The following lays out the Disciplinary Panel’s penalties, and written reasons regarding their findings from a hearing involving trainer Paul Gilligan who is licenced by the Irish Turf Club.
The hearing took place on 21 and 22 March, and at the hearing Paul Gilligan was found in breach of Rule (A)74 and Rule (A)29.1 by virtue of the fact that he knew DUBAWI PHANTOM was not qualified to enter a race in Great Britain as it had participated at an unrecognised meeting in Ireland. He was informed that his penalty and reasons for penalty would follow in due course.
1. The Disciplinary Panel of the British Horseracing Authority ('BHA') met on 21 and 22 March 2016 to consider the case of DUBAWI PHANTOM and whether it should be disqualified under Rule (A)74, Ground 4 of the Rules of Racing from a race run in Great Britain as a result of previously running at an unrecognised meeting in Ireland (contrary to paragraph 13 of the Schedule (B)2). The Panel also considered the related issue of whether licensed trainer Mr Paul Gilligan has breached Rule (A)29.1 by virtue of the fact that he knew DUBAWI PHANTOM was not qualified to enter a race in Great Britain as it had participated at an unrecognised meeting in Ireland.
2. The Panel consisted of Matthew Lohn (Chair), Philip Curl and Diana Powles. The BHA was represented by Mr Tim Naylor instructed by Miss Danielle Sharkey. Mr Gilligan was present and was represented by Mr Michael Keane.
3. The relevant events which formed the subject matter of this enquiry began in August 2013 when a gelding named AYRES ROCK ran in the Dingle Festival. It was, according to Mr Gilligan's version of events, later that year in November 2013 when a gelding, DUBAWI PHANTOM, was acquired by him from a man named Finbar Ryan. Mr Gilligan, told the BHA that he trained the gelding from 8 May 2014 to 1 March 2015. During that period it was entered and ran in races at Kilbeggan (twice), Sligo and Uttoxeter. The gelding was declared to run at the Galway festival in July 2014 but a Steward's Enquiry was held on 30 July 2014 in respect of allegations that DUBAWI PHANTOM and AYRES ROCK were the same horse. DUBAWI PHANTOM was withdrawn from the race at Galway pending further investigation.
4. The Steward's Inquiry at Galway heard evidence from an Irish Turf Club Veterinary Officer, Terry Smith, and Chris Gordon the Senior Turf Club Security Officer. They informed the Stewards of their belief that DUBAWI PHANTOM, the gelding declared at Galway had also run in the Kingdom Transport and Plant Hire Ltd and the Corney Cremins Trophy race at an unrecognised race meeting at Dingle on 10 August 2013 under the name AYRES ROCK.
5. AYRES ROCK had been ridden in the Dingle race by Mr Gilligan's twelve year old son, Liam Gilligan. It finished first out of twelve runners and was gazetted as being in the ownership of Mr Joe McNamara.
6. Mr Gordon was present at the races in Dingle and obtained photographs and video coverage of the event. On noticing AYRES ROCK, Mr Gordon made contemporaneous notes in his racecard about the appearance of the gelding. Mr Gordon was also present by the parade ring before the race at Dingle and heard the person (who it turned out was Mr McNamara) leading the horse ask Mr Gilligan if he had 'given instructions to the jockey yet?'.
7. Mr Smith gave evidence to the Stewards at Galway that in his opinion DUBAWI PHANTOM, the gelding he had just inspected at the Galway racecourse, was the same horse as shown in the photographs from Dingle where it had raced under the name of AYRES ROCK. The chestnut gelding had distinctive white markings on its head, forelimb, both hind limbs and on the right hind coronet.
8. Although Mr Gilligan denied that AYRES ROCK and DUBAWI PHANTOM were one and the same horse, the Stewards on the day decided to withdraw the horse from the race at Galway and referred the whole matter to the Referrals Committee of the Irish Turf Club for further investigation. They ordered DUBAWI PHANTOM's passport to be returned to the Registry office.
