INTRODUCTION

1. The Appeal with which we are dealing is by Eddie Ahern (“the Appellant”) against a decision of the Disciplinary Panel (“the Panel”) made on 22 May 2013 following a hearing which took place over 3 days between 29 April and 1 May. By its decision, articulated in Reasons dated 22 May (“the Reasons”) the Panel determined that the Appellant had committed breaches of Rules (A)41.2, (B)59.2 and (A)36.2 of the Rules of Racing and ordered that he be disqualified for a total of 10 years.

2. The Appellant appeals against the Panel’s findings of liability, and also (but, obviously, in the alternative) against the duration of the disqualification imposed upon him by way of penalty. It follows that we must first decide whether the Panel’s findings were, whether wholly or in part, unjustified within the parameters ordained by Schedule (A)7 of the Rules of Racing, which are premised upon the principle that generally appeals from the Panel to the Appeal Board are by way of review, not re-hearing. If all or any of the findings of liability are upheld, then we must move on to consider whether the penalty imposed was (and remains) appropriate, or should be modified.

3. The Enquiry involved an array of charges brought against a total of six Respondents. The Appellant was one; and the only other who is relevant in the context of the appeal was a man by the name of Nicholas Clement (“Clement”). Although Clement was pivotally involved in the historical sequence of events under investigation by the Panel, and although he did make certain admissions as recounted in the Reasons (but none concerning his alleged activity in concert with the Appellant), he declined to be interviewed and did not condescend to appear at the Enquiry. He was, however, represented by Leading Counsel, Miss Montgomery Q.C., who, unsurprisingly in his absence, was described by the Panel as having been effectively left trying to build bricks without straw.

4. For the record, of the other four Respondents two entered Bases of Pleas of Guilty to certain charges and sanctions were imposed upon them on 22 and 29 April respectively. The other two were found by the Panel to be innocent of the charges brought against them.

5. The prolific documentation before the Panel included a Table of Races and a document headed “Topics for Inquiry [concerning] Eddie Ahern”. As to the Table of Races (there were six of them), we reproduce below a modified version, “Table A”, omitting reference to Race 6, which did not in any way concern the Appellant.

TABLE A
No	Date	Race	Horse	Jockey
1	10/09/2010	Chester – 2.30pm	SISINDU (IRE)	Eddie Ahern
2	08/12/2010	Kempton – 2.20pm	LOVE YOU LOUIS	Eddie Ahern
3	21/01/2011	Lingfield – 1.25pm	JUDGETHEMOMENT (USA)	Eddie Ahern
4	11/02/2011	Kempton – 8.40pm	FRENCH ART	Eddie Ahern
5	09/03/2011	Wolverh’n – 5.40pm	DOWNHILL SKIER (IRE)	Eddie Ahern

6. The Topics of Inquiry, which were mirrored in the Reasons, read as follows:-

The Integrity Issues

The issues for Inquiry are:

1. Did Eddie Ahern on, and/or before, the dates of the races identified in the Table of Races in which he was the jockey act in breach of Rule (A)41.2 in that he conspired with Neil Clement and/or other persons to commit a corrupt or fraudulent practice by communicating directly or indirectly to one or more Betting Exchange account holders information relating to the prospects in the race of that horse which was or included information (i) obtained in his capacity as a licensed person and (b) which was not publicly available or authorised for such disclosure by the Rules of Racing (“Inside Information”), knowing that (i) and (ii) were the case and knowing that such information would or might be used to gain an unfair advantage in the betting market?

and/or

2. Did Eddie Ahern ….. act in breach of Rule (A)36.1 in that he communicated directly or indirectly to one of more account holders of Betting Exchanges, for material reward, gift, favour or benefit in kind, information relating to the prospects of his rides, which was or included Inside Information, knowing such information was Inside Information?

The Running and Riding Issues

3. In relation to JUDGETHEMOMENT (USA) when it ran on 21 January 2011 at Lingfield Racecourse, the issue for Enquiry is, did Eddie Ahern act in breach of Rule (B)59.2 by intentionally failing to ensure that the horse was run on its merits?”

