McKeown v British Horseracing Authority

A court exercising supervisory jurisdiction over a sporting disciplinary body reviews legality, fairness and rationality; it does not substitute its own findings of fact. It must allow for the tribunal’s specialist expertise and its opportunity to see and assess the evidence, while still intervening where no reasonable tribunal could have reached the decision.

The absence of the best evidence does not automatically make a disciplinary hearing unfair. The relevant questions are the strength of the available evidence and whether the tribunal fairly considered the possibility that missing evidence might have altered the result. A realistic prospect that a rehearing may alter a material liability finding, and possibly the penalty, may require remission in the interests of fairness.

Dean McKeown, a senior jockey, challenged findings made against him by a Disciplinary Panel of the British Horseracing Authority and upheld by its Appeal Board. The Panel found breaches of Rules 157 and 201(v), arising from allegedly non-meritorious rides and participation in a conspiracy involving inside information and lay betting. A four-year disqualification followed, but the penalty was not itself challenged.

Before the Appeal Board, Mr McKeown raised new arguments concerning the alleged mis-shoeing of one horse and the date on which horses had left the trainer’s yard. The Appeal Board declined to consider those matters and refused to remit the case. The central issue was whether that refusal was lawful and fair, particularly in light of the accepted factual error concerning the date of the horses’ removal.

1. Supervisory jurisdiction. The court’s role was supervisory, not appellate by rehearing. It had to decide whether the disciplinary bodies acted lawfully, fairly and within the range of reasonable decisions. It was not entitled to substitute its own factual assessment merely because another conclusion was possible.
2. Specialist tribunal. The court had to allow for the Panel’s and Appeal Board’s experience of horseracing and their ability to assess racing footage and witnesses. That expertise did not make their decisions immune from review. Intervention remained possible where no reasonable tribunal could have reached the finding.
3. Missing evidence. The destruction of additional race footage and stewards’ inquiry tapes did not create an absolute bar to adverse findings. Fairness depended principally on the strength of the surviving evidence and whether the Panel had considered the possibility that the missing material might assist the claimant. The Panel had done so and was entitled to reach its findings concerning the four non-trier races.
4. Rule 201(v). It was unnecessary to determine every disputed question concerning the construction of Rule 201(v). On the findings made, the conduct involved breaches of Rules 157, 243 and 247, and conduct falling within the accepted categories of corrupt or fraudulent practice. The Panel was therefore entitled to find breaches of Rule 201(v).
5. New arguments before the Appeal Board. The mis-shoeing allegation had not been put to the Panel or to the trainer and could not fairly support an adverse finding without notice and an opportunity to respond. The Appeal Board was entitled to decline to act on it.
6. Incorrect date and remission. The accepted error that the horses had left the trainer’s yard in July rather than December was materially relevant to the finding that Mr McKeown knowingly supplied horse-related information for lay betting. There was a realistic prospect that the Panel might alter that finding and possibly the penalty. The Appeal Board’s refusal to remit the matter was outside the range of reasonable decisions and unfair. The matter was to be remitted to the Panel for limited reconsideration, with consequential evidence and submissions permitted.
7. Bias. Unreasonable findings do not, without more, establish apparent bias. The applicable question was whether a fair-minded and informed observer would conclude that there was a real possibility of bias. That allegation was not made out.

British Horseracing Authority Disciplinary Panel — found Mr McKeown in breach of Rules 157 and 201(v) and imposed a four-year disqualification.

British Horseracing Authority Appeal Board — dismissed the appeal on liability and penalty, and declined to remit the matter for consideration of the new arguments.

High Court (Queen’s Bench Division) — upheld the findings concerning the four non-trier races and the mis-shoeing issue, but held that the refusal to remit the accepted factual-error issue was unlawful and unfair. The matter was remitted for limited reconsideration.