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Milczarek appeal successful after Fallon intervention

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    cormack15
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    Highly interesting events as Kirsty Milczarek’s appeal succeeds following Kieren Fallon’s new evidence which the board were unimpressed by but, in the end, forced to accepot.

    “We found Fallon’s evidence difficult to assess. His answers were at times vague and discursive.”

    The other appeals were unsuccessful.

    Here’s the findings in detail split into two posts because of size)- careful with any responses people for obvious reasons

    _______________________________________________________________

    Appeal Board decisions regarding the appeals of Maurice Sines, James Crickmore, Peter Gold, Nick Gold and Kirsty Milczarek

    1. Following an eleven day hearing of an enquiry concerning five jockeys and six men described as bettors and another man who came into an entirely different category to the jockeys and bettors, the Disciplinary Panel found that charges against four of the jockeys and all of the bettors were made out. One of the jockeys, Kristy Milczarek, has appealed, as have four of the bettors: Maurice Sines, James Crickmore, Peter Gold and Nick Gold.

    2. The charges against the jockeys were brought under Rules 157, 201(v) and 243 of the Rules of Racing. Kirsty Milczarek was charged under all three of the above Rules. The Panel acquitted her of being in breach of Rule 157 in respect of her ride on a horse, OBE GOLD, in the 19.00 race at Lingfield on 15 August 2009. But the Panel found her to be in breach of Rule 201(v) and Rule 243 in respect of the events surrounding that ride.

    3. The bettors were all charged with breaches of Rule 201(v) in respect of 10 Races, the first being the 12.45 at Lingfield on 17 January 2009 and the last at Lingfield at 19.00 on 15 August 2009. Mr Nick Gold and Mr Peter Gold were involved only in the first seven races. The last race involved Milczarek. The ten races, the horses involved and the trainers and jockeys are set out at Annex A (Table 1) to these reasons. The charge in the case of each bettor was that he was concerned in a conspiracy with the other bettors and the jockeys to commit “a corrupt or fraudulent practice by placing lay bets and/or causing one or more of the Betting Exchanges account holders to place lay bets on the horse listed in Table 1 (the Named Horse) not to win (and/or be placed) in the Race using information he had received directly or indirectly from the jockey or other licensed person. The bettors were also charged alternatively with being in breach of Rule 220(ix) by causing a jockey to be in breach of Rule 243, namely supplying information for reward. The charges under Rule 201(v) were in all cases found to be proved.

    4. Mr Sines and Mr Crickmore were further charged with a breach of Rule 247 in respect of two of the ten Races (Races 1 and 3) of causing bets to be placed on their behalf on a horse of which they were the owners. Mr Sines and Mr Crickmore were found to be in breach of this Rule in respect of both races.

    5. The Rules cited above are Rules under the former Rules of Racing as the events happened before the new Rule Book came into force.

    The allegations in more detail and the evidence

    6. The Enquiry focussed on the running and lay betting on the horses in the ten races. The Panel summarised the allegations in paragraph 4 of its reasons:

    “In broadest outline, the main case made by the BHA against those charged with a breach of the Rules was that they were doing their part in carrying out agreements to profit by lay betting from Races in which the jockeys either did or would if necessary ride to lose.”

    7. The allegations were that Mr Sines and Mr Crickmore were the instigators in the conspiracy. It was alleged that they suborned the jockeys into agreeing to ride either to lose the race concerned or ready to prevent the horse from winning if it looked as if it might win. It was alleged that this information was used by Mr Sines and Mr Crickmore to cause lay bets to be placed on betting accounts held by the bettors on various exchanges. The accounts concerned, with other information to which we refer later, are set out in Annex B attached to these reasons. In two of the races (races 2 and 7) it was alleged not that the jockeys agreed to stop the horses but that they gave to Mr Sines and Mr Crickmore some “reliable adverse information” about the horses’ prospects in the race which prompted the lay betting.

    8. The principal evidence adduced by the BHA at the Enquiry firstly consisted of analysis of the betting on the exchanges in respect of the ten races, together with analysis of the accounts in all other races between a period starting before race 1 and ending after race 2. In broad terms the BHA alleged that this analysis demonstrated that in respect of the ten races the pattern of betting, and in particular lay betting, was different from other days and involved much larger lay bets than on other Races.

    9. Secondly, the BHA adduced evidence of telephone contact between the jockeys concerned in each race and Mr Sines and Mr Crickmore; telephone contact between Mr Sines and Mr Crickmore and the bettors at or around the times of each of the ten races; and evidence of telephone contact between the bettors and the betting exchanges at times close to the races.

    10. Thirdly, the BHA relied on video evidence of the ten Races to demonstrate that the ride given by the jockey concerned was in breach of Rule 157 (failure to ride a horse on its merits) and Rule 243 (passing inside information)

    11. The Panel found that all of the above factors was relevant evidence in determining whether the jockeys were in breach of Rule 157; and whether the bettors were participants in the conspiracy to place lay bets on horses which they knew would not be ridden on their merits, alternatively on the basis of inside information passed by the jockeys to the bettors.

    12. The evidence in respect of the betting and telephone analysis was not in dispute. The context in which the betting and telephone evidence occurred and the inferences to be drawn from this evidence were in dispute.

    The ten races

    13. We set out at this point in summary the Panel’s finding in respect of nine of the ten races. They form the essential background to the issues in the appeals of Messrs Sines, Crickmore and the two Golds. We deal with the tenth race separately. It is the only race in which the jockey has appealed. The three jockeys involved in the other races and who were found guilty of breaches of the Rules have not appealed either the findings of breach or the penalties. The jockey concerned in race 3 was acquitted of all breaches of the Rules with which he was charged.

    Race 1

    14. Annex A shows that this race involved a horse called IT’S A MANS WORLD, ridden by Jimmy Quinn in the 12.45 Race at Lingfield on 17 January 2009. The horse was trained by Peter McBride. There is no dispute that at the time of the race it was owned by Mr Sines and Mr Crickmore. The horse started at 11/8 favourite but was beaten into second place. There was an allegation that Quinn’s ride was in breach of Rule157. This was rejected by the Panel although it found that Quinn did not ride the horse according to the trainer’s instructions, but followed the instructions of the owners, Mr Sines and Mr Crickmore, who had instructed him to bring the horse late in the Race, contrary to the trainer’s instructions which were to “go forward and make use of him” or similar words to that effect.

    15. The Panel found that both Mr Sines and Mr Crickmore, despite their denials, were involved in lay betting on this horse contrary to Rule 247, at the time, it being owned by Mr Sines and Mr Crickmore. They further found that Mr Sines and Mr Crickmore had used their position as owners to arrange for Quinn “… to adopt their preferred tactics which helped to give them sufficient confidence to organise the lay betting”.

    16. The Panel further found that Mr Sines and Mr Crickmore had endeavoured to conceal their ownership of the horse by persuading the trainer to allow it to run in his colours rather than their own colours. In addition, they found that Mr Sines had endeavoured to influence the odds on IT’S A MANS WORLD more favourably for lay betting by making spoof attempts to back the horse with bookmakers for sums which he knew would not be accepted.

    17. The lay bets placed on the betting exchanges are summarised in Annex B.

    18. There is no dispute that the following accounts were registered in the names of or used by Mr Peter Gold and Mr Nick Gold: chelseaboy55, goldylocks and Nickgold. The other accounts were registered or used by men associated with Mr Sines and Mr Crickmore.

