Protecting the Integrity & Reputation of Irish Horseracing

E. Joseph Logan Appeal - Ballinrobe, 22nd July 2013 - Appeals Decision July 2017

The Appeals Body (Division One), Joseph Finnegan (in the Chair), Ms Mary M. O’Connor and N.B. Wachman met in the Turf Club, The Curragh, Co Kildare on Tuesday, 21st February 2017 to consider the appeal of E. Joseph Logan against the decisions of the Referrals Committee. In a decision notified to Mr. Logan on 22nd September 2016 they found that that he was in breach of Rules 147(ii) 272, 273(iv)(viii)(ix) and (xiii). In a decision subsequently notified to Mr. Logan on 21st December 2016, he was informed that a penalty of disqualification for a period of two years had been imposed on him as a result of being found in breach of the rules. Mr Logan lodged 24 grounds of appeal against the decisions on 23rd December 2016. Having considered a number of submissions at the appeal hearing from Frank Crean, BL, on behalf of Mr. Logan and Louis Weston, Barrister, on behalf of the Turf Club. The Appeals Body found as follows:

SUMMARY OF RULING

1. FACTUAL BACKGROUND

At all relevant times, the registered owner of Like A Diamond was the Fair Play Partnership of which the Appellant’s father was a member. The registered trainer was Sharon Dunphy. The horse was entered to run in a maiden race at Ballinrobe on the 22nd July 2013 and was declared to run. Christopher Gordon, the Turf Club Head of Security, obtained information that Miss Dunphy had vacated her registered training establishment at Drish, Thurles, County Tipperary some five weeks previously and was then renting a yard at Ballyvaden, Fethard, County Tipperary. On enquiry, Miss Dunphy confirmed that this was so. The matter was drawn to the attention of the Stewards and the horse was withdrawn by order of the Stewards. Thereafter an investigation took place and the matter came before the Referrals Committee on 9th June 2016, 21st June, 2016, 8th July, 2016, and the 24th November, 2016 The Turf Club’s case was that Miss Dunphy, while the Registered Trainer of Like A Diamond, in fact had nothing to do with the training of the horse and the horse was not kept in her yard. The horse was trained by Fabian Burke who is unlicensed and kept at premises owned by the Appellant at Kilmeague, County Kildare. The Appellant was heavily involved with the horse at all times relevant to the intention to run the horse at Ballinrobe. The outline submissions on behalf of the Appellant before the Referrals Committee on the evidence was that the horse was indeed trained by Miss Dunphy and that the only involvement of Mr Burke and the Appellant was to carry out Miss Dunphy’s instructions. It was submitted on behalf of the Appellant that the Referrals Committee had no jurisdiction to hear and determine the Turf Club’s complaint against the Appellant as such jurisdiction arises only as a matter of contract and the Appellant had no contractual relationship with the Turf Club. Further, it was submitted that material circulated to the Referrals Committee contained inadmissible documents prejudicial to the Appellant and that the Referrals Committee should recuse itself.

2. REFERRALS COMMITTEE FINDING ON SUBMISSIONS

The Referrals Committee held that an Owner Application form completed by the Appellant on the 11th April, 2006, gave a contractual basis to the Turf Club’s jurisdiction, if such is required. The Referrals Committee having stated that they were satisfied that the documentation and the material objected to could be excluded from their consideration and so was not such as to prejudice the Appellant and that they would determine the matter only on admissible, appropriate and relevant material.

3. REFERRALS COMMITTEE FINDINGS OF FACT UPON THE EVIDENCE

1. The Appellant was not an owner of the horse;

2. The Appellant was heavily involved with the horse up to and including the 22nd July 2013;

3. Mr Burke occupied boxes in the Appellant’s yard from January 2013;

4. The Appellant and Mr Burke met with Paul Deegan and inquired as to the possibility of a “piece of work” some morning and Paul Deegan consented to this and the horse was ridden by Chris Hayes at Maddenstown in the presence of the Appellant and Mr Burke;

5. Between 16th July 2013 to the 20th July 2013, the horse was microchipped and passport checked and stall certified. The horse was galloped on two occasions. On all these occasions the Appellant and Mr Burke were present and Miss Dunphy was not;

6. On the 17th July 2017, the Appellant paid the sum of € 425.00 in respect of a flat trainer’s licence on behalf of Miss Dunphy;

7. On the 19th or 20th July 2013, the Appellant collected the horse’s passport form Weatherbys;

8. On the 21st July 2013, the Appellant rang Wayne Lordan’s agent, Ryan McElligott, and booked Wayne Lordan to ride the horse at Ballinrobe;

9. The Appellant was involved in the transport of the horse to and from Ballinrobe.

4. DECISION OF THE REFERRALS COMMITTEE

The Referrals Committee decided that the conduct of the Appellant amounts to a breach of Rules 147(ii) 272, 273(iv)(viii)(ix) and (xiii).

