I tweeted on Wednesday that I thought Tom Brennan would be cleared by the BHA’s Independent Disciplinary Panel of the allegation of conspiring to commit a corrupt or fraudulent practice. I would like to be able to say that this was a conclusion reached through careful evaluation of the evidence. It wasn’t. As a solicitor who has made a modest living from litigation for over 20 years, it was no more than whatever the lawyer’s equivalent of a copper’s hunch is.
In simple terms the case against Mr Brennan was that as Willie Mullins’ vet he was privy to information that Faugheen wouldn’t run in Cheltenham’s 2016 Champion Hurdle. There was telephone record evidence of him then making a call to his brother, Michael, following which the sibling very promptly set up a bet fair account and began laying Faugheen, who was the 1-3 favourite, at odds between 1.49 and 1.98. The waters were slightly muddied by Michael Brennan’s refusal to cooperate with the investigation, resulting in his exclusion from the sport.
On the face it this looked like a strong prima facile case; A professional who may have some influence in a yard’s decision making regarding whether a horse runs or at the very least is likely to know privileged information, evidence of contact with a third party who then lays a horse at an extremely attractive price and all within a very short period of time.
Whilst the full judgment is yet to be published, what is clear now is how quickly the BHA’s case fell apart piece by piece, in the face of Mr Brennan’s heavyweight legal team. From the reports I have read, the turning point would seem to have been the evidence of Willie Mullins who said that the decision whether to run a horse was entirely his and the limit of the inner circle to whom this would be known – the stark choice was either to accept this evidence or find he was lying.
This has all led some of the great and the good in the racing press to doubt whether the proceedings should have been instigated at all. The Guardian’s Chris Cook, who by far gave the best coverage of the hearing, described the case as circumstantial. Tom Kerr writing in the Racing Post questioned whether ‘a case as thin as this should ever have been brought’ and answered that it was dubious.
Both writers are undoubtedly learned in the field of racing, but I would suggest lack an understanding of litigation. Dealing with Chris Cook first, of whom I am fan, there is nothing flawed in a prosecution based entirely on circumstantial evidence. There have been many unquestioned high profile convictions which have relied entirely on such evidence. It is for the Tribunal to establish its weight.
Turning to Tom Kerr, his grasp of law and procedure is frankly sub GCSE standard. He writes ‘The BHA’s case was built on too many assumptions to meet the burden of proof”. What he meant was the standard of proof – the burden was on the BHA to prove the case and the standard was on the balance of probabilities. Even allowing for his schoolboy error, this standard of proof is short of what is required in the criminal courts (beyond reasonable doubt) and I know of no standard lower than on the balance of probabilities. He made it sound as if the BHA had a high hurdle to jump evidence wise – They didn’t.
In support of his conclusion that the decision to bring the case was dubious, Kerr also points out that Panel found Brennan to be a “credible and impressive witness over several hours of cross examination”. Well the point is, you never know how strong a witness is going to be until they give their evidence and there is an opportunity to challenge it. That’s the whole reason we have hearings with live evidence. It all smacks a bit of Kerr being wise after the event.
I have not always been the biggest defender of the BHA and I’m unesay the investigation took so long to be completed and the for the matter to come before the Panel, but I would support their decision to bring the case. It is worth noting that the Panel found the BHA had acted reasonably in instigating the enquiry. The alternative would have been to leave a lot of unanswered questions and a lingering sense that the BHA were at best not investigating suspicions of corrupt betting practices and at worst guilty of a cover up. Justice has now been done and seen to be done. If at hadn’t, any criticism of the BHA would have been far more justified.