How the British Horseracing Authority’s “Integrity Review” aims to modernise its Integrity Unit

Published 18 August 2016 | Authored by: Kevin Carpenter

The British Horseracing Authority ("BHA"), the governing body that regulates British horse racing, recently underwent an Integrity Review, a report ("the Report") of the findings was published in March.1

This article draws out key parts from the Report, analyse those points and then consider what other sports organisations learn can learn from the BHA’s outcomes and process.2

 

BACKGROUND

Horse racing is a sport that exists solely for the purposes of betting. Therefore given the emphasis of betting on the sport the BHA has established policies and procedures to lessen the potential damage that can be caused by betting and competition manipulation. These policies and procedures need to be fit-for-purpose, taking into account the modern technological environment where the opportunities to communicate and bet are vast, as well as possible doping and other corrupt practices.

To combat corruption in horse racing the BHA had already established an Integrity which has been subject to review previously: Joint British Horseracing Board and Jockey Club Security Review Group Report in July 20033 and The British Horseracing Authority and Integrity in Horseracing - An Independent Review by Dame Elizabeth Neville in May 2008.4 As a result of those previous reviews, and continuing improvement since,

The BHA is one of the few organisations internationally (including sports governing bodies, regulators and law enforcement) with the willingness and ability to investigate and prosecute betting-related corruption, and with a track record of bringing corruption cases to successful prosecutions.” [Background, para 8, page 11]

However, some of the stakeholders in the sport voiced concerns that they felt there was for improvement in the way the BHA Integrity Unit was currently functioning. On the 25 June 2015 an announcement was made that the BHA would conduct a review of its integrity work.5 The aims and objectives of the Integrity Review were to establish how the BHA would:

  • Ensure the confidence and support of the industry.
  • Develop a modern and contemporary approach.
  • Improve efficiency and consistency of regulation, standards and prosecution process.
  • Improve communication with stakeholders and wider public.
  • Demonstrate greater openness.
  • Show that they are in-tune, fair, accountable, open, aware and collaborative.
  • Confirm their status as world leaders in this area.
  • Ensure the BHA are robustly addressing current and future threats to the integrity of our sport, and making effective efforts to deter, disrupt, and investigate corrupt activity.
    [Appendix B, Terms of Reference, section 2, page 37]

When a review of an organisation in any sector is undertaken, for whatever reason, it is considered best practice for this to be done entirely independently by an outside organisation. Examples of this in sport include an independent governance review of the International Cricket Council by Lord Woolf and PricewaterhouseCoopers (the global accountancy and consultancy firm) in 20126 and more recently in January 2016 an Independent Review Panel was announced in light of media allegations about match-fixing and corruption in tennis.7

However, for the BHA Integrity Review it was decided that it would be primarily performed by key relevant members of the BHA [Terms of Reference, Appendix B, pages 37 and 28] with the aid of a “Challenge Panel” to ensure the rigour and fairness of the review process and to challenge the direction of the Review, its findings and its recommendations.

The selection of the Challenge Panel members, and the work they undertook, is detailed in Appendices C [Challenge Panel Biographies, pages 39 and 40] and D [Challenge Panel Assurance Report, pages 41-45] of the Report. But, in brief, the Challenge Panel highlighted two specific areas:

  • They felt strongly that the Scope of the review should be widened; and
  • They also felt the composition of the Disciplinary Panels should be looked at as a key factor relevant to the “fairness” theme (prescient advice given the Jim Best situation described below).

Good practice is exhibited by the BHA, which adds to the credibility of the Review and the Report, by publishing in full in Appendix D the Assurance Report produced by the Challenge Panel containing its observations on the project as a whole. [para 10, page 13 & pages 41-45]

The author is of the opinion that there is no one right way for a governing body to carry out such a thorough review and the use of a Challenge Panel may be the way to balance independence and organisational knowledge which is appealing.