5. ISSUES RAISED ON THE APPEAL

The Appellant made the following headline submissions on appeal:

(i) The Referrals Committee did not have jurisdiction to hear and determine the Turf Club’s complaint against the Appellant;

(ii) The Referrals Committee fell into error in its appraisal of the evidence;

(iii) The Referrals Committee failed to consider the submission made on behalf of the Appellant; (iv) The Turf Club’s Report circulated to the Referrals Committee and to the Appeals Body contained material that is inadmissible and prejudicial.

The decisions reached on each headline submission and the overall decision and the decision on penalty are listed below.

(i) JURISDICTION OF THE REFERRALS COMMITTEE

Decision

The Appellant signed an Owner Application form on the 11th April 2006, which form contained a declaration by him that he agreed to be bound by the Rules of Racing and the INHS Rules of the Turf Club and INHS Committee. On foot of the same he was registered as an owner and became registered in respect of a horse. At times, relevant to this hearing he was not the registered owner of any horse. However, we are satisfied that the commitment given in the declaration is not time limited and at any time while registered he can become registered as owner of a horse. By virtue of making the declaration, he obtained and actually enjoyed benefits from the Turf Club which would not have become available to him had he not completed the application and furnished the declaration. His registration created a tri-partite arrangement between the Appellant, Horse Racing Ireland and the Turf Club the effect of which was that he submitted to the jurisdiction of the Turf Club. It is unnecessary for us to consider the implications for the Turf Club’s jurisdiction of the Irish Horseracing Industry Act, 1994 in the circumstances of this case.

Having regard to the foregoing, it is necessary to consider the effect of the Appellant being on the Unpaid Forfeit List.

Part XV of the Rules of Racing deals with the Unpaid Forfeit List. Rule 167 provides as follows: -

“On the publication of a name of a person in the Unpaid Forfeit List such person, so long as their name remains on the Forfeit List, shall be deemed to be a Disqualified Person. When the Stewards of the Governing Bodies receives notification from a Foreign Turf Authority of a person who is on the Official Forfeit List published by that Turf Authority, such person, so long as their name remains on that Official Forfeit List, shall be ineligible to register as an owner under Rule 119 or to enter into any registration or to hold a licence under these Rules. If such person is already a Registered Owner or involved in any registration under these Rules the matter shall be referred by a Senior Racing Official to the Referrals Committee under Rule 274 (1). On the publication of the name of a Recognised Company or Club in the Unpaid Forfeit List the registration of such companies or Club shall automatically be cancelled.”

“Disqualified Person” is defined in Rule 1 as follows: -

“Disqualified Person” includes: -

(a) A person who, at the date of the coming into operation of these Rules is a Disqualified Person or “warned off” under any previous Rule of Racing or

(b) A person upon whom disqualification has been imposed under these Rules.”

It is clear therefore that the Appellant while deemed to be a Disqualified Person is not in fact a Disqualified Person. The Rules elsewhere in Rules 273 (i) provides for persons “to be declared a Disqualified Person”: see Rule 273. The Appellant has not been so declared.

Rule 276 of the Rules provides as follows: - “When a person is declared a Disqualified Person all agreements or registrations under these Rules already entered into by that person shall become void with the exception of the registration of names of horses. The fact that any registrations or agreements may have become void shall not prevent Horse Racing Ireland from enforcing any obligations on Disqualified Persons under those registrations or agreements”

