Poor old Kieran Fallon

[schumi]

more chance serie a lefranco can’t hold his whip in the right hand dettori is cheating than a good Irish hard working, god fearing family man like KF

(Edited by schumi at 12:11 am on July 30, 2006)

[seanboyce]

Trackside says-

the idea that anyone could be first rider at coolmore w/o being allowed to ride in the UK is a non-starter, and coolmore realize this.

Is it?<br>He’s dong just that for them right now isn’t he?

<br>My point is that it’s another example of us being told what to think. Drop the charges against KF or we will no longer employ him, is what seems to be being implied when actually it’s entirely up to Coolmore who they employ.

I think there’s something of a contradiction between saying that Fallon is the best available outside of the UK and then saying that you will fire him if he can’t ride in the UK even though you have less than one third of your runners in the UK.

I dont dispute that it’s not ideal for Coolmore to have to do without him in the top races over here but given that he’d already been arrested when they hired him they were always likely to face this eventuality and I don’t see the logic in not using him in the training and preparation of horses and in the riding of (in their case the vast majority) of their runners outside of the UK.

I just feel it’s another example of spin being used to try to influence the HRA’s thinking. It’s up to Coolmore whether they retain him in the future or not and I don’t think we should automatically buy the line that they’d drop him like a hot potato if the ban wasn’t overturned.

They haven’t so far, have they?<br>

[seanboyce]

I take your point Trackside and you’re right the simple numbers stat is probably misleading. :)

I would guess that though English runners are only about a third in number their prize money haul in a good year would be equal to the others put together , or at least not far off it

You may be right that Coolmore realise that they cannot work this way but I see no evidence of it and think it’s important sometimes to question these assertions that have been repeated in the press when we don’t yet know if that’s how it will turn out.

Unless I’ve missed something the charges have not been dropped and will not be dropped and yet Fallon is still employed, a Coolmore horse won the Irish Derby under Fallon and a Coolmare horse won the King George without Fallon.

Sure, they’ll have to decide how to proceed from here and it will cause them big problems but I don’t see that we can take it as a given that Fallon will be dropped.

(Edited by seanboyce at 2:58 pm on July 30, 2006)

[wit]

Hi Sean,

Agree with what you say.

What then to explain the virulence in many sectors of the media against an HRA decision that is wholly consistent with past JC practice when jockeys have in the past come under criminal conspiracy charges?.

I have a working hypothesis that perhaps various journos / presenters may have adopted  what they might think a "no lose" position for themselves:

a.   For now, let’s stay sweet with Coolmore/Ballydoyle/KF; back them to the hilt

b.  Then, if criminal case goes well for KF, we can say we were always on the "right" side, no waves made with our relationships in the industry.

c.  On the other hand, if criminal case goes badly for KF, all bets are off anyway: we can say we are more disappointed than anybody, were with him all the way, feel let down from much greater height than others, etc

d.   As for the punters / readers looking for a bit of balance and informed comment in the meantime – well, they’re way down the end of the relationship chain, we don’t depend on them for our articles, advertising, etc and (in the words of David Brent) "oh, they won’t remember anyway".

<br>Or is that over-cynical ?

<br>Separate matter:

Little mention seems to have been made anywhere of a certain libel case still trundling on, Fallon v MGN Ltd, relating to an injudicious* article printed by the RP shortly after the September 2004 arrests headed "Rodgers’ betting history revealed".   [*"injudicious" in the sense that a High Court judge has said that "it was hardly wise"].

I won’t republish it, even as a link, because it sets out the full article and, as noted by the Judge, even at the time the Attorney-General expressed his concern at the possible prejudice to the course of justice.

What I take from the April 2006  judgment in a pleadings hearing in that case though – apart from the RP appearing very much on the back foot in it  – is the following:

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>><br>Finally, Mr Hartley [ QC for the RP] argued that it was premature to rule on the pleading of justification because, at some stage in the future, perhaps in July of this year or later, the attitude of the Crown Prosecution Service towards the evidence may become apparent.

