Results of Enquiries (J. Spencer, P. Hanagan, J. Walton) and an Appeal (D. Olver) heard by the Disciplinary Panel on Thursday 8 November 2018
19th November 2018
1. On 8 November 2018, the Independent Judicial Panel of the British Horseracing Authority (“BHA”) held an inquiry to establish whether Jamie Spencer (“Mr Spencer”) had committed a breach of Schedule (B)6 Part 2 of the Rules of Racing when riding PHOENIX OF SPAIN (IRE) in The Vertem Futurity Trophy Stakes (Class 1) (Group 1)at Doncaster on 27 October 2018.
2. The matter was referred to this Panel by the Doncaster Stewards because it was Mr Spencer’s fifth offence of misuse of the whip which had warranted a suspension of between two and six days over the preceding six months.
3. Mr Spencer attended today’s hearing in person and represented himself. The BHA’s case was represented by Mr Lyn Williams, Case Manager. No objection was taken to the constitution of the Panel.
4. At the beginning of the hearing, as had been the case at the hearing before the Doncaster Stewards, Mr Spencer admitted that he was in breach of the Rule. He and the BHA agreed – and the Panel accepted - that Mr Spencer used the whip on ten occasions, two in the back hand and eight in the forehand, and that there was an additional occasion when he tapped the horse down its shoulder (which latter occasion we disregard, as is also common ground).
5. Having viewed the films of the race and having heard Mr Spencer’s explanation, we accept that Mr Spencer had felt the need to use his whip slightly earlier than he would otherwise have intended to keep his position relative to TURGENEV, ridden by Frankie Dettori. We also accept that Mr Spencer’s horse responded to the use of the whip and that he had every good reason to use his whip again when suffering a degree of interference from the eventual winner, MAGNA GRECIA (IRE), ridden by Donnach O’Brien, inside the final furlong. Nevertheless, as Mr Spencer very fairly acknowledged, in doing so he exceeded the permitted limit of seven.
6. We mention our findings as to the reasons for Mr Spencer’s use of the whip on this particular occasion because the appropriate penalty, had that offence stood alone, is not determined solely by the fact that he used his whip twice more than the permitted level, which would ordinarily result in a “minimum penalty” of four days. Rather, we bear in mind that page 23 of the 2018 Guidelines records that the Stewards (and, for present purposes, this Panel) have a discretion to find that “provided that the manner in which the whip had been used was measured, [they] may choose to disregard occasions when the whip has been used”.
7. On that basis, we consider that the appropriate penalty for the Doncaster offence, assuming it had stood alone, would have been a two day, rather than a four day, period of suspension.
8. Our attention was drawn to Mr Spencer’s riding record. It is, of course, true that he has been penalised on four previous occasions during the relevant six month period and that, whereas three of those previous occasions resulted only in two days’ suspension, one of them (Ascot – 14 July 2018) was a six day suspension.
9. Whereas that previous six day suspension can be seen as an aggravating factor, mitigation is to be found in the fact that Mr Spencer has had as many as 325 rides during the relevant period during which those suspensions have been imposed. More particularly, he has a very good record for use of the whip, having not been referred previously since September 2002.
10. In all those circumstances, we had to consider the Notes on Penalties at page 24 of the current (2018) Guide to Procedures and Penalties. This provides that:
Fifth suspension of 2 – 6 days within previous 6 months
14 – 42 days suspension with an entry point of 21 days.”
11. In the view of this Panel, bearing in mind the findings we have made as to the ride that Mr Spencer gave PHOENIX OF SPAIN (IRE) in the race at Doncaster, and bearing in mind also what we have heard about his record, we regard an entry point penalty of 21 days as appropriate in all the circumstances. The suspension we impose is therefore one of 21 days, which one third will be deferred for two months. The initial suspension will be on 16, 17, 19, 20, 21, 22, 23, 24, 27, 28, 29, 30 November and 1 & 3 December 2018. 7 days will be deferred until 3 February 2019.
