Written reasons following Tim Brennan Hearing

Whether TIMOTHY BRENNAN in the period between approximately 24 January 2016 and 20 February 2016 (“Relevant Period”) acted in breach of Rule (A) 41.2 and/or (A) 41.1 in that he conspired with MICHAEL BRENNAN to commit a corrupt or fraudulent practice in relation to racing and then committed such a practice by:

a) Communicating directly or indirectly to Michael Brennan, during the Relevant Period, inside information, relating to the prospects of FAUGHEEN in the 2016 Cheltenham Champion Hurdle, obtained in his capacity as a Veterinary Surgeon to FAUGHEEN (IRE) which was not publicly available or authorised for such disclosure by the Rules of Racing knowing or suspecting that such information would or might be used to gain an unfair advantage in the betting market intending to make a gain for himself or another and/or to cause loss to another.

and/or

b) During the Relevant Period he enabled and/or assisted Michael Brennan to cheat at gambling in relation to the 2016 Cheltenham Champion Hurdle.

i) He was not a person subject to the BHA Rules of Racing (The Rules); and

ii) Even if he was subject to the Rules, the evidence against him is such that it could never justify a finding against him; and

iii) He, at no time, disclosed inside information to his brother, MB, or anyone else in relation to FAUGHEEN (IRE), or indeed any horse.

[1]

(a) The main bundle containing over 200 pages, including the agreed statement of James Moore (BHA Investigating Officer) and the BHA interview with TB.

(b) A written skeleton argument on behalf of the BHA and a bundle of authorities relied on by the BHA.

(c) Written legal submissions on behalf of TB and a bundle of authorities relied on by him.

[2]

Live evidence from:

Jonathan Dunn (BHA Investigating Officer) and John Gardner (BHA Principal Intelligence Analyst) on behalf of the BHA

Willie Mullins and Timothy Brennan on behalf of TB

The Panel has considered and taken into account all the evidence, both documentary and live in reaching its conclusions.

And as Lord Corswell said in Re D (2008) / WLR p.1505 “…in some contexts the Court/Tribunal has to look at the facts more critically or more anxiously than in others before it can be satisfied to the requisite standard. The standard itself is, however finite and unvarying. Situations which make for such heightened examination may be the inherent unlikelihood of the occurrence taking place …….., the seriousness of the allegation to be proved or, in some cases, the consequences which could follow from acceptance of proof of the relevant fact.”

He went on to say, shortly afterwards in his judgement that: “These are all matters of ordinary experience, requiring the application of good sense on the part of those who have to decide such issues. They do not require a different standard of proof or a specially cogent standard of evidence, merely appropriately careful consideration by the tribunal before it is satisfied of the matters which has to be established.

In Fish v The General Medical Council (2012) EWHC 1269. Mr Justice Foskett affirmed that the standard of proof remained the balance of probabilities, and it was not for the court to raise or lower the threshold. He went on to say “What however, seems to be a proposition of common sense and common fairness is this: an allegation of dishonesty should not be found to be established against anyone, particularly someone who has not been shown to have acted dishonestly previously, except on solid grounds.”

The Panel has approached the evidence in this case as to the Burden and Standard of Proof, as summarised above.

b) Whilst there is some direct factual evidence (i.e. the lay bets on Tuesday 15 February 2016) important parts of the BHA case rely on circumstantial evidence.A circumstantial case is one which depends for its cogency on the unlikelihood of coincidence: circumstantial evidence works by cumulatively, in geometrical progression eliminating other possibilities.Circumstantial evidence can be powerful evidence, but it needs to be examined carefully.

i) FAUGHEEN (IRE) was hot favourite for the Champion Hurdle at Cheltenham to be run on 15 March 2016, until he was withdrawn, due to injury, by an announcement through the Racing Post at 13.26 on Wednesday 17 February 2016. (Unless stated otherwise, all dates referred to hereafter occurred in 2016).

Betfair contacted the BHA and informed them that an account had shown suspicious betting activity in the form of lay bets on FAUGHEEN (IRE) prior to the announcement.

ii) The account had the user name ‘mbrennankk’ and was operated by a customer, Michael Brennan (MB) the brother of TB. The account was registered to the Brennan family home at Mill House, Gowran, Kilkenny, Eire.

The account, which had lain dormant from 17 December 2015 to 15 February 2016, suddenly sprang to life on the 15 February 2016.At 13.04 on Monday 15 February, a deposit was made into the account followed by others that day, totalling €2,400.Following the first deposit at 13.04, the first lay bet was placed at 13.05 on FAUGHEEN (IRE).

A number of further lay bets on FAUGHEEN (IRE) were placed over approximately the next 24 hours.The potential profit of these lay bets was €3,342.The odds offered were significantly better than those on offer with the bookmakers.

