The Best of intentions: what Best v. BHA has taught us about appearance of bias & sufficiency of reasonsGemma White
Between the 25th February and 11th March 2016 the Disciplinary Panel of the British Horseracing Authority (BHA) heard the case against trainer Jim Best. The Panel comprised of Ian Stark, Roger Bellamy and the legally qualified Chair Matthew Lohn, senior partner of Fieldfisher LLP, solicitors.
The decision was announced on 4 April 2016. Best was found to have breached his duty as a trainer to seek to secure the best possible place pursuant to Rule C (45) of the Rules of Racing1 by corrupting and instructing his conditional jockey, Paul John, to not run his horse on its merits on two occasions in late 2015. He was also found to have acted in a manner prejudicial to the integrity, proper conduct or good reputation of horseracing in Great Britain.2 He was thus disqualified by the Panel for four years. John had also been charged by the BHA, pleaded guilty to the offences alleged against him and gave evidence against Best in the proceedings.
Rather interestingly in a case of alleged corruption, the evidence did not seem to reveal any sort of motive for Best to have behaved in the way that the BHA assert; there is often a financial3 or sporting incentive for seeking to fix a race in sporting corruption cases, but there seems to have been no evidence placed before the Panel as to motive in Best’s case, and as ultimately noted by the Appeal Board "if a witness had no motive to do that which is alleged against him it is less likely that he did it".4
However, after a recent turn of events, Best’s disqualification is now presently suspended5, following his application for a stay of penalty and successful Appeal on grounds that effectively amount to procedural unfairness in his initial hearing. The outcome of the Appeal resulted in a new hearing being directed, and thus the case has still not been determined and the search for a "sufficiently independent and impartial" Panel to hear the case anew is now well and truly on.6
The proceedings thus far call for analysis as they demonstrate not only the importance of justice being done, but also the real importance of transparency and ensuring that justice is seen to be done.
Appearance of Bias (and the importance of avoiding it!)
It was discovered after the 6-day disciplinary hearing that the Chair of the Panel, Mr Lohn, had previously been employed by the BHA to carry out legal work and had described the governing body in promotional material for his firm as a "client".7The rule against bias represents a principle of procedural fairness in dispute resolution, and the appearance of bias can be sufficient to offend the rules of natural justice. This rule against bias applies equally in sport to any public body.
If the fact that Mr Lohn had worked for the prosecuting body had been disclosed at the outset of the proceedings it might not have caused the chaos that has since ensued. But, as it was not discovered until after what was on any view a most unfavourable outcome for Best, it gave rise, certainly on Best’s part, to a potentially justified grievance: he lost the opportunity to challenge the impartiality of his tribunal and thus would no doubt have felt that the outcome of the case might have been very different if the Panel had not included Mr Lohn. Saying that, at no point has there been any suggestion of actual bias, or any complaint that Mr Lohn’s association with the BHA prejudiced the Panel’s findings of fact.
The reality of the legal profession is that there are often personal and professional links between opposing parties, and often the parties are acquainted with members of their tribunal too. Practising lawyers understand their professional duties to the Court and are able to quite properly set aside any such associations to ensure that they do not impact upon any decision making process, indeed there is no suggestion that Mr Lohn himself did not do exactly that in this case. Part-time Judges try many cases across the country despite also being solicitors or barristers in private practice and the fact that they have a dual role does not automatically lead to suggestions of potential bias or complaints of procedural impropriety.8
Notwithstanding this, "the fundamental principles of justice require a domestic tribunal to discharge its duties honestly and impartially",9 and those involved in a case must at all times have confidence in the neutrality and objectivity of the tribunal before which they appear to ensure that justice is done and seen to be done. The Court for Arbitration of Sport (CAS) was recently held to be both an independent and neutral tribunal10 in the high profile Pechstein case11. Olympic speed skater Claudia Pechstein had challenged the fairness of the CAS trial process on the basis that the arbitrators are not truly independent of the International Olympic Committee or sports federations in her own domestic courts in Germany. Notwithstanding the ruling that Pechstein had willingly entered into her arbitration agreement and had consented to the jurisdiction of the CAS, in a press release12 the CAS indicated that it was wiling to consider reform to ensure the integrity of the system and that sportspersons receive and feel that they have received a fair trial. This demonstrates, at the highest level of sports arbitration, the importance of ensuring a transparent and objective disciplinary process.
The legal test for the appearance of bias is "whether the fair-minded and informed observer, having considered the facts, would conclude that that there was a real possibility that the tribunal was biased."13 In a sporting context the appearance of bias can arise in various factual scenarios, such as in Modhal14 where a member of the committee hearing the anti-doping case made a comment along the lines that "all athletes are guilty of doping until they prove their innocence". Whilst this led to the appearance of bias the Court held that the disciplinary procedure as a whole remained fair, especially because of the appeal process.