It may be decided (nearly two years after the arrests) to launch prosecutions against one or more of those involved – or again it may not.

In such circumstances, it may be that further evidence would come to the Defendant’s [ ie the RP’s] possession which would enable a more substantial plea of justification to be placed on record.

It seems to me that the way to address this hypothetical possibility is not to allow a defective pleading to stand, but rather to address any application to amend, on it own merits, as and when it arises. <br><<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<

<br>So there would appear to be a situation where, in terms of the libel action, it would help the RP if things went badly on the criminal side for KF; and it would not help the RP if things went well on the criminal side for KF.

<br>Leaving that specific situation and the specific parties to one side, I get to wondering  whether, hypothetically if one was a national newspaper executive in a hypothetical situation with those characteristics, one would tend

a.   to keep going for broke on the original editorial tack adopted, or

b.   to hedge one’s bets,

as regards the hypothetical newspaper’s subsequent editorial tack towards the hypothetical libel claimant?

<br>I’m still thinking about that one.

best regards

wit<br>

(Edited by wit at 6:23 pm on July 30, 2006)

[apracing]

<br>Wit,

The date for this trial seems to be vanishing further and further into the distance – I now read that it’s unlikely to happen before ‘late 2007’.

What is the reason for this delay?

Is it to allow the defence time to prepare?

Is it to allow the prosecution time to prepare?

Is it because there is no court available any earlier that can hear the case?

It surely can’t be A, as Fallon would want the case resolved asap.

If it’s B, why isn’t there a time limit written in law?

If it’s C, why is this case slated for Southwark when it could surely be heard anywhere in the country, given that the offences relate to widespread racecourse locations and the Internet, neither of which are tied to South London.

AP

[wit]

AP

All the time estimates at the moment are guesswork.

All 11 defendants showed up on July 17 at City of London magistrates, who remitted to Southwark Crown Court (AFAIK, yet to happen).    

It was reported that when the first hearing is held in Southwark, both sides will ask for a transfer to the Central Criminal Court at the Old Bailey.  Getting a prolonged hearing into the Bailey diary means a wait of several months.    

If everyone agreed, in theory it could be heard elsewhere, but in practice I doubt that’ll happen.   There isn’t a Crown Court as geared up for a big trial (in terms of defendant numbers, number of documents, AV facilities, etc) as the Bailey.    

I would be wary of  what is said about any defendant being ready to go into court "tomorrow" .    

My guess is that no defendant will have seen the full CPS file yet, which the Case Management rules envisage to be delivered to the defence within 42 days after (here) July 17.    Until they see it, none of the defendants knows the full ins-and-outs of what he/she has to rebut.

Remember that KF is only one of 11 defendants, not all of whom will have Coolmore resources or urgency behind them and who, each having criminal legal aid, may well each have their own Counsel looking after their own angle.    

It shouldn’t be assumed that each defendant will end up with the same, or even consistent, defences.   Indeed, its not unusual in conspiracy cases for some to plead guilty while those charged as their conspirators plead not guilty.  And pleas can change  along the line.

Even with things broken into a reported 3 linked trials, its no easy thing to get say 8 sets of defence Counsel and the CPS lead Counsel in one place for maybe a few weeks at the same time for the bit involving the KF charge.

At this stage in a criminal case, the prosecution has pretty much done 90% of its work and the defence is only really starting.  

Its usually the defence that needs time to assimilate and probe the evidence.

If the defence disputes certain things (eg "that writing / phone number doesn’t relate to me" ), then the prosecution has to get in technical experts, whose reports the defence may then dispute, for which it will get its own experts, and so it goes on.

The Court will manage the case timetable to make sure everything is ready for an unbroken trial if/when things get to that stage.

