A SUMMARY OF ALL RULE BREACHES CAN BE FOUND IN NOTES TO EDITORS
1. On 20 October 2011, the Disciplinary Panel of the British Horseracing Authority (BHA) began an enquiry into allegations of corruption against thirteen named individuals. The hearing lasted for eleven days, and ended on 3 November 2011. Substantial amounts of evidence and arguments were put before the Panel by the parties who chose to attend, and having considered that material, the Panel came to the decisions set out in these reasons.
2. The enquiry focused upon the lay betting and the riding in ten races that took place between January and August 2009. Details of those races appear in Annex A to these reasons. From this, it will be seen that Jimmy Quinn was the jockey in the first two races, Paul Fitzsimons was the rider in the third race, Paul Doe rode the horse in question in the fourth and eighth races, Greg Fairley was in the fifth, sixth and ninth races, and Kirsty Milczarek rode in the last race on 15 August 2009. In addition, it should be noted that the jockey for the seventh race is Sam Hitchcott, against whom the BHA made no allegation of breach of the Rules of Racing.
3. Annex B to these reasons sets out in tabular form a summary of the lay betting against the horses ridden by those jockeys. It was carried out by or on behalf of seven of the remaining eight people whom the BHA alleged to be in breach of its Rules.
4. In broadest outline, the main case made by the BHA against those charged with a breach of the Rules was that they were doing their part in carrying out agreements to profit by lay betting from races in which the jockeys either did or would if necessary ride to lose. There were additional allegations against some participants in the enquiry, as described below. (All but one of the allegations for decision in this enquiry were made under the former Rules of Racing, as the events happened before the new Rule book came into force).
5. In documentary form, the BHA’s case was put forward in the “Topics for Enquiry” which stated the charges against each individual; in the detailed Case Summary of 6 June 2011, which provided each individual with notice of the way in which the case was put against him or her; and in the Opening Note of 7 October 2011 which provided the framework of the arguments advanced at the hearing itself that began on 20 October 2011. In addition to those materials, each of those alleged to be in breach of the Rules of Racing was provided with the underlying documents considered at the enquiry, such as the betting evidence, statements from many people, interview transcripts and timelines that illustrated the history of phone contacts between relevant people on and around the days of the suspect races.
6. The BHA was represented by Mark Warby QC and Louis Weston.
The charges against the jockeys
(i) Jimmy Quinn
7. Quinn was said to be party to a conspiracy in respect of races 1 and 2 only: a conspiracy to supply inside information for use by betting exchange account holders about the prospects of his rides in those races, in breach of Rule 201(v). In his case, as in those of all the other jockeys, his fellow conspirators were said to be Maurice Mr Sines (more generally known as Fred Mr Sines) and James Mr Crickmore, who then made arrangements for the lay betting through a variety of people.
8. There was a second allegation against Quinn – that he was in breach of Rule 243, for having supplied inside information for reward to Mr Sines and Mr Crickmore in advance of his rides in races 1 and 2.
9. Thirdly, it was said that Quinn was in breach of Rule 157 for his ride on IT’S A MANS WORLD in race 1 at Lingfield on 17 January 2009 – ie that he was a non-trier.
10. Quinn denied all these allegations and gave evidence at the enquiry, at which he was represented by Rory Mac Neice of Ashfords.
(ii) Paul Fitzsimons
11. He was alleged to be part of a conspiracy for race 3, contrary to Rule 201(v), to supply inside information about his ride. This arrangement was said to have been made by Darren May (his friend and his sponsor as a jockey) on behalf of Mr Sines and Mr Crickmore.
12. He too faced the supplementary charge of supplying inside information for reward, contrary to Rule 243.
13. It was also said that he deliberately rode to lose on IT’S A MANS WORLD in race 3 at Lingfield on 13 February 2009, in breach of Rule 157.
14. He denied the charges, filed a detailed defence with accompanying witness statements before the hearing and gave evidence at the enquiry. He was represented by Jonathan Harvie QC, instructed by Andrew Chalk of Withy King.
