- This topic has 87 replies, 28 voices, and was last updated 16 years, 8 months ago by
.
- Posts
Paul. can I thank you for the time you have found to respond so well on this thread.
Colin
Ahem…….. to at least some of the questions?
Silvoir
It seems quite clear that Karl Burke sent out 5 horses, in a 1 month period, with no intention of them trying to win their respective races..
Why, in 5 years of investigation and litigation, has not one single question been raised – at any stage – about this real cheating, without which this whole sorry episode would never have been spawnedReet – apologies.
I’m not quite sure what point you are trying to make. If there isn’t a riding offence (Rule 157 – which deals with trainers as well as jockeys) how can you prove a horse was raced with no intention of winning the race?The scenario you pose is surely covered through Rule 157 and Rule 243 (inside information) and, as I have previously stated, we are reviewing the penalties for those offences?
- Total Posts 17716
Deleted
- Total Posts 17716
Duplicate post
- Total Posts 17716
Triplicate even?
- Total Posts 17716
Reet – apologies.
I’m not quite sure what point you are trying to make. If there isn’t a riding offence (Rule 157 – which deals with trainers as well as jockeys) how can you prove a horse was raced with no intention of winning the race?The scenario you pose is surely covered through Rule 157 and Rule 243 (inside information) and, as I have previously stated, we are reviewing the penalties for those offences?
Silvoir
Aren’t you accepting that each horse was run on its merits? Even the layman should see that plainly isn’t the case.
The point is this: KB advised MR that certain horses weren’t going to win, (The actual theft, whichever way you look at it), yet the entire thrust of subsequent investigations focussed on who was told what, rather than thereal integrity
issue of why they were advised as lays in the first place.
For all the furore, and subsequent suspensions of hapless pawns, isn’t it true that the BHA is ignoring the core issues in these matters, and papering over the cracks by the policy of pursuing only those who are second parties to the initial deception?Karl Burke’s appeal has been rejected.
Yesterday the Appeal Board, chaired by Sir William Gage, heard Karl Burke’s Appeal against the decision of the Disciplinary Panel of 2 July 2009. The appeal was against penalty only.
The appeal was dismissed. The Appeal board ordered that Mr Burke forfeit his £800 deposit and that he pay £4000 towards costs.
Full written reasons to follow.
[/color:3cz60ag8]
With thanks to Paul for the above, full reasons below:
REASONS FOR THE DECISION OF THE APPEAL BOARD DISMISSING THE APPEAL OF KARL BURKE FOLLOWING A HEARING ON 17 AUGUST 2009
1. The appellant, Karl Burke, is a trainer aged 46. On 2 July 2009, the day that a contested hearing before a British Horseracing Authority (BHA) Disciplinary Panel (the Panel) was due to start, the appellant admitted breaches of Rule 243 of the Rules of Racing and a breach of Rule 220(iv). He denied a breach of Rule 220(viii) which was not proceeded with. In respect of these breaches the Panel imposed a period of 12 months’ disqualification expressed as a global penalty in respect of all breaches. The appellant appeals against that penalty.
2. The facts and background to the breaches can be summarised as follows. The appellant trains from premises known as Spigot Lodge, Coverham, Leyburn, North Yorkshire. He has been involved in racing since he was aged 16 and a licensed trainer since 1990. He is a man of hitherto good character, having no previous findings made against him. Mr Miles Rodgers (Rodgers), who appeared with the appellant before the same Panel, was made a disqualified person on 2 April 2004.
3. The breaches of Rule 243 covered a period of just over one month in the summer of 2004. They involved six horses trained by the appellant. On six occasions the appellant supplied inside information to Rodgers for reward. The nature of the information was that the horses were unlikely to win. As a result, Rodgers laid each of these horses.
4. Telephone evidence showed that in respect of those horses, in the two days surrounding the date when each horse ran, telephone calls were exchanged between the appellant and Rodgers on an average of about ten occasions in respect of each horse. In respect of four of the horses a mobile telephone was used which was not registered with the Jockey Club.
