Appeal Board findings regarding an application for stay of penalty (Jim Best)
The following document outlines the Appeal Board's findings and reasons regarding an application for a stay of penalty by Jim Best in relation to the finding against him by the Disciplinary Panel on 4 April 2016.
- Mr Jim Best has served a Notice of Appeal against the decision of the Disciplinary Panel dated 4th April 2016 which found that he had acted in breach of Rules (C)45 and (A)30 of the Rules of Racing, and imposed a penalty of 4 years disqualification. In paragraph 59 of its reasons the Panel stated: “Best’s owners have until 8th April 2016 to remove their horses from his yard.”
- A decision of a Disciplinary Panel is to take effect immediately (paragraph 85.5 of Part 7) unless the Authority or an Appeal Board directs otherwise. By Schedule (A)7 paragraph 15.1 there is a right to apply to an Appeal Board for a stay of implementation of a Disciplinary Panel’s decision. Such an application is to be determined by an Appeal Board Chairman sitting alone, and the matters which the Chairman is to take into account are specified in paragraph 15.7. The application having been made to me, I received written submissions on behalf of Mr Best and the BHA, together with a considerable volume of other material. A telephone hearing took place this evening (7th April). At the close of the hearing I stated that the application for a stay was granted. These are my brief reasons for so deciding.
- The misconduct found by the Disciplinary Panel to have been committed by Mr Best was of the utmost seriousness, namely that he corruptly induced a conditional jockey, Paul John, to ride horses other than on their merits.
- The Panel reached its conclusions following a 5 or 6 day hearing, during which it saw and heard the witnesses giving evidence under extensive cross-examination. It made its findings of fact based on its view of the credibility and cogency of the evidence.
- The Grounds of Appeal permitted under the Rules are set out in Schedule (A)7 paragraph 14. The first two are important in the present case, although others are also relied on in the Notice of Appeal:
14.1 That the reasons given are insufficient to support the decision
14.2 that the hearing was conducted in a way which was substantially unfair and prejudicial to the appellant.
It is abundantly clear from these provisions that an appeal to an Appeal Board is by way of review, not re-hearing, and that the Appeal Board cannot, save in very exceptional circumstances, substitute its own view of the relevant facts for that of a Disciplinary Panel. A person seeking to mount an appeal against findings such as those made in the present case faces, to say the least, a stiff uphill climb. Given adequate reasons, a fair hearing and a proper application of the Rules by the Panel it is hard to envisage an appeal succeeding, unless on the basis of new evidence, the criteria for the admission of which are strict and set out in the Rules.
- The first matter to be taken into account in determining whether to grant a stay of implementation of a Disciplinary Panel’s decision is whether there is a good arguable case for the substantive appeal succeeding. The BHA’s position is that this criterion cannot possibly be met given the considerations set out above, and the application to a stay should therefore be refused out of hand.
- On behalf of Mr Best it is submitted that, in terms of paragraph 14.1 of Schedule 7, the reasons given by the Disciplinary Panel are wholly inadequate, in that they fail to deal fairly or at all with crucial aspects of the evidential case presented on behalf of Mr Best. For example, they fail to deal with the evidence of the owners of the horses said to have been pulled by the jockey on the instructions of Mr Best, which was to the effect that any such instructions were certainly not given with their knowledge or consent. Mr McPherson told me that the answer to this point was that the instructions to the jockey were given without the knowledge or consent of the owners, and that this was all dealt with in the evidence and submissions to the Panel. This may well be right. I can only say that it would have been better if these issues had been addressed in the Panel’s written reasons. Other matters are raised on behalf of Mr Best under this heading, but there is not time, nor is it necessary, for me to set them out here.
- In terms of paragraph 14.2 (“bias”), Mr Best’s Grounds of Appeal state that it has recently come to his attention that the Chairman of the Disciplinary Panel has recently described the BHA as one of his “clients”: this was on a promotional video for the Chairman’s firm which is to be found on the internet. The Grounds of Appeal state:
“In light of the nature of the Panel’s findings and the manner in which their reasoning is expressed the question of bias, certainly the appearance of bias, will now fall to be considered in the context of the complaint that the hearing was conducted in a way which was substantially unfair and prejudicial to the Appellant”
The next paragraph of the Grounds of Appeal refers to a “significant amount of material of a highly prejudicial nature” which had been submitted by the BHA prior to the hearing, to which objection was taken on behalf of Mr Best. This material was read by the Chairman, but reliance on it was subsequently abandoned by the BHA. I am not clear as to whether the Chairman was invited to recuse himself on the basis that he was aware of this material, or volunteered that he did not consider it was necessary for him to do so.