    Race 2

    19. The horse, SILK GALLERY (USA), was also ridden by Quinn. This race took place on 7 February 2009 at an evening meeting in Wolverhampton. In respect of this race the Panel found that Quinn passed on to Mr Sines and Mr Crickmore adverse information about the horse’s prospects which caused both men to organise lay betting channelled through Mr Peter Gold’s Betfair account, chelseaboy55. During the course of the day of the Race £50,000 was deposited into this account. As in all the other eight Races the horse did not win and the lay bet was successful.

    Race 3

    20. We need not deal with this Race in any detail. It involved the running of IT’S A MANS WORLD at a time when the Panel found it was still owned by Mr Sines and Mr Crickmore. The Panel found that Mr Sines and Mr Crickmore had sought to conceal their ownership, no doubt to prevent them from being charged with laying their own horse contrary to Rule 247. The Panel acquitted the jockey of any untoward conduct in respect of his ride on this horse. It found that Mr Sines and Mr Crickmore were inspired to instigate lay bets because of their opinion that the horse was very unlikely to win. Annex B shows that lay bets were placed on the chelseaboy55 account and with a number of accounts used by associates of Mr Sines and Mr Crickmore.

    Race 4

    21. This Race was run on 1 March 2009 at Lingfield. The horse involved was EDITH’S BOY (IRE), trained by Simon Dow and ridden by one of the jockeys charged as being party to the conspiracy, namely Paul Doe. In the Race the horse started at 9/2 and finished 4th.

    22. Doe consented to be interviewed by a BHA official but refused to attend the Enquiry. The Panel found that in his interview he lied about his knowledge of Mr Sines and Mr Crickmore. The Panel scrutinised the video recordings of the race with great care and despite a contrary opinion of the Stewards and Dow found that Doe’s riding was in breach of Rule 157. They found that his riding was motivated to ensure lay betting by Mr Sines and Mr Crickmore. They further found that contacts by telephone between Mr Sines and Doe’s girlfriend on the same day but before the race, were made to conceal Mr Sines’ contact with Doe in respect of his riding.

    23. As with other races, evidence of telephone contact between Mr Sines and Nick Gold shortly before the race, followed by lay betting, was found by the Panel to confirm use of the information given to Mr Sines by Doe, inspired the lay bets.

    Race 5

    24. On 5 March 2009 at an evening meeting at Wolverhampton, Gregg Fairley rode a horse called THE STAFFY (IRE). The horse did not win and lay bets on it were successful. Fairley attended interviews with the BHA investigators. Initially he denied any knowledge of Mr Sines and Mr Crickmore. But after being shown a photograph of Mr Sines he said he knew a man called Fred who spoke to him about horses and telephoned him from time to time.

    25. The Panel found that Fairley’s riding of THE STAFFY (IRE) in this race was in breach of Rule 157. They also found that Doe was used as an intermediary in telephone contact between Fairley and Mr Sines to transmit information from Fairley to Mr Sines. Again, the Panel found that this was to conceal Mr Sines’ contact with Fairley.

    Race 6

    26. This race involved a horse called KING OF LEGEND (IRE) which ran in the 19.20 on 20 March 2009 at Wolverhampton and ridden by Fairley. In respect of Fairley’s riding in this race the Panel did not find that his ride was in breach of Rule 157. However, they did find that it was unnecessary for Fairley to take any steps to prevent the horse from winning, but that if it had been necessary he would have done so. Again, in respect of this race the Panel found Doe was used as an intermediary between Mr Sines and Fairley. Brief details of the lay betting in this race appear in Annex B.

    Race 7

    27. The horse in this race was SHERJAWY, ridden by S Hitchcott in the 18.50 at Kempton Park on 8 April 2009. Doe was alleged by the BHA to have passed on inside information given to him by Hitchcott in an unguarded moment. The Panel found Hitchcott was innocent of all wrongdoing in respect of his part in this matter but they found Doe was not entitled to pass this inside information on to Mr Sines. Lay bets were made in respect of this race on the three accounts set out in Annex B.

    Race 8

    28. The race concerned was a Race at Bath on 23 July 2009. The horse, TERMINATE (GER), was ridden by Doe. In respect of this race the Panel found that Fairley was used by Mr Sines as an intermediary between him, Mr Sines and Doe; the reverse of the process in Races 5,6 and 7.

    29. The Panel found that Doe’s ride was in breach of Rule 157. They further found that they “… were sure that Doe was passing on information for reward …” in breach of Rule 243 (the prohibition on passing inside information).

    Race 9

    30. This race was run at 19.55 at Catterick on 14 August 2009. The horse involved was OBE GOLD and was ridden by Fairley. The Panel found Fairley’s ride was in breach of Rule 157. They found that Fairley’s dealings were made directly with Mr Sines, which led to the conclusion that Fairley deliberately failed “… to make the necessary substantial effort” when riding the horse in the race. The Panel was also “sure” that Fairley was, for the races in which he rode, passing information and riding to lose if necessary in return for reward from Mr Sines and Mr Crickmore.

    31. We leave the Panel’s findings in respect of race 10 to the appeal of Milczarek.

    Further findings in respect of Mr Sines and Mr Crickmore and their connection with Mr Nick Gold and Mr Peter Gold

    32. It was common ground before the Panel that towards the end of 2008 Mr Sines and Mr Crickmore had entered into a partnership with Mr Nick Gold to place bets on Mr Nick Gold’s and his father’s betting account. This partnership, as it was described, provided a way for Mr Sines and Mr Crickmore to place bets on the exchanges, their accounts having been stopped. The agreement was that Mr Sines and Mr Crickmore nominated the horses and the bet and Mr Nick Gold arranged for bets to be placed either on his own account or with his father’s accounts. Mr Nick Gold said that the bets were made on a fifty-fifty split between Mr Sines and Mr Crickmore on the one hand and him and his father on the other. The Golds provided the credit for the bets.

    33. Mr Nick Gold’s description of the partnership was that the bets were principally to be lay bets, although some back bets were also made. He said the first of the lay bets was made on race 1. Both Mr Sines and Mr Crickmore denied being concerned with this bet. Indeed Mr Sines said he had never made lay bets. The Panel preferred the Golds’ evidence on this issue for reasons which are set out in paragraph 70 of their decision.

    34. The findings on the partnership in the seven races in which they were involved are set out in paragraphs 72-80. The Panel found that all the lay betting through Mr Nick Gold on the Gold accounts and through a commission agent, Mr John Loftus on race 4, were lay bets by Mr Sines and Mr Crickmore in partnership with Mr Nick Gold. The Panel further found that “… there is a wealth of evidence to show that Mr Mr Crickmore either used directly himself those other accounts identified as carrying out heavy lay betting in the ten races – see Annex B – or arranged for these bets to be placed by others using those accounts”; and that the bets were made on behalf of himself and Mr Sines.

    35. Save for the first ground of appeal, the standard of proof, there is no challenge on behalf of Mr Sines and Mr Crickmore to these findings.

    36. So far as Mr Nick Gold is concerned, the Panel, correctly in our judgment, posed the crucial issue in the following terms; “Ultimately, the question whether Nick Gold was a part to the conspiracy … depended upon whether he knew that the lay bets … were inspired by inside information”. In paragraphs 191 to 197 the Panel set out their reasons for concluding that Mr Nick Gold did not know that Mr Sines and Mr Crickmore had secured the agreement of jockeys to stop horses, but did know that the bets were inspired by inside information adverse to the horses’ prospects in these ten races.