 

ADMISSION OF PAST SHORTCOMINGS

In the Foreword to the Report from the BHA’s new Chief Executive, Nick Rust, acknowledges that the BHA does note “always get it right". Nick goes on to state: "the Report includes two cases studies which we must learn from. I am particularly grateful to Kate Walton and Jim Boyle for allowing us to include their experiences, and I would like to add my sincere apologies to them both for falling short of the required standards during the investigations in which they were involved.” The admission that the governing body does not "always get it right" and that they have learnt from their mistakes is welcomed, particularly given the culture of many governing bodies that means they are unwilling to admit errors, failures or shortcomings.

Further details of Boyle and Walton case are provided on page 14 of the Report. In the case of Mr Boyle, the BHA admitted that the process took far too long and it should have communicated better and been more transparent. It regretted that a charge unique to integrity in horse sports “milkshaking8 hung over him and was eventually not proved, which had a detrimental effect on his training business and his health. As for Ms Walton, the BHA apologised for charging her, publicising those charges and then withdrawing them prior to a hearing taking place.

This highlights the need for the BHA to investigate with the upmost thoroughness and have checks and balances in place. This includes, “identifying credible evidence enabling the investigation team to exclude somebody from its enquiries should be considered as much of a success as identifying credible evidence to support the bringing of disciplinary charges.

 

OUTCOMES OF THE REPORT

The substantive part of the Report, containing the outcomes and recommendations (and supporting recommendations) of the Review Team (see "Independence and the Challenge Panel" below for more information), was set out in a number of reoccurring "themes", a summary of each is set out below.

General

The first area that received the Review Team’s attention was a perceived concern that the previous reviews above had, “not been sufficiently open, or publicised, and that the implementation of their recommendations does not appear (from an external perspective) to have been appropriately monitored or reported upon.” [Themes and Recommendations, para 1.1, page 15]

This led to the first recommendation (R1)9 that a Stakeholder Integrity Forum should be established with the purpose of:

  • operating as an advisory group (i.e. it will have no executive function);
  • providing a channel for preliminary high level consultation to ensure a good understanding of impacts of proposals/decisions;
  • achieving buy-in from the sport for integrity initiatives and the BHA’s rationale behind those decisions;
  • making the BHA Integrity department more effective and accountable; and
  • providing visibility on the implementation of the recommendations set out in the Report.

[Themes and Recommendations, paras 1.3 to 1.5, page 15]

Although efforts to engage a broad range of stakeholders are generally to be welcomed, the author would just venture a word of caution to the BHA that in only being “advisory” in nature the Forum and its members must not feel like they are merely a discussion group with their views ultimately having little impact on the BHA’s integrity approach and policies going forward.

Strategy

The Report found that there should be a strategic re-positioning by the Integrity department away from prevention and deterrence (i.e. policing) to focus on the protection of the majority of participants who adhere to the Rules of Racing. [paras 2.2, 2.5 and 2.6, page 16] This shift is driven principally by the experience from recent cases that corruption is often instigated by outsiders to racing and the majority of participants are honestly complying with the Rules. [para 2.6, page 16]

The final element of the second recommendation (R2)10 in the Report is that although there was to be a strategic shift, this does not mean that prevention and deterrence, which is a key strength of the unit, will be given less attention. Indeed, it must remain a strong deterrent, “The current approach including extensive monitoring of racing, betting and social media on a daily basis, a multi-faceted anti-doping testing programme, and intelligence-led proactive investigation, should continue.” [paras 2.8 and 2.9, pages 16 and 17]

All too often, in any sector, a review is not done with the overall strategic objectives of the organisation in mind or used to shape the scope of such a review. Therefore, it was pleasing that specific reference was made in the Report to the strategy for the Integrity department now being closely aligned to the BHA’s organisational strategic objectives. [page 32] This provides the author with optimism that the recommendations will indeed be implemented.

