Culhane

[wit]

Galejade,

Murky is a good word.

As a matter of law, the criminal standard of proof in so many words can’t be demanded by a defendant to be applied by a Disciplinary Tribunal because the proceedings are not under criminal law but under  a contractual acceptance of the Rules of Racing.

However, as a matter of law there is also in effect no single universal "balance of probabilities" test to be applied across all the Rules of Racing – and in some cases the "balance of probabilities" test might be said to be quite close in its actual operation to the "beyond reasonable doubt" test.

The legal texts put it like this:

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

In civil cases the standard of proof is satisfied on a balance of probabilities.   However, even within this formula variations in subject matter or in allegations may affect the standard required.

It is commonly said that the more serious the allegation, for example fraud, crime or professional misconduct or the sexual abuse of children, the higher will be the required degree of proof.    A high standard of proof is also stated to be required in child abduction cases where the parent who has wrongfully removed the child from the relevant jurisdiction is seeking to establish the defence that the child would be exposed to a grave risk of harm if subsequently returned.

However, it is not so much that a different standard of proof is required in different circumstances varying according to the gravity of the issue, but that the gravity of the issue becomes part of the circumstances which the court has to take into consideration in deciding whether or not the burden of proof has been discharged.

The more serious the allegation, the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.<br><<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<

<br>and the leading case on disciplinary tribunals put it this way:

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>><br>In every allegation of professional misconduct involving an element of deceit or moral turpitude, it is the duty of the professional domestic tribunal investigating the allegations to apply a high standard of proof and not to condemn on a mere balance of probabilities.<br><<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<

<br>As to how racing disciplinary tribunals currently address corruption offences under the Rules of Racing, an interesting document is the 2003 Joint BHB/JC Security Review Group Report.

Noting first that crime in racing is as much a matter for the police as crime elsewhere, there then comes "Recommendation 19 – Where Police decline to pursue a criminal investigation, consideration to be given to taking action under the Rules of Racing."

Yet while recognising that the tribunal is not then looking at a criminal matter, it does cautiously seem to hold to a civil standard that in practice is not far removed from  the criminal standard, witness this extract:

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>><br>2.6.39 Turning information and intelligence, often readily available, into evidence capable of meeting the necessary standard of proof for a Disciplinary Tribunal or a criminal court is very difficult in the close-knit racing community.

2.6.40 The Group has been informed of several occasions where information of possible wrongdoing by a licensed person has been passed to the Security Department only for the informant to decline to assist in supporting such details in written form for evidential use. It presents the Jockey Club with a recurring problem and often creates an impression that the Jockey Club and its Security Department are reluctant or slow to act against allegations of corrupt activity. The truth is similar to the response to complaints levelled at Police for apparent failures to investigate allegations of crime: that evidence to the required standard of proof is often not available.

2.6.41 If the difficulty in obtaining credible evidence to such a high standard persists, the time may be right to consider more rigorous enforcement of the lower standard “on the balance of probabilitiesâ€ÂÂ

[Galejade]

Wit,

A Happy New Year to you and many thanks for your illuminating response.

I notice , however, you did not comment on the question of ‘inside information’ and whether there is an onus on the HRA to establish a person has it or might reasonably be supposed to have it ( what ever this may be in relation to horses who have run many times) in particular when the jockey has not ridden work and has merely been briefed by the trainer or his representative.<br>Statements from the trainer such  as ‘he is fit but I am not sure about the going and he does seem a bit of a dog  who doesn’t like being in front too long so hold him up and bring him as late as possible’ are hardly earth shattering inside info but reflect sufficient lack of confidence in the horse .  Since neither jockey has been accused of failing to ride a horse on its merits the HRA are  apparently only confident that they were in receipt of inside information ( sic) and passed it on for illegal gain.  A murky area indeed.