    37. In paragraph 204 the Panel set out its reasons for concluding that Mr Peter Gold also was a party to the conspiracy on the same basis as his son. The Panel further concluded that the three other bettors involved in the Enquiry, Liam Vasey, David Kendrick and Shaun Harris, were parties to the conspiracy on the same basis as the Golds.

    By the Grounds of Appeal: Standard of Proof

    38. There is one ground of appeal which is common to all the Appellants. The Rules of Racing provide at Schedule (A)6 paragraph 16:

    “Where any fact or matter is required to be established to the satisfa_ction of the Authority, the standard of proof shall be the civil standard which is to say the standard applied in the civil courts of England in a dispute between private Persons concerning a matter of comparative seriousness to the subject matter of the enquiry.”

    This provision, as the Panel recorded, first entered the Rules of Racing in 2001

    39. It was s_ubmitted by counsel for Mr Sines and Mr Crickmore and leading counsel for the Golds, that the appropriate standard for proving the breaches of the Rules of Racing alleged by the BHA was the criminal standard. The Panel rejected these submissions and ruled that the appropriate standard was the balance of probabilities. In so doing the Panel specifically referred to the decision of the House of Lords, In re Doherty 2008 UK HL and in Re B (Children)(FC) [2008] UKHL 35. All of the appellants challenge this ruling by the Panel and submit that the standard of proof for these breaches ought to have been the criminal standard.

    40. Mr Jason Bartfeld submitted that the Rule should be construed on the basis of the law in 2001 and not 2011. He submitted that the part of the Rule which reads: “ … in a dispute between private Persons concerning a matter of comparative seriousness to the subject matter of the enquiry” indicates that the standard to be applied depends upon the subject matter of the case in hand. As such, the charges against his clients were, he submitted, so serious that the criminal standard of proof should have been applied. This was the position, he submitted, before the decision In re B. He submitted that the Rule applies a flexible standard of proof to be tailored to the nature of the charge and the seriousness of the consequences. Thus it is submitted the Panel should have applied the criminal standard of proof.

    41. Mr Jonathan Caplan QC, counsel for the Golds, submitted that the speeches in the House of Lords In re B left open some categories of dispute which despite being subject to the civil standard of proof required the application of the criminal standard. He submitted the charges against his clients, being allegations of corruption and fraudulent conduct, together with the consequences of a finding of such conduct by the Golds, are so damaging to their reputation that they should have been proved to the criminal standard. Mr Caplan pointed out that, unlike the other Appellants, the Golds were not licensed under the Rules of Racing and were not strictly bound by them. In the alternative Mr Caplan relied on a passage in the speech of Baroness Hale In re B in which she cited with approval a passage in a judgment of Ungoed-Thomas J In re Dellow’s Will Trusts [1964] 1 WLR 451,455:

    “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.”

    42. Mr Ian Winter QC, leading counsel for Milczarek, supported the submissions of Mr Caplan. He accepted that following In re B there are now only two standards of proof: the balance of probabilities and beyond reasonable doubt. He accepted that the effect of In re B was to disapprove preceding authorities which indicated that the balance of probabilities might have gradations of different standards. He submitted that the seriousness of the allegations against Milczarek and the consequences to her of being found in breach of the Rules made it appropriate to apply the standard of beyond reasonable doubt.

    43. In his skeleton argument Mr Winter referred the Board to decisions of the High Court in proceedings involving a number of different circumstances and facts where the court held that the standard of proof was the criminal standard. In the alternative Mr Winter relied on a passage in the speech of Lord Nicholls In re H (Minors) [1996] AC 563 at 586:

    “ … the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”

    44. Mr Mark Warby QC, counsel for the BHA, submitted that the Panel adopted the correct standard of proof, namely a balance of probabilities. He relied on the words of the Rule in Schedule (A)6 paragraph 16 as making it clear that the civil standard of proof was applicable and that this was further made clear by the reference to disputes between private Persons, not public bodies. He further submitted that the fact that jockeys were licensed each year on terms which included an undertaking to abide by the Rules of Racings, imported into the Rule the law as it is today.

    45. In our judgment the standard of proof in these proceedings before the Panel is the balance of probabilities. The Rule in paragraph 16 makes it clear that the standard of proof is the civil standard. Lord Hoffman and Baroness Hale made clear in their speeches that the so-called heightened standard of proof in civil proceedings was no longer good law. We do not accept that this standard must be adopted because paragraph 16 was promulgated before In re B was decided. The House of Lords, now the Supreme Court, declares what the law is and always has been. There is, in our judgment, no room for construing paragraph 16, as importing, and bound by, the law as it was or may have been in 2001.

    46. We accept Mr Winter’s submission that Lord Hoffman swept away the gradations of different standards of the civil burdens of proof. What he and Baroness Hale stressed was that in applying the balance of probabilities, “Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities” (see In re B at page 21 paragraph 15). Baroness Hale similarly said:

    “When assessing the probabilities the court will have in mind as a fact (to whatever extent is appropriate in the particular case (emphasis added by Baroness Hale) that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.” (In re B page 33 paragraph 62)

    47. Although, as we accept, the charges against these appellants were serious and the consequences, particularly for the jockeys were serious, they were not criminal proceedings. They do not come into any of the cases in the first category referred to by Lord Steyn in R (McCann) v Crown Court at Manchester [2003] 1 AC 787. Further, we are not helped by standards adopted by other bodies or standards applied where the penalties followed criminal proceedings. The BHA has a duty to ensure that the integrity of racing is preserved. In our judgment it is entitled to provide for a standard of proof, namely the civil standard of proof which in our opinion is appropriate and, as we find, fair.

    48. We accept that in making its findings the Panel should use its common sense in the way explained by Lord Hoffman. We further accept that these were serious allegations and that cogent evidence was required to prove the allegations. However, it is clear that the standard of proof was debated before the Panel. In re B was referred to in the Panel’s reasons and we are quite satisfied that the Panel had in mind the observations made by Lord Hoffman and Baroness Hale to which we have referred. In our judgment the Panel applied the correct standard of proof.

    The appeal of Mr Sines and Mr Crickmore

    49. In addition to the ground of appeal relating to the burden of proof Mr Sines and Mr Crickmore relied on a second ground. This ground alleged that there was insufficient evidence on which the Panel could reasonably have found, as it did, that the lay betting was extraordinary and founded on corrupt and/or inside information. Alternatively the Panel ignored undisputed evidence to the contrary which resulted in their reasons being insufficient.

    50. This ground can be divided into three parts. Firstly, it was submitted that the Panel relied on evidence of lay betting by Messrs Sines, Crickmore, Nick Gold and Peter Gold on the ten Races which represented only a snapshot of lay betting carried out by the partnership. It is submitted that there was unchallenged evidence of many more bets being made by four men (the wider picture). If these bets were taken into account it was submitted that any statistical analysis would or might provide an entirely different picture of the betting. It was argued that the Panel’s finding that the lay bets in respect of the ten races was extraordinary was made on a false basis.