9. Prior to the Galway Festival, on 29 June 2014, DUBAWI PHANTOM was entered by Mr Gilligan and ran at Uttoxeter in the 'Bet 365 Handicap Hurdle Race'. The gelding was ridden by Richard Johnson and finished first out of nine runners. The prize money for the race was £9,384.
10. The BHA was notified of the findings of the Stewards at Galway by the Irish Turf Club. It commenced an investigation as to whether AYRES ROCK was indeed the same horse as DUBAWI PHANTOM and moreover whether Mr Gillian knew this was the case and therefore should not have entered DUBAWI PHANTOM in the race at Uttoxeter.
Evidence from Veterinary Surgeons.
11. Prior to the hearing before the Disciplinary Panel, the BHA Veterinary Officer, Nick Bowen was asked to compare the photographs and DVD coverage from Dingle and Uttoxeter. He concluded that 'the chestnut horse depicted in the DVD and photographs taken at Dingle on 10 August 2013 is the same horse as that depicted in the DVD and photographs taken at Uttoxeter on 29 June 2014.'
12. At the Disciplinary Panel hearing, the Panel heard evidence from Mr Bowen on behalf of the BHA and from Mr Philip McManus, a veterinary surgeon from County Galway called on behalf Mr Gilligan. Mr Bowen accepted that it would be very irregular to identify a horse from its markings but in the instant case the photographs from Uttoxeter and Dingle showed a chestnut horse with 'quite a lot of idiosyncratic markings'. When cross examined as to why he had not examined DUBAWI PHANTOM Mr Bowen explained that he had been instructed to examine the photographs and in any event there were not two horses for him to examine and compare; the whereabouts of AYRES ROCK was unknown.
13. Prior to giving evidence before the Disciplinary Panel hearing, the two veterinary surgeons had the opportunity to discuss the photographs. A number of differences of opinion were resolved and in most respects there was agreement regarding the markings shown in the photographs. It was accepted by both veterinary surgeons that there were a number of distinctive white marks on the pictures which as Mr McManus (on Mr Gilligan's behalf) accepted meant that 'these horses are indistinguishable on photographs at these racecourses due to the similarity of the markings. These horses are essentially almost completely identical in photos at this range'.
14. Unlike Mr Bowen, Mr McManus also clinically examined DUBAWI PHANTOM at Mr Gilligan's yard prior to the hearing. Notwithstanding the very distinctive markings evident in the photographs, Mr McManus considered that his clinical examination had allowed him to identify some subtle differences between DUBAWI PHANTOM and AYRES ROCK. He identified five features which he said set the two horses apart as between the photographs at Uttoxeter and Dingle. The features were as follows:
(i) The whorls at the top of the blaze were at a different angle in the two sets of pictures,
(ii) The gap between the blaze attaching to the flesh mark on the muzzle showed a small difference in length,
(iii) In the pictures of AYRES ROCK the teeth were consistent with the gelding being a four year old whereas DUBAWI PHANTOM was seven (Mr McManus explained that veterinary surgeons in Ireland were extremely experienced in ageing horses from their teeth up to the age of five or six),
(iv) The chestnut colour was distinctive as between the two geldings – AYRES ROCK being a light chestnut, and;
(v) The marking on the right fore-leg extended further caudally on AYRES ROCK
15. There was also the matter of height. The owners of AYRES ROCK said he was 15'1 whereas DUBAWI PHANTOM was 16 hands.
16. Mr Bowen disagreed with the age estimate based on the teeth. His view was that the pictures simply did not show with sufficient clarity the teeth of both horses and in any event ageing a horse on its dentition was difficult and unreliable. On the photographs available it seemed to him that there was a full set of incisor teeth which are normally only present once a horse is over five years old.
17. As to the colour differences, Mr Bowen felt that this could not be determinative since the processing of the pictures could easily have resulted in differing shades of chestnut and lastly any differences noted in the blaze length or, the formation of the caudal extension of the markings, were easily explained by the differences in a 'skinny summer' and 'healthy winter' coat.