5. It is the appellant’s case that he did not receive any specific financial reward for this information, but he accepted in his admissions that he received reward for the purposes of the Rule. In a document headed “Basis of Admission” submitted to the Panel it was stated:
“4. In 2004 MR was a principal investor in Lot 2 at Spigot Lodge which the complainant and others intended to develop. KB (the appellant) continued to have legitimate business dealings with MR regarding his land following MR being “warned off”. During these business dealings KB provided MR with information concerning “unfancied horses”. DW provided similar information. The information KB provided to MR was in part designed to maintain the co-operation and interest in the project at Spigot Lodge while new investment was obtained.”
6. In a further document prepared for the hearing on 2 July 2009 it was stated:
“10. He (the appellant) received no direct financial reward for his information. He needed favour and was aware that the same would secure favour. MR was in essence an investor upon whom KB was reliant. KB needed to ‘please’ MR as at the time he needed MR’s compliance. Spigot Lodge Lot 2 was at risk, so thought KB, without MR’s support.”
7. The background to these breaches is a criminal investigation into dealings concerning Rodgers. As a result of the police investigation Rodgers and a number of other men, including several jockeys, were all charged with criminal offences leading to a trial at the Central Criminal Court in 2007, which resulted in all of the defendants, including Rodgers, being acquitted on 7 December 2007. The appellant was arrested in 2004 in connection with this investigation. He was re-arrested on two further occasions before being told in 2006 that no charges would be preferred against him.
8. The prosecution was followed by inquiries by the BHA which led to allegations of breaches of the Rules of Racing being made against a number of jockeys and these allegations being made against the appellant and Rodgers.
9. The grounds of appeal are put under the general heading that the sanction imposed is both excessive and disproportionate to the accepted breaches and further disproportionate to those sanctions imposed upon others. In support of this general ground of appeal a number of specific submissions are made. They are:
(i) the appellant was sanctioned for offences which he had neither committed nor accepted;
(ii) the appellant’s penalty was disproportionate to penalties imposed on other offenders in a similar position to the appellant;
(iii) the Panel failed to take into account or give sufficient weight to three mitigating factors which were the delay between the commission of the breaches and the sanctions imposed; the appellant’s good character; and the impact of the sanctions on the appellant’s business and those employed by him.10. Before dealing with these submissions it is relevant for us to record the proper approach which this Board must adopt in respect of an appeal. Appendix J to the Rules of Racing provides specific Grounds of Appeal from decisions of a Panel. Only paragraphs 15 and 19 are material to this appeal. They read:
“15. That the reasons given are insufficient to support the decision.
…19. That the penalty or sanction imposed or other measure taken is so disproportionate that no reasonable decision maker could have decided upon it.”
Appendix J further provides that:
“32A. The Appeal Board should allow an appeal:
(a) if satisfied that one or more of the Grounds in paragraphs 15-19 above have been made out and it would be unfair to allow a decision to stand.”
We deal now in more detail with the submissions in respect of the Grounds of Appeal.
11. The first submission made by Mr Brendan Kelly QC on behalf of the appellant is that the Panel took into account offences which the appellant had neither committed nor accepted. The principal basis for this submission is a statement made by the Panel in its Reasons that the appellant had been in contact with Rodgers by telephone on 208 occasions in the 20 weeks following Rodgers being made a disqualified person. It is submitted that this demonstrated that the Panel misunderstood or when reaching its decision did not recollect the agreed facts as presented to it at the hearing.12. Mr Kelly referred the Board to the transcript of the proceedings before the Panel which show that counsel for the BHA at the hearing, Mr Mark Warby, QC, accepted that the financial benefit or reward element of the Rule 243 breaches was for future financial favour in relation to the development of Spigot Lodge, as set out in the basis of admission. It did not include any benefit in respect of dealings in relation to the assistance given by Rodgers to the appellant over the sale of a horse, KHANJAR (USA), to new owners. The latter was accepted as part of the breach of Rule 220(iv) but not relevant to the issue of benefit or reward. Mr Kelly submits that in the intervening time between the hearing before the Panel and the promulgation of its written reasons and decision it did not faithfully follow the agreed basis of the admissions in respect of Rule 243 breaches. He submits that his submission that the Panel took into account in respect of the Rule 243 breaches factors which it ought not to have done is reinforced by a sentence in the decision which reads:
“Nor was the Panel told by Burke what other reasons he had for providing the information – it was noted that even on Burke’s story quoted above, the hope of maintaining Rodgers’ co-operation over the land dealings was just part of his motivation.”