    51. Mr Warby on behalf of the BHA submitted that this submissions failed to take into account a number of factors. Firstly, the betting on the Races was not confined to bets made by the partnership. The evidence, which the Panel accepted, shows that lay bets were made on accounts of the bettors who were associated with Mr Crickmore. These are the other accounts set out in Annex B. Mr Warby submitted that the telephone time-lines support the Panel’s finding that Mr Crickmore used other accounts directly or indirectly to place lay bets on the ten races. Secondly, it was submitted that neither Mr Sines, nor Mr Crickmore nor the Golds adduced any clear evidence of a wider picture of betting other than mere assertion.

    52. The Panel had before it evidence from Mr Mark Phillips, the Principal Betting Investigator of the Integrity Services and Licensing Department of the BHA. His evidence, in the form of a witness statement with schedules attached, was read into the evidence. Mr Phillips had analysed all the accounts referred to in Annex B. He analysed these accounts for the days of the ten races and also over the whole period on which they were open and being used. That period obviously included the ten race days. The result of his analysis in relation to the ten Races demonstrated heavy lay betting on the named horses (see Annex B comment column). Both Mr Bartfeld and Mr Caplan accepted that the analysis demonstrated a “spike” in the amount of lay betting in respect of the ten races. In his witness statement Mr Phillips said:

    “It is clear from the figures and graphs exhibited in MP9 that in the vast majority of cases the horses were laid by the suspicious accounts far in excess of their normal or average limits.” And earlier in his statement,

    “The fact that often the suspicious account alone traded greater volumes than all Betfair’s customers did on shorter priced horses shows demonstrates just how confident the suspicious accounts were that these horses would not be placed.”

    53. In our judgment this unchallenged evidence demonstrated, as was asserted on behalf of the BHA, confidence by the bettors in the prospects of the lay betting being successful. Further, although there may have been other bets, lay or back bets, made over the period the accounts were being operated, it was open to the Panel to find that judged in the context of their findings in respect of the ten races, this evidence was significant.

    54. It was argued before the Panel and the Board that all of the four bettors were very rich men used to backing horses or taking financial risks in other circumstances, for very large sums. This may well be so, but it does not in our judgment overcome the fact that in these ten races the lay bets on the betting accounts were far in excess of their “normal or average limits”. In addition, Mr Phillips’ evidence in Annex B demonstrated that the risks taken by the lay bets on these accounts for the ten races were for the most part at the top end of the risks taken by all other accounts for the individual exchange (see the comments in Annex B).

    55. So far as Mr Sines and Mr Crickmore are concerned we reject this ground of appeal. We discuss it further later in our discussion of the Golds’ appeal.

    56. Secondly, it is submitted on behalf of Mr Sines and Mr Crickmore that in reaching their conclusions on Mr Crickmore’s part in the conspiracy the Panel erred in finding that Mr Crickmore lied by denying any involvement in lay betting for the ten races (paragraph 68 of the Panel’s reasons) and in particular denied being involved in lay betting on races 1 and 3 (paragraph 77 of the Panel’s reasons).

    57. Again, we reject this ground of appeal. In evidence Mr Crickmore was taken through the betting on each of the races. In respect of race 1 he denied being involved in any lay bet through any account (transcript Day 5 p.9E). As to the other races in respect of some he said he was unable to remember whether he was involved in lay betting; in others he accepted lay betting on his own account. In respect of none of these races did Mr Crickmore unequivocally accept that he was responsible for lay bets on other accounts. The general tenor of his evidence appears to have been an attempt to distance himself from lay betting. The Panel found him to be party to the conspiracy and connected, with others, apart from the Golds, who had also placed lay bets on these races. In our judgment on the whole of the evidence which included Mr John Gardner’s (the BHAs Principal Intelligence Analyst) evidence of telephone call time lines, the Panel were entitled to conclude that Mr Crickmore placed lay bets directly or indirectly through the accounts of known associates.

    58. Thirdly, it was contended on behalf of Mr Sines and Mr Crickmore that the Panel attached too much weight to remarks made by Mr Sines in a telephone call between himself and Mr Jon Dunn, a BHA Investigator. It was also submitted that the contents of the telephone call were never put to Mr Sines.

    59. The Panel commented on this part of Dunn’s evidence when dealing with evidence about Mr Sines’ contact with jockeys. In the decision the Panel said:

    “During a telephone call with Jon Dunn … he (Sines) said that he could leave racing ‘in tatters’ if he was taken to court, as he would talk about all the other jockeys and trainers he had spoken to. And in evidence before the Panel he asked why no big jockeys were being prosecuted against, a question he answered – “it’s what suits”. This was a curious line for Mr Sines to take, as implicit within it is an allegation that “big jockeys” with whom he was familiar were parties to corruption”. (Paragraph 82 of the decision).

    60. We understand this evidence came before the Panel in Dunn’s witness statement and exhibits which were put before them in accordance with its usual practice. Dunn was asked about this conversation in evidence-in-chief. He confirmed it as correct (Day 3 p.62 G). It is clear from the transcript of his evidence that Mr Sines was also asked about this conversation. He denied using the word “tatters”; a word which he said he never used and did not know what it meant.

    61. Mr Warby submitted that the Panel did not put “significant weight” on this evidence. It was, he suggested, a comment made in passing. Whether the Panel did or did not put any significant weight on this evidence is not entirely clear. However, it if did, it was as the Panel observed a “curious line” for Mr Sines to take for the reasons stated by the Panel. In no way can this criticism vitiate the Panel’s decision.

    62. Taken as a whole the BHA’s case against Mr Sines and Mr Crickmore was, in our judgment, a strong one. The findings in respect of the riding by the two jockeys who were found to be in breach of Rule 157, together with the evidence of the telephone contact between Mr Sines and Mr Crickmore with the jockeys, followed by betting on the exchanges in respect of the ten races was, in our opinion, powerful evidence in support of the BHA’s case. In our judgment none of the grounds of appeal succeed and these appeals must be dismissed.

    The appeal of Mr Nick Gold and Mr Peter Gold

    63. In addition to the ground of appeal on the standard of proof, there are two further grounds of appeal. They are:

    (1) The Panel’s decision was unreasonable, unfair and based on insufficient evidence; and

    (2) the Panel erred in its construction of Rule 201(v).

    64. In opening his submissions in respect of the Golds’ appeal, Mr Caplan sought to emphasize what he submitted were three major weaknesses in the BHA’s case against the Golds. Firstly, he submitted that too much emphasis was placed by the BHA on the size of the lay bets. It was submitted that the Golds were very wealthy men, something which the BHA accept. Mr Caplan submitted therefore there was nothing extraordinary in the betting pattern presented by Mr Phillips.

    65. Secondly, after the chelseaboy55 account was closed down on 9 March 2009, the Golds continued to place lay bets on their other accounts on the nomination of horses by Mr Sines and Mr Crickmore. It was submitted that had the Golds been aware of inside information from the jockeys they would never have continued to accept nominations for lay bets.

    66. Thirdly, it was accepted that during the betting partnership there occurred an unpleasant and violent incident involving Mr Sines and Mr Crickmore and John Loftus, a commission agent, used by the Golds to place bets. The cause of this incident was a belief by Mr Sines and Mr Crickmore that the Golds were in some way “rumping”, that is cheating, Mr Sines and Mr Crickmore of proceeds of the lay bets. It was argued by Mr Caplan that the Golds would never have gone on taking lay bet nominations from Mr Sines and Mr Crickmore after this incident had they been aware that the bets were inspired by inside information.