In Flaherty v National Greyhound Racing Club (NGRC)15 the original decision was set aside on the basis of apparent bias after the chief executive of the governing body retired with the disciplinary tribunal and appeared to have interfered with the decision. Interestingly though, in Flaherty it was held by the Court of Appeal that notwithstanding the issues of apparent bias the evidence was "overwhelming" and a fair result had been reached.
So we must ask ourselves, in the Best case, whether the fair-minded and informed advisor would consider that Mr Lohn having previously worked for the "prosecuting" authority would lead to a real possibility that the tribunal was biased, and whether the non-disclosure of this information would further support this view? The fair minded observer "knows that fairness requires that a judge must be, and be seen to be, unbiased" and "will not shrink from the conclusion, if it can be justified objectively, that things that [a judge] has said or done or associations they have formed may make it difficult for them to judge the case before them impartially"16 Applying this standard, it appears, to this author, that a fair minded observer could and most probably would conclude that Mr Lohn’s association with the BHA outside of his role as Chair of the Disciplinary Panel may make it difficult for him to judge the case impartially.
Anthony Boswood QC, on determining the application for a stay of penalty, remarked that Lohn’s association with the governing body "causes…very great concern",17 and one can appreciate that for most people this would be the case. Despite this, the BHA initially resisted the suggestion of appearance of bias. It did not take long however until the BHA’s "position changed completely"18, and in conceding the Appeal, it accepted that “Mr Lohn’s position gave rise at the time of the hearing before the Disciplinary Panel to an appearance of bias".19 The BHA accepted that the Decision should be quashed and the matter remitted to a new Panel chaired by someone of "unquestionable independence and impartiality",20 but not before having to make a public and "fulsome apology"21 to Best for the abortive proceedings and agreeing to meet his legal fees up to and including the appeal hearing; costly to the governing body in both monetary and reputational terms.
This acceptance of the appearance of bias was clearly a shift in position for the BHA, who upon the information first being discovered by Best’s legal team "strenuously"22 argued against a stay in the penalty, submitting that a stay would "damage the integrity and reputation of horseracing".23 One might take the view, looking at the case now, that this particular submission was a little ironic. The original argument put forward on behalf of the BHA that "Mr Best’s advisors 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" 24 is a somewhat alarming approach, and it is unsurprising that this submission was rejected. It cannot be the case that an accused is required to take it upon themselves to ensure the integrity of the tribunal that will ultimately decide his fate, and that a failure to do this would remove any right to seek redress upon this information being discovered.
Nevertheless, the BHA should not be further criticized for finally recognising and fully acknowledging the appearance of bias, and seeking to ensure the integrity of its disciplinary process by effectively "wiping the slate clean", meeting all of the legal costs of the aborted proceedings, and seeking a hearing de novo (i.e. a fresh hearing).
In what might appear to smack of the oft used defence tactic of fighting the decision to bring the case rather than the case itself, Best’s lawyers have now made further complaint as to the potential involvement of Sports Resolutions, an independent sports arbitration service in any re-hearing. This follows the revelation25 that the BHA had approached Sports Resolutions before the outcome of the Appeal hearing, asking if it could potentially assist and if so, who they would suggest as suitably independent and impartial to chair the Panel.
The suggestion that the man put forward by Sports Resolutions as a possible candidate, William Norris QC, would not fit this required criteria simply because he is also a member of the National Anti-Doping Panel that Mr Lohn sits on is, in the author’s view, wholly without merit.
As already identified, in order to ensure a certain level of expertise, those involved in specialist panels are likely to know each other or to have come across each other professionally and personally. But it does not automatically follow that they cannot therefore discharge their functions fairly and impartially. It has been suggested in the media that the "pool of legal talent on which the BHA could draw, if it chose, is enormous."26 However, in the author’s view, if one requires a panel who has not only expert legal knowledge but expert knowledge of the sport and its disciplinary processes too, the pool is anything but "enormous".
The obvious problem however with having approached Sports Resolutions in advance of the Appeal hearing, and having done so without first disclosing this information to Best’s representatives, is that the lack of transparency further fuels the suggestion that the process as a whole is not impartial or unbiased. It also leads one to question whether the governing body had pre-judged the outcome of the Appeal, or whether they had already decided to concede the issue of apparent bias?
It is trite to suggest that in any litigation justice is not done unless each party is able to clearly understand how a decision has been reached, and why one person has won and the other has lost. If one party cannot properly understand the result or how the result was reached taking account of the evidence presented, it can lead to a sense of injustice, which can in turn lead to frivolous and unmeritorious appeals which further clog up the legal or disciplinary system and drag out proceedings unnecessarily for all involved.