- I was informed by Mr McPherson that the BHA was indeed a client of the Chairman of the Disciplinary Panel, and his firm, in that they had acted on the BHA’s behalf, in the recent past, in giving advice and/or undertaking work in a field having no connection whatsoever with disciplinary proceedings under the Rules of Racing.
- This causes me very great concern: a partner in a solicitors’ firm acts as chairman of a supposedly independent judicial inquiry into allegations of misconduct made by a regulatory body against a person when, unknown to the person accused, the regulatory body is itself a client of the chairman and his firm.
- It was submitted by Mr McPherson that this ground of appeal should be discounted, on the basis that Mr Best’s advisers could have discovered the client connection between the Chairman and the BHA in advance of the hearing, and that the right to object on that ground had therefore been lost. I reject this submission: it is not, at least yet, the position in England that someone facing disciplinary proceedings, or who finds himself in an analogous position, must investigate in advance whether the tribunal dealing with those proceedings may be biased, and that if he does not do so his right to object on the ground of bias will be lost.
- This situation seems to me to cry out for further consideration in the light of the English authorities and the rules which apply in what may be analogous situations, for example, arbitration.
- I therefore conclude that the paragraph 15.7.1 requirement is met. There is, at least in terms of paragraph 14.2, a good arguable case for the substantive appeal succeeding.
- Should a stay be granted? The submissions presented on behalf of Mr Best naturally focus on the hardship he and others will suffer if a stay is not granted – namely the immediate closure of his yard, the loss of their jobs by the staff who work there together in some cases with the accommodation in which they live, and the loss of the large financial investment which Mr Best and his family have made in the business. It is possible, even likely, that the business could not be re-started even if Mr Best’s appeal were to succeed, thus rendering a successful appeal nugatory.
- The BHA takes issue with some of the facts relied on by Mr Best in this regard, and I have no means of resolving these disputes at this time. No doubt it would have been better if evidence had been submitted on behalf of Mr Best in support of his contentions about hardship; but, given the 8th April deadline imposed by the Panel, the time available to make the present application was extremely short, and has necessitated much work on all sides outside normal hours. In general terms, it seems to me that the submissions about the consequences of refusing a stay of implementation cannot be dismissed, even if there is some element of overstatement within them.
- In paragraph 45 of the BHA’s written submissions the point is forcefully made that the interests of horseracing require that someone guilty of serious wrongdoing, such as Mr Best had been found to be, should be removed immediately from the sport, notwithstanding any adverse impact on his family, staff and others. A stay of implementation of the Panel’s decision would, says the BHA, damage the integrity and reputation of horseracing. I have this very much in mind. But it must also be borne in mind that, in the period (which will be as short as possible) between now and the hearing of Mr Best’s appeal there will be a very black cloud hanging over Mr Best’s head: the fact of his disqualification and the reasons for it have been very widely publicised. There can be few people seriously interested in racing who do not know about it. It seems to me to be something of an exaggeration for the BHA to say that it would be contrary to the interests of horseracing were Mr Best to be “allowed to continue as a trainer and [act] as if [he]were not a disqualified individual by having the implementation of the sanction delayed”, and that “a stay would undermine the deterrent effect of immediate implementation of the sanction in cases where an individual is disqualified and will damage the integrity and reputation of horseracing”.
- What is surely beyond argument is that the interests of horseracing require that those who are alleged to have committed disciplinary offences should be entitled to a fair hearing before a tribunal that both is and appears to be independent and impartial. In circumstances where it is possible that this had not happened, and an appeal is found to be reasonably arguable on this ground, most fair-minded people would, I think, take the view that it would not be right to run the risk of destroying the business of the accused person, and the livelihoods of innocent persons, pending the hearing of the appeal.
- Often in circumstances such as these it is possible to find some interim solution to the issue of whether or not to grant a stay of execution, for example by making the stay subject to conditions. This course was followed by Bruce Blair QC as Chairman of the Appeal Board in the case of Ackerman. Unfortunately, that has not proved possible in the present case. It was suggested that in the interim period Mr Tom Best, the appellant’s brother, should take over the running of the yard, but for the reasons which it gives the BHA is not prepared to grant the training licence that would be necessary for this to be done.
- I would add that I have considered very carefully the decision in Ackerman, and I do not take the view that it conflicts with my own decision in any way.
- For these reasons a stay of implementation of the Disciplinary Panel’s decision has been granted. The substantive appeal will take place as soon as practicable, and all possible efforts will be made to see that this happens.
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