    67. We bear in mind these submissions when reaching our own decisions on the Golds’ appeal. However, they were factors of which the Panel were well aware and plainly took into account when they reached their decision.

    68. We turn to the first ground of appeal. This ground can also be divided into several different headings. Firstly, the unfairness was essentially a criticism of the way in which the case against the Golds was presented by the BHA. It was submitted that the gravamen of the BHA’s case against all the bettors was that they knew that the lay bets were inspired by information that the horses would be stopped by their jockeys from winning. The alternative basis in respect of the charge of conspiracy that the bettors were aware of inside information supplied by the jockeys, but unaware that they had agreed to stop the horses, was, it was submitted, not clear in the charge and in the way the case was put by the BHA in the written papers or orally.

    69. Mr Caplan referred to passages in the charge, the Topics for Enquiry, the BHA opening note, and the BHA core summary. Mr Caplan submitted that although he applied for particulars of the way the alternative case was put, none were forthcoming.

    70. We have carefully considered the documents to which we have been referred. We accept that the first basis of the charge, namely that jockeys agreed to stop horses, was no doubt in the forefront of the BHA’s case and as such featured prominently in the evidence and the way the Enquiry proceeded. But we do not accept that the alternative case received so little attention that the Panel’s findings in respect of it can be said to be unfair.

    71. In its Opening Note at paragraph 37 the BHA stated:

    “The BHA’s primary case is the information was in 8 of the 10 Races that the jockey had agreed to take steps to prevent the horse from winning or being placed. In the other 2 Races, and in the alternative in the 8 just mentioned, the information was some other reliable adverse information about the horse’s prospects in the Race.”

    72. In our opinion, this statement clearly flagged up the alternative way in which the charge of conspiracy was put. In addition, races 2 and 7 were only ever put on the basis that the jockey had provided inside information. Finally, we accept Mr Warby’s submission that a question put in examination-in-chief to Mr Nick Gold (Day 6 p.45f) demonstrated that the Golds were aware of the alternative basis of the charge:

    “To be clear did they ever say to you ‘Don’t worry Mr Gold – we are in with a number of jockeys and the bets I give you will be either inside information which will give you an edge, or because the jockey is not going to try to run on the merits’”.

    In our view this question demonstrates that counsel and Mr Nick Gold were well aware of the alternative basis in which the case against the Golds was put.

    73. The second way in which this ground of appeal is put is the submission that the evidence was insufficient to support the Panel’s decision on the alternative basis in the charge. It was submitted by Mr Caplan that unless the inside information could be identified no conclusion could properly be made as to whether the information was prohibited by the Rules of Racing and/or was generally known to the market, or the person who might have been responsible for passing it. Mr Caplan relied on the definition provided by the Rules and Annex N of the Guidance for Trainers and Jockeys as showing that information of a kind which can properly be described as Inside Information according to Rule 243 can legitimately be passed on by a trainer or jockey.

    74. We accept that the guidance to trainers and jockeys on the circumstances in which trainers and jockeys may pass on information not in the public domain are not as clear or helpful as might be expected. But at no stage was this a live issue raised by either of the Golds. At no time did either Mr Nick or Mr Peter Gold raise the issue of whether or not they knew the information was inside information. Mr Peter Gold had no contact with either Mr Sines or Mr Crickmore. Mr Nick Gold was the one who spoke to Mr Sines and Mr Crickmore before the lay bets were made. Mr Nick Gold’s evidence was that he never asked for the reasons why a horse was nominated for a lay bet. He said that at no time did he know that Mr Sines or Mr Crickmore had spoken to the jockey riding the nominated horse. The issue was, therefore, whether or not Mr Sines and Mr Crickmore had passed on to Mr Nick Gold some adverse information on the nominated horse’s prospects in the race. The Panel found that they did.

    75. Next it was submitted that the evidence was not sufficient to justify the Panel drawing the inference from all the available evidence that the Golds had been passed inside information from jockeys by Mr Sines and Mr Crickmore. Mr Caplan submitted that the factors relied on by the Panel in paragraphs 196 (Mr Nick Gold) and 204 (Mr Peter Gold) were insufficient for such inferences to be drawn. He went on to criticise the Panel‘s findings in respect of some of those factors of which criticisms are made.

    76. In paragraph 196(i) the Panel found that the telephone evidence showed that discussions between Mr Nick Gold and Mr Sines and Mr Crickmore were of such a length that they must have been more than just an indication of the nominated horse, and the amount of the lay bet. The Panel relied on the length of the telephone calls as demonstrating that the conversations were not just a simple nomination for the lay bet and the amount to be risked. The number of telephone conversations and the length of each is taken from time-line schedules. The times were put to Mr Nick Gold in cross-examination by Mr Warby (Day 7 p.42 et seq). It is clear from this cross-examination and the evidence of Mr Gardner who compiled the time-lines that the telephone calls in total in respect of each race were more than just very short conversations. In addition, common sense indicates that Mr Nick Gold and his father, who were providing credit for the lay betting would want to have some idea as to why Mr Sines and Mr Crickmore believed the horse would not win. In this connection we note the comment made in interview by one of the bettors, Vasey. As put to Mr Crickmore, Vasey had said “Well, if he’s talking to me and he knows how it’s worked, what the riding instructions are, all this sort of stuff, he knows all that, why would I go: ‘Oh, do you own this one, Jimmy’. I’m getting the information anyway, aren’t I?”. Mr Crickmore’s response to questions about this comment was at first evasive and then a denial. In our view it was for the Panel in respect of each race to judge the significance of the time taken and the number of telephone calls between Messrs Sines, Crickmore and Nick Gold to determine their significance. The Panel was, in our judgment, entitled to describe these conversations as detailed.

    77. In paragraph 196(ii) the Panel referred to the closing of the chelseaboy55 account on 9 March 2009 for integrity reasons. The Panel regarded the fact that the partnership continued after the closure of this account as significant. At paragraph 196(iv) the Panel also relied on the incident involving the confrontation between Messrs Sines and Crickmore and John Loftus, the commission agent, as significant. Mr Caplan submitted that neither of these two incidents was of sufficient weight for the Panel to use them as an indication that the Golds were obtaining inside information when they continued to accept nominations for the partnership following these incidents. We do not agree. It is right to observe that these two factors could be described as pointing both ways. But they are factors which in our opinion the Panel were entitled to take into account having heard the evidence of both Mr Nick Gold and Mr Peter Gold in respect of these incidents.

    78. At paragraph 196(iii) the Panel stated that in a letter dated 22 February 2010 the BHA asked Mr Nick Gold for an interview. He refused but in a letter dated 3 March 2010 Mr Nick Gold stated “to clarify my position, I back and lay horses on the figures …” The Panel is criticised for describing this as deliberately false. It is submitted this was an unfair comment since Mr Nick Gold had, he said, been advised by his solicitor that he need not say anything. Mr Caplan pointed to the fact that subsequently in the Schedule (A)6 form Mr Nick Gold gave a full account of the partnership and his dealings with Mr Sines and Mr Crickmore.

    79. Similar factors were relied on by the Panel in the case of Mr Peter Gold. These are contained in paragraph 204 of the Panel’s decision. As with Mr Nick Gold, the Panel relied on the fact that in an interview with Jon Dunn in September 2009 Mr Peter Gold was, as the Panel described, “… careful not to disclose the partnership which his son had recently had with Mr Sines and Mr Crickmore, though there were opportunities to do so”. It is said that this comment was unfair. Further, the Panel did not accept Mr Peter Gold’s assertion that the lay bets in the goldiylocks account for races 1, 4, 6 and 7 were purely the result of his speed figure information. The Panel found that speed data did not explain the size of the bets on the goldylocks account.

