KIEREN FALLON – APPEAL BOARD REASONS

Published: Friday 14 Jul 2006

REASONS FOR KIEREN FALLON APPEAL BOARD DECISION

1. On 7th July 2006 a Special Panel of the Horseracing Regulatory Authority (HRA) Licensing Committee (the Panel) made an order under Rule 1 (A) (xxv) prohibiting Kieren Fallon from riding in races in Great Britain until the conclusion of his trial on a charge of conspiracy to defraud or further order. He now appeals to the Appeal Board against that decision.

2. We had before us the full reasons given by the Panel together with written submissions on behalf of Kieren Fallon and the HRA and other documents they wished us to consider. We heard oral submissions from Mr David Pannick QC for Kieren Fallon and Mr Mark Warby QC for the HRA. For all of that we are grateful.

3. Pursuant to Appendix J of the Orders and Rules of Racing, Mr Pannick put forward two grounds of appeal. Firstly, that the Panel was wrong to refuse to look at video recordings of certain races and secondly, that the prohibition against Mr Fallon was disproportionate (paragraph 19).

4. It was suggested that the Panel’s refusal to look at the videos or to permit other submissions or references to the presently available evidence against Mr Fallon was unlawful in that any regulatory body, albeit not regarded in law as a public authority, has a duty to adopt the same principles of fairness as if it were. That a regulatory body must act fairly as submitted was not challenged by Mr Warby and is certainly accepted by us. In particular, Mr Pannick submitted that the panel should have considered all relevant circumstances and should have made the decision itself and not, in effect, have left it to the police or CPS. Further, that in refusing to look at the videos and receive submissions on the evidence, including some police interviews with Mr Fallon, the Panel deprived him of the opportunity to persuade it that the case against him was weak and that would have been a relevant factor for the Panel to weigh in the balance.

5. As to the videos, Mr Pannick submitted that since it appeared from the present short case summary, which he produced, that part of the case against him was an allegation of not riding horses on their merits, that part of the case could or might be demonstrated to be weak or even non-existent if the videos were viewed by the Panel and that must be a factor for it to consider.

6. The Panel held that: “It is not for us to seek to assess the strength of the case for the prosecution or the defence…..”(para 4 of Panel’s reasons) “We cannot be concerned to assess the strength or otherwise of the prosecution case………It is not our task to decide on guilt or innocence: nor is it our job to second guess the CPS or the DPP.” (para 10).

7. It is clear the Panel firmly rejected the invitation to look at any of the prosecution evidence. It did, however, note that Mr Fallon’s representatives had addressed lengthy arguments to the CPS and DPP but failed to deflect them from the charge now preferred.

8. We agree with the Panel’s approach in this case for various reasons which in fairness to Mr Fallon we shall now give and also because this aspect of the case has attracted considerable public interest.

9. In this country the bringing of criminal charges of this type is in the hands of the DPP and CPS. There are various checks and balances built into the system, including an opportunity to have the charges dismissed by a court before trial if appropriate. Mr Fallon will have that opportunity and his representatives can press the court for as early a date as is practicable.

10. Once proceedings have started, they are protected by the laws of contempt of court. This is not the place to give details but they prevent anyone interfering with the course of justice or publishing material that could seriously prejudice a trial. Mr Warby accepted that it would not be a contempt simply for the Panel to look at the videos and that a decision could probably be framed so as not to offend. Nevertheless, great care would be required; but however that may be, the idea of a regulatory body sifting through available prosecution evidence for the purpose of deciding whether a current prosecution case is “weak” or “strong” is to our mind very unattractive and not an exercise that we would readily be persuaded to embark upon.

11. We do not say it would always be wrong. There may be relatively simple cases, comprising little evidential material which could be considered in private and a decision framed without prejudice to the criminal proceedings.

12. It would be entirely acceptable for a regulatory body to receive submissions on behalf of a party charged, which explained the nature of the charges. The purpose there would not be to discuss the strength or weakness of the criminal case but to demonstrate that the ingredients of the charges, that is what the prosecution would set out to prove, was of no real relevance to the regulatory proceedings. There may well be other circumstances in which the exercise would be acceptable and it might be wise to notify the CPS in advance to obtain its view and afford it an opportunity to make representations.