7. It will be noted that JUDGETHEMOMENT (USA)’s was the third of the five races under scrutiny and was thus sandwiched either side by two races (four in all) which were also alleged by the BHA to have been the vehicles of corrupt or fraudulent practice on the part of Clement and the Appellant. The BHA’s case as to these four races was that, although no allegation of dishonest riding was made against the Appellant, Clement had perpetrated significant lay betting on the horses identified in Table A which was inspired by Inside Information passed to him by the Appellant, for which information the Appellant received reward.

THE REASONS: HISTORICAL NARRATIVE AND RATIONALE

8. The Reasons have to be read in their entirety for their full substance and meaning. The paragraphs directly relevant to the Appellant are those numbered 11 – 36, within which are to be found both the Panel’s summary of the background facts and its reasoning in finding the Appellant guilty of the charges brought against him. Paragraphs 11-23 fall under the heading “Eddie Ahern” and paragraphs 24-36 under the heading “Eddie Ahern and JUDGETHEMOMENT (USA)’s race on 21 Jan 2011”.

9. In this instance we think that, unusually, it would be helpful fully to reproduce those paragraphs, and they are accordingly incorporated in the Appendix to our Reasons. The text of the Reasons appears verbatim, although for ease of reference we have created (what can only be) a broad distinction between factual narrative and rationale: narrative appears in italic type, rationale in Roman type.

THE GROUNDS OF APPEAL

10. The Grounds stated in the Notice of Appeal are as follows, in a format marginally revised by us but containing no alteration of substance:-

1. The reasons given by the Panel were insufficient to support their decision in that

(i) The Panel failed to identify any evidence of the Inside Information in relation to four of the rides (paragraph 22 of the Reasons) in respect of the alleged breaches of Rules (A)41.2 and (A)36.2.
(ii) The Panel failed to identify evidence in relation to each of the races of contact between Ahern and Clement.
(iii) The Panel failed to identify any evidence that Ahern received any reward.
(iv) The betting evidence relied upon by the Panel was not sufficient to make the findings set out at paragraphs 18 and 19 of the Reasons.
(v) In respect of the JUDGETHEMOMENT (USA) findings there was insufficient evidence for the finding that Ahern had passed Inside Information to Clement (paragraph 19 of the Reasons) …. and there was insufficient evidence to support the finding that Ahern had deliberately ridden JUDGETHEMOMENT (USA) so as to lose the race.
(vi) The Panel wrongly failed to take account of the expert evidence [of Wally Swinburn] brought on behalf of Ahern.
(vii) The Panel wrongly failed to take account of Ahern’s own evidence.

2. The sanctions imposed were disproportionate to the conduct found to have occurred.

It was further stated that the Grounds of Appeal would be particularised in a detailed Skeleton Argument.

11. In the event Ground 1(vi) was not addressed by Mr Jonathan Harvie Q.C. on behalf of the Appellant in his skeleton or, later, oral argument; and for good reason, because it was in our view without merit. For the record, having read the transcript of the oral evidence which he gave to the Panel under cross-examination, we find the reasoning of the Panel as to Mr Wally Swinburn’s evidence impeccable. Ground 1(vii) is also make-weight: certainly, it adds nothing to Grounds (i) – (v).

12. We shall arrive shortly at Grounds of Appeal 1(i) – (v); but in oral argument it emerged that there was one particular added dimension to Mr Harvie’s presentation which we think it convenient to address at the outset. It went along the lines that the Panel’s analysis in respect of the JUDGETHEMOMENT (USA) race was vitiated by the fact that, when viewing the race and forming its conclusions, the members of the Panel had already drawn two crucial adverse inferences against the Appellant, first that he had inside information which he was able to, and did, impart to Clement knowing that it would be used as the catalyst for lay betting by Clement and that it was wrong for him (the Appellant) to release the information and, secondly, that the passing of such information was rewarded within the meaning of Rule (A)36.2. According to Mr Harvie, not only were both inferences unjustified; but it was against the background of the inferences already having been drawn that the Panel came to form its conclusions on the JUDGETHEMOMENT (USA) race. Its mind, he contended, was “already set” and its judgment, therefore, fatally coloured.