    80. We have considered these criticisms of the Panel’s specific findings in these two paragraphs. We do not accept that any of these factors and the others which we have not set out are so insignificant that they provide no basis for the Panel’s findings that Mr Nick Gold and Mr Peter Gold knew that the lay bets were inspired by inside information. Some can be argued, as we have indicated, both ways. However, all were factors which in our view the Panel were entitled to take into account and to give such weight as they thought proper. For our part, in our view, the fact that neither Mr Nick Gold nor Mr Peter Gold disclosed the existence of their partnership with Mr Sines and Mr Crickmore until in both cases a comparatively late stage is significant. On the basis that their participation in the partnership was entirely innocent we would have expected both Mr Nick Gold and Mr Peter Gold to have been open about it when first notified of the investigation.

    81. Two further submissions arising on this ground of appeal need to be considered. Firstly, Mr Caplan relied on the “wider picture” submission made by Mr Bartfeld on behalf of Mr Sines and Mr Crickmore. We have already dealt with this submission insofar as it is relied on by Mr Bartfeld. In our view the comments which we have already made on Mr Bartfeld’s submissions apply in similar fashion to Mr Caplan’s submissions on this issue. In our judgment the crucial point on this issue is that although both Mr Nick Gold and his father are undoubtedly wealthy men, used to taking large financial risks in their business activities, this is not an explanation for why these bets stand out as extraordinary in respect of the betting accounts held by Mr Nick Gold and Mr Peter Gold.

    82. So far as the Golds are concerned, on the issue of the “wider picture” they asserted that in a period from about March to May or June 2009 they lost large sums of money, a total of approximately £400,000. However, no evidence beyond assertion that this occurred was placed before the Panel. Mr Peter Gold said that he thought there were about another 20 lay bets beyond the 10 considered by the Panel. However, in our judgment none of these assertions or submissions provide an answer to Mr Phillips’ evidence about the extraordinary betting pattern on the three Gold accounts in respect of races 1 to 7 with which they were concerned.

    83. The final submission made on behalf of the Golds was a submissions that the Panel erred in its construction and application of Rule 201(v) of the Rules of Racing. It was submitted that laying or backing horses whilst in receipt of private or inside information is not necessarily a corrupt or fraudulent practice in breach of the Rules of Racing. Mr Caplan submitted that corrupt or fraudulent conduct must denote criminal conduct which dishonestly prejudices a person’s rights or involve bribery or reward. A similar submission was considered by a Board in the appeal of D. McKeown. In the decision in that appeal the Board ruled that it was not necessary to establish a conspiracy to breach the Rules of Racing in any particular way. All that was required was a conspiracy to commit a corrupt practice in relation to Racing (see paragraph 52 of the decision). It also ruled:

    “… a regulatory body and its Disciplinary Panel are well placed, given their knowledge of their sport, to interpret such a Rule sensibly, in particular, what is to be regarded as ‘corrupt’ in the context of the sport. See paragraph 55.”

    84. The decision of the Board in that appeal was considered by Stadlen J in the High Court (McKeown v BHA [2010] EWHC 508). Stadlen J held obiter that this interpretation of the Rule was correct.

    85. At paragraph 320 Stadlen J stated:

    “In my view proof of a breach of Rule 201(v) does not require proof of the breach of another Rule. As Mr Warby pointed out the Rule applies to ‘any person’ including those who are not subject to the Rules of Racing. Thus to use his example a ring of gamblers who dazzled Race horses with laser pointers by agreement in order to profit by laying them could be in breach of Rule 201(v) and a person subject to the Rules who joined such a conspiracy could be equally in breach of Rule 201(v) irrespective of any other obligation on him under the Rules. Further the fact that in certain circumstances the mere passing of inside information is not a breach of the Rules does not mean that there are no circumstances in which the passing of such information could not constitute a breach of Rule 201(v). For example knowledge of the purpose for which the information is to be used is capable of rendering what might otherwise be conduct permitted by Rule 243, a breach of Rule 201(v).”

    86. In our opinion this comment is persuasive against Mr Caplan’s submission. In our judgment it was for the Panel to decide whether using inside information to make lay bets was corrupt in the sense that any person involved with Racing would understand. The point was not expressly raised before the Panel, but for our part we have no doubt that on the facts found by the Panel in relation to the Golds, the Panel was entitled to find it was corrupt.

    87. We accept that the BHA’s case against the Golds was not as strong as its case against Mr Sines and Mr Crickmore. We further accept that the character references produced by them were compelling. The Panel made it clear it took these character references into account. However, on any view the arrangement made by Mr Nick Gold to give credit to Mr Sines and Mr Crickmore to make lay bets on his and his father’s account sharing the profits and losses fifty/fifty was, as the Panel described, “remarkable”. The Panel also pointed out that Mr Nick Gold initially thought Mr Sines a “rough diamond” He knew nothing of Mr Sines’ ability as a gambler on horses other than Mr Sines’ own assertion of his successes. He did know, from experience, that Mr Sines was a very poor poker player. Accepting, as the BHA did, that the Golds are very wealthy men, it nevertheless is difficult to understand why the Golds entered into this remarkable lay betting partnership.

    88. Against the background of the lay betting and its success on the seven races with which the Golds were concerned, and the Panel having had the opportunity of observing Mr Nick Gold and Mr Peter Gold give evidence, they found that both men had been aware that the lay betting was inspired by inside information falling short of knowledge of jockeys stopping horses. Taking all the factors into account on which the Panel relied and referred to in their reasons, we have reached the conclusion that there are no grounds for interfering with their decision and the appeals must be dismissed.

    #399909
    cormack15
    Keymaster
    • Total Posts 8979

    Appeal findings continued…

    The appeal of Kirsty Milczarek

    89. Milczarek rode OBE GOLD in the 19.00 race at Lingfield on 15 August 2009: race 10, Annex B. This race was 24 hours after the race at Catterick: race 9. Milczarek had not ridden the horse before and knew nothing about it. It was common ground that the horse could be difficult in the stalls before the race. It was also common ground that the trainer before the race at Lingfield gave instructions to Milczarek over the telephone, not to take off the blindfold until the last moment before the start.

    90. The Panel found that Milczarek removed the hood four seconds before the race started. It was put to Milczarek that this was a “pretty extreme mistake” for her to have made and she agreed. The Panel found it was a remarkable mistake “… for such a capable and by then fairly experienced jockey to make. Again, if it was a mistake it is remarkable that it did not stick in her memory and was not disclosed to investigators”.

    91. The Panel found that by the time the race started the horse appeared to have settled down. But when the stalls opened the horse dived to the left and “bronced”: a movement shown in the video of the race. This movement caused Milczarek to be slammed into the forward upright of the stall causing a quite severe injury to her shoulder. The Panel went on to find that Milczarek’s injury affected her ride and the Panel “was convinced” that she had not exaggerated her injury. For this reason the Panel rejected the allegation of breach of Rule 157, the horse having finished 5th in the race.

    92. The Panel did, however, find that Milczarek deliberately removed the blindfold from the horse early for the purpose of affecting its b_ehaviour and to ensure lay betting succeeded; in short, that Milczarek was a party to the conspiracy, contrary to Rule 201(v). Milczarek appealed against this decision.