(iii) Paul Doe
15. Doe was alleged to be a conspirator (in breach of Rule 201(v)) for races 4, 5, 6, 7 and 8. He was the jockey in just two of these races: race 4 at Lingfield on 1 March 2009 on EDITH’S BOY (IRE); and race 8 at Bath on 23 July 2009 on TERMINATE (GER). The BHA’s case in relation to the 5th, 6th and 7th races was that Doe transmitted inside information from Fairley and Hitchcott to Mr Sines and Mr Crickmore, who then organised lay betting against them.
16. As with the other jockeys, Doe was alleged to be in breach of Rule 243 for passing on that inside information for reward.
17. He also faced allegations that his rides on EDITH’S BOY (IRE) and TERMINATE (GER) were breaches of Rule 157.
18. Doe co-operated with the enquiry to the extent of attending interviews by investigators in November 2009 and November 2010, and he eventually filed a laconic Schedule (A)6 form, which simply denied that he was in breach of any Rules. He attended part of a preliminary hearing for this enquiry that was held on 14 September 2011. He was expected to attend the main hearing that began on 20 October 2011. He did not appear on the first day. A report in the Racing Post of 21 October recorded that a back problem had prevented his attendance on the first day, but that he intended to appear on the second day. He did not do this. Instead, he sent an e-mail on 21 October 2011 in which he announced his belief that the Rules of Racing were flawed and that it would be a breach of his human rights to have to answer questions. He said that he was not obliged to incriminate himself by supplying information. The Panel caused a letter to be written to Doe reminding him that he was obliged to attend by Rule (A)45 of the present Rules of Racing, and warning him that it was open to the Panel to disqualify him if he did not attend. No more was heard from Doe. As he was not riding at the time, the Panel decided that it was unnecessary to impose an immediate penalty for non-attendance, irrespective of the ultimate merits of the allegations made against him by the BHA. His argument about self-incrimination is considered later.
19. Though Doe failed to take part in the enquiry beyond what is described above, the Panel still proceeded on the basis that it was for the BHA to prove their allegations. However, the Panel also recognised that his silence was capable of being viewed as an indication that he had no satisfactory answer to the allegations he faced.
(iv) Greg Fairley
20. He was alleged to be a conspirator for races 4, 5, 6, 8 and 9. He rode a horse against which allegedly suspect lay betting occurred in races 5, 6 and 9. For races 4 and 8, he was alleged to be the intermediary between Mr Sines, and Mr Crickmore on the one hand and Doe, who rode EDITH’S BOY (IRE) and TERMINATE (GER) in those races.
21. Again, as with the other jockeys, he was alleged to have passed inside information in breach of Rule 243 for those races.
22. Thirdly, he faced allegations that he deliberately failed to ride all three of his mounts in races 5, 6 and 9 on their merits, contrary to Rule 157.
23. Fairley was interviewed by investigators before charges were brought. But since then, he has taken no part in the enquiry beyond filing a Schedule (A)6 form which simply denies breach and does not provide any of the other detail that the form requires. In it, he announces that he did not propose to attend the enquiry.
24. The Panel caused a letter to be written to Fairley in terms similar to that described for Doe above. His response (through his mother who has acted as his agent) was that he was leaving racing, was relinquishing his licence and would still not attend.
25. Because he was not riding, the Panel decided not to impose an immediate penalty for this non-attendance.
(v) Kirsty Milczarek
26. She was alleged to be part of the conspiracy just for race 10, when she rode OBE GOLD at Lingfield on 15 August 2009.
27. There was the additional allegation of breach of Rule 243 in relation to this race.
28. Finally, she was alleged to have ridden on that occasion in breach of Rule 157.
29. She denied the charges in general terms in her Schedule (A)6 form. She gave evidence and was represented at the hearing by Ian Winter QC, instructed by Christopher Stewart-Moore.
The charges against the gamblers
(i) Maurice Mr Sines
30. The main allegation against Mr Sines, who was a registered owner and therefore subject to the Rules of Racing, was engagement in the conspiracy in relation to all ten suspect races, contrary to Rule 201(v).
31. Additionally, there was an allegation of breach of Rule 220(ix) – causing the five jockeys in the ten suspect races to act in breach of Rule 243 by providing him with inside information for reward.
