Corruption in horse racing – nay not again!

Milczarek is one of very few successful female jockeys and certainly the first one ever charged with corruption related offences. Fairley (only 23 at the time) rode his first ever group 1 winner in 2010, riding for his boss (and BHA Board Member) Mark Johnston. It surely must remain a source of great disappointment for racing’s rulers, as it is for any fan of the sport, that jockeys from both ends of the spectrum are susceptible to corruption for little more than pocket money.

The charges did not differ from those which have been heard by the BHA Panel on a number of previous occasions – lay betting on 10 races during an 8 month period of 2009, jockeys agreeing not to ride their mounts to their merits and innocent punters denied a fair crack at the whip. However, every new case brings a fresh challenge and often a wide-ranging debate in the press as to the merits of the NGB tribunal system, the strength of evidence called, the legal arguments rehearsed, the [in]equality of arms and the effect of the punitive sanctions imposed.

Proceedings started with an argument as to the correct standard of proof to be applied, criminal (beyond reasonable doubt) or civil (balance of probabilities). While the Panel ultimately ruled in favour of the latter (backed up by the House of Lords decision in Re B [2008] UKHL 35, [ 2009 ] AC 11), it seems not all sports agree with WADA and the ICC being two notable examples of the application of the Swiss “comfortable satisfaction" standard.  Myself, I live in hope that sports will come together and agree some common principles by which to regulate, but until then, it’s jobs for the boys to deal with this repetitious argument.

One co-accused, charged with concealing the true ownership of one of the horses and arranging for the jockey to give the horse a deliberate losing ride, made complaint, through his own QC, that he had been approached and treated as a witness but latterly charged. The Panel noted that no separate abuse argument was made against the regulator but one can’t help wondering whether the Panel might have seen some merit in such an argument; the BHA would do well to review their standard operating procedures on this point, if nothing else.

Three others did not respond to the charges and took no part in the hearing, except one who wrote simply to say that there was not a "scrap of evidence" to warrant charges of corruption against him and he objected to the matter being dealt with in a regulatory hearing rather than through criminal proceedings.  The final two accused of conspiratorial involvement, defended themselves at the inquiry with the benefit of 4 witnesses of fact, 2 of whom where the subject of an application for external anonymity made by Caplan QC and seemingly not opposed by the BHA (Warby QC adopting a different position to the argument he ran for Associated Newspapers as part of the Leveson Inquiry, although the key distinction is that in the BHA hearing all parties were aware of the witnesses’ identity, only the press/public were not). The Panel agreed that they could remain anonymous but voiced misgivings on account of the interests of good regulation requiring decisions to be explained and with reference to evidence from identified witnesses. The Panel seemed swayed by an overriding desire not to prejudice the defence, but were keen to stress that this should not be taken as an easy precedent for similar applications in the future.

The BHA’s case was supported by substantive betting evidence (expertly analysed by Mark Phillips in his former role as BHA Principal Betting Investigator), telephone timelines, various witness statements and the transcribed interviews of several (but not all) of the persons charged.

Evidence was shown that a number of attempts were made to back various horses with major bookmakers to large sums, evidence the Panel were convinced were ‘spoof bets’ designed to shorten the odds for the lay bets to follow. The jockeys were accused of passing inside information – that is information about a horse’s likely performance or participation in a race that is not already in the public domain and is known to the accused person only by virtue of their role within the sport – to co-conspirators who used the information to inform their lay betting on the betting exchanges. It is further alleged in relation to 8 of the 10 races that the jockey either failed to ride the horse to its merits or agreed so to do, thereby guaranteeing a positive outcome for the lay bets placed.

