Disciplinary Panel Enquiries
RICHARD HUGHES - APPLICATION FOR SUSPENSION IN INDIA NOT TO BE RECIPROCATED BY THE BHA
DISCIPLINARY PANEL’S REASONS FOR REFUSING APPLICATION TO PREVENT RECIPROCATION OF PENALTY IMPOSED IN INDIA
1. On 28 March 2012 the Disciplinary Panel considered an application from Richard Hughes to the British Horseracing Authority (BHA) for a direction under Rule (A)69.3 that it would not reciprocate in this country a 50-day suspension imposed upon him by the Royal Western India Turf Club Ltd (“RWITC”). His application was presented by David Fish QC, instructed by Trevor Howarth. The BHA opposed this application and was represented by Graeme McPherson QC.
The Indian ban
2. On 16 February 2012, Hughes rode JACQUELINE SMILE trained by H J Antia in race 202 at Mahalaxmi Racecourse, Mumbai. There was a brief enquiry into the run after racing that day, followed by a lengthier hearing on 17 February conducted by three stipendiary stewards, at which Antia and Hughes were asked questions about the filly's performance and at which at least the head-on video recording was examined. The stipendiary stewards recorded their concerns about Hughes' ride in a detailed Note dated 18 February, which they then forwarded to the Stewards of the RWITC "for such action as deemed fit".
3. On 23 February, the Stewards of the RWITC met and considered the Note of 18 February, the transcript of the enquiry conducted by the stipendiary stewards on 17 February, and video recordings of the race. They called Antia and Hughes before them and questioned them in some detail. The Stewards then deliberated in private, recalled Hughes, and told him that they were not satisfied with his explanation for his ride. They are recorded as having “held him guilty of not following the trainer's specific instructions and thereby not allowing his mount JACQUELINE SMILE to run on its merits in race 202”. They suspended him for 50 days from 11 March to 29 April 2012, and fined him Rs100,000 (approximately £1,200). He was provided with a written summary of the reasons for the decision and penalty by letter dated 24 February, and informed of his right to appeal.
4. Hughes announced his intention to appeal on 27 February. On 8 March, he provided detailed written grounds of appeal together with freeze-frame stills taken from both head-on and side-on cameras for the early part of the race, to illustrate his contentions about the circumstances in which he had departed from the trainer's instructions. By this time, Hughes was racing in Dubai and his Indian visa had expired. He sought and was granted dispensation by the Board of Appeal of the RWITC to be absent for the hearing of his appeal, and for his case to be presented by Ivor Fernandes. Mr Fernandes is a local trainer who had appeared a number of times at RWITC enquiries over the years both for Hughes and other jockeys.
5. The appeal hearing took place on 11 March 2012. Mr Fernandes presented Hughes' arguments to the Board of Appeal, but these were in the end rejected, and the penalty confirmed. The suspension was therefore ordered to take effect on 12 March and to expire on 30 April 2012.
The Indian request for reciprocity
6. Promptly after Hughes' appeal was dismissed, the RWITC sent a general notification to racing authorities worldwide of the suspension imposed and requested reciprocal enforcement of it. That was followed by a request directed specifically to the BHA on 12 March and expressed to be made "in accordance with Article 10 IV of the International Agreement on Breeding, Racing and Wagering”. It was made on the standard form which the International Agreement specifies for such cases.
7. Great Britain's racing authority, the BHA, is one of the signatories of Article 10 of the International Agreement. But, as Mr Fish QC pointed out on Hughes' behalf, India is not listed as one of the countries whose racing authorities have agreed to be bound by Article 10. Investigation by the BHA during the hearing of Hughes' application disclosed that India had been a signatory agreeing to Article 10 until 2007, but has not since been party to it. Why this happened is not known, but it may be because Article 10 now requires racing authorities who sign up to it to allow a rider charged with breach of their Rules to be represented by a practising lawyer. However, Rules 49 and 51 of the RWITC Rules forbid any such representation, and only allow assistance from a spokesman who is not a practising lawyer.
8. Whatever the reason may be, this Panel proceeded on the basis that Article 10 of the International Agreement was not the route by which reciprocal enforcement of Hughes' suspension could be sought or granted. Hence, neither Article 10 IV nor Article 10 bis III applies in this case. They provide for a ban pronounced by one signatory's racing authority to be automatically reciprocated by the authority in the country where a rider is licensed, "subject to any special conditions required by the laws of natural justice" in the licensing authority's country.
An alternative approach
9. But there is another kind of case in which the BHA may recognise and enforce bans imposed by foreign racing authorities. That too arises under Rule (A)69 of the BHA's Rules of Racing. This Rule provides so far as material:
“69.1 This Rule applies where a Jockey.…has been suspended from riding by a Recognised Racing Authority.