13. We reject this submission. Plainly, in expressing their Reasons the Panel had to cover the various issues in some given order. At paragraphs 11-23 they elected to deal with the matters there addressed. In the course of doing so they thrice signalled, in advance of the section of the Reasons which specifically deals with JUDGETHEMOMENT (USA), their fundamental conclusion that the Appellant had deliberately failed to ride the gelding on its merits. Thus, references to the JUDGETHEMOMENT (USA) race are to be found –

• at paragraph 19 of the Reasons, where it was said that the sheer size of the bets in the case of JUDGETHEMOMENT (USA) indicated a confidence in the outcome that was seen to have been justified by what happened in the race, where the Appellant deliberately took steps to ensure that the gelding did not run on its merits and, indeed, that the Panel was left in no doubt that Clement knew that the gelding would be ridden to lose;
• at paragraph 21, where it was said that the findings [shortly to be] made in relation to the JUDGETHEMOMENT (USA) race were a complete contradiction of the Appellant’s case; and
• at paragraph 22, where the Panel observed that the case of JUDGETHEMOMENT (USA) was “a clinching reason” (not, it is to be noted, the clinching reason) for its rejection of the Appellant’s denial that he had received reward.

14. However, we find no objective support for the assertion that in some way the Panel, in addressing the JUDGETHEMOMENT (USA) race, was already unduly prejudiced by pre-conceived inferences as to inside information and reward which were not legitimate. We have no cause to doubt that, in terms of its general approach, the Panel gave consideration to the myriad of issues in the case, both individually and collectively, in a balanced manner and without bias or undue pre-conception. We say “collectively” because this was a case where quintessentially there was inter-connection between many of the issues, thus that, in making one given finding on the balance of probabilities, the Panel was fully entitled to have regard to its conclusions upon other issues, whilst always seeking to achieve a balanced and fair overview. Reading the Reasons as a whole, we are sure that that is precisely how the Panel operated in its deliberations. We perceive that the probable reason why the Panel chose to recite the history as to, for example, the relevant betting and contact and also as to the nature of the Appellant’s and Clement’s relationship before moving to the detail of the JUDGETHEMOMENT (USA) race was because it was felt expedient to record at the outset certain primary facts as to many of which there was no substantial dispute.

THE APPELLANT’S CREDIBILITY

15. There is one further point to make, of much importance, before addressing the Grounds of Appeal specifically. It is elementary that a factor which will have weighed heavily with the Panel was its assessment of the Appellant’s credibility. The Reasons demonstrate that in crucial aspects the Appellant was disbelieved by the Panel, whose members, it is needless to say, had the advantage (including the advantage over us) of hearing his oral evidence. A key illustration arises from the conflict between his evidence and that given by the trainer of JUDGETHEMOMENT (USA), Mrs Jane Chapple-Hyam. In his first interview the Appellant said that he had gone too slow on JUDGETHEMOMENT (USA) at Kempton and that Mrs Chapple-Hyam had told him not (i.e. in his next race) to make the same mistake, to “go plenty” and to “quicken up” on the horse. His narrative was to the effect that this is what he did at Lingfield, although he acknowledged that he had gone too fast and that he had given the gelding a ride variously described by him as embarrassing, terrible, bad and ridiculous. In his second interview he again said that at Kempton Mrs Chapple-Hyam had said that he had gone too slow, which explained his booting the gelding out of the stalls at Lingfield and getting him into a higher gear than he should have been going. He was constant, throughout his evidence, in asserting that at Lingfield he simply did not realise that JUDGETHEMOMENT (USA) was going at the pace at which he was in fact travelling.

