ROBERT WINSTON DOES HAVE CASE TO ANSWER
Published: Friday 24 Nov 2006
DISCIPLINARY PANEL’S DECISIONS UPON APPLICATIONS BY ROBERT WINSTON TO DISMISS OR REDUCE SCOPE OF CHARGES HE FACES, WHICH ARE DUE TO BE HEARD ON AND FROM 10 JANUARY 2007.
Panel: Tim Charlton QC, Stephen Allday and Nicky Vigors
1. Robert Winston (“RW”) is alleged by the HRA to have passed inside information about horses he was due to ride in 21 races between June 2003 and January 2004 to a bookmaker, Ian Nicholl. He is said to have done this via his friend and fellow licensed jockey Robert Fitzpatrick. Nicholl laid these horses through various accounts with Betfair that were in the names of other people. RW’s case is to be heard along with those faced by Fitzpatrick and two other jockeys, Fran Ferris and Luke Fletcher, (who are also alleged to have passed inside information to Nicholl), which will involve a consideration of a further 16 races. So events surrounding a total of 37 races in all are due to be examined. All these jockeys are additionally alleged to have lied to investigators. Nicholl and various of the Betfair account holders are the subject of charges that they engaged in corrupt practices by laying the horses ridden by RW, Fitzpatrick, Ferris and Fletcher.
2. A hearing is due to start on 10th January 2007 to consider these matters, and 10 days have been set aside for this. However, in the light of certain admissions of fact (though not of guilt) made in the defence documents served by those who are actively contesting these allegations, the Panel suspects that the hearing may take a somewhat shorter period than presently allowed.
3. RW has applied in advance of the hearing for a decision that the case he has to meet is so flawed legally or so weak factually that it should not be allowed to go ahead. Alternatively his counsel Mr Monson argued that parts of the case against him should be thrown out now so that the hearing set for January would be less extensive so far as RW is concerned.
4. The Panel has looked critically at the case to be presented by the HRA (though necessarily it has considered only a portion of the documentation, and has not heard witness evidence at this stage), to see whether it was sufficiently robust to require answers from RW. It is clear to the Panel that there is a case to answer, and that there is no warrant for dismissing any of the charges or for ruling that some of the evidence should be shut out.
5. Though the Panel had some difficulty in discerning the structure of Mr Monson’s arguments, these were put carefully and in detail, and in deference to them the Panel states briefly its reasons for these conclusions. It should of course be remembered that no decision is being made at this stage about whether RW or any others among those charged are in breach of the Rules of Racing – that is what the hearing in January will determine. This present decision only looks at whether there is a case of substance that RW has to meet, and whether it is right in principle to permit the HRA to rely on certain parts of the evidence they have served on RW and the others.
6. This alleges that RW passed “inside information” to Fitzpatrick for reward in relation to 21 rides. The argument against letting this proceed was eventually reduced to this proposition: Rule 243 only outlaws passing on factual material, not opinions, and it was unreal to suppose that the HRA could establish at a full hearing that RW passed on anything more than general opinions about the chances of his mounts. The Panel rejects the second part of that proposition. Though RW now says he only gave general views about his chances to Fitzpatrick, it is possible that inferences from other evidence (ie evidence about the betting patterns, about the way RW has previously described his discussions with Fitzpatrick, about telephone contacts, and about the races themselves – including the evidence of a Mr Hadfield), will lead to a different conclusion. Thus the Panel feels it is inappropriate to decide in a factual vacuum the question whether Rule 243 debars passing on unpublicised opinions. The issue for decision is not whether Rule 243 covers opinion as well as fact; it is whether whatever RW passed onto Fitzpatrick (which has yet to be determined) was “information about a horse which is not publicly available…” in the words of the Rule. The HRA has not specified precisely what was said by RW to Fitzpatrick in any given instance. Its case is that it is to be inferred from all the evidence that RW’s information was sufficiently reliable in the mind of Nicholls to cause him to lay RW’s mounts for considerable potential liabilities. This seems to the Panel to be a logically arguable case, and it cannot be fairly said to leave RW in the dark. The Panel therefore rejects the contention that the allegation is bad for “duplicity”.