    93. The Panel’s finding that Milczarek was party to the conspiracy was based on telephone evidence given by John Gardner in respect of this race. Gardner’s evidence, which was not in dispute, was that Mr Crickmore’s telephone records showed 12 calls to Milczarek from him over a period of time including 12, 13 and 14 August. The records further showed that on 13 and 14 August two telephone calls were made by Mr Crickmore to Milczarek. The call on 13 August was followed by a response by Milczarek to Mr Crickmore. We return to the detail of the calls below.

    94. The Panel recorded Milczarek’s explanations for these calls as follows:

    “Her explanation at the Enquiry was that she had not remembered these contacts, but that it was likely that Mr Crickmore was calling her phone to get hold of Fallon. She said Fallon was notorious for not answering his phone.”

    95. At that time Kieren Fallon was Milczarek’s boyfriend. He was serving a period of suspension from riding and Milczarek said he was in the habit of driving her to and from race meetings, particularly when they were double meetings on the same day.

    96. The Panel accepted that it was possible that Fallon was driving Milczarek on 12 August but found that the pages of telephone records provided during her evidence indicated that he was not driving her either on 13 or 14 August. The Panel said in their reasons:

    “These pages [telephone records] show that on these two days she was texting Fallon at a time when according to her he must have been in the car beside her. The Panel therefore rejected her evidence that her phone call to Mr Crickmore on 13 August was inadvertent and that the incoming call on 14 August was passed on to Fallon. She herself was speaking with him on 14 August on those occasions. Her explanation of the Crickmore calls on those days is rejected as untruthful.”

    97. The Panel in the next paragraph of their reasons linked the telephone calls with the lay betting for race 10 described as “on an unprecedented scale” for two of the Berkeley Betting Services accounts. In the following paragraph the Panel concluded that:

    “In the light of all these matters, the Panel felt compelled to conclude that the early removal of the blindfold by Milczarek was not a mistake but deliberate. It was calculated to hinder the prospects of OBE GOLD in the Race.”

    98. The notice of appeal against this decision raised four grounds of appeal. The first is the ground common to the other Appellants, namely that the Panel adopted the wrong standard of proof when reaching its findings. We have dealt with this ground earlier in our reasons. The second ground of appeal alleged that the Panel’s findings were based on insufficient evidence. The third ground was based on an application for leave to adduce “new evidence”. Initially leave was sought to adduce evidence from an expert in race riding to deal with the removal of the blindfold. This was abandoned and needs no further mention. The second was an application for leave to adduce the evidence of Kieren Fallon. The fourth ground of appeal concerns the issue of whether the Panel could properly infer from all the evidence that Milczarek had accepted a reward for her actions in the conspiracy.

    99. We start with the second ground of appeal. Mr Winter pointed out what he submitted were a number of material errors in the Panel’s reasons and unreasonable findings. Firstly, Mr Winter submitted that the Panel’s comments about Milczarek’s evidence as to when and why she removed the blindfold was inaccurate or at least implied, wrongly, that Milczarek had not revealed to investigators that it was a mistake for her to have removed the blindfold too early.

    100. At the hearing before the Board, Mr Warby submitted that in her evidence before the Panel Milczarek had changed her version of how she came to remove the blindfold too early. We have viewed the video and carefully reviewed Milczarek’s answers in her interview with Jon Dunn. The interview took place on 27 November 2009 before Milczarek had seen the video. In answer to questions from Dunn, Milczarek described what had happened, stating that she took the “blinds off” when the starter said, “Jockeys ready, blinds off”. She went on to describe the delay before the stalls opened. Dunn complimented her on giving her explanation before she was shown the DVD.

    101. In evidence, during cross-examination, Milczarek having by then seen the video, recognised that she had made a mistake in saying that it was the starter who said “Blinds off”. She recognised that it must have been the assistant starter who had said, “Gates shut” or some other words. As we record above, the Panel said that it was remarkable that this was not disclosed to the investigators.

    102. In our view this comment by the Panel was a little harsh. Milczarek had, as Dunn commented at the end of the interview, told him what had happened. It appears that it was not until she saw the DVD that she realised she had made a mistake in saying that it was the starter who caused her to take off the blindfold. However, we recognise that at the end of this paragraph of the Panel’s decision (paragraph 161) the Panel added that mistakes may be forgotten or not owned up to for reasons unrelated to corrupt behaviour. On its own, this submission by Mr Winter in our view is of no real significance.

    103. Secondly, Mr Winter submitted that there is an error in the Panel’s reasoning in paragraphs 162 and 163 of their decision. It is submitted that the Panel was wrong to rely on the fact that Milczarek had made no reference to the telephone calls between her, Fallon and Mr Crickmore in her Schedule (A)6 form. Mr Winter pointed out that at the time she completed that form the BHA had not disclosed the telephone records.

    104. The above raises a crucial issue in this appeal. When the BHA did disclose telephone records amongst them were records of Mr Crickmore’s telephone calls. It was from these records that Milczarek based her explanations for the telephone calls to her from Mr Crickmore and their connection with Fallon. It was a combination of her records and Mr Crickmore’s telephone records that formed a material part of Milczarek’s case. Her case was that Mr Crickmore’s calls to her were attempts by him to get in touch with Fallon. The Panel rightly observed that Milczarek’s comments on these records were not disclosed to the BHA before the hearing. Understandably the Panel commented that her explanations owed more to convenient reconstruction than genuine recall. We are aware that shortly before the hearing there was some correspondence between the parties and the Chairman of the Panel about further statements. No order was made for further statements but in our opinion it would have been appropriate and far better if Milczarek’s advisers had disclosed what her evidence was to be in respect of these records. Howsoever this may be, the telephone records are an important feature in Milczarek’s appeal.

    105. The Panel accepted Milczarek’s evidence that the telephone records showed contacts between Mr Crickmore, Milczarek and Fallon and that these gave some credence to Milczarek’s assertion that when Mr Crickmore telephoned her he was endeavouring to get hold of Fallon. But, as the Panel pointed out, the crucial telephone calls were those showing contact between Mr Crickmore and Milczarek on 13 and 14 August. These telephone calls and Milczarek’s evidence in respect of them can properly be described as pivotal to the Panel’s decision. The Panel, as we have indicated, found that Milczarek had lied in her explanations for them on the basis that Fallon could not have been with her when the calls were made and could not have spoken to Mr Crickmore on these occasions.

    106. We come now to the application for Fallon’s evidence to be adduced before the Board. With the consent of both counsel we heard this evidence without prejudice to the BHA’s submission that this evidence did not satisfy the requirements of Schedule (A)7 paragraphs 21 and 22. Fallon gave evidence to the Board by telephone from Dubai, where he had racing commitments.

    107. Fallon readily accepted that by reference to the telephone evidence he could not have driven Milczarek to Salisbury on 13 August 2009. In his witness statement dated 12 February 2012 he had said it was unlikely that he had driven her on that day. Milczarek herself had said she thought that he had done so. It is obvious to us that Fallon did not drive her on that day.