As to delay in general, the reality is that most defendants have an interest in spinning things out as much as possible (while trying to appear not to do so) in the hope that "something turns up" :  critical witnesses die or otherwise become unavailable, evidence gets lost, whatever.     It’s the prosecution that has to prove guilt, not the defence that has to prove innocence, so why not?    

<br>EC,

who exactly (or even approximately) are the "they"   that you say "are out to ruin his career no matter what the outcome" , and what’s your evidence for such an assertion ?

<br>best regards

wit<br>

[wit]

trackside,

the conduct of criminal cases is determined by the Court seised of the case, against the background of  the Criminal Procedure Rules

http://www.opsi.gov.uk/si/si2005/20050384.htm

and the Criminal Case Management Framework:

http://www.cjsonline.gov.uk/framework/

for your specific questions:

– the 42 days is the bare minimum allowed the CPS, and a defendant’s lawyers cannot claim the file any faster.   plus in multi-party cases, the CPS will normally want to give the file to each defendant at the same time

– venue is not a prosecution decision.        the state via the Criminal Defence Service of the Legal Services Commission

http://www.legalservices.gov.uk/criminal/index.asp

holds the purse strings on criminal trials, and would – with most criminal law judges and barristers also being based in London – would need for a case like this a good reason to pay for them to travel rather than just wait in line with the other cases in the system.      

however racing fans may feel, the state is unlikely to see any particular overriding urgency in moving heaven and earth to get this case heard soonest: there are murderers, rapists, robbers, etc and those held in prison pending trial who would tend to come higher up the pecking order in fixing dates for a trial.

best regards

<br>wit

[seanboyce]

Morning all.

Fascinating stuff on here and some really useful input on the legal side once again from Wit.

As for your hypothesis regarding some of the reporting of the issue Wit, I think in some cases maybe you are being a little cynical. ;)

I think we have to assume that there are those who genuinely believe the arguments that they’ve put forward even though it’s a little hard to see why they would, given the actual factual landscape here.

In an atmosphere where an attempt is being made to shape the debate by one of the parties involved (why else hire a top flight PR team?) it’s tempting to assume that all those keen to fight KF’s corner have been briefed accordingly but of course that is not necessarily the case at all.

Your idea about a kind of self-censorship is of course much more subtle and there is even a sense in which some might find themselves adopting that kind of approach instinctively without any calculation and in some cases there may be an element of that I would guess.

As for your hypothetical scenario, I too am still thinking about that!

I’m as baffled today as I was the moment I first saw the RP front page and Chris Smith’s impassioned editorial under the banner ‘Don’t Ban Him’. I’m sure there’s a perfectly rational editorial explanation for it. I’ll keep thinking about that one.

As for talk of a ‘witch hunt’ or an anti Kieren or even anti Irish agenda, that’s all clearly nonsense. Fallon is the most high profile of the accused but he’s only one of many in this case and there may be plenty more accused of similar acts yet. His status doesn’t mean he’s been singled out but doesn’t entitle him to special pleading either.

All the best to one and all.<br>

[bluechariot]

To add to some of what Wit says, the case has been divided into three trials, trial one the jockeys,Rodgers and two others, trial two are the unknowns to most and trial 3 Berry and Co. My guess is if trial one does not get a conviction then two and three will be dropped.<br>The case is in Southwark at present and will almost certainly go to the Bailey. They have 3 courts that are suitable, eg plasma screens, cat 5 cabling (live note for Judge and Counsel).<br>In the recent Jubilee Line fraud trial it took about 3 years between charge and start of trial and as these guys are  on unconditional bail custody time limits will not apply so 2008 is a realistic trial time.<br>The defence solicitors will have to get their clients instructions on all the evidence served which is time consuming, the initial reports are 40000 pages and normally the CPS keep serving additional evidence up until trial and even in some cases during the trial. The defence solicitors will also have to trawl through the unused material which could run to thousands of pages.<br>

[Galejade]

As an owner of 40 years standing the whole handling of this case – by originally refering it to the Police etc – fills me with dread. Whilst like everyone else I want my horse to at least run on a level playing field my understanding is that the straightness of the race is judged by the Stewards acting with powers delegated by the HRA, which power – provided it has been exercised with due and proper process – is the sole power. The Authority which cannot be challenged.