Also, during the afternoon of 15 February, the account backed ARTIC FIRE (IRE), another horse trained by Mr Mullins and entered in the Champion Hurdle.The account placed 8 back bets on ARTIC FIRE (IRE) between 14.07 and 20.03 on that afternoon, with a combined total stake of £211.This represents the third largest back bet on the account.

iii) Further investigation of the Befair account of MB revealed that historically there were relatively few lay bets. Between 12 March 2013 and 27 December 2015, of the 39 bets placed in total, 37 were back bets (at an average stake of £77) and 2 were lay bets. 20 of the 39 bets were on horses trained by Mr Mullins.

On the 1 January 2014 a €1,500 deposit was made into the account and the 2 lay bets (one for a unit stake of £116 in the win market and the other with a unit stake of £69 in the TBP Market) were placed on SIR DES CHAMPS (FR), also trained by Mr Mullins, who was entered for the 2014 Cheltenham Gold Cup.In the event the horse did not run and the account profited by £185.The exact date of SIR DES CHAMPS (FR) withdrawal has not been ascertained.

iv) The contact between the brothers TB and MB, so far as texts and telephone calls emanating from TB are concerned during the relevant period in 2016 are as follows:

Telephone calls

The contents of the texts are unknown, as are the contents of the telephone messages.

Because MB consistently refused to co-operate with the BHA enquiries, and did not agree to either being interviewed, nor producing his telephone records, it is not known when, and if, he telephoned TB. In particular, it is not clear whether TB’s 3 second call to MB at 12.53 on 15 February 2016 was returned by MB. The BHA invited the Panel to infer that having seen the missed call, MB did return the call, and that one of the topics in the ensuing conversation was FAUGHEEN (IRE).

v) The BHA say that following his victory in the Irish Champion Hurdle on 24 January 2016, by the end of January, it was clear that FAUGHEEN (IRE) was carrying some kind of injury and on the 6 February TB inspected FAUGHEEN (IRE) and recorded he was 3/10 lame. It is also apparent from the various documents placed before the Panel that on the 6, 7 and 8 February, TB treated FAUGHEEN (IRE), including the administration of Bute. On the 11 February TB reports “FAUGHEEN (IRE) — 1/8 stay walking to Monday. Soundwave”.

On Monday 15 February, FAUGHEEN (IRE) was ridden for the first time since the period of restricted exercise and went out with the 3rd or 4th lot, which meant at some time in the late morning, most probably after 11.00a.m., according to Mr Mullins.

The BHA say it is relevant that at 11.17 and 12.02 on Monday 15 February, TB calls Mr Mullins.The first call at 11.17 is 9 minutes long, and the BHA suggest that it is likely that their discussion involved FAUGHEEN (IRE).The BHA say that the chronology of the 15 February is particularly important because on that day FAUGHEEN (IRE)’s ridden for the first time following the lameness becoming apparent, and TB had a lengthy conversation with Mr Mullins over the telephone at 11.17a.m., followed by a call to MB at 12.53.Because the call is only 3 seconds long and appears to be unanswered, the BHA say that it can be inferred on all the evidence, that it is likely, because TB did not try again, that MB rang him back.The BHA say that if MB had co-operated with their requests for his telephone records, the matter could have been resolved speedily one way or the other.

The BHA also rely on the facts that following TB trying to call MB at 12.53, MB logs into his Betfair account some 6 minutes later and then makes the various deposits, lay bets on FAUGHEEN (IRE) and back bets on ARTIC FIRE (FR) outlined above over a period of about 24 hours.There is suddenly a great deal of action on MB’s Betfair account which had laid dormant for approximately 6 weeks.

vi) It is also clear on the morning of Tuesday 16 February that TB visits FAUGHEEN (IRE) and records “2/10 lame LF ….” That TB telephones Mr Mullins at 11.47, and calls his brother MB at 11.58 for almost 5 minutes, the BHA say that it can be inferred from the time line that following FAUGHEEN (IRE)’s increased lameness on Tuesday morning, TB talks to Mr Mullins about the situation and then in a call to MB, TB confirms the horses’ difficulties.

vii) The BHA also say that it can be inferred that after FAUGHEEN (IRE)’s withdrawal from the Champion Hurdle on Wednesday 17 February at 13.26, TB’s text to MB at 13.32 only 6 minutes after the announcement, effectively tells MB what he had told him earlier as to FAUGHEEN (IRE)’s injury and likely withdrawal had come to pass.

viii) At 16.05 that day (Wednesday 17 February) Mr Sam Bevan of Betfair discusses with MB the recent betting pattern on his account. Whilst MB agreed he had operated the account, he denied he had any inside information and only heard the news that FAUGHEEN (IRE) had been withdrawn about 3.00p.m. that day i.e. almost 1hours after the Racing Post had publically stated FAUGHEEN (IRE) would miss the race. He said that he laid the bets on FAUGHEEN (IRE) because he thought the odds being offered on the horse were too short.

