Reasons for Penalties
(i) Jerry O’Dwyer
77. The parties were initially told that in the Panel’s view the breach by O’Dwyerof Rule 157 was of a kind which fell within category a) set out at page 10 of the current Guide to Procedures and Penalties – ie “deliberately not riding ahorse to obtain the best possible placing for personal reward or knowing that it had been layed to lose”.
78. The Panel gave that indication because it had concluded that O’Dwyer put into effect Huffer’s and Pearce’s desire that the horse should lose in the hope and expectation that he would continue to get rides for Pearce, who was his main employer. Though the Panel could not exclude the possibility that there was some specific cash reward or benefit passed to or agreed to be provided to O’Dwyer for what he did, it was not prepared to draw the inference that this did happen here. This approach was, in the Panel’s view, consistent with treatinG O’Dwyer as someone who was not party to Huffer’s and Pearce’s plan. He was used by them to put it into effect.
79. The Panel heard submissions from Mr MacNeice on behalf of O’Dwyer and from Mr Rick Liddell on behalf of the BHA about whether it was correct to categorise O’Dwyer’s breach as falling within category a). The BHA supported the Panel’s view. Mr MacNeice, however, suggested this was wrong and that the words “personal reward” in category a) on page 10 should have a narrow meaning, and be restricted to cases where there is payment in cash or kind in exchange for deliberately not riding a horse on its merits. The Panel came to the eventual conclusion that Mr MacNeice was right about this. As he said, nearly every case of deliberate breach is likely to have been committed by the jockey at least in the hope of further employment. It cannot have been the intention that all cases should effectively be treated as category a) breaches.
80. So O’Dwyer’s breach did not fall within category a). But neither did it fit sensibly within any of the other categories identified in the Guide. The Panel reminded itself that the Guide which sets out these categories is not to be treated as a replacement for or interpretation of the Rules of Racing and the guidance does not override the Panel’s discretion to impose penalties appropriate for breach of the Rules. Mr MacNeice submitted that O’Dwyer’s breach should be treated as a category e) case – a “horse which has intentionally not been asked for sufficient effort”. The Panel felt that this did not fully describe what had happened here, nor did the penalty range (suspension of between 28 and 90 days) with an entry point of 42 days remotely reflect what was required.
81. This was a case where O’Dwyer was prepared to (and did) put into effect a plan of Huffer and the trainer Pearce to ensure SABRE LIGHT did not win. He saw advantage to himself in doing so, at least because Pearce would continue to favour him with plenty of rides. While it cannot be said that his actions prevented the horse from winning (a category b) type of case, for which there is an entry point penalty of 18 months disqualification), it remained a possibility that he had done this by the method of riding he chose – a deliberately slow ride in the earliest part of the race. He deliberately deprived it of a real opportunity to win. Though he may not have known the detail of Pearce’s and Huffer’s plan, he must have appreciated that he was giving effect to a corrupt arrangement for their gain. Furthermore, he was prepared to try to cover up what he had done by a false report at Scales and untruthful account thereafter.
82. So the Panel felt upon reflection that the nearest category in the Guide was b), though it was recognised that none of the categories is a precise fit with what the Panel felt to be the nature of this case.
83. In these circumstances the Panel felt that a disqualification was required and imposed a period of 18 months.
(ii) Jeff Pearce
84. The Panel had first to consider the breaches related to the planning and carrying out of the substandard performance by SABRE LIGHT on 17 December 2008.
85. For the breach of Rule 155, the Panel decided to impose a disqualification of 3 years. As for O’Dwyer, the Panel treated this as a breach which did not fit precisely within any of the categories given at page 10 of the Guide, but the nearest analogy was category b). The reasons for going beyond the 18 month period imposed in O’Dwyer’s case were that Pearce bore a much greater degree of blameworthiness. He and Huffer procured O’Dwyer’s breach to further their corrupt plan to see that the gelding did not win, and it was part of their planning that they should conceal Huffer’s ownership through the device of using O’Brien as a front. Pearce was doing this for financial advantage. At the hearing, it was submitted on Pearce’s behalf by his counsel, Mr Ian Clarke, that it was not possible to advance mitigation unless and until the Panel rewrote its reasons to identify the financial advantage being referred to. But the position remains that the Panel is not able to specify, whether in pounds and pence or more generally, precisely what financial advantage Pearce got. It was a safe inference that Pearce was doing this for gain rather than for free, and both the findings about his engagement in these corrupt practices as well as his later attempts to cover up what happened through stories about the gelding’s cut leg and through his lies to investigators reinforced that. He was by no means the uncomprehending instrument of Huffer’s plans as he sometimes portrayed himself to be in evidence, for instance when pretending that he did not grasp the importance and implications of the negotiation he conducted with Ashford and Huffer by car phone on the morning of the race. He was no doubt Huffer’s junior partner, but partner nevertheless.