32. Thirdly, he was said to be in breach of Rule 247 for race 1 and race 3 in arranging the lay bets to be placed against his horse IT’S A MANS WORLD.
33. Finally, he was alleged to be in breach of the present Rule (A)50.2.2 by refusing to attend an interview.
(ii) James Mr Crickmore
34. Mr Crickmore was, like Mr Sines, a registered owner at the time of the suspect races. As the other main alleged conspirator, he too was alleged to be in breach of Rule 201(v) for all ten races.
35. He faced the same additional allegation of breach of Rule 220(ix) as did Mr Sines.
36. He too was alleged to be in breach of Rule 247 for laying his own horse, IT’S A MANS WORLD, in races 1 and 3.
37. Mr Sines and Mr Crickmore were jointly represented at the hearing by Jason Bartfeld, and both gave evidence.
(iii) Liam Vasey
38. He faced the allegation that he was a conspirator, in breach of Rule 201(v) in relation to “some or all” of the ten suspect races. As the Panel understood it, this was because it was said that betting exchange accounts to which he had access were layers in those races.
39. There was an additional allegation of breach of Rule 220(ix) – causing the five jockeys to act in breach of Rule 243.
40. Mr Vasey attended an interview with BHA investigators before charges were made.
41. Mr Vasey, who was unrepresented, attended briefly at the outset of the enquiry when an arrangement was made for him to attend on a later day to present his case that he was not in breach as the BHA said. In the event, he decided not to attend. He wrote to the BHA to say that there was not a “scrap of evidence” to warrant charges of corruption against him. He objected to this matter being dealt with in a regulatory hearing rather than through criminal proceedings.
(iv) David Kendrick
42. He was alleged to be in breach of Rules 201(v) and 220(ix) for “some or all” of the ten races, as was Mr Vasey. The basis for this, as the Panel understood it, was that Mr Kendrick was Mr Vasey’s betting partner, and therefore equally responsible for betting through the accounts to which they had access.
43. Mr Kendrick attended an interview with BHA investigators, but after he was charged with breach of the Rules, he took no further part in the enquiry beyond filing a Schedule (A)6 form which contained a short denial of breach.
(v) Shaun Harris
44. Like Mr Kendrick and Mr Vasey, he was alleged to be in breach of Rules 201(v) and 220(ix), but only in respect of races 1, 3 and 5. This was because he was only alleged to have been laying the horses in these races through his “bigshaun” account.
45. Though he attended an interview with BHA investigators, that was the end of his engagement with this matter. He did not file a Schedule (A)6 form and did not attend the enquiry.
(vi) Nick Gold
46. He faced the twin allegations of involvement in a conspiracy contrary to Rule 201(v) and of causing breach by the jockeys of Rule 243, contrary to Rule 220 (ix). This allegation was made in respect of all ten races. But as the case developed, it appeared to the Panel that the allegation was limited to the first seven races.
47. Nick Gold refused to be interviewed by investigators, and refused to provide telephone records. As he was not subject of the Rules of Racing, he had no contractual obligation to provide these. In September 2011, however, he did provide extracts from his telephone records for 2009, detailing his calls to Mr Sines and Mr Crickmore.
48. Nick Gold was, like his father Peter, represented by Jonathan Caplan QC instructed by Lawrence Stephens. A detailed Schedule (A)6 form was filed on his behalf explaining fully the basis of his denial of the allegations made against him. Accompanying this were statements or extracts of evidence from a number of witnesses attesting to matters relied upon by Nick Gold and his father to support their case. In all, four of these witnesses attended and gave evidence before the Panel, in addition, of course, to Nick Gold and his father.
49. The Panel was told by Mr Caplan QC that two of these four witnesses were unwilling to attend unless granted anonymity, in the sense that they did not wish their names to be disclosed outside the enquiry. The BHA did not oppose an application for anonymity. They knew who the witnesses were, and of course the names were disclosed to the Panel. The Panel agreed that they could remain anonymous, so that their names do not appear in these reasons. But it did so with misgivings. In principle, the interests of good regulation of the sport require that decisions of Panels should be explained and where necessary refer to evidence from identified witnesses. But it granted anonymity here to avoid prejudice to the Golds’ defence. The decision in this case should not be taken as an easy precedent for similar applications in the future. The question will require more detailed thought and analysis than it received on the occasion of this enquiry.
