his Betfair accounts had been broken as a result of the press coverage and that he was justified in not co-operating. However, there was no evidence that the Jockey Club had disclosed the information to the press. We find, therefore, that there was no good reason for Mr O’Sullivan having, as we have found, hindered and obstructed Mr Walker.
Rule 201(v)
33. The Panel finds that Mr O’Sullivan knew that HG was sufficiently lame that it had little chance of winning or being placed in the race at Carlisle and that he used that information, which he acquired by reason of his position as a stable employee of Mr Berry, in the interests of bets laid by him in the “win” and “place” betting exchange markets.
Mr Jewett
Rule 241(i)(b)
34. The Panel finds that in the two respects alleged by the Jockey Club Mr Jewett both hindered and obstructed Mr Walker’s investigations during the interview that took place on 1 July 2003 and that there was no good reason for him to do so. Moreover, we find that he did so deliberately, with a view to misleading Mr King. The lie to Mr King about the bets allegedly placed to win hindered and obstructed the investigation by necessitating checks to be made with the alleged bookmaker in question, whom Mr Jewett had identified on 23 October 2003 to Mr Walker in a further interview as having been William Hill. Evidence from that bookmaker was obtained and put to Mr Jewett on 17 November 2003 in a further interview, as we have found, and which prompted Mr Jewett to accept the untruth of what he had told Mr King. The failure to tell Mr King on 1 July that he had laid HG, as opposed to having (as he alleged) backed her to win, also clearly prevented Mr King from getting at the truth on the day of the interview. We therefore find Mr Jewett to have been in breach of Rule 241(i)(b).
Rule 220(viii)
35. It follows that the panel finds Mr Jewett to be in breach of Rule 220(viii), the statements made to Mr King on 1 July 2003 having been made for the purposes of misleading an Official of the Jockey Club.
Rule 201(v)
36. We also find that Mr Jewett knew that HG was sufficiently lame as to have little chance of winning or being placed at the Carlisle race, that he used this information which he acquired by reason of his position as an employee at Mr Berry’s yard in the interests of bets laid by him in the “win” and “place” betting exchange markets.
Penalties
37. The Panel imposed the following penalties.
Mr Berry
Breach of Rule 220(vii)(b) – £400
Breach of Rule 51(i) – £1500
Breach of Rule 54(i) – £250
Mr O’Sullivan
Breach of Rule 241(i)(b) – £1000
Mr Jewett
Breaches of Rules 241(i)(b) and 220(viii) – the Panel has decided to withdraw Mr Jewett’s Amateur Rider’s Permit from Friday 8th October 2004 and ordered him not to reapply before Sunday, 16th January 2005.
38. In determining the penalties, the Panel took into consideration the evidence put before them, their findings on the various breaches of the Rules and the matters raised by way of mitigation.
39. The Panel noted that there was no recommendation on penalty in the Jockey Club Guide to Procedures and Penalties (March 2003 edition) for a breach of Rule 241(i)(b). However, the Panel’s attention was drawn to the only previous case where a trainer had been found in breach of this Rule in 2001 and was fined £500.
40. The Panel was of the view that any breach of Rule 241(i)(b) is a serious matter and that, in Mr O’Sullivan’s case, a fine of £1,000 was appropriate.
41. In the case of Mr Jewett’s breaches of Rules 241(i)(b) and 220(viii), the Panel noted that, although he held a current Amateur Rider’s Permit, he no longer worked in racing. Furthermore, although he was currently in employment, he was paid a low wage. A breach of Rule 220 (viii) is again a serious matter, for which the recommended penalty in the Jockey Club Guide is £1,200 – £5,000 or disqualification / exclusion.
42. In those circumstances, the Panel decided that the appropriate penalty for these two breaches would be to withdraw Mr Jewett’s Permit to Ride, and to direct that he should not re-apply for a Permit to Ride before Sunday, 16th January 2005. Withdrawal of the Permit will, however, not take effect until 8th October 2004 and, if an appeal is brought, until the day after disposal of the appeal.