16. The interviews took place on 1 July 2011 and 30 March 2012 respectively. On 15 June 2012 Mrs Chapple-Hyam signed a written Witness Statement, in which she described, as she later endorsed in oral evidence, how she had given the Appellant his instructions for the Lingfield race over the telephone (it will be seen that the Panel rejected the Appellant’s seriously inconsistent evidence about the timing and provenance of his instructions); and further said that, whilst she had told him to lead, and that the gelding would be wearing blinkers as he had recommended, there was no mention of making more use of the horse or going any faster than he had at Kempton on 30 December. At the Enquiry she was clear that neither at Kempton nor later was there any suggestion or mandate from her to the effect that the Appellant must ride at a quicker pace than at Kempton: the decision as to pace, she said, was something for which she booked a professional jockey. In cross-examination Mr Harvie was unable to make any significant inroad into Mrs Chapple-Hyam’s evidence, which was much preferred by the Panel to the unreliable evidence given by the Appellant (which reads to us too as equivocal in many important areas and permeated by inconsistency).

17. It is clear to us that the Panel deemed the resolution of the conflict of evidence between the Appellant and Mrs Chapple-Hyam as significant, an opinion with which we concur. Whether or not, as a matter of competent professional jockeyship, the Appellant should have been travelling so fast, he had been asserting that, in so far as he rode JUDGETHEMOMENT (USA) at a faster pace at Lingfield than at Kempton, he did so in accordance with Mrs Chapple-Hyam’s specific instructions. This was a claim which, if accepted to be true, would have bolstered his defence to a charge of stopping JUDGETHEMOMENT (USA) and enhanced his insistence that, although giving the gelding a terrible ride, he was guilty of no worse than error of judgement. The claim was, however found by the Panel to be false.

18. Analysis of the Reasons shows that there were several other areas where the Panel found itself unable to accept the Appellant’s evidence.

They include, by way of non-exhaustive example:-

• The nature, substance and frequency of his conversations with Clement as and when they concerned horseracing, including the essence of the information about the Appellant’s rides which was probably passed (see further on this aspect paragraph 23 below);
• The state of the Appellant’s knowledge of Clement’s betting activities;
• Whether the Appellant did, as he sought to insist, have a particular discussion with Clement on the question whether he was indulging in lay betting: his evidence in this respect was rejected by the Panel.

In summary, therefore, the Panel did not find the Appellant to be a reliable witness, whether when giving his narrative account in interview or when testifying at the Enquiry. This is not, of course, a fact per se dismissive of the Grounds of Appeal; but the Grounds have to be considered with the point well in mind.

19. To turn specifically to the Grounds of Appeal:-

GROUND 1(I) – RE INSIDE INFORMATION
GROUND 1(II) – RE CONTACT BETWEEN THE APPELLANT AND CLEMENT
GROUND 1(III) – RE REWARD

We think it both neat and logical to combine these grounds under one global heading, because there is close inter-connection between them (as there is, manifestly, between each one of them and the collateral issue whether the Appellant rode JUDGETHEMOMENT (USA) to lose).

20. The short and literal response is simple. As to contact, we refer to paragraph 19 of the Reasons. There was, in fact, clear positive evidence of contact between the Appellant and Clement prior to the SISINDU (IRE), LOVE YOU LOUIS and JUDGETHEMOMENT (USA) races, per the time-lines presented in evidence by Mr John Gardner of the BHA. The starkest example in terms of contiguity between contact and the placing of wagers was in the case of LOVE YOU LOUIS, where there was telephone contact between the two of them lasting in total c.28 minutes on the day of the race, which was promptly following by a call from Clement to place the sell bet against LOVE YOU LOUIS. As to Races 4 and 5, there was no positive evidence adduced of telephone or other contact; but, given (i) the fact that these races post-dated the other three races, and most particularly JUDGETHEMOMENT (USA)’s and (ii) the pattern, level and ultimate success of the betting conducted by Clement on FRENCH ART and DOWNHILL SKIER (IRE), we find that the drawing of an inference that contact of some sort probably took place was legitimate.