(vii) Peter Gold
50. Similarly to his son Nick, Peter Gold was alleged to be in breach of Rules 201(v) and 220(ix) for all ten races. But again, the case he had to meet really concentrated upon the first seven races.
51. Peter Gold was interviewed by BHA investigators in September 2009. Thereafter, through his legal representatives referred to above, he provided full details of the material he relied upon in his defence with his Schedule (A) 6 form. This consisted of the materials relied upon by his son as well as some further character statements. He gave evidence at the hearing of the enquiry himself.
The charges against Darren May
52. Darren May fell into a different category to the jockeys and the gamblers. He was not alleged to have been associated, at least directly, with the placing of lay bets in any race. He was, however, said to have become a party to the conspiracy contrary to Rule 201(v) by arranging to claim IT’S A MANS WORLD after the race on 17 January 2009 and by concealing its true ownership by Mr Sines and Mr Crickmore. He was also said to have been the intermediary who arranged for Fitzsimons to give the horse a deliberate losing ride on 13 February.
53. He faced, as did others, an alternative allegation of breach of Rule 220(ix) – causing Fitzsimons to act in breach of Rule 243.
54. He was interviewed by the BHA in the course of their investigations prior to the bringing of charges. For some time, it was clear that he was being treated as a witness rather than someone against whom allegations of breach of the Rules would be made. Though complaint was made of this during the hearing of the enquiry, no separate case that this was some sort of abuse of process by the regulator was made.
55. He appeared at the enquiry, when he was represented by Paul Mendelle QC instructed by Legisters.
The standard of proof
56. On behalf of Mr Sines and Mr Crickmore, Mr Bartfeld advanced the argument that the charges against his clients could not be found proved unless the Panel was satisfied to the standard of proof applied in criminal cases. Thus, he said, the Panel would have to be sure beyond a reasonable doubt before making any finding that allegations were made out. This was supported by Mr Caplan QC, acting for Nick Gold and Peter Gold, but not by any of the others who appeared at the hearing.
57. The BHA argued that the appropriate standard was the civil standard, which requires a tribunal to be satisfied about its conclusions on the balance of probabilities.
58. The starting point for resolving this debate is to be found in Schedule (A)6 paragraph 16, which says –
“Where any fact all matter is required to be established to the satisfaction of the Authority, the standard of proof
shall be the civil standard which is to say the standard applied in the civil courts of England in a dispute between
private persons concerning a matter of comparative seriousness to the subject matter of the enquiry”
59. This provision first entered the Rules of Racing in 2001. At that time, it was generally thought that when a civil court in this country had to determine a serious matter such as an allegation of fraud, a “heightened” standard of proof applied, falling somewhere between the usual civil standard (balance of probabilities) and the criminal standard (beyond reasonable doubt).
60. In 2009, the House of Lords in a case called Re B decided that there was no warrant for an intermediate “heightened” standard. Unless special rules apply, cases in civil courts fall to be decided by reference to the one standard of proof applicable in civil proceedings – namely whether facts and allegations are established as more probable than not. Thus, following the decision in Re B, when a civil court such as the High Court or a County Court is from time to time called upon to decide cases where the facts alleged could also support a case in a criminal court (for instance where there are allegations of assault or fraud for which damages are claimed), it will decide those cases on the balance of probabilities. In the Panel’s view, therefore, it cannot in principle be a breach of the BHA’s implicit obligation to act fairly in disciplinary proceedings against its licence holders and others who participate in them to adopt the same standard of proof as the civil courts of this country require. It was not contended by Mr Bartfeld or Mr Caplan QC that there was some other overarching principle of law which prevents the application of that standard.