The very nature of open justice requires all parties to know what the evidence was in a case and to be able to understand why and how a particular decision has been reached. The principle that requires sufficient reasons to be given is not unique to sport, but rather a foundation of constitutional public law. Whilst there remains no common law duty in many quasi-judicial cases such as sports disciplinary proceedings to provide reasons27, the Courts have imposed and implied the requirement in many types of cases, such that it would be an exception rather than the norm if full and detailed reasons for a decision were not required28.
In Best’s case it is not simply a question of the general public law duties, but rather the Rules of the BHA that specifically require that
"summary reasons are provided for decisions sufficient to enable any Person against whom Disciplinary Action has been taken to understand what material facts have been found by the disciplinary panel and why any particular Disciplinary Action has been taken."29
Those representing Best complained that the reasons provided by the Disciplinary Panel were insufficient and this was held to be the case by the Appeal Board and formed the second successful ground of appeal.
In one sense the case was a simple one that required the Panel to make certain findings of fact based upon their assessment of the credibility of evidence put forward by John and Best. In short, the Panel accepted the evidence of John and rejected that of Best; this is the reason that Best was found guilty and sanctioned. Whilst the Appeal Board found that the reasons provided were insufficient, the Decision the Panel sets out quite clearly states what facts had been found, and why the sanction imposed was considered appropriate.
As already noted, the case concerned the credibility of the rider John’s account contrasted with Best’s version of events. The Panel stated "having considered all of this evidence, alongside that given by John the Panel formed its own view of him. It did not find him dishonest and disreputable"30 as forcefully suggested by Best. The Panel explained in clear terms that it found John to be a credible witness, that they considered his account was supported by videos that were "of themselves clear and unambiguous evidence of the truth of John’s version of events"31 and they embarked upon a full analysis of these videos to support their findings32. With regards to the reasons why the Panel found John to be a credible witness, they dedicated an entire section of their Reasons to this, indicating that there "were a number of other evidential matters which…further underlined the credibility of John’s evidence in respect of the key issues in question and confirmed Best’s dishonesty in giving his account",33 including Best’s continued use of John when he contended that he was a poor rider and an "embarrassment"34, a fact which the Panel found to be "incredulous".
The Panel also cited the change in position of Best from his original account to the Stewards and his "vehement condemnation of his ability as a jockey"35 before the Panel in the disciplinary proceeding and concluded by explaining that in its view
"Best sought to corrupt a young conditional jockey who he knew was unlikely to be able to continue his career in racing unless he completed the 12 month period in his yard…Best abused his position."
The Panel has clearly stated its findings of facts and explained the reasons it has come to its decision based upon the accepted evidence. On reading the decision it is as clear as day to the author that the original Panel believed the evidence of John, which they felt was supported by video evidence; and, in contrast, did not believe Best’s account, which they concluded was dishonest.
The Appeal Board held that the original Panel dealt with some evidence in a "cursory fashion" and that it had concluded "with an apparent acceptance of the BHA’s description of [Best’s attack on John] as an attempted character assassination",36 a conclusion that upon the evidence the original Panel was open to accept or reject. The Appeal Board concluded that
"the reasons do not make it apparent to the parties why one has won and the other has lost, because they do not deal adequately, or in some significant respects, at all, with the evidence and arguments presented on behalf of Mr Best"37
This seems to suggest that the original Panel should explain why it rejected each and every argument advanced by Best in full detail, rather than be entitled to say that they considered him dishonest and did not therefore accept his evidence. Of course, the Panel could have provided more details as to why they formed this view, but a failure to further expand the reasoning does not automatically mean that the reasons themselves are not sufficient.
That being said, the main problems with the written reasons were the failure to address the apparent lack of motive for Best to instruct his jockey to not ride the horse on its merits; and the failure to consider what, if any impact, John’s agreement to give evidence on behalf of the BHA in return for a lesser sanction might have had on his credibility. One can quite understand why a complaint would be made of the adequacy of the reasons when they do not address these two key issues from Best’s point of view. The whole case turns on credibility and intrinsically linked with a witnesses’ credibility is whether or not they have any potential motive to be untruthful. It has already been noted that there was no evidence to point to Best’s motive for allegedly corrupting his jockey, but the fact that John received a lesser sanction following his giving evidence could on one view give the appearance of motive to be untruthful.
Impact of the Case and Lessons to Governing Bodies
Unquestionably, when exercising quasi-judicial functions, a governing body such as the BHA has a duty to uphold these principles of natural justice and procedural fairness38. This is particularly important in sports disciplinary proceedings, where the direct safeguard of judicial review is not available39 due to the private as opposed to public nature of the relationship between a governing body and those whom it regulates by virtue of membership. It is thus of primary importance to ensure procedural fairness and the right to a fair trial40, but it is just as, if not more important, to ensure that justice is seen to be done. The mere appearance of bias can be enough to bring the whole process under intense scrutiny, as is so clearly demonstrated by the Best case.