69.2 The Jockey….must not ride in any race on any day when such suspension is effective.
69.3 The Authority may, on the application of a Jockey…, direct that Paragraph 69.2 shall not apply to him.”
10. Schedule (A)8 identifies the "Recognised Racing Authorities" to which Rule (A)69.1 applies. It lists many more racing authorities than have signed up to Article 10 of the International Agreement. Among them is the RWITC. Therefore, by virtue of Rule (A)69.2, Hughes is automatically prevented from riding here during the period of the Indian ban, but he has the right to apply for a relaxation under Rule (A)69.3. (The Panel noted that Rule (A)69.3 gives the Authority the power to disapply a foreign ban, and wondered initially whether the BHA should take this decision for itself rather than putting the matter before a Disciplinary Panel. But it concluded that the BHA's wide power given by Rule (A)44 to hold enquiries "into any matter relating to racing" by convening a Disciplinary Panel meant that it was appropriate to ask such a Panel to decide this application.)
11. The wording of Rule (A)69.3 indicated to the Panel that it had a discretion whether to enforce the Indian ban. If a foreign ban has been imposed by a racing authority which is party to Article 10 of the International Agreement, then the discretion is doubtless very limited, because that Article requires automatic enforcement subject only to objections based on a failure to meet the procedural standards demanded by the "laws of natural justice". But where, as here, Article 10 does not apply, there is no such limit upon the discretion given by Rule (A)69.2.
12. So what principles should govern the exercise of the discretion in such cases as this? In the Panel's view, there were two basic considerations that had to inform their decision: –
(i) the first consideration is the interest of effective regulation of the sport, both here and in India. The reason for reciprocal penalty enforcement is obvious. If penalties for breach of racing Rules were avoidable by just moving to a different territory, the incentive to compete in accordance with the Rules reduces to vanishing point.
(ii) the second consideration is the interest of the individual concerned – here Richard Hughes – in a fair and just disciplinary treatment. This means not merely that the procedure in India should have been "fair" in the sense of meeting our notions of natural justice, such as the right to prepare and present a defence before an unbiased tribunal. It means also that the decision itself can be attacked at least (a) if the facts found and reasons given for the decision simply failed to establish the breach of the Rules that was found; and (b) if the decision is perverse (i.e. no reasonable tribunal could have arrived at the result it reached).
13. It was with these objectives in mind that the Panel approached Hughes' application. As originally framed by Hughes himself, it was in the nature of an appeal from the RWITC giving a number of reasons why on the facts the RWITC decisions on 23 February and 11 March were wrong. But shortly before the hearing by this Panel, the grounds changed. It was recognised by Mr Fish QC that it was inappropriate to invite a rehearing of whether Hughes was in breach of the RWITC Rule in question, and inappropriate to ask this Panel to substitute its judgement for that of the RWITC Stewards and Board of Appeal. He identified four matters which he said should persuade this Panel not to reciprocate the ban: –
(i) the denial of legal representation.
(ii) the absence of the trainer of JACQUELINE SMILE – H J Antia – from the appeal hearing on 11 March.
(iii) the emphasis by the RWITC upon the trainer's riding instructions.
(iv) the disproportionate penalty imposed.
The lack of legal representation
14. As already noted, the Rules of the RWITC forbid representation before Stewards or the Board of Appeal by a practising lawyer. It was submitted that this was a breach of the rules of natural justice and that Hughes’ explicit waiver of the right to complain about this (signed when he took out his Indian licence in November 2011) should not be effective.
15. But there is no rule of English law which states that a person appearing at private disciplinary hearings must be given the option of representation by a practising lawyer. Mr Fish QC did not seriously argue to the contrary. Many tribunals in this country allow legal representation (such as the BHA for Disciplinary Panel and Appeal Board hearings, but not for enquiries on racecourses), but it is by their choice rather than by legal compulsion.
16. Whether that is right or wrong, Hughes agreed to abide by the RWITC Rules as a condition of getting his licence to ride in India. The Rules which debar using a practising lawyer in disciplinary hearings were specifically drawn to his attention and accepted by him. He waived his right to complain of the Indian Rules by agreeing "not to make out any grievances with any Racing/Turf Authorities here and abroad and specifically accept not to make out any grievances with any Racing/Turf Authority about lack of Natural Justice due to any variations that may occur between the Rules of Racing of RWITC and the Rules of Racing of any other Racing/Turf Authorities in India or abroad."