18. Mr Gordon gave evidence to the Panel and confirmed the matter of his attendance at the Dingle Races and the Galway Stewards' Enquiry. He told the Panel that he had received confidential information from two sources prior to the Galway races which led him to believe that 'DUBAWI PHANTOM was the 'flapper' AYRES ROCK'.
19. In respect of the festival at Dingle, Mr Gordon acknowledged that he had spoken to Mr Gilligan before the race where AYRES ROCK had run. Mr Gordon was questioned regarding the interpretation of what was asked of Mr Gilligan when his son was on AYRES ROCK in the parade ring being led by Mr McNamara. Mr Gordon explained that Mr McNamara asked Mr Gilligan 'Did you give him his instructions?'. He believed this was a question to a trainer in respect of the instructions to be received by a jockey (in this case Mr Gilligan's son) before a race.
20. Mr Gordon told the Panel that he had made a note of the gelding's markings since this was a good looking horse with very distinctive markings and he was suspicious. He wanted to check to see if the horse was in training in a yard. Since the Pony Racing authority in Ireland will not share information with the Irish Turf Club it was not feasible to check microchip details or otherwise ask for details about an owner. After the race meeting he made a note of the details on his database, notified the BHA, and watched out for entries on the racecourse to see if anything corresponded with a horse of that description.
21. Mr Gordon acknowledged there had been a full Turf Club inspection of Mr Gilligan's premises on 9 August 2013 but explained that the focus of the inspection was to look at the horses in training not those who were going to be returned to training in due course. He accepted that nothing untoward was found at the inspection.
22. Finally Mr Gordon was asked about his understanding of the Tallow horse fair in County Waterford where it was alleged that Finbar Ryan had bought DUBAWI PHANTOM. Mr Gordon asserted that it was not the place one would generally find thoroughbreds for sale; the fair being a place where piebalds and ponies are bought and sold. He confirmed that he had enquired of Henry de Bromhead's head lad to confirm this view.
23. Before the Panel, Mr Gilligan absolutely denied that he ran DUBAWI PHANTOM as a 'ringer' under the name AYRES ROCK at the Dingle Festival. He told the Panel he had never seen AYRES ROCK prior to the race; it being owned by Mr McNamara. He acknowledged that his son Liam had ridden the horse prior to the race on his gallops at home. He explained that due to the tide times at Clifton where Mr McNamara lived, it was difficult to plan when the beach would be clear from the tides to provide an opportunity to ride out. Mr McNamara had driven the gelding, two and a half hours each way to Mr Gilligan's yard to allow Liam to acquaint himself with his ride before the Dingle races. Liam had told his father that Mr McNamara wanted him to 'sit on the horse' before the race.
24. Mr Gilligan acknowledged that Liam was a competent rider and rode out the quiet horses at home including DUBAWI PHANTOM. He agreed that Liam rode out DUBAWI PHANTOM from February 2014 until the races at Galway. On cross examination by the BHA, Mr Gilligan confirmed that Liam did not mention to him any similarity with AYRES ROCK (who he rode at Athenry in April 2014). The Panel noted that in addition to the race at Dingle in August 2013, Liam Gilligan had ridden AYRES ROCK at Geesala on 18 August 2013, Louisburgh on 24 August 2013 and Athenry on 27 April 2013 finishing 3rd, 1st and 2nd respectively.
25. Before the Panel, Mr Gilligan denied giving Liam any instructions on how to ride AYRES ROCK at Dingle. He said that he merely had told him to 'look after himself out there' as would any parent to their child riding in a race. He believed that was all Mr McNamara was referring to when he asked him this question from the parade ring. Mr Gilligan accepted he was with AYRES ROCK after the race at Dingle but considered this was not unusual for a parent whose child had just won a race.
26. Mr Gilligan answered questions before the Panel as to why he had attended the Dingle races with his horse box. He said that he had brought his pony Patsy Shine with the family as he hoped it may be able to run but did not realise that he had needed to enter it advance. He told the Panel that Mr McNamara took AYRES ROCK home after the race.