Fairness

A central area of focus for the Review was the “fairness” of the overall investigative and disciplinary process. This manifested itself in four sub-themes: timeliness; disciplinary panel inquiries; “inequality of arms” and investigation and case management. [Themes and Recommendations, para 3.1, page 18]

Timeliness

It was highlighted that the time with which the investigative, disciplinary and licensing processes take cannot be addressed in isolation. [para 3.4, page 18]

Disciplinary Panel Inquiries

There were concerns from stakeholders about their composition and approach of disciplinary panels, in particular a perception of unfairness and bias towards the BHA. In the Report, the Review Team made this statement, “The Review Team notes that this criticism is not universal, and it has certainly not identified any evidence of actual unfairness or prejudice occurring, and is satisfied that the Disciplinary Panel, its structure, and the way it operates, stands up to legal scrutiny.” [para 3.7, page 18] Given recent developments involving the corruption case brought against trainer Jim Best (see this article by Gemma White,11 and also discussed in further detail below) history will look back on as this statement being somewhat presumptuous.

Overall the recommendation was, “The BHA, working closely with stakeholders, should review the structure, composition, and processes of the Disciplinary Panel and Appeal Board as a matter of urgency, to identify and implement a practical and legally robust solution which generates greater confidence amongst the sport’s participants.” (R3)12 [page 19]

“Inequality of arms” 

This refers to the lack of financial means those participants accused of integrity offences have to defend themselves fully by obtaining legal representation. This issue is one, in the author’s opinion, that is a major shortcoming across sports disciplinary procedures. It is made all the more acute in situations where governing bodies such as the BHA instruct a barrister (often Queen’s Counsel) on more complex cases who are by their very nature more experienced in advocacy and cross-examination of witnesses for instance and their views can carry more weight with a tribunal. [para 3.10, page 19]

The Review Team recommended that BHA continue its discussions with Sport Resolutions (the independent, not-for-profit, dispute resolution service for sport in the United Kingdom) with a view to providing Racing’s participants with access to their pro-bono legal advice service. [para 3.12, page 20]

Other options which were explored, consulted upon, but ultimately not progressed, were:

  • BHA providing funding for defence lawyers – the Review Team did not identify any other governing body which would do this;
  • Insurance policies – not feasible;
  • An industry fund for defence costs – not feasible;
  • The BHA make itself liable for the costs in the even where charges are not proven – the Review team said this would inhibit the BHA in discharging its regulatory functions and such cases do not necessarily mean a failure on the part of the BHA, as it is part of a regulator’s role to apply scrutiny and often the complete picture does not emerge until during or after an Inquiry.
    [paras 3.12, 3.13, 3.14 and 3.15, page 20] 

The author praises the BHA for looking at the issue of “inequality of arms” in some depth. This is a key barrier across a number of sports and disciplines for accused participants to effectively exercise their rights in defence. It is almost always the case that the governing body has superior legal advice and representation which in the author’s opinion is a violation of the accused’s rights. The author favours a cross-sport legal fund managed by independent bodies, with some form of application needing to be made by the accused which is then means-tested.

This proposal is not too dissimilar to that proffered by leading sports barrister Nick de Marco in his recent article13 following the important Pechstein ruling, “the panel of [pro bono] counsel established by the Court of Arbitration for Sport ("CAS") should be paid by the CAS on behalf of the legally aided party (as with the system of legal aid in the UK). This is of vital importance in enabling equality of arms between the parties.

Investigation and Case Management

This area of “fairness” contains four sub-recommendations including a formal investigation charter (R4(a))14 and a formal code of conduct for case management and disciplinary inquiries (R4(b)).15

The charter will set out what any person involved in an investigation, be they suspect, witness or a complainant, “should expect from the process including what the BHA will aim to deliver, in particular in relation to approximate timings and communications, and will ensure a consistent message is delivered to everyone.” [page 21] 

The code will apply equally to participants and the BHA and may cover such areas as case management, directions hearings, evidence and a policy of disclosure. [page 22] The BHA wants to ensure that those participants accused put their position fairly, frankly and in a timely manner. A failure to so will see the BHA deal more robustly with non-cooperation. [para 3.21, page 21] In return, the BHA will commit to ensure that those same participants, “have sufficient material at the point of charge to prepare a response, namely: the charges; the evidence upon which the BHA relies; and relevant disclosure at the time.” [page 22]