I would on balance be happier if corruption headlines were only made by ‘failure to ride a horse on its merits’ especially as I have learnt to my cost that the old aphorisms about jockeys ( and trainers) being the worst tipsters  are  proven to my entire satisfaction (whatever level of proof that is).

kind regards

[wit]

hi Galejade,

Let me first say that – despite this thread title – none of the following is about Culhane or any other particular jockey, but rather relates to a hypothetical "inside information" situation in which a hypothetical jockey might find himself / herself.

<br>All elements of a rule breach would have to be proven, no less so in relation to a jockey having "inside information" than any other element.

But I’m not sure that it’s the content of the "inside information" that is the focal point in an "inside information"  charge.  

In December 2005 the JC Regulatory Board’s Phase One report defined "inside information" as "information about the likely participation or performance of a horse in a race, which is known only by owners, trainers, jockeys, stable staff and others connected with the horse or its stable, and which is not in the public domain."     "Likely participation" was regarded as a new part of the definition.  The definition might also be extended to cover "any others having an interest in the horse".    

It was announced that Phase One was just asking questions and that a Phase Two would provide answers, once Mr Scotney’s Working Group produced recommendations to the Board in Spring 2006.     If the Working Group ever did that, I must have missed any publicity about it.   Anyone know if it happened and what the actual recommendations were?

<br>Now, in the stock market, inside information is "unpublished price-sensitive information" – ie information that if made public would affect the share price.

<br>The Phase One report doesn’t actually say that inside information regarding a horse has to be price-sensitive, just that it must be unpublished and "about the likely performance of a horse in a race".    

Racing inside information thus apparently can as easily be such as would confirm public expectations of a likely performance, and does not necessarily have to be such as would thwart those expectations.  

In other words, the actual content of the inside information seems irrelevant to its inside nature.

What seems to matter more to the Board is rather a concept of "breach of duty" – the notion that what matters is not what the information is (whether it is confirmatory or revelatory), but how a person in a particular position (ie close to a horse) uses, or is perceived to use, information which they have by virtue of that position and which the public does not.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>><br>The overriding guiding principle between acceptable use and misuse of inside information is that, for it to be a misuse, there must be an intention for some person to obtain a corrupt gain, whether or not that is actually achieved. <br><<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<

But what does "corrupt" mean?   In the words of the legal texts:

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

‘Corruptly’ does not mean wickedly, immorally or dishonestly or anything of that sort, but doing something knowing that it is wrong , and doing it with the object and intention of doing that thing which the [rule] intended to forbid. <br><<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<

<br>It becomes a very slippery, almost circular, concept to grasp –  you can’t do what is wrong, and what is wrong is anything which is wrong.  

So, in terms of racing, what’s "wrong"?    Well, according to the 2003 report:

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>><br>1.6.12 …..the threats to racing’s integrity are seen differently by the various sections of the racing industry. One person’s ‘corruption’ may be seen by another merely as ‘gamesmanship’. In any sport, it is recognised that there is an acceptable level of ‘playing the rules’ to gain best advantage. In horseracing, owners, trainers and jockeys are always susceptible to accusations of ‘bending the rules’ or ‘not playing it straight’ if a horse does not run to form or runs badly. There are genuine reasons why that can happen; equally the current handicapping system, for example, and a trainer’s instructions and/or a jockey’s manner in riding a horse can be manipulated by trainers or jockeys and possibly owners to affect the performance of a horse in a particular race….

1.6.13 Some see this activity as all part of the game, part of the mystique and charm of horseracing and tend to view it as gamesmanship rather than corrupt practice particularly if the motive, for example, is to secure some handicapping advantage for a future running of the horse.      However, that grey area becomes more focused when the reason for affecting a horse’s performance is motivated by achieving some monetary gain, especially when betting on or “layingâ€ÂÂ

[Prufrock]

It was announced that Phase One was just asking questions and that a Phase Two would provide answers, once Mr Scotney’s Working Group produced recommendations to the Board in Spring 2006.     If the Working Group ever did that, I must have missed any publicity about it.   Anyone know if it happened and what the actual recommendations were?