In the agreed statement of James Moore (Principal Betting Investigator for the BHA) Mr Moore says he can make no sense of this statement in the context that MB was a layer in the market “There seems no logic in stating that there was perceived “value” in laying FAUGHEEN (IRE) at prices up to 1.98 when the price generally available was â…“ (1.33) and as low as ¼ (1.25) with Ladbrokes”.

The BHA rely upon the statement to support that MB’s explanation for his betting does not make sense, and is thus likely to be untrue.

ix) The fact that MB repeatedly declined to be interviewed by the BHA or produce his telephone records suggests, say the BHA, that MB had something to hide, and, it can be inferred, that he was protecting his brother. On 26 October 2016 the BHA excluded MB indefinitely from any premises licensed by the BHA, under Rule (A)64.

x) The BHA also suggest that TB (and indeed MB) must have known how crucial it was for MB’s telephone records to be produced to ascertain whether there was a return call from MB to TB after 12.53 on Monday 15 February, and before MB started using his Betfair account some 6 minutes later at 12.59.

The BHA say it is not mere coincidence that TB calls MB some 6 minutes before the latter operates his account on Monday 15 February, nor coincidence that he calls him again on the Tuesday after lameness is confirmed, nor coincidence that TB texts to his brother some 6 minutes after FAUGHEEN (IRE) has been finally taken out of the Champion Hurdle on Wednesday 17 February.

xi) The BHA suggests that “tittle tattle on the street corner”, as they put it, as to FAUGHEEN (IRE)‘s injury does not make sense as the source of the information because if that were the source, lay betting by MB would have begun earlier than 1.00p.m. approximately on Monday 15 February, and MB’s betting pattern shows a confidence in the bets he laid. The BHA state that there is overwhelming evidence that MB had inside information.

i) That he is a well-established veterinary surgeon registered with the Veterinary Council of Ireland, who comes from a large Kilkenny family, a number of whom (including a brother, John) have been vets in the area over the years. He qualified in 1996 and set up practice on a self-employed basis in Gowran, County Kilkenny in 2001. He works exclusively with horses. Between 2001 and 2008 he was engaged to provide veterinary services for the brother and sister of Mr Mullins. In 2008 he commenced veterinary work for Mr Mullins himself, and has continued to do so ever since. In February 2016, at the age of about 43, he was spending around 40% of his chargeable time in practice with horses trained by Mr Mullins.

ii) TB told the Panel that he gambled only occasionally. He had perhaps ½ a dozen or so bets a year on races, including the Grand National. He sometimes had a small bet on golf, but he had little interest in gambling, unlike MB who he told the BHA in interview, was a gambler.

TB told the Panel he rarely went to the races and preferred to go show jumping, a sport his children were heavily involved in.

iii) He told the BHA in interview, and the Panel at the hearing, that he would never give confidential information about FAUGHEEN (IRE) or any other horse to his brother or anyone else. He said it was the cornerstone of his duties as a vet to maintain confidentiality, and at the start of his career he had taken an oath to this effect.

iv) He said that Willie Mullins would not have continued to employ him if Mr Mullins believed that he had been passing confidential information.

v) He said he had co-operated throughout with the BHA enquiry, and had answered all questions asked of him in interview. He had not sought legal advice for this interview as he did not think it necessary as he had nothing to hide.

vi) TB pointed out that he voluntarily provided his telephone records, and stated that he had agreed to the BHA opening these records and seeing them before he did himself, as he was having difficulty opening them on the computer. Indeed, he said he had not even seen the contents by the time he was interviewed by the BHA on the 20 October 2016.

vii) TB said that he only learned from his brother MB that MB had laid FAUGHEEN (IRE) after he, TB, had received the letter from the BHA about the investigation. TB said his brother (MB) seemed a bit guilty that he might have got TB into trouble, even though TB was innocent of the charges.

TB said he had approached MB on a number of occasions to ask him to disclose his own telephone records, but the MB has repeatedly said he would not or he could not.TB said he did not know why MB had not co-operated.

viii) TB agreed he had reasonable frequent contact with MB who lived about 1 hour drive away in Naas. He said that the families got on well and MB’s children, who were younger than TB’s, were following their cousins into show jumping. TB agreed it was likely that he had increased contact with MB in February 2016, because at the time their mother had recently been diagnosed with cancer and was staying in turn with various of her children (including TB and MB) and contact was necessary between them to make arrangements for her care. Sadly their m other died in April 2016.

Also, TB’s daughter had been diagnosed with a serious illness in December 2015.She commenced treatment in January 2016 and because of her condition, the treatment had to be escalated.On 11 and 15 February 2016 she underwent a particularly unpleasant procedure.Unfortunately after this treatment on 15 February 2016 she suffered a serious relapse and had to be hospitalized.