7. So the Panel refuses to throw out topic 1(a) at this stage.
8. A further argument was put to the effect that, even if the Panel refused to dismiss the topic 1(a) charge in its entirety now, it should nevertheless cut down the case against RW to just 4 races, being those in respect of which the HRA will argue that race videos show that RW was a non-trier. The Panel declines to do so. There are many strands of evidence relied upon to build a case against RW and the others, and it does not follow from the HRA’s refusal to make a positive case that the videos in RW’s other 17 races show he was not trying, that their overall allegations relating to these races are doomed.
9. But the Panel is concerned that RW and the other jockeys should know in advance of the full hearing just what the HRA says was wrong with their riding in the cases where the HRA makes a positive case that the videos show that they were not trying. It accordingly directs that these details be provided to them by Friday 8th December 2006
10. This alleges that, if RW did not receive personal reward for inside information he passed to Fitzpatrick, he nevertheless broke Rule 220(i) by helping Nicholl to use that information corruptly. It was said that this charge was self-contradictory and should be thrown out because the HRA itself describes this scenario as “unlikely”. Neither criticism has any weight. The premise of topic 1(b) is indeed that RW did not profit personally, but it is only advanced as an alternative to the main charge. The HRA has described this alternative as “unlikely” only because it contends that the main charge is the “likely” view. The Panel decides that this is a legitimate alternative to leave open, and declines to dismiss it without hearing the evidence.
11. It is alleged that RW lied to Jockey Club Officials when interviewed in February 2004 and again in January 2005, in breach of Rule 220(viii). The objection taken to this charge is that the Jockey Club investigators who conducted the interviews were not “Officials” of the Jockey Club. This contention is rejected. “Official” is not a term defined in the Rules, and in the Panel’s view the word is apt to include investigators employed by the Security Department to look into possible rule breaches. The amendment of Rule 243 for 2006 to include reference to “a Jockey Club employee” among those to whom it is forbidden to tell lies was strongly relied upon to indicate that this Rule did not prevent the misleading of investigators before it was amended. But this change merely clarified the pre-existing position; it did not change it. Even if that is wrong, the old Rule (ie the one applicable at the time of the interviews with RW) is sufficient to cover the misleading of investigators because investigators were delegated by the Stewards to look into possible rule breaches and misleading investigators amounts to the misleading of the Stewards.
12. The HRA intends to call a Mr Hadfield to give evidence about, amongst other things, what he says he was told about some of the RW races by Nicholl. It was said that this material would be excluded if this were a criminal trial, and that it should likewise be excluded here because the charges against RW are serious. But no reasoned basis for exclusion was made out. A number of points intended to undermine the reliability of Mr Hadfield’s testimony were made. It may be that these will eventually persuade the Panel to discount what he says, but that must await a full hearing of what he has to say.
13. Mr Phillips is being called to give evidence about betting patterns, but objection was taken to a portion of his statement which recounts what Racing Post reporters and even members of the public have said about some of the races now under scrutiny. The Panel has a general discretion to admit evidence (paragraph F of Appendix S) and is prepared to allow this material in, though of course arguments about its reliability and importance are open to RW and the others.
14. One of the suspect RW races was his ride of Tatweer at Lingfield on 17 December 2003. He was held in breach of Rule 158 for that ride, and his appeals both to the Disciplinary Panel and to the Appeal Board were unsuccessful. It is now argued that the HRA should not be allowed to say that he was in fact a non-trier in this race, because this issue has already been heard and determined when he was held in breach of a less serious allegation. Again, the Panel refuses this application. Rule 1A(viii) allows a renewed scrutiny, and it is by no means oppressive or unjust for this to occur in the light of the substantial body of new material that has been put together.
(iv) The videos of RW’s 4 alleged non-triers.
15. The Panel was asked to look at these to see if they disclosed a case to answer. The invitation is declined. It is quite inappropriate to conduct a mini enquiry at this stage that tests just a part of the material relied on by the HRA.