Nothing had transpired by the end of the summer, and I was on the case when other events got in the way.

[Anonymous]

Fascinating stuff, wit.<br> So it would appear that almost all the outstanding cases of corruption are actually nothing of the sort; merely those closest to the horses passing on information in the same way they have done since racing began?<br> If that is the case, then;

A/ Any good legal team should surely be able to drive a coach and horses through the HRA’s case? and;

B/ The baying for blood, on this and other forums, is totally out of line with the actual ‘offences’ committed, and most of the accused are actually no more guilty than the rest of their uncharged counterparts, (virtually the whole of racing), in this fiasco?

[bluechariot]

I think the rules are broken when people pass on information for gain but a lot of information is passed on without gain.<br>I doubt if you will ever be able to regulate racing like the stockmarket as regatds insider dealing.<br>I am quite sympathetic to these jockeys as long as they did not stop a horse from winning

[Galejade]

Thank you very much again, Wit, and I am disturbed to see that  your feeling  is very much as I feared.

If  you are right and " the thrust of it seems to be not acting as Caeasar’s wife should act, according to how Racing at that particular time considers Caesar’s wife should act, with Racing’s expectations in that regard being determined by the HRA" we have a scandalous situation in that the HRA is not only judge and jury but defines actions as a crime  in a way that cannot be argued about because they, the  HRA have defined it as a crime and they are the regulatory body. So Reet Hard’s comment that any competent barrister can drive a coach and horses through would be wrong  because there is no defence – it is a crime because we say it is a crime ie you are guilty because we say you are guilty.

Please let us pray Wit that you are incorrect or that, more likely,  my intepretation of your normal lucid prose is showing my age.

I am only concerned that every horse should run on its merits with the tactics employed being reasonably held to be for the best.  I am most concerned that in saving racing Scotney is in fact throwing it out with the bathwater of ‘corruption’.  

[wit]

rh / bc/ Galejade

not my place in any way to speak for the HRA, but I would note the following:

A.      by the time the Joint BHB/JC Security Review Group Report was produced in summer 2003 it was referring to

–   a raft of January 2001 Rule changes aimed at boosting integrity, including regarding licensed persons passing on information not publicly available

–     the 2002 programmes Kenton Confronts and Panorama that had "served as a wake-up call" on racing integrity

– further November 2002 Rule changes, including regarding use of mobile phones in the weighing room and changing room.

So by summer 2003 it was quite clear that various practices were no longer acceptable to racing’s regulators, and that various additional duties (another way of looking at prohibitions) had been imposed on licensed individuals.

B.      if the changes were to mean anything, they needed to be enforced against anyone thought to be carrying on regardless of them.

C.      i believe i’m right in saying that all of the HRA proceedings currently on the table refer to events only in or subsequent to that summer of 2003.

D.      if you create extra duties, you create scope for acts inconsistent with those duties and if those acts are found to be done "wrongfully" to achieve a benefit for the actor or another person, you have extra  bases for the actor to be found corrupt

E.      very often the actor himself / herself will make no gain from his corrupt act – typically for each blatant schemer, there is an otherwise innocent person whose only fault was to give in to pressures from relatives or friends and either to act against their better judgment or to try not to think about what they were doing (which is why you will see at times allegations of  recklessness)

F.      having created offences where the difference between the acceptability and non-acceptability of an act like passing on inside information depends on whether there is present an element of  "corruption", you have to have someone to say what is and is not corrupt – which means someone deciding what is and is not a "wrongful" use of a privileged position.

G.      there’s nothing unusual in a tribunal having to decide what is or is not wrongful against its codes of conduct – its just like magistrates or juries in the criminal courts having to decide whether what is in front of them is dishonest.   In each case a judgment is made to the best of their ability as to how "right-thinking" members of the profession / public (as the case may be) would categorise the act.     They can’t be arbitrary or capricious in making their assessment but nor – as long as they come to one of what might be several available conflicting but each a feasible conclusion – can they be second-guessed.  