In the present case it is therefore certain that even if a conspiracy was planned it was not put into effect because the Stewards did not query or amend the race result nor charge the jockeys with failing to run a horse on its merits.

Fallon and the other jockeys will therefore be entitled to subpoena the Stewards, establish to the Court their competence and authority and require the Stewards to confirm that they saw nothing amiss and that the race was run on its merits. No other authority exists to challenge this view. The prosecution may call experts eg Sean Boyce who can argue that the Stewards were wrong but if the Court accepts that view the whole structure of racing is fatally undermined.

I as an owner, next time my horse is interfered with and the Stewards rule against me, can go to Court , call Sean Boyce and expect to have the Court amend the result.

Total chaos. Who wants it. Have the HRA thought this through?

OK so its conspiracy to defraud and the fact that the conspiracy was not put into effect does not prevent the Prosecution from showing it existed, but to prove this when legally no race was actually crooked is going to be difficult and in any event who gains from this result?

The HRA by passing this matter to the police in the first place to try and reinforce the integrity of racing have made a fatal error. To further compound it by suspending jockeys in the interests of the integrity is the height of stupidity.

Better by far that the HRA had continued to conduct its own investigations under its own powers. Warned off any jockey who had been consistently found not to have allowed a horse to run on its merits –  3 strikes and you are out! OK so they could not have stopped Mr X from conspiring to defraud but they would soon stop the licenced individuals who have to give effect to the conspiracy. The HRA would thereby in charge of their own destiny.

If the betting public do not think that the protection of the HRA is enough for them too bad. All the rest of us in the industry have to accept it or give up owning , training or riding horses.

Conspiracy theories abound but for the HRA to undermine its powers in this way is a MUCK UP.

[Purwell]

Welcome to the forum Galejade, & well said. Unfortunately there is a sad lack of common sense in this country now.

I've stumbled on the side of twelve misty mountains
I've walked and I crawled on six crooked highways

[Galejade]

Grasshopper,

I do not think you are legally correct and I cannot recall when the authority of the HRA has been successfully challenged in Court in respect of their warning off rights.

Indeed in both the Bradley case and the recent Fallon High Court case the Judge confirmed the omnipotence of the HRA provided a due and proper process had been followed in exercising its powers.

Showing the Stewards to be incompetent is of no help except on an individual basis ie by all means take a particular cricket umpire off the Test match list but that is entirely different from taking away the umpires power to say whether someone is out or not.

Whether we like it or not the Stewards say whether a race  result stands and they are the only Authority whose opinion as to whether a horse runs on its merit has any force.

[bluechariot]

Grasshopper   it was  in Irealnd where Kinane and Roche got an injunction in the High Court against a riding ban to allow them to ride in a big race. I cannot recall anyone in the UK getting a ban reversed by the courts.

[Lingfield]

Very lucidly explained Wit.<br>Clearly those who want the Fallon matter expedited must understand that the law must follow due process and that the trial must take its place amongst other unrelated cases and be co-ordinated with his co-defendants.<br>As regards criticism of the stewards, my understanding is that the police evidence is much more detailed than merely viewing recordings of races and involves betting patterns, mobile phone records and surveillance operations.<br>Not all of this would be available to the stewards and requires police expertise/authorities to collect.<br>   As regards dark forces out to "get" Fallon, who are they?

(Edited by Lingfield at 2:16 pm on Aug. 1, 2006)

[seanboyce]

Sean Fox was banned for 28 days by the stewards for ‘jumping off’ Ice Saint. He appealed the decision and the JC was then advised by its lawyer that unless they could prove what was going on in Fox’s head they could not uphold stewards original decision, as it would not stand up in a court of law.

