The Best of intentions: what Best v. BHA has taught us about appearance of bias & sufficiency of reasons
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.
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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)
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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.