1. On 8 November 2018, the Independent Judicial Panel of the British Horseracing Authority (“BHA”) held an Inquiry into whether or not Paul Hanagan had committed a breach of Schedule (B)(6) Part 2 of the Rules of Racing when riding INVIOLABLE SPIRIT (IRE) in The Watch More with Racing UK Extra Handicap Stakes (Class 4)at Catterick on 30 October 2018. The matter was referred to us by the Catterick Stewards because it was Mr Hanagan’s fifth offence of misuse of the whip warranting a suspension of between two days or more during the preceding six months.
2. In advance of the hearing, Mr Hanagan asked if his attendance could be excused and that request was granted. He was represented at the hearing by Rory Mac Neice and the BHA’s case was presented by Mr Lyn Williams, BHA Case Manager.
3. At the beginning of the hearing, Mr Mac Neice admitted on Mr Hanagan’s behalf that he was in breach of the relevant Rules, as had been his candid admission to the Catterick Stewards. The present Panel, having viewed various films of the race, accepted that Mr Hanagan had used his whip on ten occasions from approximately the two furlong marker. Accordingly, we find that he was in breach of the whip Rule as he admits.
4. It was accepted on both sides that those ten occasions included one in the backhand and the others were in the forehand, and also that they were relatively light hits administered to the horse. We also note that the horse finished sixth in a race where there was prize money down to eighth place.
5. Mr Williams acknowledged, and the Panel accepted, that had this offence stood alone it would have resulted in the imposition of two days suspension – see page 26 of the Penalty Guidelines of the 2018 Guide.
6. In seeking to substantiate a submission that this is a case in which the Panel should, exceptionally, impose a suspension below the lower end of the range of “14 – 42 days suspension with an entry point of 21 days” for a fifth suspension of 2 to 6 days within the previous six months, Mr Mac Neice drew our attention to the fact that paragraph 11 gives us a discretion: it provides that this is the range of penalty that would be “usually” imposed. He drew our attention to other paragraphs which also emphasised the Panel’s broad discretion, namely paragraph 2 on page 25 and the third paragraph of the introduction on page 3.
7. We had, therefore, to consider whether this referral could indeed be treated as “exceptional” such as to justify us imposing a penalty below the bottom end of that range (i.e. less than 14 days).
8. In considering that submission, our attention was drawn to a number of relevant factors. First, the various offences which have totted up to the extent that Mr Hanagan has been referred to us occurred over a period of five and a half months. Second, none of those previous offences has resulted in a suspension exceeding two days. Third, since 1st May 2018 Mr Hanagan has had 638 rides, which is a very considerable number and means that, as compared with the Guideline average of a whip offence being committed one in every 40 or 50 rides, Mr Hanagan’s rate of offending is only one in 128 rides. Fourth, Mr Hanagan has not been referred on any previous occasion. Fifth, the horse was responding to his use of the whip in the instant case.
9. For all those reasons, we take the view that this can be regarded as an exceptional case and, as such, we feel that we should impose a suspension which is below the range “usually” imposed.
10. The suspension in the present case will be ten days, of which one-third will be deferred. We recognise that (at page 25 of the 2018 Guide) it is provided that the number of days of the suspension that should be deferred will be one-third and that “fractions of days will be rounded down”. That means that he will, in practice, serve a suspension of seven days, which is what we regard as just and appropriate in all the circumstances. The suspension will be on 20, 21, 22, 23, 24, 27 & 28 November 2018. 3 days will be deferred until 28 January 2019.
David Olver, Appeal
1. Following the 5:05pm race at Newbury on Saturday, 27 October 2018, the Stewards held an Inquiry to consider the placings in The Worthington’s Lady Jockeys’ Handicap Stakes (Class 5) (for Lady Amateur Riders).
2. The result of the Inquiry was published in the following terms:
“An enquiry was held to consider the placings in this race after interference inside the final furlong when the winner, PRESS GANG, ridden by Miss Aine O’Connor interfered with WAR BRIGADE (FR), placed second, ridden by Miss Brodie Hampson. The Stewards considered that the interference had improved PRESS GANG’s placing as the distance and momentum lost as a result of the interference was more than the winning distance of a short head. The placings were revised as follows: First: WAR BRIGADE (FR). Second: PRESS GANG. O’Connor was suspended for 2 days, on dates to be notified by the British Horseracing Authority, for careless riding as she allowed her mount to drift left without sufficient correction taking WAR BRIGADE (FR) off its intended line.”
