Result of an Enquiry (M. Gillard, S. Hosie) heard by the Disciplinary Panel on Friday 28 August 2020
1. On 28 August 2020, the independent Disciplinary Panel of the British Horseracing Authority (BHA) held an inquiry to determine allegations that the trainer Mark Gillard and his assistant Steven Hosie acted in breach of Rules of Racing at Newbury on Saturday 15 August 2020.
It was alleged by the BHA that they had moved from the “green” or trainers’ zone of the racecourse into the zone restricted to owners shortly after they first entered the racecourse.
That was alleged to be a breach of Rule (J)24.4 of the new Rules of Racing. In addition, both were said to be in breach of Rule (J)24.6 in attempting to mislead the BHA by reversing their pink wristbands (which signal that the wearer should be in the trainers’ zone) to show as white wristbands (which are allocated to people going into the owners’ zone). Finally, the BHA contended that both Mr Gillard and Mr Hosie were in breach of Rule (J)19. This bans conduct which “the BHA considers is prejudicial to the integrity, proper conduct and good reputation of horseracing in Great Britain”. No separate acts or conduct by Mr Gillard or Mr Hosie were relied upon for this last charge: the BHA contended that the conduct which established their breaches of the other Rules also established the J 19 allegation.
2. On the day of the meeting at Newbury, Mr Gillard and Mr Hosie were found in the owners’ zone by an employee of the racecourse, Mr Simon Tonge, who remembered them from his earlier involvement in accrediting them to the trainers’ zone. They were at the Owners’ Club in the owners’ zone having a drink. He returned to the Accreditation Point to double check that they had originally been accredited to enter the trainers’ zone, then came back to challenge them about their presence in the owners’ zone, where he noticed they were wearing wristbands which had been inverted to show as white. They agreed, perfectly politely, to return to the trainers’ zone which they did a few minutes later.
3. There they remained until shortly after Mr Gillard’s first runner that day, in the 1.15 race, had finished. They then left the racecourse with the owner’s representative (whom they had met in the owners’ zone just before they returned to the trainers’ area shortly after midday). A Stewards’ Enquiry was held to consider the possible breach of the social distancing rules. This resolved to refer the matter to the BHA head office. On their return later that afternoon, before Mr Gillard’s second runner that day was due to perform in the 4.10 race, both Mr Gillard and Mr Hosie were denied re-entry. They were informed shortly afterwards that neither could attend race meetings for 14 days and that further questions might be asked of them and further charges brought.
4. In the event, interviews were held by telephone with both gentlemen on 18 August by a BHA investigating officer, Tim Miller. Transcripts of these were before the Panel.
5. The charges in this inquiry were notified to Mr Gillard and Mr Hosie only on Tuesday 25 August. A hearing was proposed for Friday 28 August, but the BHA recognised that that left the two men little time to prepare and they were told that if they wanted more time, then the hearing date could be adjourned.
6. No application to postpone the hearing set for 28 August was made. Shortly before it began, Messrs Gillard and Hosie both asked if they could be represented by Mr Gillard’s wife, Pippa Gillard. Though she is not legally qualified, this request was allowed given the limited time available to seek outside legal help. In the event, Mrs Gillard provided thoughtful representation and the Panel was grateful for her help. At the outset of the hearing, the Panel asked the Gillards and Mr Hosie if they would in fact like to take stock of the case they faced during a week’s adjournment, but they were all adamant that they wanted the matter decided and disposed of on 28 August. The hearing proceeded accordingly, though the Panel was always alive to its duty to ensure a fair hearing and would have stopped proceedings to allow more time for preparation if during the hearing it felt that the defendants’ case was not being adequately developed. The BHA’s case was presented concisely and helpfully by Zara Brawley of counsel.
7. Mrs Gillard summarised the response to the charges both in writing and during the hearing as follows. There was no breach of Rule (J)24.4, it was said, because both Mr Hosie and Mr Gillard obeyed the request to return to the trainers’ zone, having entered the owners’ zone accidentally or at least in a confused state of mind. As for the allegation of breach of Rule (J)24.6 – misleading or attempting to mislead officials – it was said that nobody was present to be misled when they switched their wristbands to display the colour for the owners’ zone. Furthermore, both were entitled to go along to the racecourse as owners. Finally, the Rule (J)19 charge was defended upon the basis that it was “too much of a stretch” for the BHA to rely on this Rule even if there was breach of the other provisions. The Panel’s findings of fact.
8. There was little dispute about the primary facts. Mr Gillard and Mr Hosie drove together to Newbury allowing themselves plenty of time to sort out a passport irregularity for one of the two fillies he had declared to race that day. The fillies were brought separately to the racecourse by two stable grooms. Having sorted out the passport problem at the racecourse stables, Messrs Gillard and Hosie went to the accreditation point where they were allocated the appropriate pink wristband for the area they had booked to enter. Both had pre-advised that they would attend as trainers, as the guidelines for racing behind closed doors require. Both had visited racecourses since racing resumed, though neither had been to Newbury. Mr Gillard had been six times to other courses and Mr Hosie once as a trainer. Their entry to Newbury was recorded to have been at 1118 hrs.