TB said that during January and February 2016 the family, including MB, had helped with the care of his daughter.Indeed MB worked very close to the hospital where TB’s daughter was having treatment and MB would help at about this time, visiting the hospital and giving TB’s wife a break, and sometimes taking care of other of TB’s children, when TB’s daughter was undergoing treatment.

In the circumstances, TB said there would have been fairly regular contact between himself and MB during February 2016.

ix) TB said that so far as the 3 second telephone call on 15 February 2016 was concerned, he could not recollect why he had rung MB, nor could he recall whether MB had rung back or not. He said it was possible MB had answered and said he would call back, but he simply could not remember. Nor had he any recollection of what the telephone call on the 16 February, which lasted nearly 5 minutes, was about.

x) It is said on TB’s behalf that it is clear that FAUGHEEN (IRE) was ridden out for the first time in February 2016 sometime after 11.00a.m. on Monday 15 February. In a telephone conversation with Mr Dunn (BHA Investigating Officer) on 20 July 2016 (some 5 months later), Mr Mullins “off the top of his head” said that FAUGHEEN (IRE) could have been sore on the Tuesday morning. However, in his evidence to the Panel, Mr Mullins said he did not (some 2½ years after the event) have a clear memory of FAUGHEEN (IRE)’s soundness after being ridden out that day, but the fact that FAUGHEEN (IRE) had been put on the board to ride out on the 16 February, indicated they were happy with him on the 15 February. If that is correct, then MB was laying FAUGHEEN (IRE) before the leg injury had effectively ended his chances of running in the Champion Hurdle. If that is correct, if seriously undermines the BHA case that MB laid FAUGHEEN (IRE) after inside information from the vet, his brother.

xi) TB said that Mr Mullins had approximately 180 horses in his main yard, with perhaps a further 100 in the satellite yards. He said that there were about 60 people employed as stable staff, and everyone is likely to have realised that FAUGHEEN (IRE) had an injury because of his restricted exercise and not being ridden in February 2016 until 15 February. This knowledge that FAUGHEEN (IRE) was on the easy list, could have been given by anyone involved at the yard, including office staff who might see the vet notes. TB said he was subsequently told that “the word was out” that FAUGHEEN (IRE) was lame, prior to the withdrawal from the Champion Hurdle.

TB was told in interview that another man called Ted Hegarty (a greyhound bookmaker) had also lay bet on FAUGHEEN (IRE) at about the time that MB was doing so.This, it is said, is of importance because TB denied from the outset knowing Mr Hegarty, and investigations have disclosed no contact or communication, or any connection between TB and Mr Hegarty.Furthermore, according to the unused material, no communication or contact between MB and Mr Hegarty could be established.

xii) It is also pointed out on TB’s behalf that in the unused material file, there is mention of yet another person, whom it is said that the Irish Turf Club are confident is involved. No connection between this person and either TB or MB has been established.

Thus it is said that TB has consistently denied any wrong doing in respect of these allegations and ought to be believed, especially as the evidence against him is both very thin and unsatisfactory.

Whilst the Panel consider that the BHA on the information available at the time were acting reasonably in instigating an enquiry in respect of TB the Panel having carefully considered all the evidence before it, concluded that the allegation that TB supplied inside information to his brother, MB, about the fitness of FAUGHEEN (IRE) prior to the withdrawal from the Champion Hurdle, is not made out.

i) There is no direct evidence as to the alleged conspiracy itself. Perhaps this is unsurprising, as by their nature conspiracies are often agreements which have been made in secret. However, sometimes there is some direct evidence, written or oral referring to such a conspiracy. There is no direct evidence here, save for the fact of certain telephone calls, but those in themselves are not unusual considering the two men were brothers and lived about 1 hour’s drive apar

ii) MB denies that he had any inside knowledge before laying FAUGHEEN (IRE). He says that he was simply responding to what was being talked about in the area (i.e. FAUGHEEN (IRE)’s fitness), and the very poor odds being offered by the bookmakers. If that is correct, and of course the Panel did not have the advantage of seeing or hearing from MB, then there could be no conspiracy as alledged.

However, on balance the Panel consider it more likely than not that MB did have some inside information on FAUGHEEN (IRE), not only because of the agreed evidence of Mr Moore to show that MB had considerable confidence in his lay bets, but also because of the sudden activity on his Betfair account, in particular Monday 15 February and to a lesser extent, Tuesday 16 February.This sudden activity occurred after the account had not been used for some 6 weeks and was used repeatedly to lay FAUGHEEN (IRE) and back ARTIC FIRE (IRE).The lay bets were unusual in that 37 out of 39 bets on the account in the previous 3 years had been back bets.The only lay bets were two involving SIR DES CHAMPS (FR) in 2014, when a profit of £185 was obtained, but there is no evidence or suggestion that these lay bets were suspicious, and certainly no evidence, that even if they were, that TB was involved in them in any way.

