The Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry on 18th October 2012 to consider whether or not Mrs Grit Birch had committed a breach of Rule (A)30.3.1 of the Rules of Racing in respect of her association with Mr Kahlil Burke, a disqualified person, in connection with horseracing in Great Britain. It also considered whether or not Mrs Birch was in breach of Rule (A)31.2 in respect of her deliberately misleading the BHA, on at least three occasions, by denying knowing or having any connection with Mr Kahlil Burke in August 2010.
Before considering the charges against Mrs Birch the Panel heard representation from the BHA as to why Mrs Birch was not in attendance and why the BHA considered the enquiry should be conducted in her absence. Having received such representation, the Panel was satisfied:
• that Mrs Birch was fully aware of the charges against her;
• that Mrs Birch was fully aware of the possible penalties she faced if the charges were proven; and
• that Mrs Birch had been given every opportunity to appear before the Panel, including four earlier enquiry dates.
The Panel also noted that in response to the BHA’s last letter confirming the date of this enquiry and requesting her attendance, Mrs Birch falsified an ‘out-of-office’ response from her email account suggesting that she would be unable to respond until 19th October 2012. Accordingly, the Panel agreed to proceed with the enquiry in Mrs Birch’s absence.
The Background
Mrs Birch is the sole director of Phlorian Racing Ltd., a Company that is now in liquidation but in 2010 owned Higher Lowton Farm in Devon. In July 2010 an Application for a Trainer’s Licence was received from Mr Bert Lavis, applying to train from Higher Lowton Farm under the employment of Phlorian Racing Ltd. At the same time information was received suggesting that Mr Kahlil Burke, a disqualified person following a decision of the Disciplinary Panel in November 2009, had been seen on the premises.
In August 2010 the Licensing Department wrote to Mrs Birch seeking clarification of a number of points relating to Phlorian Racing Ltd’s intended employment of Mr Lavis and comments and assurances over Mr Burke’s alleged attendance on the premises. In response by letter, Mrs Birch advised the Licensing Department: “As regards Kahlil Burke. This person is not known to me and has at no stage being [sic] employed by Phlorian Racing Ltd”. Mrs Birch’s denial of knowing or having any connection with Mr Burke was reiterated to the Licensing Committee on 31st August 2010 when she appeared before the Committee in support of Mr Lavis’ Application. Mr Lavis’ Application was refused.
A second Application to train from Higher Lowton Farm was received on 6th September 2010 from Peter Brookshaw, on the same terms as Mr Lavis, with Brookshaw being employed by Phlorian Racing Ltd. Following his completion of all the necessary training courses, Brookshaw’s Application was approved and the premises became licensed under his name from 8th December 2010.
In light of further reports over Mr Burke’s possible presence at Higher Lowton Farm, on 8th January 2011 two BHA Investigating Officers were sent to observe the yard and the gallops. Mr Burke was seen on the gallops watching the horses, accompanying them back to the yard and in possession of a personal radio. The Investigating Officers assert that the radio was so as Mr Burke could keep in contact with the work riders. The Panel did not accept Mr Burke’s explanation that he was on the gallops in order to assess whether or not a broodmare was lame, nor his denial that he was using the personal radio to speak to the work riders (offering no other reason for his possession of the radio). It also did not accept Mrs Birch’s explanation for Mr Burke’s presence on the gallops, made in a later interview with the BHA, that he was “fixing the fencing”.
Following the BHA’s unannounced visit on 8th January 2011, and the finding of Mr Burke on the gallops with the horses in training, a letter was received by the Licensing Department from Mrs Birch pointing out that from 1st January 2011 Mr Burke had been employed by her as her stud manager at Higher Lowton Farm; the stud and the licensed premises both being at Higher Lowton Farm but entirely separate from each other. In response to a request from the Licensing Department for further clarification of Mr Burke’s responsibilities as stud manager, Mrs Birch again confirmed that in August 2010 she did not know Mr Burke.
On 20th March 2011 Mrs Birch was formally interviewed by two Investigating Officers and asked further questions surrounding her association with Mr Burke and the circumstances under which he had become stud manager. Mrs Birch repeated to the Investigating Officers that she had no knowledge whatsoever of Mr Burke when she had been asked about him in August 2010 and the first contact she had had with him was around December 2010 after a friend had passed Mr Burke’s name and number on to her because the friend knew that she was always looking for experienced horse people. Mrs Birch stated that as a result of that introduction Mr Burke was employment as her stud manager.
Evidence of Breach
Telephone Records
In January 2011 a Telephone Production Order was served on Mrs Birch requesting her to produce her telephone records for the period 1st July 2010 to 31st December 2010. Analysis of the records highlight a total of 381 calls and 48 texts to numbers attributed to Mr Burke.
The Panel consider that the extent of the telephone contact highlights not only the misleading nature of Mrs Birch’s denial of knowing Mr Burke, 26 of the calls taking place in July 2010, but also her continued association with a disqualified person.
Peter Brookshaw
Peter Brookshaw stated that Mr Burke was directly involved in the care of the horses in the yard prior to it becoming licensed under his name. Whilst awaiting his licence he and Mr Burke would watch the horses exercise, discuss their ability and subsequent training needs and, in Brookshaw’s absence, Mr Burke would take charge of the yard. On occasions Mr Burke also rode work. This was the arrangement until Brookshaw learned that Mr Burke was a disqualified person when seeking to add his name to his list of stable employees.
Throughout the time that Mr Burke was assisting with the training of the horses, as described above, Mrs Birch was fully aware of the extent of his involvement.
Employment Tribunal
On 4th and 5th October 2011 an Employment Tribunal in Exeter considered a claim by Brookshaw against Phlorian Racing Ltd over unlawful deduction of wages and breach of contract.
The actual decision of the Tribunal is of very little relevance but, in responding to the claim, Mrs Birch submitted a statement which confirms her knowing Mr Burke and that he was involved in approaching Brookshaw in September 2010 as a possible alternative to Mr Lavis, after the Licensing Committee refused to grant Mr Lavis a licence.
Penalty
The Disciplinary Panel found Mrs Birch to be in breach of Rules (A)30.3.1 and (A)31.2. It noted that from 8th December 2010 Mrs Birch had been on Brookshaw’s list of stable employees and had therefore agreed to be bound by the Rules of Racing.
The Panel considered that the evidence clearly showed that Mrs Birch knew Mr Burke as from July 2010 and that since 6th August 2010, when Mrs Birch became fully aware of Mr Burke’s status as a disqualified person and the absolute restriction on him being involved in any capacity in horseracing in Great Britain, she had simply ignored the Rules and had lied to the BHA to hide his involvement.
Taking into account the extent of the deceit and the number of chances Mrs Birch had been given to cease her involvement with Mr Burke but had chosen not to, the Panel declared Mrs Birch to be a disqualified person for a period of 1 year in respect of the breach of Rule (A)30.3.1 and a disqualified person for a period of 3 years in respect of the breach of Rule (A)31.2. The Panel ordered the penalties to run concurrently, from Friday 19th October 2012 until 18th October 2015.
Notes to Editors:
The Panel for the hearing was: Nicky Vigors (Chair), Patrick Hibbert-Foy and Richard Gould.