The publication of any disciplinary action taken by sports governing bodies is always a contentious issue. There is a delicate balance to be found between transparency on one hand, and the need to provide those accused with their full rights, not to mention the adverse impact lots of charges can have on the public perception of corruption in the sport. [para 3.22, page 22] Therefore, rather than publishing disciplinary charges very shortly after the point of charge, the Review Team recommended that is now to be delayed until after the accused has had the opportunity to provide an initial response. (R4(c))16

The final sub-recommendation under this heading of “fairness” takes the Review Team full circle as it is recommended that a kind of expedited/summary procedure be introduced to speed up the disciplinary process for minor and/or admitted offences, which as well as improving overall efficiency also release valuable resource for more serious matters. (R4(d))17 [para 3.28, page 23]  

The above is shows a degree of innovation by the BHA and therefore is largely untested in the context of sporting tribunals, however the author believes that once developed further during the implementation phase of the Report, the whole of R4 will benefit both the BHA and accused persons during the disciplinary process.

Engagement with the sport’s participants

A further delicate balance is to be found in the relationship between a sport’s regulator and its participants. The Review Team noted that although a degree of distance between the two is necessary, equally the participants need to be able trust the BHA and approach it with confidence. To achieve breaking down the often “them and us” attitude that exists, relationships need to be built (through a variety of less formal channels) and the BHA needs to be more visible. [Themes and Recommendations, paras 4.1, 4.3 and 4.4, page 24]

Openness

Very closely related to the previous theme, the Review Team discovered the need for the BHA to more open about its work on integrity matters and communicate that more effectively to all stakeholders in the sport. This affects the degree of confidence participants have in the integrity department to keep the sport clean. This is true of all aspects of a governing body’s communications with "regular, clear and detailed updates" being of upmost importance to stakeholders.18 In recognition of this it was recommended that the BHA is more vocal about its day-to-day integrity work and the challenges it faces, whilst promoting positive and proactive messages. (R5)19 [Themes and Recommendations, paras 5.1 and 5.3, page 25]  

The BHA Review Team is to be praised for engaging and consulting with as broad a range of stakeholders as possible through the following methods:

  • Inviting targeted individuals to participate – 104 stakeholders, and other individuals, were spoken to including: jockeys, trainers, owners, racecourses, disciplinary panel members, legal experts, integrity experts from other sports, the media and the betting industry;
  • A public survey was posted on the BHA website;
  • An open invitation for comments to be provided to a specific Integrity Review email address – placed both on the BHA website and in the Racing Post (a daily newspaper about the sport which is independent); and
  • Seeking a wide range of views on various aspects of racing integrity and regulation from a group of regular betting customers.

[Methodology, paras 3-7, page 12 & List of Interviewees, Appendix E, pages 46-49] 

Participant Education

Education in the field of sports integrity is given high importance by many governing bodies and the BHA has a longstanding and multi-faceted education programme already in place. However, there is a risk education can become repetitive and fail to engage participants to the fullest degree. [Themes and Recommendations, para 6.1, page 26]

The Report makes a number of suggestions to ensure the BHA’s education programme continues to evolve through a more modern and refreshed approach to keep it relevant and effective:

  • Approach participants to assist with the delivery of education messages and advice;
  • Aim education at all participants captured by the Rules of Racing, not just jockeys for example;
  • Education should take the form of a rolling programme of repeated reminders, offering practical advice and assistance.