13. Counsel for the BHA, at the hearing before the Board, points out, as we have already observed, that the number of telephone calls made in the two days surrounding the running of each of the six horses averaged approximately 10 calls between the appellant and Rodgers. The Panel in its decision referred to “the sheer volume of traffic and the concentration of this around the times of the suspect races provided clear evidence of the breaches belatedly admitted by Burke”. In our judgment this was an observation which on the evidence before it the Panel was entitled to make.
14. In our view telephone calls in respect of business dealings made at about the time of the passing of inside information must be seen in the context of the appellant’s motive of seeking future financial favour. In that respect the two elements are interlinked. Further, Mr Kelly concedes that some of the telephone calls made post the dates when the six horses ran could be attributed to the dealings in relation to KHANJAR (USA) which, it is accepted, constituted a breach of Rule 220(iv). This accords with the transcript of the agreement reached by counsel at the hearing before the Panel.
15. The Panel in its reasons made it clear that it had taken into account the fact that “some telephone calls were unobjectionable because Burke was entitled to have business dealings with him (Rodgers) on matters unrelated to racing”.
16. In the circumstances we can find no error in the approach of the Panel to the telephone evidence and none to demonstrate that it had taken into account factors outside the terms of the basis of admissions as clarified and agreed by both counsel in the course of the hearing.
17. The second principal submission made by Mr Kelly is that that there is a disproportionate disparity between sanctions imposed upon a jockey, Darren Williams (Williams), and the sanctions imposed upon the appellant. The same Panel dealt with Williams, who admitted five breaches of Rule 243 in respect of providing insider information to Rodgers. It is submitted that the only difference in the facts relating to Williams was that he admitted breaches in respect of five horses rather than six admitted by the appellant. The information passed was, it is submitted, identical and the sanction imposed was three months’ disqualification. It is submitted that the disparity in sentence was so great that viewed objectively the sanction imposed upon the appellant was disproportionate and excessive.
18. So far as this submission is concerned the Panel referred to it in its Reasons as follows:
“But there were notable differences between that case (Williams) and Burke’s – notably the fact that Williams admitted his Rule breaches at a much earlier stage than Burke and that Williams had been subjected, (unlike Burke) to the failed Old Bailey proceedings.”
19. Although in his written submissions, Mr Kelly submits that Williams’ admissions were made at the same stage that the appellant made his, namely on the date fixed for the contested hearing, it is clear that Williams made admissions at a much earlier stage. The documents show that he admitted breaches in respect of five horses well before the first hearing. So far as the sixth horse was concerned he made no admission and the allegation in respect of it was not proceeded with.
20. Mr Kelly valiantly endeavoured to persuade us that Williams’ admissions were not sufficiently full to permit the Panel’s finding that they amounted to a material difference between the appellant and Williams. We do not accept this submission. Although in correspondence following the filing of Appendix S form by Williams dated 20 May 2009, the BHA indicated that it had strong evidence to show that Williams received a financial reward for providing the prohibited information, at the hearing it did not pursue this allegation and accepted the admissions made by Williams in his Appendix S form. In the circumstances, in our view the Panel was right to find Williams was entitled to a discount for the early acceptance of his guilt. We reach this conclusion notwithstanding the fact that at a BHA Licensing Committee hearing in December 2007, before he had been notified of the BHA charges, Williams denied any misconduct.
21. The Panel also took into account the fact that Williams had been a defendant in the criminal proceedings and was suspended for 18 months preceding his acquittal. Mr Kelly points out that Williams received compensation in respect of that period of suspension and that the compensation amounted to more than he would have been likely to have earned during that period of 18 months. Mr Kelly submits that the 18 months suspension and compensation is much more favourable to Williams than disqualification of the appellant for 12 months.