9. It is evident that they were not happy with what they saw when they entered. No catering facility was open at this stage: it was in fact due to open at 1200 hrs. They decided to move to the owners’ zone. To do this they had to go out of the course and return through the entry for the owners’ zone. They reversed their wristbands to show as white, the correct colour for that area. By about 1145 hrs they were seated outside the Owners Club area, having a drink. This seems to have opened earlier than usual, as owners are discouraged from coming to meetings more than an hour or so before the first race. Shortly afterwards, they were approached by Mr Tonge and asked to return to the trainers’ zone.
10. Mr Gillard and Mr Hosie both gave evidence to the Panel to the effect that they were rather confused about the exact border between the owners’ and trainers’ zones and that rules seem to vary between racecourses and to be changed from time to time by the BHA. There is no doubt variation between racecourse layouts, and changes do occur to the Covid-19 Requirements and the guidelines. But what all professional participants in racing are fully aware of is the difference between and separation of the owners’ and trainers’ zones, which have been in operation since owners were allowed to attend from early July 2020. There is no doubt that Messrs Gillard and Hosie were themselves fully alive to that. As for their supposed confusion about the boundaries of the two zones at Newbury, their actions in going out to get back into the owners’ zone and reversing their wristbands makes it clear beyond argument that they knew what they were doing. Conclusions on breach
11. They were therefore in clear breach of Rule (J)24.4, which required them to observe the Covid-19 Requirements, among which is the obligation to remain in designated zones. It was no answer to say, as they argued, that they went back to the trainers’ zone when asked and thereby obeyed a requirement. They had already acted in breach by then. It is perhaps surprising that they were asked to return at all – they could have been required to leave the racecourse when first found in the owners’ zone.
12. It was also clear to the Panel that they were in breach of Rule (J)24.6, which forbids attempts to mislead BHA officials or employees. This they did by changing the displayed colour of their wristbands. While it was accepted by the Panel, as Mrs Gillard argued, that nobody was actually misled because their presence in the owners’ area was known from the start to be wrong by Mr Tonge, it is inescapable that they did it in order to mislead and to enable them to stay in the zone they decided they preferred.
13. Finally, were they in breach of the Rule (J)19 requirement to avoid conduct “which the BHA considers is prejudicial to the integrity, proper conduct or good reputation of horseracing”? The first point to be made is that the BHA is not the sole arbiter of breach of this Rule. Its view must be a reasonable one, and the Panel therefore has to decide if it was so. Secondly, a charge under this Rule which consists simply of the same material as is relied upon to prove breaches of other Rules may not always be a useful exercise. However, in this case, the Panel could see and did accept that it was useful, essentially because of the potential harm to the continuation of racing from conduct such as occurred here. But the behaviour can only be said to have harmed the proper conduct and good reputation of horseracing. Its integrity was not damaged. Penalty
14. This was surprisingly difficult to assess. As for the options canvassed in the Guide to Penalties, a breach of Rule (J)24.4 carries an entry point penalty of a fine of £750. However, it was noted that the Covid-19 Requirements assert that a breach may attract “disqualification, suspension or exclusion”. They no longer contain the sentence which said that the entry point penalty is a three-month exclusion from the racecourse. A breach of Rule (J)24.6 carries an entry point penalty of a fine of £2,000 or “suspend/withdraw/disqualify/exclude 3 months or refuse to accept entries”. Breaches of Rule (J)19 carry the same entry point recommendation as for Rule (J)24.6
15. The penalty of exclusion is one that will be imposed in a suitable case upon a non-licensed person. It debars him from going into licensed premises or being otherwise involved in racing. The exclusion in issue in this case is of a different sort. It is to be imposed potentially on licensed individuals and it is more focussed. It can prevent a licensed person from going to a racecourse, but it does not prevent him, in the case of a trainer, from doing anything else he wants as part of his training operation.
16. It is therefore a penalty which can only be justified as within the powers of the Panel by Rule (L)28.11, an alarmingly broad option to impose “such other penalty or order as it considers appropriate”. For this reason it was felt difficult to place much reliance upon the entry point recommendations in the Guide.
17. When assessing the blameworthiness of the conduct of Mr Gillard and Mr Hosie, the Panel came to the view that it was deliberate, but not planned. It was not motivated by malice or any settled intention to disobey rules that were imposed to allow racing to restart and continue when lockdown was first eased. Mr Hosie perhaps expressed best what happened – he said they were “thinking through their stomachs, not their heads”.
18. Mr Gillard’s yard is relatively small, and an exclusion from visiting racecourses for any length of time is a serious one in such straitened times. Yet there remains a need to send out the signal, not just to him but to all others, that deviations from the Covid-19 Requirements will not be tolerated.
19. Bearing in mind these considerations the Panel decided to impose a global penalty for all the breaches. It was resolved to exclude each of Mr Gillard and Mr Hosie from going into racecourses during race meetings for a total of six weeks from 15 August 2020. As they were eventually excluded on the day at Newbury, that counts as part of the exclusion period. Hence they will be allowed to return to racecourses (so long as they comply with any entry criteria) on and from Saturday 26 September 2020.
Notes to Editors:
1. The Panel for the Enquiry was: Timothy Charlton QC, Edward Dorrell and Steve Winfield.
2. Due to the current situation and resulting difficulties arising from the corona virus, temporary changes have been made to how the Judicial Panel operates.
Please note, the BHA Judicial Panel is an independent body which encompasses the Disciplinary Panel, Appeal Board and Licensing Committee.
It receives administrative support from the BHA via the Judicial Panel Secretary.