Appeal Board reasons regarding Jim Best
Press Release
Introduction
1. On 24 May 2016, following a one-day hearing, the Appeal Board announced that it was allowing the appeal of Mr Jim Best against findings of a Disciplinary Panel (following a 5-day hearing), the written reasons for which are dated 4 April 2016, that he had acted in breach of Rule (C)45 and Rule (A)30 of the Rules of Racing. The Panel, which was chaired by Mr Matthew Lohn, imposed a penalty of 4 years’ disqualification on Mr Best. The Appeal Board announced that it would direct a re-hearing of the case against Mr Best. These are the Board’s reasons for its decision.
2. The BHA’s case against Mr Best arose as a result of the rides of Paul John, a conditional jockey then working in Mr Best’s yard, on two horses trained by Mr Best, namely ECHO BRAVA in a novice hurdle at Plumpton on 14 December 2015, and MISSILE MAN (IRE) in a novice hurdle at Towcester on 17 December 2015. The Stewards at Plumpton concluded that Mr John had acted in breach of Rule (B)59.4 (failing to take all reasonable and permissible measures to obtain the best possible placing) and suspended him for 14 days. The Stewards at Towcester found that Mr John had acted in breach of Rule (B)59.2, in that he had intentionally failed to ensure that MISSILE MAN (IRE) was run on its merits, and they referred the matter to BHA Head Office for consideration by a Disciplinary Panel.
3. The BHA notified Mr Best and Mr John by letters dated 15 January 2016 that an inquiry before the Disciplinary Panel would be held to consider the case. Following that notification to Mr John, he indicated that he would be admitting that he had intentionally not ridden the two horses on their merits, on the instructions of Mr Best. There were then discussions between Mr Rory Mac Neice, representing Mr John, and Mr Graeme McPherson QC, who has represented the BHA throughout these proceedings, as to the position the BHA would adopt in relation to the penalty that it would regard as appropriate on the basis (1) that Mr John pleaded guilty to the two alleged breaches of Rule (B)59.2, and (2) that his evidence would be that the reason he did not ride the horses on their merits was because those were his instructions from Mr Best.
4. In the event, Mr John gave evidence for the BHA against Mr Best at the Disciplinary Panel hearing. The Panel imposed a penalty whereby Mr John would be ineligible to apply for a licence for a period of 150 days from 21 December 2015, the date when he left Mr Best’s yard.
5. Mr Best appealed against the decisions of the Disciplinary Panel on 5 grounds:
- The reasons given were insufficient to support the decision (para.14.1 of Schedule (A)7 of the Rules;
- The hearing was conducted in a way which was substantially unfair and prejudicial to the Appellant (para.14.2 of Schedule (A)7), because of the apparent bias of the Chairman of the Disciplinary Panel;
- There was insufficient material on the basis of which a reasonable decision-maker could have made the decision in question (para.14.3 of Schedule (A)7);
- The Panel misconstrued (para.14.4.1 of Schedule (A)7) or wrongly applies (para.14.4.3 of Schedule (A)7) the relevant rules;
- The Penalty is so disproportionate that no reasonable decision maker could have decided upon it (para.14.5 of Schedule (A)7).
6. It is convenient to take Ground 2 (bias) first.
Apparent bias
7. There was no allegation of actual bias against Mr Lohn, who is the senior partner of Fieldfisher LLP, solicitors, and who has sat as one of the legally qualified members of the Disciplinary Panel for some 10 years. The question of bias arose because it was discovered following the conclusion of the hearing that Mr Lohn had described the BHA, in an internet video to promote his firm, as one of his “clients”.
8. It subsequently transpired that between February 2014 and October 2015 Mr Lohn and his firm had done legal work for the BHA the fee invoices for which total in excess of £50,000, including VAT. These invoices do not cover payments made for Mr Lohn’s services for acting as a member of the Disciplinary Panel.
9. After the matter of apparent bias was raised in Mr Best’s notice of appeal, the BHA strenuously resisted his application for a stay of implementation of the penalty imposed upon him, the Disciplinary Panel having ordered or directed at the end of its reasons dated 4 April 2016 that “Best’s owners have until 8 April 2016 to remove their horses from his yard”. Following an emergency telephone hearing on the evening of 7 April the Chairman of the Appeal Board granted a stay of implementation.
10. Thereafter the BHA’s position changed completely. It informed Mr Best’s solicitors by letter dated 13 May 2016 that it would not oppose Ground 2 of Mr Best’s appeal, and conceded that “Mr Lohn’s position gave rise at the time of the hearing before the Disciplinary Panel to an appearance of bias within the meaning attributed to that phrase in Porter v Magill [2001] UKHL 67.” The BHA accepted that the Disciplinary Panel’s decision and findings should be quashed, and the matter remitted to a different Panel for a fresh inquiry.
11. At the hearing before the Appeal Board, Mr McPherson QC explained that this situation had come about because the BHA had, over time, lost sight of the critical distinction between, on the one hand, its executive functions, and, on the other, its quasi-judicial disciplinary functions. Quite rightly, Mr McPherson made a fulsome apology to Mr Best on behalf of his client; he stated that steps would be taken to ensure that this situation could not recur, and that any re-hearing of the case against Mr Best would take place before a Disciplinary Panel chaired by someone of unquestionable independence and impartiality. He added that at such a re-hearing the case of the BHA would be on the same evidence as that put before the first Panel. And he stated that the BHA would pay all the costs incurred by Mr Best as a result of the abortive proceedings to date, ie. the costs of the first Panel, of the stay application, and of the present appeal.
12. In these circumstances it is not necessary for us to say anything more on the issue of apparent bias.