Intelligence Collection / Partnership Working

As the Review Team quite rightly sets out at the start of this theme of the Report, “Intelligence is the lifeblood of any anti-corruption programme.” Few sports currently operate their integrity programmes on this basis, however the BHA have done so for a number of years including using the tried and tested 5x5x5 law enforcement method ensuring, “that information is reliable, credible and secure, and gives confidence to other organisations to share relevant information, which at times can be very sensitive, with the BHA team.” The Review Team found this to be a significant positive for the BHA Integrity department. [Themes and Recommendations, para 7.1, page 27]

However, despite having strengthened relationships with regulators in other countries and being part of cross-stakeholder and cross-sport integrity bodies and forums, the Review Team recommends strengthening such ties by formalising relationships though information sharing agreements (preferably by way of Memorandums of Understanding which create reciprocal obligations and tend to engender closer working relationships and trust). (R6)20  

As a method of collecting intelligence, reporting mechanisms (aka. whistleblowing) are one vital tool in the armoury to maintain the integrity of sport and yet no governing body has yet found the perfect system in the author’s opinion. The BHA has a confidential reporting line called “Racestraight”, provided by Crimestoppers, alongside other measures on the BHA’s website. And although valuable information has been received in the past, the Review Team has noted that further work needs to be done regarding promoting the service, with an overall message of reassurance for participants. [paras 7.5 and 7.6, page 28]

Internal Process Improvement 

The Review Team identified that a more performance-driven culture within the Integrity team is necessary. As ever, culture takes time to change with an injection of greater business discipline into the processes within the department. Effecting this change will hopefully lead to: 

  • more efficient and faster systems and processes;
  • greater accountability; and
  • the opportunity to more accurately measure performance.

The author hopes that the BHA will robustly pursue this and be vocal about its (hopeful) success to encourage other governing bodies to do the same, rather than the current approach which is to talk about changing culture but with little seeming to change.

Finally, and not surprisingly, the Review states that to address all of the above themes there will have to be an increase in the department’s budget, although this is only likely in the medium-to-long term. 

 

POST-REVIEW DEVELOPMENTS & FINAL THOUGHTS 

As alluded to above, less than three months after the Review was published, sanctions handed down to trainer Jim Best for corruption offences21were quashed with the consent of the BHA, it having been revealed that the Chair of the Panel for Mr Best’s case had provided paid advice for the BHA previously which the BHA conceded, “gave rise at the time of the hearing before the Disciplinary Panel to an appearance of bias within the meaning attributed to that phrase in Porter v Magill [2001] UKHL 67.” The BHA then went on to accept that the Disciplinary Panel’s decision and findings should be quashed, and the matter remitted to a different Panel for a fresh inquiry.22 

This situation with Mr Best has had wide-ranging consequences for the BHA and indeed for the Integrity Review. With any review, the time taken and depth of the implementation of the recommendations is a true measure of success. In the Report, the Review Team were realistic in stating first, “The Review Team is mindful of potential resource and budgetary constraints, but suggests that this Report’s recommendations should be implemented in accordance with a stretching but realistic implementation plan” [Executive Summary, para 14, page 6], and secondly, “with cultural and strategic change required, some of the recommendations will take some time and resource to fully implement.” [Conclusion, para 2, page 31]

However, after the Appeal Board written reasons in the Jim Best case were published, the BHA announced that it was taking, “a number of actions to ensure that future Disciplinary Panels are free of any perceptions of bias, and to provide the necessary assurance on past cases”: 

"First for our purposes, an independent expert in the field of sports governance and regulation was appointed to lead the review of the structure, composition and operation of our Disciplinary Panel, Appeal Board and Licensing Committee (Terms of Reference), thus accelerating the implementation of Recommendation 3 from the Review, with recommendations to be made to the BHA Board on 13 September 2016.

Secondly, the other main recommendations of the Integrity Review will be implemented by the end of September 2016, with an accelerated implementation plan presented to the BHA Board on 07 June 2016.23

The author hopes that the acceleration in implementing the recommendations from the Integrity Review does not compromise the excellent work undertaken by all stakeholders in producing the Report. 

In the interests of full transparency, the author was consulted for the Integrity Review Report and is listed on page 47 of Appendix D (List of Interviewees).

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About the Author

Kevin Carpenter

Kevin Carpenter

Kevin is a advisor and member of the editorial board for LawInSport, having previously acted as editor. In his day-to-day work he has two roles: as the Principal for his own consultancy business Captivate Legal & Sports Solutions, and Special Counsel for Sports Integrity at leading global sports technology and data company Genius Sports.

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