22. In respect of this submission, in our judgment, there are clear differences between the facts involving Williams and the appellant. First, as we have already indicated, Williams was entitled to a discount for his early admissions. By contrast, the appellant made no admission in respect of the Rule 243 breaches until the first day of the hearing. Secondly, the Panel was, in our opinion, entitled to take into account as a difference between Williams and the appellant, that Williams was suspended for the 18 months preceding his acquittal of all criminal charges. He was financially compensated for this period but during that time Williams was unable to pursue and enhance his career. He was also subjected to the anxiety of a criminal trial with all that entailed. We have no doubt that the fact that the appellant was arrested in connection with the criminal investigation caused him anxiety and adversely affected his reputation. Nevertheless, he was able to pursue his career as a trainer in that period, as we understand it, with some success. Finally, although not specifically referred to by the Panel, in our view it is relevant to note that, at the time of these breaches the appellant was older and more mature than Williams. It was, in our opinion, for the Panel to assess the relative weight to attach to these differences when deciding the appropriate penalty for the appellant.
23. In addition, as the Panel made clear in its decision, the guidelines provided by the Guide to Procedures and Penalties (“the Guide”) in respect of penalties are of greater significance than previous Disciplinary Panel decisions. As the Panel stated:
“… the whole purpose of the system of guideline penalties is to enable Panels to deal with Rule breaches without making detailed comparisons with past cases, where there is inevitable debate about the similarities between them and about the adequacy of the penalties then imposed.”
24. We agree with that statement and wish to underline the force of it. It follows a passage in the Guide which states:
“(4) The Panel will not normally consider a previous decision to be helpful or relevant when deciding the appropriate penalty to be applied in accordance with the principles set out in these guidelines.”25. In any event, as counsel for the BHA submits, the fact that a penalty imposed on one offender may be regarded as lenient, or unduly lenient, does not, of itself, mean that a penalty imposed on another offender in a similar position must necessarily follow the lenient sentence where a more severe sentence is called for. In all the circumstances this submission must be rejected.
26. We can deal with two further submissions comparatively briefly. The Panel’s decision makes clear that they took into account the appellant’s previous good character and the effect that a disqualification would have on his business. It was for the Panel to assess the weight to be attached to those two factors.
27. The final submission relates to the period of delay between the commission of the breaches in 2004 and the proceedings taken against the appellant in 2008. The delay between the breaches and the imposition of the penalties in 2009 is five years. On any view, this is a lengthy period. Mr Kelly submits that the Panel did not take it into account at all. Again, we reject that submission. It is clear from the decision that the Panel did take into account the delay.
28. In our view, the real issue of substance raised in this Appeal is whether the Panel failed to attach sufficient weight to the undoubted mitigating factors and in particular the delay of five years since 2004.
29. In our judgment the breaches admitted by the appellant are serious breaches of the Rules of Racing. Passing inside information for whatever reasons represents grave conduct by a trainer. Whether it is done for an immediate cash payment or for future financial favour, in our view, matters little. Such breaches affect the integrity and reputation of racing.
30. In this case the breach of Rule 243 was not one isolated occasion. It occurred on six different occasions spread over approximately five weeks. It also involved information being given to a disqualified person and on four occasions given via an unregistered mobile telephone. In our judgment, these latter two factors substantially aggravate the Rule 243 breaches.
31. The current Guide provides that for a breach of Rule 243 the entry point is 18 months’ disqualification/suspension. Mr Kelly sought to argue that the Panel ought to have applied the Guide current in 2004 or 2006. We disagree. This is not a case where in the intervening period of time the maximum penalty has been increased. In that case it would be proper to deal with a person in breach on the basis of the maximum penalty at the time the breach was committed. Here the position is that the Guide increased the entry point since 2006 from 12 months to 18 months. In our judgment, the Panel was not only entitled to but bound to follow the current Guide. We add that we are not persuaded that in dealing with the appellant on this basis the Panel differed in any way from the basis upon which it dealt with Fergal Lynch, a jockey similarly involved in this Inquiry.