Rule 119 provides that if any Registered Owner shall become a Disqualified Person, the Registration as an owner becomes void. The effect of being deemed a Disqualified Person is that his agreements are not void but merely suspended. As the Appellant has not been declared a Disqualified Person but merely deemed to be a Disqualified Person, we are satisfied that his registration as an owner did not become void.. However, a person deemed to be a Disqualified Person suffers from the disability of a person declared a Disqualified Person but upon his name being removed from the Forfeit List is restored to his former position. It is clear therefore that the Rules do not consider the deeming of a person to be a Disqualified Person to void his registration but merely to suspend the same. Once no longer on the Forfeit List, he is no longer deemed to be a Disqualified Person and is without taking any step restored to his former position as if he had never been deemed a Disqualified Person. That, we are satisfied, is the construction to be placed on the interaction between Rule 276 and Rule 119. As the Appellant is no longer on the Unpaid Forfeit List and no longer deemed to be a Disqualified Person he remains a Registered Owner and is obliged to comply with and is subject to the Rules of Racing.

Further, we are satisfied that the authority to declare a person to be a Disqualified Person is not dependant on contract. Rule 276 of the Rules provides that a person declared a Disqualified Person shall not be eligible to act in certain capacities or to engage in certain activities. For present purposes, a Disqualified Person is not eligible to enter any Racecourse, Stand, Enclosure, or the Curragh Training Grounds. Some, but not all racecourses, are under the control of the Turf Club as are the Curragh Training Grounds and the proprietary interest of the Turf Club enables it to give effect to this provision. All the other provisions of Rule 276 relate to matters regulated by the Turf Club and the Turf Club has the power to exercise jurisdiction over such matters without reference to contract.

With regard to racecourses in which the Turf Club does not have a proprietary interest, if the Turf Club finds itself unable to enforce a restriction on a Disqualified Person recourse can be had to Irish Horseracing Industry Act, 1994 section 62 which provides as follows: -

“62. — (1) The Authority or the Racing Regulating Body may exclude by notice (an Exclusion Notice) a person from being either-

(a) On any recognised racecourse, or

(b) On such authorised racecourse or racecourses as the Authority or, as the case may be, the Racing Regulating Body, may think fit, and specify in the Exclusion Notice, where it has reason to believe that the person is not is a fit or proper person to be on such racecourse”

In these circumstances, we are satisfied that the Turf Club has sufficient authority to impose and enforce the restrictions placed upon the Appellant by his being declared to be a Disqualified Person independently of the jurisdiction which it enjoys under contract: see Rule 12 of the Rules which provides: -

“The Stewards shall exclude from all places under their control every “Disqualified Person” and all such persons or descriptions of persons as they may from time to time be required by the Stewards of the Governing Bodies to exclude. They have power to exclude at their discretion any person from all or any place under their control”

(ii) THE REFERRALS COMMITTEE’S APPRAISAL OF THE EVIDENCE

Decision

The Referrals Committee made clear findings of fact. The findings of fact were based on evidence, if accepted, sufficient to enable those findings to be made. The Appellant, as was his right, did not give evidence. He attended two interviews with Mr Gordon and in these he made admissions to support the findings of fact made by the Referrals Committee. The admissions alone are sufficient to establish the Turf Club’s case. It was he who retained Miss Dunphy. He paid for her flat licence. He attended at the Curragh for the horse’s gallops and it being stall certified. He booked the jockey. Insofar as Mr Burke worked the horse he did so in company with the Appellant on instructions received from the Miss Dunphy. It is quite clear that the Appellant had a high degree of involvement with the horse.

Accepting the law as set out in the Appeal Body’s ruling in the Turf Club v Edward O’Connell (16th July, 2014), and the decisions the SS Gairloch, Aberdeen Glenline Steamship Company v Mackin [1899] 2 I.R. 1 and Hay v O’Grady [1992] 1 I.R. 210 and applying those principles to the facts before us, the Appellant has not established any error in the manner in which the Referrals Committee approached the evidence or in making findings on foot thereof.

(iii) THE REFERRALS COMMITTEE FAILED TO CONSIDER SUBMISSIONS ON BEHALF OF THE APPELLANT

(a) The Turf Club breached its investigative duty

Decision

We are satisfied that this submission ought not to be considered. However, we note that at no point in time was it considered by the Appellant that any evidence which could be given by Mr Phillips was relevant to him. Had he considered such evidence relevant, he could at any time have taken the matter up with Mr Phillips and preserved Mr Phillip’s recollection of events. The law as stated in Braddish has been modified significantly. This has been made clear in a series of decisions, for example, Byrne v DPP [2010] IESC 54. Prohibition of a hearing can only arise exceptionally O’Donnell J said

“In my view, having considered the deciding cases, the position has now been reached where other than perhaps the very straight forward type Braddish case, it would now require something exceptional to persuade a Court to prohibit a trial”

On the totality of the evidence available in this case, we do not consider it to be one such exceptional case.