13. This case, however, is very different. Mr Warby has pointed out that already there are some 40,000 pages involved, witness statements, interviews and, of course, the videos. The trial is apparently to last for some time and cannot be ready before late next year. The short summary we have seen makes it plain that the case of conspiracy comprises several strands of evidence and it is the cumulative effect of the evidence that is to be relied upon. It is against that background that the Panel was invited to consider a part only of the evidence, namely, the videos and receive submissions. Even if the Panel had taken the view of them that was put forward on behalf of Mr Fallon, it could not possibly have decided whether or to what extent that weakened the prosecution case without considering the rest of the evidence and hearing full submissions on it. That is not the function of a regulatory body and could give rise to a real risk of contempt of court. We do not know what view the CPS would take or what part they would wish to play or whether they would object to the whole process. Given the publicity this case has already received, it would be difficult to frame or publish a decision without it pointing clearly to our or the Panel’s view of the prosecution evidence and hence risk a contempt, since anyone interested now knows that Mr Fallon has attempted to persuade the Panel and now the Appeal Board to look at some evidence.

14. In summary, looking at the videos would be unhelpful since without a consideration of the rest of the evidence, it could not be decided how significant a part of the prosecution case they are.

15. In this case, in fairness to both sides, any consideration of a portion of the evidence would lead on to a consideration of much more if not the whole. Mr Pannick’s purpose was to show that the case was “weak”. That could only fairly be achieved by a pretty full review. We agree with the Panel, that was not its task. Unless or until a court directs or sanctions such a course this regulatory body will not undertake it in this type of case. Even if it could theoretically be achieved avoiding a contempt of court it must surely be a thoroughly undesirable undertaking to run at the same time as the criminal proceedings.

16. How then could the Panel fairly reach a decision without looking at the evidence against Mr Fallon? That is a question which has also attracted public interest.

17. The Panel’s approach was to acknowledge it had not seen the evidence, to keep clearly in mind that Mr Fallon has not been found guilty of anything and that he would suffer great prejudice if banned from riding. Against that it had to weigh the public interest in the integrity of racing and be mindful of its role as regulator.

18. The Panel set out fully and clearly the prejudice to Mr Fallon. It has not been suggested to us that it underplayed that in any way. Quite properly, in our view, it also considered the questions: what effect would it have on the integrity of racing, and how would fairminded members of the public regard it, if a person charged with conspiracy to defraud all and sundry in connection with race riding, were permitted to continue riding pending resolution of that charge by the proper tribunal, namely a judge and jury?

19. We wish to make absolutely clear that we have no inside or other knowledge of the charges against Mr Fallon, apart from what we have been told by his representatives and have mentioned briefly here. We, like everyone else, are happy to presume him innocent unless or until a jury decides otherwise. Sadly, however, he is now in the position of anyone who faces a charge of having committed a serious criminal offence, and in the past that has included individuals from all walks of life and professions. It is an inevitable fact that they suffer to a greater or lesser extent as a result and whilst waiting for their trial.

20. It should however also be realised that very many people work very hard to make an honest living in some way connected with, even depending upon, the welfare of what has become known as the racing “industry”. That includes jockeys, trainers, breeders, stable staff both in racing and in stud farms, all those who manage and administer racecourses and the racing programme, bloodstock agents, auctioneers and so on. We have probably failed to mention many others. The livelihood of all or most of these depends upon the integrity of racing, for if that is undermined, the public interest and support will eventually wane. The paying and betting public sustain racing. They also have the right to view and bet on a sport which is administered so as to ensure as far as maybe that it is honest.

21. The Panel’s judgement was that the potential damage to racing by permitting Mr Fallon, now charged with conspiracy to defraud in connection with the actual running of races, to continue to participate in race riding until the law has resolved the charge, outweighed the prejudice to him. We do not regard that as a disproportionate response. The Panel was well placed to make that judgement even if all may not agree with it. They set out and anxiously considered the serious prejudice to Mr Fallon but in the end considered that the interests of all those to whom we have referred must take precedence.

22. We agree with that judgement and the appeal must be dismissed.

Sir Roger Buckley – Independent Appeal Board Chairman
The Viscount Allendale
Christopher Hall
Friday 14th July 2006

NOTES FOR EDITORS
1. Due to the possibility of further legal proceedings, the HRA will not be able to offer further comment on this matter.