20th July 2009
RESULT OF AN ENQUIRY HELD BY THE DISCIPLINARY PANEL ON 24TH, 25TH AND 26TH JUNE AND 1ST AND 2ND JULY
Karl Burke and Miles Rodgers
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.
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 runners (these having been laid on Betfair through accounts controlled by Rodgers).
(2) 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) breach of Rule 220(viii) because of misleading BHA investigators when interviewed in August 2008.
3. On 15 and 16 June the Panel heard an application by Burke to stop any further consideration of those allegations, on the grounds that there had been delay in the prosecution of this Enquiry and because it was said that he had a “legitimate expectation” that he would not be charged with a breach of the Rules of Racing if he was not the subject of criminal charges following the police investigation into the activities that eventually led to the failed Old Bailey trial of Kieran Fallon, Fergal Lynch, Darren Williams and others. Burke was not a defendant in those or any other criminal proceedings.
4. The Panel dismissed that application. The delay did not endanger a fair hearing, and there was no hint of any conduct by the BHA which could have given Burke the “legitimate expectation” his counsel, Brendan Kelly QC, said he had. And in any event, there was absolutely no evidence from Burke that he ever had the expectation alleged.
5. Burke’s response to the allegations he faced was given in his Appendix S form dated 22 May 2009. He denied everything save for a single admission that he spoke with Rodgers in August 2004 about the sale of a horse named KHANJAR (USA).
6. But when the hearing of the Enquiry into the allegations made against Burke resumed on 2 July 2009, his position changed dramatically. The Panel was informed that Burke was now prepared to make substantial admissions, in return for which the BHA would not persist with the allegation that investigators were misled in breach of Rule 220(viii).
7. The basis upon which Burke admitted the allegations against him was set out in a document which was agreed by the BHA through their counsel, Mark Warby QC, save for two small points that were not material for the decision that the Panel had to take about the appropriate penalty. He now admitted that he had indeed supplied inside information for reward to Rodgers for all the six races alleged against him, which took place in May and June 2004. And it followed that he now admitted that he was in breach of Rule 220(iv) on those occasions as well, because Rodgers was a disqualified person at the time.
8. As the association with Rodgers in breach of Rule 220(iv) was part and parcel of the supply of inside information in breach of Rule 243, the Panel decided to impose a global penalty for both. The starting point was the recommendation in the Guide to Procedures and Penalties for a breach of Rule 243. The entry point in the case of a Trainer is “suspend/withdraw/disqualify 18 months”. As the consequences of a disqualification are in principle much more serious for a trainer than a suspension or withdrawal of a licence, the Panel was conscious that the recommendation of an 18 month entry point is not to be seen as automatically applicable for a disqualification on the one hand or for a suspension/withdrawal of licence on the other.
9. That said, the breaches here were undoubtedly of a more serious nature than the single instance of breach which the Guide is referring to. They happened over the period of a month in mid 2004, and they were particularly blameworthy because they were dealings with a man whom Burke knew full well to have been warned off from April 2004 for laying his own horses.
Burke’s admission of breach did not extend to disclosing just what information he supplied. Nor did he disclose why he did what he did, beyond saying in the “”Basis of Admission” document that the information “was in part designed to maintain the co-operation and interest of Rodgers in the project at Spigot Lodge while new investment was obtained”. The Panel did of course accept that there were perfectly legitimate business dealings between Burke and Rodgers that predated Rodgers’s disqualification. Rodgers was interested in a company which had acquired land adjacent to Burke’s yard, which Burke or his wife hoped to buy when their financial circumstances allowed. But there was no indication that Rodgers was putting Burke under pressure of any sort at the time when the inside information was supplied. Nor was the Panel told by Burke what other reasons he had for providing the information – it was noted that even on Burke’s story quoted above, the hope of maintaining Rodgers’s cooperation over the land dealings was just part of his motivation.
10. The fact is that these were calculated and considered breaches of the Rules. After Rodgers was warned off, Burke and he were in contact by phone on 208 occasions in the following 20 weeks. Of course, some calls were unobjectionable because Burke was entitled to have dealings with him on matters unrelated to horseracing, but the sheer volume of traffic and the concentration of this around the times of the suspect races provided clear evidence of the breaches belatedly admitted by Burke. The Panel was particularly struck by the fact that Burke went to the trouble of getting a new mobile phone number which he began to use in early June 2004 to conduct his exchanges with Rodgers. This was not disclosed to the Jockey Club. Its purpose was to try to conceal the contacts from any later investigation, an attempt which Burke continued to make right up until the day of the Enquiry by denying that the phone number was his.