(b) The conduct alleged does not constitute a corrupt or fraudulent practice

Decision

“Fraudulent” does not require an element of gain or an intention to gain. R v Roe ex p Mannering [1992] 4 All ER 821 concerned an election leaflet got up to appear as if had been produced by an opposing party. It was conceded by the Respondents that the document was intended to deceive those to whom it was directed. In the Divisional Court, Neil LJ said: -

“I can see no answer to the allegation that those leaflets were fraudulent devices. They told a lie about their own provenance. They were not Labour leaflets or leaflets which the Labour Party had selected or approved. They implied that they contained material which the Labour Party wished to emphasise at that stage of the campaign. They were intended to deceive”

There is no doubt in our mind that a fraud was perpetrated here in that sense: it was intended to deceive the general public and the authorities as to who was in fact training the horse. This is an example of “fraudulent” being construed by the Courts in the context of an act but according it its general sense. In any event the reference to corrupt or fraudulent practice arises only in relation to Rule 273 (viii). It does not at all arise in relation to a breach under Rule 273 (iv).

(iv) INADMISSIBLE EVIDENCE

Decision

It appears from the transcript that the Referrals Committee considered the effect of the matters objected to in the Like A Diamond Report. The Referrals Committee were asked not to have regard to the same and they agreed that they would not. The Referrals Committee was comprised of experienced Stewards. In all the circumstances, we are satisfied that the approach taken by the Referrals Committee was correct. There is no reliance in the decision of the Referrals Committee upon any of the matters objected to. In these circumstances, we disallow the appeal on this issue.

OVERALL DECISION

We are satisfied that there was evidence before the Referrals Committee which if accepted justified their findings of fact.

The Rules of Racing and Rule 148 (vi) provides that no trainer shall take a horse for training into his or her care without the permission of Horse Racing Ireland. There was sufficient evidence before the Referrals Committee to enable them to find that the horse in this case was in fact trained by Mr Burke and not by Miss Dunphy. Thus, there was a breach of the Rule which involved Miss Dunphy, Mr Burke and Mr Logan who was heavily involved in the pretext that the horse was being trained by Miss Dunphy. Part XXIII of the Rules of Racing are concerned with preserving the good reputation of horse racing. Rule 273 (iv) provides that it is a breach of the Rules for any person to enter or to cause to be entered or to start for any race a horse which he knows or should have known to be ineligible to be entered or to run. Rule 272 (i) provides that any person involved in horse racing within the jurisdiction of the Governing Bodies whether verbally or by conduct or by behaviour, who acts in a manner which is prejudicial to the integrity, proper conduct or reputation of horse racing is in breach of the Rules and is liable for sanction. Rule 147 (vi) provides that a horse may only be trained from the training establishment specified on the trainer’s most recent licence application. The Appellant dealt with Miss Dunphy’s application for a flat licence and having regard to the evidence must accordingly have been aware that she had moved her establishment.

Rule 273 (viii) provides that it is a breach of the Rules for any person alone or jointly with any other person to engage in any corrupt or fraudulent practice in relation to racing in Ireland. Rule 273 (ix) provides that it is a breach of the Rules for any person alone or jointly with any other person or persons to encourage or aid any other person to engage in any corrupt or fraudulent practice in relation in Ireland or elsewhere. Fraudulent conduct is clearly established on the evidence. Rule 273 (xiii) provides that it shall be a breach of the Rules for any person to do any act which in the opinion of the Referrals Committee or the Appeals Body is likely to prejudice the interests of the Turf Club or the Irish National Hunt Steeplechase Committee or which is likely to cause serious damage to the interests of horse racing in Ireland whether or not such an act should otherwise amount to a breach of the Rules or any Regulation or instruction made thereunder.

Before the Referrals Committee on behalf of the Appellant it was argued that, if the facts alleged should be established, that they do not amount to a corrupt or fraudulent practice. In short, it was submitted that pecuniary gain is implicit in such conduct and there is no evidence of pecuniary gain by the Appellant.