32. The Board has carefully considered whether or not the Panel gave sufficient weight to the mitigating factors and particularly the period of delay. However, essentially these were factors for the Panel to assess. Conducting the appeal by way of review, as we must, we have reached the conclusion that it is impossible to say that the sanction imposed by this Panel was so disproportionate “that no reasonable decision maker could have decided upon it”. On the contrary, in our judgment, the seriousness of the Rule 243 breaches alone, when coupled with the aggravating features to which we have referred above and committed by a trainer aged 35 at the time of the breaches with approximately 20 years’ experience in racing amply justified the penalties imposed by the Panel.
33. We wish to add one final comment. Mr Kelly placed some emphasis on the delay between the hearing before the Panel and the date of its reasons. We have already dealt with the submission that this caused the Panel to misinterpret or misrecollect the evidence (see paragraph 12 above). We do not know the reasons for this delay but such delay as there was cannot provide a free-standing ground of appeal. The decision of the Panel was either flawed or not regardless of the delay. For reasons which we have endeavoured to explain in our judgment it was not.
For more information please contact Paul Struthers, Media Relations Manager, on 020 7152 0166 or 07966 590105.
19 August 2009Notes for Editors:
The members of the Appeal Board were: Sir William Gage (Chairman), Anthony Mildmay-White and Christopher Hodgson
That will be a matter for the Licensing Committee to address at it’s meeting next week.
I don’t think Paul is saying that at all – as I understand it (and I may be wrong) the ban means Burke is banned from all licenced premises.
If another trainer takes over the licence at Spigot Lodge then Burke would technically no longer be allowed to live there without special dispensation.
If Spigot Lodge were no longer a registered training establishment and the horses were sent elsewhere then his remaining there would not be an issue.
Both of you are right. Burke would have to apply to Disc Panel for dispensation against any aspect of Disqualification. With regards living in the house at Spigot Lodge, only once the Licensing Committee have ruled on Jarvis’ licence application (previous one was only temporary) will we know whether the house is on licensed premises or not. If it is, he’ll need to ask Disc Panel if he wants to live there. Until that licensing committee hearing – which is next Tues I think – he’s allowed to stay there.
Hope that’s a bit clearer – it’s the problem with posting from home late at night after a long day.
Excuse me and for my layman thinking…
What is there in place to stop KB s wife or family member from carrying out his wishes for the running of the yard. Who is there to stop him talking to his wife Elaine etc. By legitimate discussion at home away from the yard can his wishes in the running of it be still carried out !Excuse me and for my layman thinking…
What is there in place to stop KB s wife or family member from carrying out his wishes for the running of the yard. Who is there to stop him talking to his wife Elaine etc. By legitimate discussion at home away from the yard can his wishes in the running of it be still carried out !There are many who will suggest the formidable Mrs B is already the boss – so his views will be secondary anyway.
Why can Nick Henderson who is also banned continue to live at his Lambourne yard?
No one can tell me that although Nicky Henderson is banned all the time he is going to be surrounded by his horses on a daily basis that he will be able to resist talking to his staff, maybe even checking his horses over or watching them exercise in his covered walkway or on his private gallops.
Whilst I have no sympathy for the position Karl Burke is in he seems to have been made an example of whilst Henderson seems to have got off lightly.
Why can Nick Henderson who is also banned continue to live at his Lambourne yard?
No one can tell me that although Nicky Henderson is banned all the time he is going to be surrounded by his horses on a daily basis that he will be able to resist talking to his staff, maybe even checking his horses over or watching them exercise in his covered walkway or on his private gallops.
Whilst I have no sympathy for the position Karl Burke is in he seems to have been made an example of whilst Henderson seems to have got off lightly.
Seagull – Karl Burke was disqualified and Nicky Henderson was prevented from making entries and having runners, hence Henderson is perfectly entitled to live on the yard, speak to his staff and train his horses.
- You must be logged in to reply to this topic.