<br>H.      its in the nature of regulatory bodies often both to make the rules (they would say that they reflect the values of their constituency rather than dictate them) and then to be best placed to judge if those rules have been broken in any given case – General Medical Council,  Law Society,  Football Association, Formula One, AAA, etc .     They’re all open to categorisation as a rolled-into-one legislator, investigator, prosecutor, judge, jury and executioner.

<br>best regards

wit<br>

(Edited by wit at 5:12 am on Jan. 2, 2007)

[Galejade]

Wit,

thank you once again for a wonderfully lucid exposition and of course you are entirely right that the nature of the HRA is not unique.

My concern is that by their very nature policemen like Scotney are not the man on the Clapham omnibus and the normal checks and balances seem to have been suspended ( no CPS etc) before "prosecution"  hence potentially placing the Tribunal in the difficult position of arbritrating fairly whilst not undermining their security department.

Of course there is is the odd coup planned in racing – usually involving not previously running a horse on its merits – but having spent 30 years as a medium sized owner and also running Public Listed companies I am convinced that the  current concept of "insider information " is not an appropriate model for the stewardship of horseracing. Of course I am old fashioned and I would ban the betting exchanges and the entire concept of laying horses to lose and concentrate my firepower and modern technology on to monitoring the posterior off every race so that jockeys do not even contemplate "not running a horse on its merits". This follows the principle you touch on namely  ‘the more crimes you define the more the scope for corruption’ and it behoves you therefore to stick to the few obvious no no’s.

You have a forum here of people whose major hobby is horseracing and they are bewildered. The public at large will be certain that horseracing is totally corrupt which is the exact opposite of what every one in the Sport should be attempting to achieve and , I believe, the actuality.

Sorry for the rant and thank you once again for taking the trouble to define so clearly the legal background of the adminstration of our sport.  

[Nor1]

Galejade<br>What model would you suggest if "inside information" is not appropriate?<br>Banning betting exchanges would surely not help. They have exposed to a degree what has been going on for years.<br>Monitoring every race happens now and no amount of modern technology would prove beyond doubt that a jockey has not ridden a horse to merit.<br>As for the public’s attitude, I think they have always thought racing was a bit dodgy, but not totally corrupt.<br>The HRA are now trying to expose those who cheat for monetary gain. This is very different to a young and inexperienced horse being given a quiet ride.<br>What needs sorting is:<br>(a) Experienced horses not being allowed to run to merit for a reduction in their handicap mark and/or an increase in their betting value when "out to win".<br>(b) Jockeys being paid and/or monetary gain by preventing their horses from winning.<br>(c) Races being fixed by a number of jockeys ensuring the result.<br>Any more?<br>

[Shadow Leader]

Hands up who is actually surprised at this turn of events??

[Nor1]

And whilst I’m having a ‘rant’ I would like to see trainers banned from running their horses for a period of days or even weeks if one in their care fails a drug test or is found to be injured yet is still allowed to race.

[Galejade]

Nor1

Betting exchanges have introduced an entirely new concept – an individual can profit by laying a particular horse  to lose. Previously everyone including stable staff jockeys trainers owners and punters could only profit by picking winners.  Although a bookmaker might profit by getting a favourite stopped he could not lay a horse to lose. By introducing the concept of being able to profit from every horse in a race the betting Exchanges have dramatically increased the opportunity for corruption.  Their famed exposure of corruption is merely their decision to release the betting records of their customers which depending on your interpretation of conflicting laws is no more nor less than bookmakers could do.