27. In respect of the purchase of DUBAWI PHANTOM, Mr Gilligan explained that he had met an acquaintance, Finbar Ryan at a filling station near home in November 2013. Mr Ryan mentioned he had a thoroughbred that he had bought from a man named James O'Shea at the Tallow horse fair in September 2013. Mr Gilligan liked the look of the horse and agreed an exchange for a hunter of his. There was no paperwork or money exchanged; it was a straight swap, 'a gentleman's agreement'. Mr Gilligan said he only looked at the form of the horse when he got him home. He explained to the Panel that he liked getting that sort of horse and seeing what he could make out of it. Mr Gilligan said the gelding spent a couple of days with him before going to the farm of a Mr Kilkenny, a friend of his. DUBAWI PHANTOM stayed with Mr Kilkenny until February 2014 when he started pre-training the gelding.
28. Mr Gilligan said the first he knew that things were amiss was when he attended the Galway Festival and was told that the Irish Turf Club veterinary surgeons wanted to see DUBAWI PHANTOM.
29. In respect of the BHA proceedings, Mr Gilligan was asked about the lengths that he had gone to demonstrate the whereabouts of AYRES ROCK. Mr Gilligan told the Panel that he did not feel it was his duty to find evidence of AYRES ROCK. He told the Panel that a Dingle winner was never going to fill a yard with owners. There was no benefit whatsoever to him running DUBAWI PHANTOM in the manner that had been alleged. He told the Panel that he had a wife and four children and would not take the risk of running horses at unregistered race meetings.
30. Mr McNamara gave evidence on behalf of Mr Gilligan. Mr McNamara said he knew Mr Gilligan but he was not a particular friend. He explained his involvement in pony racing 'on the beaches and in fields'. He explained that he did not race horses 'on the track' but was a well-respected breeder of Connemara ponies. He told the Panel that he bought AYRES ROCK from a man he knew called Padraig Mahoney in August 2012; he paid €700 for him. His daughter took care of and trained the gelding.
31. Regarding the Dingle races – he explained to the Panel that it was a tough meeting – the 'Cheltenham of the pony racing world'. Liam Gilligan had ridden on other occasions for him but he wanted him to try out AYRES ROCK before the race. Mr McNamara made the five and a half hours round trip to Mr Gilligan's yard for Liam to ride out – he felt such a journey was not unusual in Ireland. He said he did not leave AYRES ROCK at the Gilligan yard. At the race he led the gelding round the parade ring. He asked Mr Gilligan about instructions – he felt it was a normal thing to ask a father of a son. He believed Mr Gilligan would have told his son to 'look after himself' as it was a sharp track and a large field.
32. In respect of any pictures and other documentation to prove ownership of AYRES ROCK, Mr McNamara said he could not produce any. The only photographs he knew about were from Dingle. He told the Panel that he 'was out of pony racing now'. He said that AYRES ROCK 'had a leg' and so he sold the gelding to Martin 'Dave' Noonan 'a chap in County Mayo' in May 2014. Mr McNamara said he knew him vaguely. He suspected he bought horses to 'knacker' and so did not ask him his intentions. Mr McNamara told the Panel that he had not seen or heard of AYRES ROCK since.
33. The Panel heard evidence from Mr Kilkenney. He confirmed that DUBAWI PHANTOM was at his yard between November 2013 and February 2014. Although he did not own the gelding he acknowledged that it was run in the colours of his syndicate. He said he did not know it ran in England.
The Panel's Findings
34. Having carefully considered all the evidence before it, the Panel concluded that DUBAWI PHANTOM and AYRES ROCK were one and the same horse.
35. In reaching its decision the Panel reviewed the Appeal decision of the Irish Turf Club in the case of Cybersnow from June 2010. Although not binding precedent on the Panel it noted the approach taken in respect of photographic evidence. The Panel considered the Irish Appeal Panels reasoning and in particular the following rationale:
'It does appear from an examination of the various photographs and the transcript of evidence that there are considerable difficulties with such photographic comparisons. Colourings and markings seem to vary in photographs depending on the time of year, the length of coat of the animal, the lighting, the presence of dirt or sweat on the animal, and by the process of development of the photograph. Appearance and shape may vary due to the condition of the animal or the perspective of the photograph.