3. Miss O’Connor, the rider of PRESS GANG (GB), does not appeal against the Stewards’ finding of careless riding. However, the owner of the horse, Mr David Olver, has submitted an appeal in which he contends (in very short summary) that there are
“grounds for an Appeal because the sequence of events which took place in the final furlong of the race and in the closing stage was not significant enough to improve Press Gang’s placing, nor was it significant enough that War Brigade lost distance and momentum”.
Representation / Attendance
4. The BHA was represented by Mr Lyn Williams, BHA Case Manager, and he called Miss Brodie Hampson, rider of WAR BRIGADE (FR) to give evidence in support of the BHA’s case. Mr Olver represented his own interests and he called the rider of PRESS GANG, Miss Aine O’Connor in support of his appeal. Observing the proceedings, with the agreement of all parties and the Panel, was Mrs Olver, wife of the owner, and two other people interested in the horse, Mr and Mrs Wilson. No objection was taken to the composition of the Panel.
5. The evidence we considered included several recordings of the race, both from head and side on, and from behind. Both Miss Hampson and Miss O’Connor answered questions from Mr Olver and Mr Williams as well as from the Panel. Mr Olver made his submissions orally and helpfully provided us with a written note of those submissions and comments on the Stewards’ Inquiry. We note in passing that Mr Olver’s written submissions drew our attention to the decision of the Doncaster Stewards in the way they approached possible interference in a race at Doncaster on 27th October 2018. Though that race was mentioned in the context of a possible inconsistency of approach, it was an argument that Mr Olver did not pursue. He was correct in that decision as it is very unlikely there would be anything to be gained by comparing a different panel’s approach to very different facts.
6. We would like to place on record our appreciation of the moderation and clarity with which Mr Olver presented his case. We know that he will be disappointed by the outcome but we hope he appreciates that these decisions often involve matters of fine judgement in which different people may reasonably see the events of a race in a different way. Our role is to apply the Rules as they are expressed making our own judgment of the race.
Findings of Fact
7. We do not think it necessary to explain the competing factual analyses in any great detail. Suffice it to say that we have no hesitation in finding that, inside the final furlong, PRESS GANG, ridden by Miss O’Connor, did indeed come off a straight line and moved markedly to its left, during which time Miss O’Connor continued to ride with her whip in the right hand.
8. We find that over a period of around six seconds, perhaps a little more, and over several strides, there was interference between the two horses. By “interference” here, we mean that Miss O’Connor’s horse did cause Miss Hampson’s to be taken to the left, off its intended line in circumstances where there was actual physical contact. We consider that such contact was more than just a clash of arms or jockeys’ legs (as Miss O’Connor and Mr Olver contended) and that, as Miss Hampson said, it involved physical contact between the bodies of the horses.
9. What was very much more difficult to decide was what effect, if any, such interference had upon WAR BRIGADE (FR), ridden by Miss Hampson. As we have said, WAR BRIGADE (FR) was taken markedly to its left and we do not accept that any significant part of that movement was the result of any natural drift of the horse towards the rail. On the other hand, we do not accept the suggestion made by Miss Hampson in the course of her evidence (as she had also said to the local Stewards), that at some stage she stopped riding. Nor do we consider there was any significant change in the horse’s actions as a consequence of the interference or that (as she told the local Stewards) her horse lost “at least a length and a half, two lengths”. We think that is not borne out by the evidence of the film.
10. Nevertheless, we do consider that Miss Hampson’s horse was intimidated by PRESS GANG and was taken off its natural line. It follows that, when we come to look at the proper analysis of the Rules, we have to consider whether this had any effect on the result, bearing in mind at all times that the distance between the horses at the line was only a short head.
11. We also note the report of the Racing Post after the event, which said as follows:
“Took keen hold, towards rear, headway 4f out, ridden and every chance over 2f out, sustained duel with rival from over 1f out, bumped and pushed left inside final furlong but led close home, headed on post, finished short head 2nd, placed 1st (op 5/1 tchd 6/1).”
12. This Panel was unable to decide whether WAR BRIGADE (FR) did, in fact, get back ahead of PRESS GANG after the interference. Although the Racing Post’s race reader evidently considered that WAR BRIGADE (FR) “led close home” before it was “headed on post, we do not think the evidence enables us to be confident that assessment was correct. In our view, the horses were more or less upsides each other during the period that is being described.