86. For the related breach of Rule 201(v) consisting of his corrupt plan with Huffer to bring about a losing run, the Panel imposed a disqualification of 3 years, to run concurrently with the Rule 155 penalty, and essentially for the same reasons.
87. The second breach of Rule 201(v) which was found was the concealment, along with Huffer, of the real ownership position. This was of course an aspect of the wider plot. Taking it in isolation, the Panel imposed a disqualification of 6 months, again to run concurrently with the other penalties.
88. For the breach of Rule 220(viii), consisting of Pearce’s lies in interview about the gelding’s ownership, the entry point penalty specified in the Guide is now a suspension or disqualification of 3 months. Taking this matter in isolation, the Panel imposed a disqualification of 2 months – below the entry point because Pearce did eventually admit the true position at the end of the interview. Of course this penalty too runs concurrently with the main penalty.
89. Finally, Pearce’s breach of Rule 243 through the provision of inside information to Huffer is a breach which attracts an entry point penalty of 3 years disqualification. While there were some features which make his breach worse – the facts that he continued to provide information just after going on an inside information seminar, and that he also knew Huffer had a tipping line – the Panel’s overall view was that this was not sufficiently serious to warrant the entry point sanction. There was no hint of use being made by Huffer of the information. There was also a degree of casualness about its provision, and it is necessary to understand the context in which Pearce came to provide it. Huffer had arranged for many of his owners to transfer horses to Pearce, and inquiries by Huffer about their welfare were natural enough, even if they should not strictly have been answered. That said, the inquiries no doubt went beyond general chats about the health of the horses, and information was supplied about other horses in Pearce’s yard with which Huffer had no connection. A disqualification of 1 year was imposed, again concurrent with the main penalty.
(iii) Geoff Huffer
90. An initial question was raised as to whether Huffer was liable to disqualification, or whether he was merely liable to exclusion. He said that when he gave up training in October 2007, he also relinquished his registration as an owner. But the Weatherby’s details for Huffer did not show that he gave up his ownership registration. In any event, Rule (E)33.3 provides that his registration persists for 2 years after he was last recorded as owning a horse, and as he was recorded as owning horses within that period before this enquiry began, he remained subject to the Rules at the time of the enquiry.
91. The Panel determined to impose a 4 year disqualification upon Huffer, because he was the prime mover in the scheme to see that SABRE LIGHT did not win on 17 December. Again, while the Panel found that the allegation of conspiracy with the gamblers against whom the BHA proceeded in this enquiry was not proved, the Panel was nevertheless left with the clear conclusion that Huffer must have profited from the defeat by some unknown route. Why else agree to let O’Brien have £2,700 to maintain his front as the gelding’s owner for the race and to make certain that the horse was not withdrawn?
92. For the breach of Rule 220(ix), which was his procuring of inside information generally from Pearce, the Panel imposed a concurrent disqualification of 1 year, for basically the same reasons as are given above for imposing the same penalty on Pearce for supplying that information.
(iv) Fran O’Brien
93. The breach of Rule 220(vii) found by the Panel carries a penalty entry point of a £250 fine and a range of £100 to £2,000 in the Guide. The Panel however decided to go beyond both the entry point and the range and to impose a fine of £5,000 for this reason. O’Brien sought to profit from his front as the owner of the gelding by seeking to extract from Huffer and Pearce a considerable payment (£2,700) as the price of maintaining that front on 17 December. Though the actual negotiation was conducted on his behalf by Ashford, he was fully aware of what was going on from his contacts with Ashford. The Panel took that profit into account when deciding that his misrepresentation of the ownership position warranted the fine imposed.
(v) Gary Banham
94. His behaviour towards investigators occurred at a time when he was a registered owner, which renders him liable to disqualification for the breach of Rule (A)30.1 which the Panel found that behaviour to be. It was sufficiently serious to merit a disqualification, and the Panel imposed a 6 month ban. He is additionally excluded indefinitely with the proviso that he cannot apply for a removal of the exclusion for 2 years for failing to attend and answer the questions that his betting raised (see paragraph 69 of the Panel’s decision).
(vi) Sharon Williams, Peter Root, Mark Benton, Patrick Wrixon, Jeffrey Conrad and Steven Radford
95. As recorded in paragraph 69 of the Panel’s decision, the Panel determined to impose an exclusion order on all of these persons because of their failure to come and answer the questions that their gambling on SABRE LIGHT raised. They are excluded indefinitely but can apply to remove it after 2 years if theyso wish.