The BHA, and specifically its Integrity Services department, has been accused of a uniform policy of guilty until proven innocent. Their case here was against 5 of the 6 jockeys in the 10 races, the 6^th jockey, Sam Hitchcott, faced no allegation of a breach of the Rules of Racing.  In itself that fact lends one to oppose such criticism perhaps. However, the decision not to charge Hitchcott in this case supported the defence submission that it was therefore not necessary for the jockey to have agreed not to ride a horse on its merits for lay bets to have been placed with the requisite level of confidence. The final position seems to have been that if the corrupt arrangement did not include an agreement from the jockey not to ride the horse on its merits, then it must have included information of such significance as to provide those placing the bets with great confidence in their outcome.  This is of note, especially when one considers potential corruption of other sports; does one need to prove the collusion between all members of a team for example? This suggests not.

Unusually in this case, the two main targets of this investigation, Mr Sines and Mr Crickmore, both registered owners at the time, took part in the hearing giving oral evidence and making submissions through their joint representative.  It must have seemed like quite a reunion in the Panel hearing as the BHA’s ‘A Team’ of Mark Warby QC and Louis Weston sat opposite the likes of Messrs Mac Neice, Chalk and Stewart-Moore with QCs Winter, Harvie and Caplan, none of whom were strangers to the Panel. The BHA, and perhaps other regulators, has often faced calls for a ‘legal aid fund’ from which jockeys can resort to defend themselves. Advocates point to the BHA’s legal expenditure and the voluminous paperwork accompany charges. However, such arguments overlook the fact that the prosecutor bears the burden of proof; the defendant need only tell the truth about their contact/involvement. 

The Reasons, available on the BHA’s website and worthy of a good read, demonstrate that the Panel’s analysis of the case against each of the jockeys was thorough and considered. Of particular note, perhaps also to those ever tempted to invent facts to suit a cursory analysis of the case against them, is the Panel’s rejection of Milczarek’s evidence that the calls placed to her phone were in fact calls for her then boyfriend, the notorious Kieren Fallon (not charged as part of this case), and were simply passed over while they were driving together to various race meetings. Unfortunately for Milczarek and her legal team, her telephone bills also record text traffic from her phone to Fallon during precisely these periods when they were supposedly in the car together. Doh! Would, I wonder, the BHA be able to make a restitution claim against Milczarek or her legal team if such a defence had been funded at racing’s expense?

The penalty range specified in the Guide to Procedures and Penalties for these sorts of corruption offences is a disqualification of between 6 months and 10 years (with a recommended entry point – a relatively new phenomenon in horse racing – of 3 years).  The range for deliberately ‘stopping’ a horse is 5 to 25 years with an entry point of 8 years.

The Panel, having found the jockeys in breach, reiterated that jockeys “must accept the serious consequences of supplying inside information to enable the lay betting against their rides, even when they do this without reward and therefore do not commit the more serious breach”. Jimmy Quinn was disqualified for 6 months (the Panel noting that he had not received any reward for passing inside information); Kirsty Milczarek was disqualified for 2 years (the Panel noting that she had not instigated her involvement and that her age and inexperience may have led to her recruitment); while both Paul Doe and Greg Fairley were disqualified for 12 years (the Panel noting that they were ‘in the thick of it’ and had deliberately ridden to lose with knowledge that they were facilitating corrupt bets).

Noting the number of races involved, the corruption of others, and the coordination and premeditation involved, the Panel disqualified Sines and Crickmore for a 14 year term; this despite a brave, and perhaps misguided plea of mitigation from Mr Crickmore’s legal team, that racing played a key part in his social life and therefore he should face a lower tariff – the Panel were “happy, indeed keen, to interfere with that”! 

These points are just a fraction of those that will strike any reader of the Panel’s Reasons.  This was not intended to be a detailed expose of the case, or the judgment of the Panel, but simply to highlight some of the issues which racing, and other sports, will continue to face. I am a firm advocate of an NGB’s right to properly regulate sport without the need of recourse to the Gambling Commission or the criminal law. However I do not think NGB’s, and particularly the BHA should rest on its laurels; much work is necessary to keep abreast of the changing landscape. Such betting tactics as were demonstrated in this case are just a small example of the complex nature of these conspiracies and the necessary technological and personal vigilance with which regulators now need to monitor the markets.

Oliver Codrington
Global Sports Integrity - www.globalsportsintegrity.com
January 2012