Inside information in the City relates to trading on the Company shares due to information  specific to the profits of that Company which  both effects profits and has not yet been made Public.  These would be quite specific  pieces of information such as the gaining or loss of a major contract, the loss of a production facility or the realisation that trading profits had slumped for reasons that the Public could not be reasonably aware of ( ie a rise in Oil prices which might be expected to hit an airlines profits is so obvious as not to be inside information). Note that officers of the company can only trade in the company shares in an open period when the accounts of the company have been made public and the Annual or Interim report issued making public all relevant information up to the day of issue. An insider trader would typically be an officer of the company who knows the report contains bad news or somebody who has been made an insider  – such as the company lawyer, auditor , broker or report printer. The point is that such information is reasonably guaranteed to effect the share price.

To use this model for horseracing we would have to clearly decide what this inside information is that relates to the performance of the horse.  It would not be the banality on which ATR and RUK thrive, " the horse wont like the going" or " he is fit enough to race but will come on for an outing" – it has to be some bottom line effecting event which the public might not reasonably know. I cannot think of same.

In my opinion about the only inside information that a jockey could have is that the horse is not going to be allowed to run on its merits but I am open to other suggestions ( as Wit has stated in his excellent post we are not sure what the HRA considers inside information)

To charge  Culhane and Meenagh of passing on inside information but exclude the charge of them pulling the horse therefore  to my mind poses a considerable paradox or riddle – what could they have possible known to pass on to others that allowed the horse to run on its merits but effected its perfomance in a way which an informed racing public, Timeform, the Racing  Post etc etc could not reasonably have deduced?

I agree that no amount of modern technology would prove beyond doubt that a jockey has not ridden a horse on its merits. My point is just step up the enquiries, show them pictures of stumbling out stalls etc and convince jockeys that their chance of success is zero ( much the tactics that HRA are using on these corruption tactics!) Do that and you will stop your (b) and (c)

Kindest regards

[bluechariot]

I believe insider trading on the stock exchange is a criminal offence but I do not think insider trading on horses is. Ok it may be against HRA rules and so the guys charged by the HRA could be in trouble if found guilty but how can jockeys that are brought before the criminal courts be found guilty of an offence that doesn’t exist. I know they are charged with conspiracy to defraud which is an offence but really it is insider trading

[Nor1]

Many thanks Galejade for your informative piece on the City. <br>I know very little about the gambling side of racing but thought bookmakers could lay bets. <br>Internet gambling needs an account to be opened and however fictitious this may be, it does leave an audit trail.<br>Bookmakers can deal in cash with anonymous customers. Perhaps customers should be required to open an account unless at the racecourse?<br>With regard to "inside information" a jockey may know the horse was stopped by someone else previously.<br>How galling for a jockey to watch someone else ride the prepared win and how lucky not to get blamed if it doesn’t!

[Anonymous]

The bulk of the charges relate to ‘providing information for gain’.<br> P Nicholls, A P McCoy, Elite Racing, The Pipeline, and several others do just that without censure, so how do they the HRA decide what is and isn’t reasonable? <br>Without clear and equitable standards laid down before the event, which has not been done in these cases, the whole thing becomes a witch-hunt in which the weakest will go to the wall.<br>In this event it is mainly the jockeys who are set to be sacrificial lambs, for no other apparent reason than that the only viable evidence that can be mustered is a few phone calls, some betting records. and a shared taxi ride.<br>Just my opinion, but their haste to persecute anyone remotely highlighted by the above is doing more harm than good to the public perception of racing, its primary purpose being to vindicate their own employment rather than address the real integrity issues; most of their own making and going back much further than the 3 years of the current investigation. Any decent race-reader, armed with a VCR and a form book, would do a much more worthwhile service.<br> As things stand, a number of jockeys face a very real threat to their future, yet there is little doubt that they, of all racing professionals, are the ones most likely to be acting under instruction from others.

(Edited by reet hard at 1:24 am on Jan. 3, 2007)

[Galejade]

TDK,

you may well be right that horses are being stopped – but the charges are not that these 2 jockeys stopped horses but that they are providing inside info for gain. If we in the racing forum muddle these concepts how much more  so do the general public who do not follow the game with our intensity.

[Author]

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