We can all agree that the British Horseracing Authority is sorry about the Matthew Lohn debacle which has done so much to damage its reputation as a regulator. But what is it actually sorry for? The answer is not quite what I imagined.
You might think, as I did, that the BHA is sorry for having employed Lohn to do anything other than sit on disciplinary panels, since the fact that they paid him for additional legal advice has now torpedoed two guilty verdicts and may yet detonate several others. Such is not the case. Letters sent last week to some of those found in breach by Lohn assert that the recent quashings occurred “because the BHA had not disclosed the fact that Lohn had been paid to provide the BHA with advice”. Non-disclosure, not payment, is said to be the problem.
The BHA has, it turns out, made this distinction before, though its importance sailed under the radar amid more headline-grabbing considerations. My initial concern was that this amounted to an attempt to minimise fault. If the critical mistake was asking Lohn to advise the BHA, then the person who made that decision would be in serious trouble, along with anyone else who should have pointed out the danger to due process. But if instead the main issue was non-disclosure, that could be presented as a relatively minor oversight, a mere failure to jump through the last in a series of legalistic hoops, the sort of mistake which might attract as much sympathy as flak.
BHA officials have tried to assure me that PR considerations had no part in making this distinction. They say disclosure would have allowed defendants the chance to object to Lohn sitting on their panel. They seem to believe that would have been enough to make all things well again.
Non-disclosure certainly made things worse for the BHA but it was mad of them to take private advice from Lohn in the first place, whether or not that would raise an issue of apparent bias within the letter of the law. What on earth could be gained by sending extra work the way of the solicitor who chairs your supposedly independent disciplinary panels, raising a clear risk that that would compromise his independent status in the eyes of outsiders? Was there no other lawyer in London available to do the work?
The fact that the BHA is still quibbling over where it went wrong is, in my view, another blow to any lingering hope that its officials might learn the right lessons from this disaster. Where openness and transparency would be useful, secrecy continues to prevail and I frankly doubt whether the necessary culture change can occur without some changes in personnel. Lest you should consider I’m over-reacting, it might be worth a quick canter through the various bits of evidence unearthed in recent months tending to show that poor decisions are being made somewhere in High Holborn.
The BHA paid Lohn for more than two years for his private advice while he continued to chair its disciplinary hearings. They never told defendants of the fact and, for more than a year, ignored private warnings that this was “entirely improper”. They asked Lohn to quote for a valuable contract to advise on a redraft of racing’s rules, shortly before he was due to chair the panel in the high-profile case of the trainer Jim Best, an invitation Lohn rejected as inappropriate. Lohn has offered no public comment on the subject.
When, after Best was found in breach, the BHA’s private payments to Lohn became public knowledge, officials put up a vigorous resistance to Best’s application for a stay of penalty, seeking instead to close down his yard immediately. BHA lawyers argued Best should somehow have found out about the payments to Lohn before that point.
After that argument was dismissed by an appeal board, it took the BHA five weeks to accept the inevitability that the verdict against Best would have to be quashed. At that point, officials tried to wave away controversy over who sits on disciplinary panels as “a legacy issue” that was being addressed by a review. But the BHA’s own integrity review, led by the BHA’s integrity director Adam Brickell, many months in the making and published in March, had pronounced itself satisfied that “the disciplinary panel, its structure and the way it operates, stands up to legal scrutiny”.
The BHA continues to refuse to explain why its officials ever imagined it could be a good idea to hire a disciplinary panel member for additional, private work, or what action might be taken against those responsible. Its officials did not offer an apology to Best until five hours into his appeal hearing, at which point its lawyers were desperately trying to persuade the appeal board to grant a rehearing. No apology has been offered to the wider sport for the embarrassment or the cost of the additional legal procedures which will now be necessary.
Attempting to show that it was dealing with the aftermath of the debacle responsibly, the BHA announced it was hiring two QCs to conduct reviews. Neither man was asked to examine the mistakes that led to the quashing of the Best verdict.
Having identified an independent company that could provide a lawyer to chair the Best rehearing, the BHA proceeded to jeopardise that process by engaging in private correspondence with the firm, some of which was inappropriately marked “in confidence”. Best’s lawyers have since asked that the chair of the rehearing be found by other means.
BHA officials told a defence witness in the Best case that his application for a jockey’s licence would not be considered until after the hearing, raising fears that its licensing function could be used to bully those whose testimony undermined a BHA case. The BHA caved in after an approach by the Guardian and said the application would be considered immediately.
The BHA continues to hire Graeme McPherson QC to present its cases, despite also being his regulator since he also works as a licensed trainer. That fact caused controversy in June, when he won a race by getting a rival’s horse disqualified on a technicality at a BHA hearing. McPherson has represented the BHA at every stage so far in the Best case. There is no suggestion of wrongdoing on his part.
The BHA has refused to open up about meetings at its office between its lawyers and members of the disciplinary panel, which are effectively meetings between the prosecutors and judges of BHA cases. They refuse to admit representatives of jockeys or trainers, to publish the minutes of the meetings or even to confirm the dates on which the meetings have taken place.
BHA officials continue to maintain that they are doing a difficult job with reasonable care and skill. There’s no question that the job of policing horse racing is an extremely difficult one. But this is a long catalogue of missteps and the sport deserves better.