61. The Panel was told of the practice in other disciplinary spheres. For hearings before the GMC and for other health professions, the standard stipulated is the civil standard of balance of probabilities. There is a similar provision for police disciplinary matters. And in a recent Court of Appeal decision in R v Independent Appeal Panel for Tom Hood School, where the issue was whether a disciplinary hearing about exclusion of a pupil alleged to have been wielding a knife should have been conducted in accordance with the criminal standard, though the regulations for this kind of hearing prescribed the civil standard. The Court of Appeal held that the civil standard applied, even though the matter for decision involved potentially criminal conduct. However, Mr Bartfeld drew the Panel’s attention to examples on the other side of the line, such as WADA anti-doping cases, which apply an intermediate Swiss standard which translates as “comfortable satisfaction”. This has been adopted in the cricket world by the ICC as well.
62. But whatever may be the practice in other areas, the eventual question for this Panel is what Schedule (A)6 Paragraph 16 means. Since the simplification of the position in civil litigation brought about by the decision in Re B, the Panel decided that the Rule requires decision of all the matters before the Panel by application of the balance of probabilities test.
The conspiracy alleged by the BHA – an overview
63. The BHA’s case was that the reference to “conspiracy” in Rule 201(v) was to be given its ordinary meaning – namely an agreement or combination between two or more people to do something wrongful. No issue was taken with this as a matter of principle by any of the parties, and the Panel adopted this approach.
64. The wrongful conduct alleged to be the object of the conspiracy was lay betting inspired by inside information against the chances of a particular horse running in the 10 races with which this enquiry was concerned. The inside information was alleged to be, for the eight races in which the BHA contended that there was a breach of Rule 157, an indication from the jockey in question that he or she would take steps to prevent the horse from winning or being placed. For the remaining two races (races 2 and 7), their case was that some “reliable adverse information” about the horse’s prospects prompted the lay betting. In the event that the Panel decided that the jockeys in the eight cases for which a breach of Rule 157 was alleged did not agree to take steps to prevent their horse from winning or being placed, the BHA alternatively contended that the lay betting must nevertheless have been inspired by some other “reliable adverse information” from the jockeys, as in the cases of races 2 and 7.
65. In the course of his closing submissions, Ian Winter QC on behalf of Milczarek drew the Panel’s attention to the structure of the BHA’s case in relation to race 7, in which Hitchcott rode SHERJAWY (IRE). This was to support his argument that it is not necessary to have a jockey’s support for a lay bet. The Panel accepted and recognised that position. It is a point of general application to the cases of all the jockeys and gamblers. The BHA’s case on that race was that Hitchcott must have given Doe some reliable inside information, probably when the two of them were driving together from Nottingham to Kempton for the evening meeting in which SHERJAWY (IRE) ran. Doe then exploited that through Mr Sines, who organised the lay betting, said the BHA. That structure emphasised to the Panel that in the cases of the jockeys, it was necessary to determine not merely whether any inside information might have been imparted by them, but whether they did so intending that it could be used for lay betting purposes.
Mr Sines and Mr Crickmore – organisers of conspiracy?
66. The common denominators in the conspiracy alleged by the BHA were Mr Sines and Mr Crickmore. Before turning to assess the evidence for the individual races, it is first necessary to set out the Panel’s general conclusions about their roles in the lay betting and in their contacts with jockeys.
(i) Lay betting involvement
67. Mr Sines said he never had any involvement in lay betting at all. His interest was in backing only and he habitually backed short priced favourites. He explained his contacts (telephone and otherwise) with jockeys as just normal exchanges between friends. Jockeys he regarded as “the worst tipsters ever”, so he didn’t seek out tips, he said. He was adamant that the BHA’s concentration upon just the ten races with which this enquiry was concerned created a false picture. It failed to provide the true context for his betting and it failed to show that he was in regular contact with many jockeys other than those charged in this case.
68. Mr Crickmore said he had a different approach to betting from his buMr Siness associate and close friend Mr Sines. He would occasionally lay horses, but denied any involvement in the lay betting for the ten races except for some placed through his Betdaq account called “Jimmy8” and some of the later but otherwise unspecified lay bets that were placed through Nick Gold’s “chelseaboy55” account with Betfair.