The Committee also notes that a photograph of an animal would not be accepted by racing authorities as proof of identity of an animal for the purposes of running in a race under Rules, in substitution for the proper passport for the animal. There was a difference of opinion among the various veterinary surgeons who gave evidence as to the reliability of this form of identification'
36. The position before the instant Panel though was distinct on its facts and did not rely upon photographic evidence alone. In the Panel's view the pictures from Dingle and Uttoxeter could not be distinguished. The horses looked identical. Although it noted the differences listed by Mr McManus it preferred Mr Bowen's account that any subtle differences in the white markings in the photographs could be explained by the difference in DUBAWI PHANTOM's summer and winter coats. The pictures did not give a clear indication of the dentition and the shade of chestnut was not so distinct as between two different sets of photographs as to be determinative of any conclusive difference. The Panel noted the assertions regarding the height of the horses but, in the absence of any objective measurements of AYRES ROCK, did not consider this of any significance.
37. Any lingering doubts that the Panel may have had regarding the case based on the photographic evidence were firmly dispelled when the photographic evidence was considered alongside the factual circumstances. The timeline of events led the Panel to conclude that AYRES ROCK was indeed DUBAWI PHANTOM and moreover Mr Gilligan knew this to be the case by the time the horse ran at Uttoxeter.
38. The Panel had the advantage to hear from Mr Gilligan and Mr McNamara on crucial issues and to hear their accounts tested. It did not find them to be credible witnesses. There were too many co-incidences and unanswered questions which led the Panel not to believe key parts of their evidence. The Panel found Mr Gilligan's version of events (especially in light of his expert Mr McManus acknowledging that the photographs demonstrated near identical horses) simply unbelievable. Mr Gilligan expected the Panel to accept his version of events despite the fact that:
(i) Both horses only raced in Ireland once DUBAWI PHANTOM had left Alan Mcabe's yard in England,
(ii) Mr Gilligan trained DUBAWI PHANTOM and it was a coincidence that his son was the jockey on AYRES ROCK at a number of unregistered races,
(iii) Mr Gilligan had taken his horse box supposedly containing a pony, Patsy Shine to race at Dingle 'on the off chance' when it had not been entered prior to the meeting in accordance with the rules,
(iv) Liam Gilligan was riding out DUBAWI PHANTOM at his father's yard at the same time he rode AYRES ROCK - a near identical looking gelding - at Athenry – and made no comment regarding any similarities to his father,
(v) AYRES ROCK ceased racing in unregistered races once DUBAWI PHANTOM started racing under rules again.
39. The Panel did not accept Mr Gilligan's version of events as truthful.
40. The Panel was also mindful that although it was not for Mr Gilligan to disprove the BHA's case, (the burden remaining on BHA) it was surprising that if AYRES ROCK had indeed existed, there seemed no effort and certainly no production by Mr Gilligan of any probative documentary evidence to substantiate this. In particular the Panel noted:
(i) there was no documentary evidence to support Mr Gilligan's purchase of DUBAWI PHANTOM from his friend, Finbar Ryan whom he met at a filling station,
(ii) there was no documentary evidence to support the purchase or sale of AYRES ROCK by Mr McNamara, and;
(iii) Mr Gilligan failed to produce evidence of a microchip or other independent evidence from the Irish Horse and Pony Racing authorities to show the existence of AYRES ROCK.
41. In the Panel's view by the time DUBAWI PHANTOM raced at Uttoxeter in June 2014, there was simply no possibility that Mr Gilligan did not know that AYRES ROCK and DUBAWI PHANTOM were one and the same gelding.