iii) Even if MB was privy to some inside information on FAUGHEEN (IRE) in 2016, the Panel conclude that the evidence that TB was involved in any way, is insufficient to meet the necessary standard of proof.

iv) The BHA rely on the telephone calls and texts (summarised at paragraph 9(iv) above) to demonstrate TB’s contact with MB during the relevant time. However, none of the contents of either these telephone calls or texts are known. The BHA have to rely simply on the fact that the telephone calls and texts were made by TB, and their timings. Considerable emphasis is laid by the BHA on the telephone call timings of 3 seconds from TB to MB on Monday 15 February. This is unsurprising as it comes just 6 minutes before MB logs into his Betfair account and starts to deposit money and lay bet on FAUGHEEN (IRE). However, no-one knows whether MB subsequently rang TB back in the ensuing 6 minutes. The Panel are asked to infer that MB did ring back because there is no further attempt by TB to contact MB that day.

The Panel do not consider it proper to draw such an inference having regard to all the evidence placed before then.It is of course possible that the call was returned (as TB agreed could have happened), but there is no evidence at all as to a further call.The Panel do not consider that it is either fair or safe to infer not only that the call was returned, but also that in that subsequent conversation TB discussed confidential matters relating to FAUGHEEN (IRE).

v) The BHA also rely on the telephone call from TB to MB at 11.58a.m. on Tuesday 16 February of nearly 5 minutes. Whilst its timing in relation to FAUGHEEN (IRE) lameness that day suggests that it is possible that details of FAUGHEEN (IRE) could have been discussed, there is no direct evidence that this is so. Also, importantly not only were these brothers liaising at this period over the care and arrangements for their mother who was dying of cancer, but there was also the serious illness which TB’s daughter was suffering. The Panel consider it important to note from the undisputed medical report from the Consultant (see p.208 Main Bundle), that not only was the daughter very ill in January and February 2016, but that on the 11 and 15 February, she underwent particularly difficult treatment. On the 15 February, there is undisputed evidence that she suffered serious side effects from the treatment and as a result was kept in hospital for many days thereafter. It seems, to the Panel, very likely that the telephone call of nearly 5 minutes from TB to MB at 11.58, was concerned with his daughters health and the arrangements for her care. In the circumstances, the Panel consider it unlikely that TB was concerned in talking to his brother about FAUGHEEN (IRE)’s state of health.

vi) It is true that after FAUGHEEN (IRE) had been withdrawn from the Champion Hurdle at 13.26 on Wednesday 17 February, TB text MB 6 minutes later. However, there is no evidence as to the contents of that text, and the Panel consider in all the circumstances, that it could well have been about a myriad of matters. It would be unsafe on all the information known now, to infer that the text was effectively saying “I told you so” in relation to FAUGHEEN (IRE)’s withdrawal from the race.

vii) Nor is this a case where there has been any admission or part admission of wrongdoing. From the very outset, TB has consistently denied the allegations against him. Whilst such a denial does not, of course, resolve the issues in itself, it is a matter to be weighed in the balance, particularly given its consistency and firmness.

There are some minor inconsistencies given by TB in the interview on 20 October 2016, and the facts as are known now.This is however unsurprising as on the 20 October (some 8 months after the events) TB was trying to recall matters, without the assistance of any notes, diaries etc.

viii) The Panel consider that it is noteworthy that TB co-operated with the inquiry, and agreed to be interviewed, and in that interview answered all the questions put to him. The Panel also had the advantage of seeing and hearing TB being cross-examined in detail by leading Counsel for the BHA over the course of almost ½ a day. TB answered every question put to him and, in the Panel’s opinion, did not try to be evasive or unhelpful in any way. The Panel formed the view that he was a credible witness.

ix) It is also an undisputed fact that TB not only made his telephone records available to the BHA without demur but because he was unable to open them on his computer, he was happy for the BHA to do it for him. They thus, of course, saw these telephone records before he did, which would be at least unusual if TB had something to hide. It is also noteworthy that by the time of his interview he still had not seen his telephone records, which came as something of a surprise to the BHA Investigators.

x) If TB were part of this alleged conspiracy with his brother, one might have expected to have some evidence as to what profit he was going to receive from the bets. There is no such evidence. It appears that the total potential profit from the lay bet of MB on FAUGHEEN (IRE) was €3,342. The Panel consider it unlikely that TB risked destroying his professional reputation and livelihood for a share in such a relatively modest sum, or for purely brotherly love.