11. Against those points about the nature of the breaches of the Rules, the Panel did make allowance for the delays which have occurred in bring this matter to a final resolution. Those delays were not the fault of Burke or of the BHA but were the result of the failed prosecution at the Old Bailey. It was not reasonable to expect the BHA to have proceeded just against Burke when it was announced that he would not be charged in that case. While it was not appropriate to approach penalty upon the basis of the guidance which was current some years ago (as Burke’s counsel argued), it was appropriate to reduce the penalty which would otherwise have been imposed to reflect the substantial passage of time since the 2004 breaches. Nor was it felt useful to conduct any close analysis of previous cases which both Mr Kelly QC for Burke and Mr Warby QC for the BHA mentioned as possible comparisons, because the whole purpose of the system of guideline penalties is to enable Panels to deal with Rule breaches without making detailed comparisons with past cases, where there is inevitably debate about the similarities between them and about the adequacy of the penalties then imposed. That said, the Panel noted Mr Kelly QC’s reliance on the penalty imposed on Darren Williams (a 3 month disqualification). But there were notable differences between that case and Burke’s – notably the fact that Williams admitted his Rule breaches at a much earlier stage than Burke and that Williams had been subjected (unlike Burke) to the failed Old Bailey proceedings. And there were differences too between the case which Mr Warby QC suggested as the nearest comparison, that of Phil McEntee, who was suspended for 12 months in 2007 for supplying inside information to a dishonest gambler. But that too was not in the Panel’s estimation a precise parallel. Burke was acting in premeditated fashion (with the secret mobile number) to enable a warned off individual to lay his runners with what turned out to be justified confidence.
12. The Panel was very conscious of what it was told of Burke’s personal situation and training operation. He lives at his yard at Spigot Lodge and his wife and two adult daughters work in the business. He currently has about 90 horses placed with him, and employs 35 at the yard. A number of his owners and others who know him sent testimonials about his ability and about their experience of his honesty to the BHA. It was recognised that a penalty of disqualification has a potentially very serious effect on his owners and employees especially.
13. Despite those effects, the Panel felt driven to conclude that it was necessary to impose a disqualification on Burke, and that the proper period was 12 months, bringing into account the various features of this case considered above.
14. Rule 2(viii)(a) provides for such a penalty to come into effect on the day after this decision is provided to Burke. But the Panel decided to postpone the start of this penalty until the day after the time allowed for lodging an appeal – ie until 28 July 2009 – because it would be wrong to cause what may be irreparable damage to Burke’s business in that time if he does intend to appeal. It will be for the Appeal Board to decide whether to extend that stay of the penalty if he does in fact appeal. It will also enable Burke to make the application his counsel foreshadowed at the hearing for some form of dispensation from the full effects of a disqualification if he still wishes to do so. As the Panel does not know of the grounds for such an application, this should not be seen as any encouragement to make it or to think that it might be granted, but it is right to identify that Burke has the opportunity.
15. Rodgers was alleged to be liable to exclusion under the Rules, essentially for his involvement (while already warned off) in getting and using the inside information from Lynch, Williams and Burke that he used to lay the 12 horses in question for substantial profit. There were 12 races in all where he was alleged to have obtained inside information and to have organised lay betting which was successful in 11 of them. He risked a total liability of £805,772 on these races for a profit of £87,445 (after taking into account his loss of £43,228 on the unsuccessful bets). When he came to the hearing on 2 July 2009, Rodgers admitted for the first time that he had conducted that betting on the basis of the inside information supplied to him by Lynch, Williams and Burke – an admission he did not make until he was aware that they were admitting things.
16. Of particular note was his part in pushing Lynch to stop BOND CITY (IRE) (which he did) at Ripon on 31 August, to try to recoup losses on an earlier lay betting operation on FAMILIAR AFFAIR that same day which had not come off. He was cagey about admitting this latter breach when he appeared before the Panel on 2 July 2009, but when the content of the evidence obtained by the police of his conversations with Lynch that day were put to him, he did not dispute them. The Panel therefore had no hesitation in concluding that he was engaged in the breaches of the Rules of Racing in all the respects alleged against him over the obtaining and use of inside information – ie both for those cases he admitted and for the particular instance of his procurement of Lynch to stop BOND CITY (IRE).
17. He also admitted his part in causing Lynch to be in breach of Rule 244(a) through placing win bets for him in July and August 2004, and that he had associated with Lynch, Williams and Burke in relation to horseracing while he was disqualified.
18. When he attended the hearing, Rodgers asked that the Panel should only exclude him for a limited period. He said that he was a different person now to the man who had defied the warning off imposed for 2 years in March 2004 by engaging in the wholesale corruption referred to above. He said that he was only a social gambler with an occasional interest in racing, who would now obey a new exclusion order. The fact that he attended the Enquiry with a copy of the Racing Post and two mobile phones may be consistent with the portrait that Rodgers painted of himself, but then again it may not.
19. This is an obvious case for an indefinite exclusion order: Rodgers has wreaked havoc with the sport. The exclusion order will commence immediately and the Panel directs that no application by him for any relief from this indefinite exclusion should be entertained for 10 years. If he ever does apply, it would be necessary for him at least to produce credible evidence that he is a changed man who can be trusted to abide by the Rules, rather than a self-certified character reference. But even that sort of evidence is unlikely to lead to a change in the indefinite exclusion order unless there are compelling reasons for it.
Notes for Editors:
The Panel was: Tim Charlton QC, Nicky Vigors and Didi Powles.
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