42. Even on his own account, Mr Gilligan had purchased DUBAWI PHANTOM in November 2013. He acknowledged to the Panel that his son, Liam, was riding out the gelding from February 2014 onwards. The Panel concluded that Mr Gilligan knowingly sent DUBAWI PHANTOM to the races at Athenry to run in an unregistered race in his unregistered guise, AYRES ROCK. Although Mr Gilligan admitted to the Panel that he put DUBAWI PHANTOM into training on 8 May 2014 just before the races at Kilbeggan the Panel did not believe his account to be true. In the Panel's view the horse was in training (albeit this was not properly registered) in 2014 by the time of the Athenry race.
43. What Mr Gilligan's state of knowledge was at the time of the race in Dingle is not central to the issue before the Panel although the evidence indicates that he brought DUBAWI PHANTOM to the races in his horsebox, to run under the name AYRES ROCK. The evidence of ownership and training is much less clear than the race at Athrenry. There was no doubt as to the jockey on that occasion; it was Mr Gilligan's son.
44. Taking into account the photographic evidence alongside the conclusions of the Panel in respect of the races at Athenry and Uttoxeter, the Panel has determined that DUBAWI PHANTOM should be disqualified under Rule (A)74, Ground 4 of the Rules of Racing from, the 'Bet 365 Handicap Hurdle Race' run at Uttoxeter on 29 June 2014 as a result of previously running at an unregistered race meeting at Athenry in Ireland on 27 April 2014 (contrary to paragraph 13 of the Schedule (B)2), placing RED MERLIN (IRE) first, AZZA (FR) second, MINELLA RECEPTION (IRE) third, BEACHFIRE fourth, ZARZAL fifth and KINGHT IN PURPLE sixth.
45. The Panel has further determined that Mr Paul Gilligan has breached Rule (A)29.1 by virtue of the fact that he knew DUBAWI PHANTOM was not qualified to enter the 'Bet 365 Handicap Hurdle Race' run at Uttoxeter on 29 June 2014 as it had participated at an unregistered race meeting at Athenry in Ireland on 27 April 2014.
Decision on Penalty
46. A trainer found to be in breach of Rule (A)29 is liable to a fine of £500 to £3,000 or a suspension of 1 month to 3 years with an entry point of a £1,000 fine or disqualification or exclusion for 3 months
47. The Panel have considered this to be a serious case which should be marked by a period of disqualification. Racing relies on the integrity of trainers to only enter those horses into races who are eligible to race. Mr Gilligan has disregarded the Rules of Racing. The integrity and authority of the Rules of Racing are underpinned by participants in the sport affording them proper respect. Mr Gilligan's actions have undermined that authority. He knowingly sent a horse to run under a different name in an unregistered race before entering the same horse into a registered race. He subsequently lied to BHA Investigators when questioned about the events and created a false trail of evidence to try hide his wrongdoing. These are aggravating features. The fact that Mr Gilligan must have clearly derived some pleasure from seeing his son being placed in the race at Athenry does not ameliorate his behaviour in any way. His propensity to disregard the Rules of Racing has led the Panel to direct that this episode should be reflected in a six month period of disqualification from 29 April 2016 to 28 October 2016.
48. The Panel is mindful of the hardship that may be faced by a trainer and his staff by the effect of any disqualification but believe the penalty to be fair and proportionate in all the circumstances.
49. The Panel has also considered the matter of the prize money won by DUBAWI PHANTOM at Uttoxeter. DUBAWI PHANTOM's win was rewarded with prizemoney to the total of £9,384. In the light of the fact that DUBAWI PHANTOM was ineligible to run at Uttoxeter and should never have been entered in that race, the Panel believes it is appropriate and fair in all the circumstances to make an order that Mr Gilligan (as the then owner and trainer of the gelding) repays the prizemoney that he received from the race. The Panel therefore further directs that Mr Gilligan repays the amount of £9,384, less that already distributed to the jockey and stable staff (as it would be inequitable to penalise them in all the circumstances) to Weatherbys so it may be re-distributed to those connections whose horses would otherwise have been better placed in the race but for DUBAWI PHANTOM being placed first.