Racing’s ruling body has defended itself against renewed accusations that it is not being appropriately open and transparent in mopping up the mess flowing from the Matthew Lohn debacle. The British Horseracing Authority’s reflexive love of secrecy was shown again last week when it refused to simply publish the full advice it had received from Ian Mill QC about past disciplinary hearings judged by Lohn, a solicitor who had been paid to provide advice to the BHA in addition to his disciplinary work, giving rise to an appearance of bias.
Nick Rust, the BHA chief executive, said in June when Mill was asked to examine those past cases that he was acting “to ensure that our sport and its participants can have the greatest confidence in the integrity of disciplinary cases”. But rather than simply release Mill’s report in full, the BHA now claims privilege over its contents and will not publish it.
Letters were sent last week to the defendants in seven past cases in which Lohn sat on the panel, advising that they may now be able to challenge the findings against them on the ground of perceived bias. The Observer has seen one of those letters and been advised of the contents of another. They explain that the BHA has taken advice from “leading counsel”, Mill, and will not waive legal privilege on that advice.
That prompted a scathing response from Harry Stewart-Moore, the solicitor for the Lewes trainer Jim Best, now awaiting a rehearing after a finding against him was quashed because Lohn chaired the panel. “At the time this review was announced by the BHA, we expressed profound concerns that those at the BHA instructing Mr Mill seemed to be the people whose conduct ought to be under review,” Stewart-Moore said.
“That concern was exacerbated by the fact that the BHA did not say what instructions had been given to the barrister. However it never occurred to us that the BHA would go so far as to ultimately refuse to make the outcome of the review public.”
“Perhaps the BHA could explain how a review into its misconduct that it will not share with anyone is supposed to restore any faith in it whatsoever. I think most people would consider it does precisely the opposite.”
Explaining the BHA’s position, its spokesman, Robin Mounsey, said: “The principal purpose of the rules on legal privilege is to protect the right of parties taking legal advice to preserve confidentiality in that advice. The circumstances in which a party would choose to waive privilege in legal advice are incredibly rare and it would not be appropriate for the BHA to do so in this case. The important point that we were making in the letter is that we have taken advice from leading counsel and are acting in accordance with it.”
Some of those disciplined by panels involving Lohn made unsuccessful appeals at the time and have been told that, in consequence, they cannot now make another appeal, even though they have a possible ground for doing so that has only just become apparent. The options for those people appear to be taking the matter to the high court or to arbitration. The BHA has understandably encouraged them to consider arbitration, in view of the time and expense involved in court actions, the cost of which appears likely to fall largely on the sport of horse racing. Any court action might also cause a delay to the Best rehearing, for which there might be implications in any ruling.
In a separate development, the BHA refused to disclose even the dates on which meetings have taken place at its offices between its lawyers and those who sit on its disciplinary panels. Such meetings, which are effectively between those who judge and those who prosecute BHA cases, have attracted suspicion from the Professional Jockeys Association among others, particularly since the PJA was told its representative would not be allowed to sit in on the meetings.
The BHA denies that current cases are ever discussed at those meetings but has so far refused to publish any minutes. It is considering a request from Stewart‑Moore for sight of the minutes.
“The principal purpose of disciplinary panel meetings is to provide information to the panel members or receive feedback from the panel on the practical aspects of holding inquiries,” Mounsey said. “The meetings are confidential because they include discussion of past integrity cases. For this reason we do not currently make public the details of the meetings, including the minutes.
“As we announced in June, Christopher Quinlan QC is undertaking a review of the structure, composition and processes of our disciplinary panel, appeal board and licensing committee in consultation with our sport’s stakeholders. The operation of disciplinary panel meetings is being considered as part of this review.”