69. Mr Bartfeld on their behalf emphasised that their evidence should be assessed favourably, because they both co-operated with the enquiry. They both disclosed their telephone records, and indeed disclosed more than they were asked for. Mr Crickmore allowed himself to be interviewed by BHA investigators, and Mr Sines offered to be interviewed at his home, which the BHA declined. Both attended the enquiry before the Panel and gave evidence. He pointed out also that both were wealthy men accustomed to placing large bets. The Panel accepted those points and reached the findings described below about the true nature of their betting activities and their contacts with jockeys with those points in mind.
70. In deciding where the truth lay about their betting activities, the Panel first considered their betting background. Mr Sines had had a Betfair account between November 2006 and November 2007. It was used infrequently and did contain one lay bet – against Bajan Pride on 25 August 2007. Betfair closed this account along with the accounts of Mr Crickmore and Mr Crickmore’s father Colin, in November 2007. Mr Sines also had accounts with Ladbrokes and Paddy Power. He provided the Panel with copies of the Ladbrokes statements – this being the account on which he said most of his betting turnover occurred. Those statements bear out that he had a preference for backing short priced horses. The activity on the account came to an end in mid-January 2009, a few days before the first of the suspect races. Mr Crickmore had had a Betfair account between November 2006 and November 2007 which showed overwhelmingly back betting. He lost £253,000 over this period. It was shut following some rare and unusually substantial lay betting against RICH KID (IRE) on 20 November 2011 – a horse of which Mr Sines was the registered owner. The Betfair account in the name of Mr Crickmore’s father was opened in July 2007 and was also shut in November 2007. Its registered contact details were the same as for Mr Crickmore’s account, and the same computer was sometimes used in placing bets through it. In August 2007, lay bets were placed through this account against OLD ROMNEY, which was owned by Mr Crickmore himself.
71. Against that unpromising backdrop, the Panel had to decide what if any connection Mr Sines and Mr Crickmore had with the lay betting on the suspicious races. A critical test was whether they were behind any of the lay betting on the very first race – IT’S A MANS WORLD at Lingfield on 17 January 2009. That was an important test because both Mr Sines and Mr Crickmore accepted and asserted that they were the owners of that horse, even though it was registered in the name of the trainer, Philip McBride. Hence, any lay betting by them against that horse was a breach of Rule 247, whether inspired by a jockey or not.
72. It was common ground between Mr Sines and Mr Crickmore on the one hand and Nick Gold on the other hand that towards the end of 2008, Gold had agreed to a form of betting partnership with Mr Sines principally and Mr Crickmore. Under this, Mr Sines was to put forward possible bets to Gold who would arrange for them to be placed. It was largely for this reason, as the Panel understood it, that he acquired a Betfair sub account in November 2008 called “chelseaboy55”. Gold agreed to finance bets put forward to him. Profits and losses were to be shared 50/50 by Messrs Sines and Gold. Mr Sines would have to pay losses if and when they reached £200,000.
73. There were a number of lay bet transactions on the “chelseaboy 55” account before 17 January 2009. They were typically lay bets at very high odds – often 1000/1 – which indicated that they were often bets in running and nothing to do with Mr Sines and Mr Crickmore, a proposition Nick Gold agreed with. The first lay bets that departed from this pattern occurred on the Lingfield race on 17 January 2009. IT’S A MANS WORLD (which went off at 11/8 favourite on course) was laid to win £50,000 for a risk of £81,000. Nick Gold said that this was one of the bets that came from Messrs Sines and Mr Crickmore. As it was not seriously suggested that Nick Gold had any reason for placing this type of unprecedented bet as a result of his own initiative, it was clear to the Panel that this was one of the bets placed under the partnership arrangement. That means that Mr Sines and Mr Crickmore were laying their own horse. Of itself this was enough to persuade the Panel that Mr Sines was not telling the truth on a central piece of his evidence about never having lay bets. And Mr Crickmore’s his story that Mr Sines did not place lay bets and that he himself had nothing to do with lay betting for this race was also untruthful.
74. There are a number of other features of the case which reinforce this conclusion. About 45 minutes before the race on 17 January, Mr Sines called Ladbrokes and asked to back IT’S A MANS WORLD with £50,000 at the price quoted to him of 5/4. He was told by the Ladbrokes operator that they would onl