At this time in 2016, TB was a highly successful vet with his own practice.Approximately 40% of his work was for Mr Mullins, undoubtedly one of the top jump trainers in Great Britain and Ireland, if not the top trainer.Of course, various people at various times do stupid things, but having seen and heard TB, and considered all the surrounding evidence, the Panel conclude that it is unlikely that TB would have jeopardised this position simply to improperly assist his brother to win a relatively modest bet.

xi)There was a suggestion in the evidence of Mr Mullins (taken over the telephone during the enquiry) that after FAUGHEEN (IRE) was ridden on Monday 15 February, he was not at that stage a concern, and was put on the board for riding out the next day. However, Mr Mullins accepted that it was difficult now to recall the exact course of events (he was giving evidence some 2½ years later), especially as there was no longer documentation as to who rode out and when. If in fact, there were no real concerns about FAUGHEEN (IRE) following his being ridden until late Monday or Tuesday, then the BHA case is gravely undermined, as MB began betting at 13.05 on the Monday. However, the evidence, unsurprisingly given the lapse of time, was by no means clear on this topic, and the Panel consider it would not be right to decide the case upon it. However it does further demonstrate the uncertainties surrounding the BHA case.

The Panel furthermore came to the conclusion that there were other realistic possibilities as to how any inside information found its way to MB, if indeed he received any such inside information.First, it seems at least possible, that one or more of the 60 stable staff at the Mullin’s stable or those riding out or those in the office, may have talked unguardedly about the problems with FAUGHEEN (IRE).It must have been fairly obvious to anyone at the stables that everything was not going according to plan, when following his win in the Irish Champion Hurdle FAUGHEEN (IRE) was not ridden out for the next 3 weeks.Also on a number of occasions he was being seen to by the vet (TB) and also the in-house vet.FAUGHEEN (IRE) was not just any horse.He had won the Champion Hurdle at Cheltenham in 2015 as 4/5 favourite, and must have been considered one of the “bankers” for the 2016 renewal.It would be most surprising if his well-being was not a hot topic of conversation amongst the racing fraternity of Kilkenny.The evidence suggests that “the word was out on the street”.

In addition Mr Ted Hegarty was another person who placed lay bets on FAUGHEEN (IRE) and backed ARTIC FIRE (IRE) at about the same time.Because he was not part of the enquiry hearing, it would be wrong to come to conclusions of his part in the affair, if any.However, what is noteworthy is that no connection at all has been established between TB and Mr Hegarty, despite both persons telephone records being examined.Therefore TB has not been connected in any way, with one of the two people who placed lay bets on FAUGHEEN (IRE) at about the same time.Nor, interestingly, has any connection being proved between Mr Hegarty and MB.

Also, the unused material discloses that in November 2016 the BHA enquiries were focussed on another man “given the ITC’s (Irish Turf Club) confidence” that he is involved.No evidence has been produced before the Panel, to connect TB with this other man.It seems there may have been a connection between this other man and Mr Hegarty, but the details of any such connection are unknown to the Panel.It appears that this other man did have some connection with the Mullins yard.

The Panel concluded that TB was by no means the only person who could have provided inside information on FAUGHEEN (IRE) and accordingly a number of realistic possibilities exist for the source of any such information.

Finally, the Panel considered that it would be wrong to infer TB’s guilt from the refusal of his brother to either be interviewed or to release his telephone records.Of course it is possible that MB did so in order to protect TB.However, if MB did have inside information from elsewhere, he may have equally been trying to protect that source.And whether MB had inside information or not, it is also possible that he decided that he would not co-operate with the BHA simply because he felt the authorities had no business prying in to his private affairs.

TB was criticised in cross-examination for not trying harder to get his brother to co-operate, but the impression formed by the Panel was that TB had attempted to obtain such co-operation, but had soon realised that his brother, for whatever reason, would not change his mind.

For all the reasons summarised above, the Panel came to the clear conclusion that the charges laid against TB had not been proved.Whilst these findings on the facts, decide the case, a jurisdictional issue was raised by Mr Edward Fitzgerald QC, which has potentially wide ranging implications and the Panel considers that it should set out its conclusions on the matter in order to try and clarify the situation for the future.

i) The BHA contend that TB is covered by the Rules of Racing and is thus in breach of Rule (A)41.2 and/or (A)41.1 as set out above. Mr Fitzgerald QC, on behalf of TB takes issue with this contention, and submits that TB is not a person subject to the Rules of Racing (hereafter referred to as “The Rules”).

ii) Rule (A)2 sets out the Persons who are subject to the Rules. The BHA only rely on Rule (A)2.1.2 which states that the Rules apply to “the owner and any Person who is any way legally interested in, directly or indirectly, or who plays an active part in managing a horse which is entered to run under these Rules wherever trained”. The BHA rely on the underlined words above to establish that TB is subject to the Rules. TB argues that he never “played an active part in managing” FAUGHEEN (IRE).

iii) Neither legal team could produce any authority to show the phase had been considered in the past. It thus appeared that its construction was a novel legal point which the Panel was called upon to decide.

iv) The Panel have considered the numerous authorities placed before them by each side, and have also taken into account the oral submissions made to them by Mr Evans QC, on behalf of the BHA and Mr Fitzgerald QC, on behalf of TB. The Panel does not consider it helpful to repeat extensively all that was placed before them in argument.