I agree it’s not the same as the courts overturning a decision but it’s an example of a decision being overturned for fear of it going to court and being reversed.

In fairness I’m not sure that the new HRA would have taken the same decision. They seem so far to be demonstrating a much more rigorous approach and seem to have much more belief in their own authority than the previous set up did.

As for the point about HRA being allowed to police the sport effectively itself, I have always been in favour of that very principle. I’ve always argued that if the existing laws were applied robustly and effectively it would be much much harder for cheats to prosper and major criminal activity could hopefully be headed off at the pass.

To do this would require a very significant upgrading of resources though in order to properly review and judge the rides given to all horses running. A zero tolerance approach to non triers is something that I would be very much in favour of and I would very much like that to be taken care of ‘in house’ by racings own administration.

A good example for me would be the ride on Pagan Sword at Goodwood today. There may be a valid explanation for the way the horse was ridden but unless there is a transparent investigation with the findings published, that explanation will not be forthcoming.

The issues therefore seem to be resources and also possible fear of litigation.

It’s also important to bear in mind that the current cases are not about riding offences. They are about conspiracies to defraud. They are charges resulting from a very long running criminal investigation which was brought not just by the Jockey Club but by Betfair and that the victims of the alleged crime are not licensed individuals but members of the public.

The fact that stewards didn’t see anything wrong initially is no bar to further investigation as far as I can see. Don’t forget that in the case of Ice Saint, where the Fontwell stewards issued the maximum ban available to them under the rules of racing, the jockey and trainer had already left the track and were only called back once ATR had shown the incident on TV.

By the way, I don’t know why anyone would want to call me as a witness to state that the stewards have been wrong in any of these races as I’ve never expressed any opinion on the running of any of these races as far as I know.

One opinion that I have expressed on many ocassions though is that the existing rules of racing should provide us with enough tools to defend the sport from most attempts to corrupt it. Nonetheless if I’ve been robbed I’d still feel entitled to report it to the police for investigation.<br>

[bluechariot]

Sean to talk of "Victims" is a bit dramatic.

I have no idea but I may have been a victim in some of the races under investigation but I am sure I have been a victim in some races over the years but I also probably was a winner when some other sod was a victim. We are all grown ups and if we are stupid enough to gamble then Caveat Emptor.

I have gambled on horses for about 40 years and I still enjoy trying to read the markets and the plots and If I back a dead one I try and analyse how I got it wrong<br>

(Edited by bluechariot at 9:02 am on Aug. 2, 2006)

[wit]

This can’t be answered unless/until the evidence behind the particular charges comes into the public domain, but…….

…..an interesting debate for the future may be whether anything different would have happened (other than perhaps Betfair going instead/ also to the Gambling Commission rather than the JC/HRA) if the particular events concerned had occurred after September 2007, when the Gambling Act 2005 is due to be  in full effect and the Gambling Commission in full flow.

The Gambling Act will at that point introduce (section 42) an offence of "cheating at gambling", punishable by up to 2  years in prison. <br>   <br>http://www.opsi.gov.uk/ACTS/acts2005/50019–d.htm#42

In its penalty terms section 42 repeats an enactment that it will replace (section 17 Gaming Act 1845) but in other ways it differs – notably in that in the new offence it is immaterial that nothing is actually won, nor chances improved, and that it extends to attempted as well as actual deception or interference with a gambling process.

<br>By contrast, charges of conspiracy to defraud are an altogether graver offence, punishable by up to 10 years in prison.  

Government figures show that between 1995 and 1999 there were on average around  1,000 prosecutions a year in England & Wales for conspiracy to defraud, with around a 40% conviction rate.   Of those convicted, 65% went into immediate custody, though none of  them for the 10 year maximum.  

http://www.publications.parliament.uk/p … 125w19.htm

(bottom of the page, under "fraud" )

one for the future.

best regards

wit<br>

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