21. As to the complaint that the Panel did not identify either the actual Inside Information allegedly given by the Appellant or the reward found to have been given to him by Clement, mere common sense dictates that in most cases of this type it will not be practicable either to particularise the precise information given or to pin-point the detail, e.g. as to date, mode and amount of payment, of the reward conveyed, for the obvious reason that the passage of such information and reward will, almost by definition, have been clandestine. This inevitability is widely recognised but, by way of example, was nicely expressed by the Appeal Board in the case of BHA v Babbs & Celaschi (Mr Anthony Boswood Q.C. Chairman):-

“Mr Winter Q.C. attacked the Panel’s approach and findings in relation to Inside Information. He contended that the definition of it in Rule (A)36.1 is “deficient in law, since Inside Information, in addition to the two requirements therein listed, must also be (i) sufficiently specific to be capable of having value ascribed to it, and (ii) price sensitive such that it is capable of affecting the price of any bet struck in relation to it”. Mr Winter went on to submit that the BHA could not establish that Inside Information had been communicated to Mr Celaschi unless it could particularise what that Inside Information actually was. We do not accept these arguments: the phrase “information about the likely participation or likely performance of a horse in a race” in Rule (A)36.1 has inherent within it the two requirements which Mr Winter contends are missing, since, not being in the public domain, that information will in all probably both have value and be price sensitive. And we do not consider the Rule necessarily requires the particularisation of the Inside Information allegedly communicated in contravention of it. There will be cases where it is perfectly obvious that some sort of Inside Information was communicated to a person without it being possible to say precisely what it was.”

22. All that said, our observations thus far do not do justice to Mr Harvie’s argument as presented both in writing and in oral argument, the principal elements of which we would summarise as follows:-

(a) Clement and the Appellant formed, some 8 years ago, what became a truly close relationship, which historically has included a co-family holiday abroad, overnight stays in the UK, very frequent verbal communication by telephone and texts (see in this respect the statistics at paragraph 16 of the Reasons) and, per the Appellant, a willingness to share with Clement confidences which he would not share with others. The Panel expressly recognised all these matters (paragraph 15 of the Reasons), but according to Mr Harvie failed to give them sufficient weight.
(b) It was, therefore, entirely natural that there should be a great deal of contact and conversation between them, some of it to do with racing (although one notes that the Appellant told Mr Harvie in oral evidence that the proportion of their dialogue which concerned racing was really very little, a proposition which the Panel also rejected). Clement, after all, had a great interest in the sport, which probably intensified when an injury terminated his career as a professional footballer; and the Appellant, obviously, had a full-time involvement. The contact evidence, therefore, was supportive, not destructive, of the Appellant’s case: rather than seeking to deny or minimise the extent of contact between himself and Clement, the Appellant admits and positively relies upon it.
(c) Whilst, at least by implication, acknowledging an inability to overturn the Panel’s overview of the Appellant’s credibility, e.g. re Mrs Chapple-Hyam, Mr Harvie urged us to the view that the Appellant gave impressive evidence as to (i) his keen appreciation that a jockey should not pass information and should forever be on guard when discussing racing matters, and in particular his rides, with others and (ii) his non-transgression in practice.
(d) Where, asked Mr Harvie, was the evidence either that the Appellant had Inside Information on the five horses in question, or any of them, within the meaning of Rule (A)36.2; or that, whatever information may have passed between him and Clement, it was not already in the public domain? According to Mr Harvie, there was no, or insufficient, evidence to that effect, and the Panel was wrong to hold that the mere fact of the Appellant having ridden four of the five horses in previous races (the exception being SISINDU (IRE)) supported its finding that he had Inside Information at his disposal. Mr Harvie strongly emphasised JUDGETHEMOMENT (USA)’s loss of form since his win at Royal Ascot and suggested that if, contrary to his evidence, the Appellant did tell Clement that the horse was useless, that was no more than “a statement of the disappointing obvious”.
(e) Even if, contrary to this submission, Inside Information was passed, there was insufficient evidence to support the drawing of the inference that reward passed from Clement to the Appellant. The decisive point was, said Mr Harvie, that in the course of their close friendship the two of them fraternised by way of, for example, attending pubs, clubs and parties together and enjoyed each other’s company. Sometimes one paid, sometimes the other. The drawing of the inference of reward, it was submitted, “dis