v) In summary, the respective arguments are as follows:-

Mr Evans QC for the BHA

That in interpreting the Rule, the Panel should use the purposive approach tostatutory interpretation.In other words, the Panel should decide who is bound by the Rules, with the purpose of the Rule in mind.The Rule has been drafted with a clear purpose, namely to include all those who take part in the sport of horseracing.Some of those people will be caught even though their involvement is minor or even indirect.The BHA has a responsibility to ensure that those involved in horse racing within their geographical jurisdiction are not engaged in acts contrary to the Rules.Betting integrity is of fundamental importance to the continued integrity of the sport, and it is important that those individuals who breach the Rules should be caught and regulated accordingly.

The BHA submit that not all self-employed vets, for example, would necessarily be caught by the phrase “play an active part in managing a horse”.It is to be decided in the light of all the circumstances surrounding the individual case in question.It is a matter of fact and degree which can only properly be decided on all the evidence.

That the Rules, whilst they include serious penalties for those who breach them, are not criminal legislation, and thus a strict approach to interpretation, as advocated on behalf of TB is not necessary nor appropriate.That in this particular case the BHA say, that where TB regularly visited the Mullins yard, and in early 2016 was spending approximately 40% of his chargeable time there, and was regularly inspecting FAUGHEEN (IRE) and other horses, and advising (amongst other things) on treatment, and in particular whether a horse should be rested or worked, that common sense dictates that TB was playing an active part in managing the horse.

The BHA accept that Mr Mullins would have taken the final decision as to whether to run FAUGHEEN (IRE) or not, but that one of the important people concerned with the welfare of the horse was the vet.The BHA say that in numerous cases, such as this, the vet (albeit self-employed) plays an important role in managing the horse.The BHA say that TB is bound by the Rules, and if he were not, and numerous people in a similar professional position were not, then the Rules would contain a large hole when it came to regulation of the sport, and its enforcement.

Mr Fitzgerald QC for TB

He submits that because the Rule enable serious and extensive sanctions to be imposed on those covered by the Rules, that where there is doubt as to who is or who is not covered, that aspect should be interpreted strictly.He quotes Section 9.11 of Bennion on Statutory Interpretation, where the author explains the rationale of this principle of construction:

“A strict construction narrows the operation and effect of the enforcement, whereas a literal construction broadens it.If the enactment is coercive, a strict construction reduces the extent of its coercive effects.If the enactment is relieving, a literal construction widens its relieving effect”.

As the Rules are coercive, they should be interpreted strictly, and any ambiguity resolved in TB’s favour.

The primary meaning of “manage” in the Oxford English Dictionary defines the verb as primarily meaning “Be in charge of (a business, organisation or undertaking); run”.Mr Fitzgerald QC submits that whilst TB clearly gave professional advice in respect of FAUGHEEN (IRE), Mr Mullins was free to accept this advice or not, and make his own decisions (as it is clear from his evidence that he did).In the circumstances it cannot sensibly be said that TB “managed” or was in charge of, FAUGHEEN (IRE).

Mr Fitzgerald QC also relies on the long-established principle of construction : the “ejusdem generis rule”.The principle (see Chitty on Contracts) depends on the assumed intention of the framer of the instrument i.e. that the general words were only intended to guard against some accidental omission in the objects of the kind mentioned and were not intended to extend to objects of a wholly different kind.

Mr Fitzgerals QC submits that reading Rule (A)2.1 in its entirety, it was not intended to include self-employed professional persons such as vets, and presumably farriers and the suchlike.It is clear, it is submitted, that Rule (A)2 deals with those who have a legal or financial interest in the horse.In the BHA’s construction of the term “active part in managing a horse” was correct, the reference to trainers in sub Rule 3 would be utterly superfluous as they would unquestionably be captured by the “management” clause in sub-Rule 2.

It is also submitted that it is helpful to look at other parts of the Rules to assist in clarifying what is meant by “managing” in Rule (A)2.Mr Fitzgerald QC says that where there is a Syndicate in relation to a horse, the Syndicator is deemed by the Rules to be a horses owner, but a participant in a Syndicate who is not the Syndicator is not deemed to be the horse’s owner.However, such a participant in a Syndicate who is not a Syndicator plays an active role in managing the horse despite not being its owner under the Rules.The word “management” in Rule (A)2.1.2 ensures that this category of person is subject to the Rules.

Similarly, it is said that members of a Racing Club, unless appointed Club Manager are deemed not to be owners of the horse under the Rules, despite the very real and direct involvement in its management.

It is, says Mr Fitzgerald QC, such participants is a Syndicate or member of a Racing Club, who are not “owners” under the Rules, that the “management” clause is intended to capture, not self-employed veterinary surgeons such as TB who give professional advice on a horse in the course of their work.Mr Fitzgerald QC submits that the BHA argument is attempting to remove the word “management”, and replace it with a word such as “preparation” or the suchlike.