17. It is important to note that in any event there is nothing to suggest Hughes suffered from his inability to instruct a practising lawyer to represent him. For the hearing before the Stewards on 23 February, he chose to represent himself. For the appeal hearing he was not present, but was represented by his trusted friend, Mr Fernandes, who has considerable experience of representing jockeys before the Stewards. It is apparent to this Panel from reading the lengthy note of the appeal hearing that Mr Fernandes put all of Hughes' points with clarity and energy.
The absence of H J Antia
18. At the outset of the appeal hearing (which began at about 11:45 hours on 11 March), it was found that the trainer of JACQUELINE SMILE, H J Antia, was absent. He was reported to be unwell. Later that day he attended the race meeting in Mumbai, at which he was saddling runners. So, it was suggested, Antia may have been making himself scarce, and Hughes' case was potentially disadvantaged by not being able to ask questions of him.
19. But Antia was present and did answer questions at the original hearing on 23 February, as well as at the enquiry conducted on 17 February by the stipendiary stewards. It is apparent from the records of these earlier hearings that there was no dispute between Hughes and Antia about the trainer's instructions for the race. Nor did Mr Fernandes suggest on 11 March that he had questions for the absent Antia. Nor has any evidence been put before this Panel to the effect that Mr Fernandes would have asked questions of Antia if he had been present on 11 March.
20. There was therefore no hint of unfairness to Hughes' case during the appeal in India arising from Antia's absence.
Emphasis on riding instructions
21. It was said that the Stewards and Board of Appeal placed too much emphasis on Hughes' riding instructions for the race, and therefore lost sight of the real issue they had to decide, which was whether Hughes was in breach of the local Rule 159(b). It is in terms which resemble the British Rule (B)59.4: –
“The rider of every horse shall take all responsible and permissible measures throughout the race to ensure that his horse is given full opportunity to win or to obtain the best possible placing in the field."
22. It is quite clear from the records of the proceedings before the RWITC at every level that the Stewards were concerned to investigate in some depth exactly why Hughes had departed from his trainer's instructions. It was common ground in those hearings that Hughes had not ridden as instructed: the next and critical question was why that had happened. The Stewards in India came to the view that Hughes' explanations of why he had ridden as he did were not accepted. He had said that he had not pushed the filly to reach or maintain 3rd or 4th position in the first furlong of the race, because he feared that if he did so in what was a slowly run affair, she might have raced too keenly. The conclusions of the Stewards and Board of Appeal make plain that they felt he could have done more at the outset to travel where instructed and that he was a sufficiently strong and experienced rider to be able to maintain control if she had then begun to race too keenly. Thus they did not proceed on the basis that a departure from instructions established a breach of the requirement under the Rule to take all responsible and permissible measures. It is not for this Panel to retry this matter and reach its own view. Quite apart from anything else, this Panel is not in a position to do so: it has not seen the video recordings; it has not had the benefit of seeing Hughes and Antia give live evidence; and it does not have the local expertise of the Indian Stewards. It was no doubt these considerations among others which persuaded Mr Fish QC to disown any attempt to get this Panel to retry the case. Yet in truth this aspect of his argument was a veiled effort to do so by the complaint that the riding instructions were “over-emphasised”.
23. Therefore, Hughes' case on this does not meet the test set out earlier in these reasons. He does not show that the RWITC Stewards reached a decision which fails to show on its face a breach of the Indian Rule 159(b). He does not show or attempt to argue through Mr Fish QC that the RWITC Stewards' decisions were perverse.
24. This was an issue raised initially by the Panel, in the light of the fact that Hughes was banned for 50 days for the breach of a Rule that attracts a ban of just 7-21 days in this country, with an entry point of 10 days.
25. Mr Fish QC submitted that the penalty was disproportionate compared with British practice, and that this provided a reason for not reciprocating the Indian ban to its full length. Mr McPherson QC submitted that any length of ban, if permitted by the foreign Rules of Racing, should in principle be reciprocated here. Thus, to take an extreme example, it was his position that if Hughes had been given a 10-year ban for this breach in a country whose racing authorities regularly impose that sort of ban, then it should be reciprocated. His argument was that if a jockey obtains a licence from a racing authority which can and does impose such penalties, then he must accept that if he incurs such a ban, it will operate internationally.
26. The Panel can envisage some difficult questions arising if the ban which it is asked to reciprocate is so far beyond what would be imposed in this country. It might well fall foul of legally recognised rights to work here. But it is not necessary on the facts of this case to arrive at a comprehensive answer. Whether the test is proportionality (which is Mr Fish QC's solution) or whether the test is perversity (the test applied by the Panel), the difference between what Hughes was given in India and what he might have been given in this country is not so great as to warrant this Panel interfering with it.
3 April 2012