Harry Stewart-Moore acted for Sean McBride in his partly successful appeal to the Appeal Board of the British Horseracing Authority in the context of the high-profile Danny Brock Proceedings. The Appeal Board found that while Mr McBride had committed serious breaches of the Rules of Racing, the Disciplinary Panel had erred in finding that he had done so as part of a conspiracy with the jockey and others.
Sean McBride and the jockey Danny Brock were close friends. It was common ground before the Disciplinary Panel that they spoke on the telephone almost every day during the time when the alleged offences in the enquiry took place.
Mr Brock was charged with stopping two racehorses in BHA races as part of a conspiracy with several other individuals who had placed bets having received assurances that he would stop the horses.
Mr McBride and Mr Brock spoke to one another at length the on the evening before Mr McBride gave Samovar what was ultimately found to have been a stopping ride in a two-horse race. It was found by the Disciplinary Panel that Mr McBride had placed a bet on the other horse in that race which was unusually large for him.
A number of other individuals were found to have placed corrupt bets on the Samovar race. Those individuals were also found to have placed corrupt bets on the basis of the other stopping ride which Mr Brock was found to given another horse. Importantly, although Mr McBride was charged with being part of the conspiracy involving the stopping of both horses, there was in fact no evidence at all that he had placed any bets, benefitted from any bets nor otherwise had any involvement in Mr Brock’s first stopping ride. The BHA dropped its case against Mr McBride in respect of Mr Brock’s first ride in its closing submissions to the Disciplinary Panel at first instance.
Mr McBride was however found to have been part of the stopping/ betting conspiracy insofar as it related to the Samovar race.
Both the BHA and the Disciplinary Panel appear to have proceeded on the basis that the factual findings that (a) Mr McBride knew that Samovar would be stopped by its jockey and (b) that he placed a corrupt back bet on the other horse in the two horse race on the basis of that information meant that he was part of the wider conspiracy with the jockey and other corrupt gamblers.
Mr McBride appealed the Disciplinary Panel’s findings. Among other things he appealed the funding that he was part of a conspiracy to commit a corrupt or fraudulent practice on the basis that neither the BHA nor the Disciplinary Panel had addressed the difference between (1) committing a corrupt or fraudulent practice and (2) conspiring to commit a corrupt or fraudulent practice. Mr McBride said that the Disciplinary Panel’s factual findings amounted only to a finding that he committed a corrupt or fraudulent practice. He said that in order to make him part of a conspiracy there had to be a finding that differentiated the opportunist from the conspirator but that the Panel had not turned its mind to that issue before concluding that he was a conspirator.
On Appeal the BHA’s case appeared to be that the two factual findings that (1) Mr McBride knew the horse would be stopped and (2) then placed a bet on that information, was enough to establish that he was part of a conspiracy with the jockey to stop the horse. The BHA also said that there was in any event effectively no difference between the commission offence and the conspiracy offence and they were equally serious.
The difficulty with the BHA’s position was best illustrated by the findings of the Disciplinary Panel in the earlier decision of Ad Vitam. In that case two gamblers, Ad Vitam’s owner and two jockeys were charged by the BHA with being part of a conspiracy to stop Ad Vitam in a number of races in order to benefit from corrupt bets in the relevant races.
The Disciplinary Panel found that in fact there was a conspiracy to stop Ad Vitam but that it only involved the owner and one of the two jockeys (the other jockey being found not in breach of any rules at all). The two gamblers were found to have placed corrupt bets on the races in which Ad Vitam had been stopped on the basis that they knew the corrupt information that the corrupt jockey had agreed to stop Ad Vitam. However, crucially, the gamblers were not found to have been part of the conspiracy. Instead they were found to have discovered its existence and ‘piggy backed’ on the corrupt information. Put another way, they had committed a corrupt practice but had not conspired to commit a corrupt practice. The distinction was far from immaterial – whereas the owner of Ad Vitam received an exclusion of 8 years, the two gamblers were each excluded for only 6 months.
Initially the BHA mistakenly led the Appeal to believe that a change in the rules since Ad Vitam meant that the distinction was no longer material. The Panel initially accepted this and Mr McBride lost on this point. However, most unusually, it emerged after the Appeal Board handed down its written reasons on 16 May that the BHA had made an innocently misleading submission because in fact the rule change had not taken place since Ad Vitam but rather before that enquiry was heard.
The Appeal Board effectively reopened the Appeal and concluded that Mr McBride was correct on this point because “We cannot see anything [in the Disciplinary Panel’s Reasons] which directly addresses the distinction between Mr McBride on the one hand receiving information from Brock that he had agreed with the conspirators to stop Samovar and Mr McBride actively being part of the agreement to act in that way”. The Appeal Board concluded that “… the existence of a conspiracy is assumed by the Panel, rather than considered as an alternative and found as a fact”.
Mr McBride was still found to have committed a serious breach of the Rules of Racing and received a lengthy exclusion from the sport. However, the fact that he was ultimately found not to have been part of the ‘conspiracy’ meant that the Appeal Board applied a material reduction to the length of that exclusion. Mr McBride’s appeal is therefore a reminder to prosecuting regulators of the importance of proving the ‘agreement’ between the relevant parties necessary to establish an offence has been committed as part of a conspiracy. Without such an agreement the alleged co-conspirators are no such thing but are rather individuals guilty of separate offences.
The Appeal Board’s written reasons can be found at: Result | (britishhorseracing.com).
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