At first glance it is surprising that Rule (A)2 is said not to include self-employed vets, farriers and the suchlike.However, at the same time it is surprising that if it were intended to include a self-employed vet, then specific mention is not made of this.Of course, vets etc employed by the stable are covered by Rule (A)2.1.4.Owners, trainers and riders are specifically referred to in Rule (A)2.1.2 as being subject to the Rules.The term “veterinary surgeon” is a term of art defined by the Rules (Rule (E)2), and is a term used widely throughout the Rules, yet, conspicuously Rule (A)2.1 does not refer to self-employed veterinary surgeons as being subject to the Rules.

As stated above, it appears that this issue has not been subject of legal argument before.On balance, the Panel consider that Mr Fitzgerald QC’s approach is to be preferred ie. that looking overall at the Rules it deals with a class of people who have a legal or financial interest in the horse.

Whilst it is appreciated that Rule (A)2 is not a criminal statute, or indeed a statute of any sort, nevertheless one has to balance the purposive approach against the approach whereby a potentially punitive regulation should be interpreted strictly and in accordance with the application of the “ejusdem generis” approach.

Taken overall, the Panel is not satisfied that the purpose of Rule (A)2, as it is currently written, was to cover self-employed vets.In practical terms, vets are an important aspect of a race horses life, and it seems to the Panel unlikely that the drafter of the Rules simply forgot to add in the self-employed vets, especially as the phrase recurs on numerous occasions in other parts of the Rules.

Also, “manage” does mean “to be in charge of : run” and that does not appear to sit happily with what a vet normally does. i.e. give an opinion to trainers, owners etc as to the cause of the injury and how it can be treated, which, no doubt a trainer will take into account, but which is far from being decisive.Certainly, Mr Mullin’s evidence, which the Panel accept, made it clear that whilst he would consider and weigh in the balance opinions from other people such as vets, the decisions, the control of the horse, and whether or not, or when it was to run, were down to him.

The problem with the approach suggested by the BHA, that each case has to be decided in the light of all the circumstances surrounding the individual in question, is that it is fraught with uncertainty.A self-employed vet may not know whether he is or is not bound by the Rules.He may be caught by the Rules in respect of one stable, but not another, or indeed one horse but not another.Each case would have to be investigated at considerable length and cost, if there was a dispute, on the issue.

Obviously if persons such as self-employed vets are held not to be subject to the Rules, it can be argued that an important aspect of the racing world is excluded from punishment under the Rules.There is some truth in that proposition, however it is important to bear in mind that a self-employed vet is subject to the relevant Veterinary Acts and Codes of Conduct.A vet, passing inside information to another, can be punished accordingly by his professional body.

Furthermore, even if not covered by Rule (A)2.1, a self-employed vet such as TB, can be excluded from any premises licensed by the Authority, because Rule (A)2.8 states that “Where any person behaves in such manner as the Authority considers to be contrary to the interests of racing that person is liable under Rule 64 to exclusion from any premises licensed by the Authority”.It was under this power that MB was excluded indefinitely from any premises licensed by the BHA.

Thus, on balance, the Panel conclude that in the present circumstances TB was not, as a self-employed vet in Eire, subject under Rule (A)2 to the Rules of Racing.The Panel emphasise however that the only issue argued before them was whether or not TB came within Rule (A)2.1.2.Whether self-employed vets in Great Britain are included in the Rules by other provisions of the Rules (e.g. agreeing to be bound by the Rules — Rule (A)2.1.1), is not known by the Panel, as such matters were not canvassed before it.

It is a matter entirely for the BHA, but if it is wished to include self-employed vets, farriers or equine physiotherapists and the suchlike in Rule (A)2.1.2, a simple amendment to the Rule could make the position clear beyond argument.

Having received the full written reasons from the independent Disciplinary Panel following the hearing concerning Timothy Brennan on 16 and 17 July 2018, Chief Regulator Officer of the British Horseracing Authority Brant Dunshea made the following statement:

“It is important for the confidence of those who bet on the sport that the BHA investigates cases such as this. This is a view that was supported by the Disciplinary Panel in their written reasons. .

“It is also important that, where there is evidence that corrupt activity has taken place, the case should be placed before an independent Disciplinary Panel to determine whether — on the balance of probabilities — a breach of the Rules had been committed. This fair process has been followed in this case.

“We will continue to bring cases in front of the independent Panel where we believe there is a case to answer. The sport’s reputation depends on this.

“Regarding the jurisdictional issue, we note the Panel’s view that an improvement to the wording of the Rules might be required to ensure that all of the appropriate people are bound by the Rules of racing. We will now consider their findings on this matter before determining how to proceed.”