That being said, specificity of sport must also be preserved, and this is something that perhaps the legal profession find more difficult to marry up with strict regulatory principles. The doctrine of specificity ensures that sport is recognised as a special jurisdiction, and there should be little argument against the suggestion that those with expert knowledge of a particular sport are often best placed to determine disciplinary proceedings. The Courts have often shied away from interfering with sports regulation, declaring that those within the sport are best placed to seize themselves of the disciplinary process. Strict legal principles are therefore not always happy bedfellows with the concept of specificity, and it could perhaps be said that a desire to overregulate sport from a strictly legal perspective has led to a molehill being made into a mountain in this case.
To say that sections of the media have been highly critical of the BHA’s position throughout the fraught proceedings would be putting it lightly. The Guardian has described the case as a ‘debacle’ and a "shambles"41 and has called for more and more transparency from the BHA. It is of course the job of the media to provide scrutiny, but it should be remembered that there is a fine balance between ensuring open justice and prejudicing justice by making overt public comment about a case that has not yet been determined on its facts. In the author’s view, the BHA should not be criticized for holding the position now that it will not be drawn into public comment simply to appease a critical media or to defend itself, but rather seek to ensure Best has a fair re-hearing in front of an independent but sufficiently experienced tribunal.
The BHA has already recognised the impact that the Best case has had on the public’s perception of its disciplinary functions. It has announced the acceleration of an independent review by Christopher Quinlan QC into the work and structure of the Disciplinary Panel, something that had already been identified as necessary in a previous Integrity Review.42 Ian Mill QC has been instructed to review all cases upon which Lohn sat as a Panel Member since the first time he was separately instructed by the BHA in October 201343, to ensure that there are no issues that could arise in relation to previous cases where this information was not disclosed. It cannot therefore be said that lessons have not been learnt from the case thus far.
Governing Bodies can take important lessons from the Best case as to how to ensure the appearance of integrity in their disciplinary proceedings.
- The appointment of truly independent panel members is essential, and in cases where there is a potential conflict of interest an arbitrator should be asked to sign a declaration disclosing clearly and fairly any interest they may have. Such a declaration will need to be made in advance of a hearing so as to allow sufficient time for a sportsman to challenge their tribunal, and for an appropriate replacement to be found if necessary.
- To further protect all parties, governing bodies should consider asking all members of a disciplinary panel to sign such a declaration, even those who do not have any conflict of interest, so that the independence of the tribunal is assured.
- In a case where a sportsman (and governing body) is content with the composition of their panel, regardless of whether any conflict has been disclosed or not, a consent form or lack of desire to challenge the tribunal should be recorded so as to ensure there is a written record of everything that has been disclosed and the parties’ views and acceptance of their consent to the panel is also documented.
Mr McPherson QC, explained to the Appeal Board in Best’s case that "over time [the BHA had] lost sight of the critical distinction between, on the one hand, its executive functions, and, on the other, its quasi-judicial disciplinary functions"44 and offered a "fulsome apology". Whilst the Best case demonstrates that this might previously have been so, certainly now it should be noted that the BHA appears to fully recognize the importance not only of maintaining this distinction, but of ensuring the right to a fair hearing and reasoned decision by an unbiased and impartial tribunal, and preserving the public’s faith in the independence of its disciplinary process.
The reality for Best however is that this case demonstrates that whilst fighting the appearance of injustice will win you an appeal, from a practical point of view all it really wins you is the right to a fair re-hearing, and you will still be required, in the end, to run the case on its merits. The jurisprudence45 demonstrates that the likelihood of a case simply being dismissed in its entirety because of the appearance of bias or insufficient reasons being given is slim, the obligation remains not to reach the right conclusion, simply to apply a fair process.46
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- Tags: Arbitration | British Horseracing Authority (BHA) | Court of Arbitration for Sport (CAS) | Dispute Resolution | Governance | Horseracing | International Olympic Committee (IOC) | National Greyhound Racing Club (NGRC) | Regulation | United Kingdom (UK)
- Appeal Board reasons regarding Jim Best
- BHA statement regarding Appeal Board's finding to grant Jim Best a stay of implementation of a Disciplinary Panel's decision
- Amendments to Rules and Penalty Structures regarding careless and improper riding
- Appeal Board findings regarding an application for stay of penalty (Jim Best)
About the Author
Gemma White is a member of the Sports Law Team at 3PB Barristers. She has particular experience in disciplinary and anti-doping matters and has advised both players and governing bodies. She advises on diverse equality matters within sport and most recently acted in disciplinary proceedings arising out of alleged racism in football.
She is completing a Masters’ Degree in Sports Law and Practice, which has a particular focus on sporting integrity and the interplay between disciplinary and criminal proceedings.