13. Although we do not reach our decision with a very high degree of confidence, the Panel’s conclusion must depend on balancing the probabilities. On that basis, and in our view, WAR BRIGADE (FR) was significantly affected in the run to the line and we consider that, on balance, he would probably have won absent the interference.
Applying the Rules and Guidance
14. It should suffice if we quote the relevant questions that are set out as “guiding principles” at page 16 of the Guide to Procedures & Penalties 2018. They are as follows:
“The Panel should ask themselves the following questions, being mindful of the relevant Guiding Principles:
1. Where did the incident take place in relation to the winning post?
2. How were the horses involved in the interference going at the time of the incident?
3. How serious was the interference i.e. how much momentum did the sufferer lose and / or how much ground was lost?
4. If the sufferer had had an uninterrupted run to the line, might it have finished in front of the interferer?
If NO – order placings to remain unaltered
If YES i.e. there is some doubt – proceed to question 5.
5. How easily did the interferer beat the sufferer?
15. In the light of the answer to those questions, the guidance continues:
“Having considered those factors relevant to the incident in question, if the Panel is satisfied that on the balance of probabilities the interference did improve the placing of the interferer in relation to the sufferer(s), the placings must be altered. Otherwise, the placings must remain unaltered. Generally speaking, the longer the Panel discusses whether the placings should be altered, the less likely it is that they should be. If the Panel is unable to conclude one way or the other, the result should stand.”
16. The other guiding principles are set out at page 17. Relevant to our consideration here are the following provisions:
“g) The Panel must make allowance for the momentum and ground lost by the sufferer by imagining that it had an uninterrupted run to the line.
h) The Panel must NOT make an allowance for any effect on the horse causing the interference.
i) The Panel must take into account the ease with which the interferer beat the sufferer.”
17. On the basis of the foregoing guidance, we answer as follows: first, the incident took place inside the final furlong; second, both horses were going reasonably well at the time of the incident; third, that the interference was significant in that WAR BRIGADE (FR) was taken well off the rider’s intended and preferred line. In that particular respect, we think that WAR BRIGADE (FR)’s minor deviation from his own line to the right at the very end of the race is a matter that we can wholly disregard.
18. We turn, therefore, to questions 4 and 5: the answer to the former is surely in the affirmative in the sense that WAR BRIGADE (FR) might have finished in front if not interfered with, and the answer to the fifth question is best given by the Judge’s decision that it was a “short head”.
19. For the reasons that we have, we hope, explained above, we think that the balance of probabilities is that WAR BRIGADE (FR) would probably have won but for that interference. Accordingly, we uphold the decision of the local Stewards who reversed the placings.
20. Nevertheless, it will be apparent from all the foregoing that we consider that this appeal was well arguable and was certainly far from frivolous. Accordingly, the deposit paid by Mr Olver will be returned.
1. The purpose of this inquiry was to consider whether or not Mr James Walton, a permitted trainer, is
i) In breach of Rule (G)2.1 of the Rules of Racing by virtue of the fact that Tetramisole, a Prohibited Substance pursuant to Rule (G)16, was found in the urine sample taken from CENTRAL FLAME following its run in The Betfred ‘The Home of Goals Galore’ Handicap Steeple Chase (Class 3) at Newcastle on 24 February 2018 and
ii) Whether CENTRAL FLAME should be disqualified from the race, pursuant to Rule (A)74.2 Ground 3 of the Rules of Racing and
iii) Whether or not James Walton is in breach of Rule (C)13 by not recording the administration of Levacide 7.5% Solution for injection and various equine specific wormers to horses that were in training with him.
2. The Panel met on 8 November 2018 and the BHA’s case was presented by Mr Andrew Howell. Mr Walton did not attend in person, but he was able to contribute throughout via a telephone link.
3. There was no objection taken to the composition of the Panel.
4. In advance of the hearing, Mr Walton filed a form, Schedule (A)6 of the Rules of Racing, in which he admitted that he was in breach of those two Rules and said that he had nothing that he wished to present orally to us.