In McKeown v British Horse Racing Authority, The High Court Queen’s Bench Division (12th March 2010) it was submitted that the conduct alleged could only breach the relevant Rule if the conduct is corrupt in that it involves an element of a bribe or reward or that it is fraudulent. The Panel and the Appeal Board, it was submitted, had erred in inferring a bribe or reward from other witnesses. The case concerned the passing of information by a jockey to enable lay bets to be made. There are circumstances where the passing of information is permissible and to do so only becomes a breach if it is corrupt by involving an element of a bribe or a reward or if it is fraudulent. The Panel, the Appeal Board and the Court inferred such an element from conduct in relation to “corrupt” only.

We are satisfied in the Rules with which we are concerned that corrupt conduct in that sense in not required. An element of gain is not required. In the case of fraudulent conduct gain is never an element. In the Rules the words “corrupt” and “fraudulent” have their ordinary meaning as opposed to any technical meaning within the criminal or civil code. “Corrupt” in its ordinary and general meaning according to the Oxford English Dictionary, as an adjective, means “debased in character, depraved or perverted”. One of its many subsidiary meanings includes “influenced by bribery” but this is a specific as opposed to its general meaning. An intention to gain can be inferred as in McKeown v British Horse Racing Authority (12th March, 2010): we do not make such an inference from the evidence here. “Fraudulent” means “deceitful or dishonest” and no element of benefit or gain is involved in the dictionary definition.

The Rules of Racing are enacted with a view to preserving the integrity, proper conduct, and good reputation of horse racing. Rule 147 (2) is part of an overall scheme designed to that end. It is considered important that the Turf Club and the general public should be aware of by whom a horse is being trained. In the scheme participated in by Miss Dunphy, Mr Burke and to a very material extent the Appellant, the Rule was breached. The Turf Club and the general public were misled as to who was the trainer of the horse.

Having regard to all of the foregoing we disallow the Appeal and confirm the findings of the Referrals Committee.

Subsequent to the decision being notified to Mr. Logan, the Appeals Body invited submissions on penalty and having considered those submissions found as follows:

DECISION ON PENALTY

The Appeal Body is grateful for the helpful detailed written submissions on penalty submitted by the Appellant and the Respondent and have carefully considered the same.

The Rules of Racing are promulgated for the purpose of maintaining the integrity and proper conduct and preserving the good reputation of horse racing and to prevent conduct or behaviour prejudicial to the same.

The circumstances outlined in the Decision of the Appeals Body on the Appeal disclose a carefully constructed and detailed scheme to conceal the true trainer of a horse entered to run in a race thereby misleading the Respondent and the general public. It was a scheme intended to and, had it succeeded, it would have seriously undermined the integrity of racing and the confidence of the public in horse racing. It was an offence of very considerable gravity.

Having carefully considered the proceedings before the Referrals Committee, the submissions on the appeal and the submissions on penalty before the Referrals Committee and on the Appeal we are satisfied that the disqualification imposed upon the Appellant by the Referrals Committee was not in error and that having regard to the nature, degree and extent of the involvement of the Appellant in the offence that the same was appropriate. It ought not to be interfered with. In these circumstances, we affirm the decision on penalty of the Referrals Committee that the Appellant be disqualified for a period of two years pursuant to Rule 19A 8 (iii) of the Rules of Racing.

In addition to disqualification, the Referrals Committee ordered that the Respondent should pay one third of the costs of the Respondent before the Referrals Committee which amount to €20,928.00: the Appellant’s liability accordingly is €6,976.00. On a consideration of the totality of the evidence before the Referrals Committee and the nature and extent of the involvement of each of the Respondents in the scheme we are satisfied that the appropriation of one third to each Respondent was appropriate and reasonable. We will not interfere with this element of the decision of the Referrals Committee.

The Respondent seeks the costs of the Appeal in the amount of €7,121.61. It is appropriate that the Respondent should have its costs. We award costs against the Appellant in the amount claimed.

The deposit of €500.00 lodged by the Respondent with his Appeal shall be forfeited.

The case was presented by Louis Weston, Barrister, instructed by Cliodhna Guy, solicitor. E. Joseph Logan was represented by Frank Crean, BL, instructed by Andrew Coonan, Coonan Cawley, solicitors, Naas, Co. Kildare.


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