    108. Milczarek’s evidence was that on that day she had received a missed call and had responded because she thought it might be in relation to her business. The records show her return call to Mr Crickmore lasted only 1 minute 30 seconds. It is not shown in Mr Gardner’s statement on his schedule as a telephone call which is related to race 10. That is perhaps not surprising. It was made two days before race 10. This latter point is not conclusive on the issue of whether or not it concerned race 10, but in our judgment the fact that Milczarek was wrong in relation to her supposition that Fallon may have driven her on that occasion does not materially undermine her evidence that her short conversation with Mr Crickmore had nothing to do with the Lingfield race. It is certainly not sufficient on which to base a conclusion that because she was wrong in stating Fallon was with her on that occasion, she was lying about the contents of the call.

    109. Further, we do not think it significant that Milczarek did not mention this or the call on the following day in her interview with Jon Dunn. At that time she had not seen the telephone evidence and she may very well have forgotten these two telephone calls. In the same interview she had not disguised that she knew Mr Crickmore.

    110. On 14 August Fallon said that he believed he did drive Milczarek to Newbury for her afternoon Race and back to Newmarket for her Race at the evening meeting. His evidence to the Board was that he remembered the Race at Newbury in which Milczarek rode, because she was on a good horse in a Race which was important to her career. He said that he would have gone to the centre of the course to practice his golf, but he remembered watching the Race from the rails. He thought Milczarek had not been as tactically wise in the Race as she could have been and he was disappointed for her.

    111. On the basis that he was in the car on that day he said they were probably on the road back to Newbury from Newmarket at 16.45 when Mr Crickmore’s call was made. The call lasted 1 minute 55 seconds. He said he had no memory of it, but Mr Crickmore often spoke to him about horses.

    112. Fallon was cross-examined about the length of time it took him to drive from Newbury to Newmarket. He said he could do the journey in 2 hours or less. It was suggested to him by Mr Warby that on the basis of the telephone records he could not have driven from Newmarket to Newbury in the early afternoon and back again in the late afternoon.

    113. Fallon agreed that apart from his recollection of the Race in which Milczarek rode at Newbury he was unable to say that he was at Newbury on that day. He accepted he had not looked at any telephone or other records to see whether or not they supported his assertion that he went to Newbury on 14 August. He did not keep a diary and he was uncertain whether the two of them went in his or Milczarek’s car. He said that text messages did not demonstrate that he was not in the car because if they stopped at service stations Milczarek would text him asking him to buy something for her to eat or drink, or for some other reason. Of the text at 17.40 he said he could not recall it but they could have been at Newmarket by then or they could have stopped at a garage when she texted him.

    114. Mr Warby submitted that Fallon’s evidence was not capable of belief and it could, and should, have been adduced at the hearing before the Panel.

    115. We found Fallon’s evidence difficult to assess. His answers were at times vague and discursive. We do not, however, find it surprising that he looked at none of his records, if he had any, to determine whether or not he had driven to Newbury on 14 August. He was not approached before his witness statement of 12 February 2012 and it is unsurprising that his evidence was vague on detail. However, we were impressed by his evidence that he remembered the Race at Newbury. We do not find that this part of his evidence was untruthful. On the contrary, we accept this part of his evidence as truthful and accurate in the sense that he did watch the race.

    116. Mr Winter pointed out that Milczarek’s telephone records for 14 August show a gap between 12.54 and 15.52. This is consistent with Milczarek being involved in a journey to Newbury, the race at 15.30, and her return to Newmarket after the race. We find that Fallon was in the same car as Milczarek on 14 August and was probably the driver.

    117. The timings for the journeys to and from Newbury given by Fallon are, however, in our opinion, a little unrealistic, particularly his assertion that they were back in Newmarket by 17.40 when Milczarek is recorded as making a text to his number. However, on Fallon’s evidence, it is least possible that it was a text by Milczarek to Fallon on an occasion when they had stopped on the journey home.

    118. In the circumstances we are satisfied that Fallon’s evidence satisfies Schedule (A)7 paragraph 22.3.2. We have, however, been troubled as to whether it satisfies Schedule (A)7 paragraph 22.3.1. Mr Winter submitted that Fallon’s evidence only became important on the Panel’s finding that he was not in the car with Milczarek when Mr Crickmore telephoned her at 16.45.

    119. We were not impressed by this submission. In our view, it ought to have been foreseen by Milczarek’s legal advisers that Fallon’s evidence would or might support her case, which was that Mr Crickmore only telephoned her when he wanted to get hold of Fallon and that he had spoken to Fallon at 16.45 on 14 August. The Schedule, however, provides that such evidence can be admitted by the Board in exceptional circumstances (paragraph 22.3).

    120. Before we go any further we return to the BHA’s case that the telephone calls on 13 and 14 August were what Mr Winter described as “conspiratorial” calls. We have already expressed our opinion that the telephone call on 13 August is insufficient on its own to be described as a conspiratorial call. The telephone call at 16.45 on 14 August was just less than two minutes in duration. It occurred on the day before the Race. Mr Gardner’s evidence and his schedules do not link it with the lay bets placed on race 10. They appear to have been placed on the following day in the late afternoon. The call from Mr Crickmore to Vasey just after the 15.45 telephone call on 14 August in our opinion could just as easily have been a call in connection with the lay betting on OBE GOLD at Catterick that evening. We accept that the substantial nature of the lay betting is an indication of confidence that the horse would not win. But, as Mr Winter submitted, inside information in relation to race 10 could have come from some source other than Milczarek.

    121. It follows from the above that the 16.45 call on Milczarek’s telephone is only significant if the explanation that it was for Fallon was a deliberate lie. We entirely understand and take into account that the Panel heard Milczarek’s evidence and we did not. Nevertheless, in our opinion, even without Fallon’s evidence, we find that the factors relied upon by the Panel were in the circumstances not sufficient to permit the inference being drawn that she was part of the alleged conspiracy.

    122. The telephone call at 16.45 was a single call of short duration. It is possible that it could have been a call by Mr Crickmore for Fallon even if Fallon was not in the car at the time. The text to Fallon at 17.40 could have been made on the journey back to Newmarket during a break in the journey. Milczarek was at the time a young jockey of good character with every reason not to jeopardise her career.

    123. In our judgment there was insufficient evidence to support the Panel’s conclusion that Milczarek was party to the conspiracy. Although it is not strictly necessary for our decision to allow the appeal, we would if necessary have admitted Fallon’s evidence under the exceptional circumstances provision in Schedule (A)7 paragraph 22.3. This evidence reinforces our conclusion.

    124. We should add that in our opinion it will be rare for a Board to allow new evidence under the “exceptional circumstances provision”. In this case, Milczarek was not asked by either counsel for the BHA or the Panel for her explanation of the text and telephone calls other than the 16.45 telephone call. In particular, the text by her to Fallon at 17.40 on 14 August was never put to her for explanation. We can understand that the records upon which all the calls were based were only explained at the hearing. Mr Warby said that he was granted a short adjournment to consider these records, but he accepted he did not cross-examine Miss Milczarek on the 17.40 text which appears to have been the crucial text so far as the Panel’s was concerned.

    125. For these reasons the Panel’s finding that Milczarek was a party to the conspiracy cannot stand and her appeal succeeds. In view of our decision on grounds 2 and 3 of the notice of appeal it is unnecessary for us to refer to or deal with ground 4.

    #399911
    sberry
    Member
    • Total Posts 1801

    More poor publicity for racing but fortunately more than nine out of ten bookies punters and ten out of ten FOBT players won’t give a damn, there’ll be another one along soon and with good timing this will all be fogotten about on Saturday.

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