The BHA explained in a helpful Case Summary that:
“1. This inquiry concerns:
a. the alleged breach of Rule (G)2.1 (The presence of a Prohibited Substance in a Horse’s Sample) [tab 5] of the Rules of Racing (the “Rules”) by permitted trainer James WALTON because the Prohibited Substance tetramisole was present in a post-race urine sample taken from CENTRAL FLAME (GB) (the “Horse”) at Newcastle Racecourse on 24 February 2018.
b. the alleged breach of Rule (C)13 (Duty to keep Treatment records) [tab 5] by Mr WALTON because he failed to record administrations of deworming medication (“wormer”) to horses that were in training with him; and
c. whether, because its post-race sample tested positive for the Prohibited Substance tetramisole, the Horse should be disqualified from the relevant race under Rule (A)74.2 (Disqualification of horses in races already run) ground 3 [tab 5].”
6. It is, of course, common ground that:
“Under Rule (G)16 (Definitions) [tab 5], because the Horse was registered with the Racing Calendar Office as being in training with Mr WALTON at the time – he is the Responsible Person for the purposes of this inquiry.”
7. The brief background to this positive sample is that CENTRAL FLAME ran at Newcastle in a Handicap Chase on 24 February 2018. The Horse finished third, but there was subsequently an inquiry into the running and riding of the Horse and the Jockey was given a ten day suspension. For our purposes, that is irrelevant. Nevertheless, a post-race urine sample was taken and the subsequent analysis confirmed the presence of a prohibited substance, tetramisole.
8. Our papers for this hearing contained a drug brief in respect of that substance which tell us that it is a drug capable of having a pharmacological effect on multiple mammalian body systems - hence its prohibition on race day. Tetramisole is in fact a “dewormer” which is used in veterinary medicine to control roundworms. Levamisole and tetramisole are chemical mirror images of each other which cannot be distinguished by simple analysis.
9. That is particularly relevant because, when the BHA investigated, Mr Walton admitted to self-prescribing cattle wormer (which he also admitted he failed to record). He said that he had administered 90cc of Levacide “sometime in January”. When later evidence was presented to him by the BHA which suggested that the administration must have been some time later, Mr Walton acknowledged that he must have administered Levacide later than that. Indeed, he presented an invoice for a “levacide injection” that he thought he must have administered in the early part of February.
10. Given that Mr Walton has admitted administering Levacide 7.5% solution for injection (a substance which, in fact, contained tetramisole) some 12 days before the Adverse Analytical Finding, it is evident that Mr Walton could not have established that the prohibited substance was administered unintentionally: still less could he establish that he had taken all reasonable precautions to avoid breaching the Rules (these matters we refer to because such cases often bring Rule (G)11.4 into consideration: nothing arises on that provision here).
11.The keeping of proper records is clearly required under Rule (C)13. There can be and is no dispute that Mr Walton failed in this respect.
Conclusion and Penalty
12. In those circumstances, we have no hesitation in finding that Mr Walton was in breach of both those Rules.
13. We also took account of the fact that in the relatively recent past (9 March 2017), Mr Walton had been penalised for administering Clenbuterol, another prohibited medication (on race days), which he must have caused to be administered to the horse when it was prescribed Dilaterol. On that occasion, the Panel imposed a fine of £1,000. The same horse was involved.
14. Mr Howell, on behalf of the BHA, contended that this was a case where we should not consider disqualification but, instead, should proceed on the basis that financial penalty would suffice. We accept that submission and in that context we note that the 2018 Guide’s recommendations are as follows:
i) For breach of Rule (G)2.1 (substance prohibited on race day) the entry point is a £1,000 fine and / or two years disqualification; the range is £750 - £10,000 / 1 – 10 years disqualification.
ii) For breach of Rule (C)13, the entry point is a £500 fine; the range is £250 - £2,000.
15. This Panel takes the view that these are serious offences. Proper compliance with the BHA’s Guidelines and Rules as to what drugs are administered to horses and the keeping of proper records are of the utmost importance.
16. For the breach of Rule (G)2.1, we impose a fine of £2,500 and for the breach of Rule (C)13, a fine of £1,000.
17. In addition, under Rule (A)74 Ground 3, the horse must be disqualified from the race, having tested positive. It follows that the horse that finished fourth on the day, WOLF SWORD (IRE), will be promoted to third.