29 Sep 2015 Disciplinary Panel - Appeals against decisions on a Racecourse

1. On 23 September 2015, the Disciplinary Panel of the British Horseracing Authority (BHA) heard an appeal against the decision by the Doncaster Stewards to reverse the placings of the first and second horses in the Ladbrokes St Leger Stakes. Following an enquiry on the day of the race, 12 September 2015, they determined that the first horse home, SIMPLE VERSE (IRE), ridden by Andrea Atzeni, had twice interfered with the second placed horse, BONDI BEACH (IRE), ridden by Colm O’Donoghue, during the last two furlongs of the race. The Doncaster Stewards further decided that these two incidents had combined to improve the placing of SIMPLE VERSE (IRE), so they demoted SIMPLE VERSE (IRE) to second and placed BONDI BEACH (IRE) first.

2. The connections of SIMPLE VERSE (IRE) appealed against that decision. They were represented at the hearing by Graeme McPherson QC, instructed by Andrew Chalk of Withy King. The connections of BONDI BEACH (IRE) also appeared at the hearing. They were represented by John Kelsey-Fry QC, instructed by Kevin Power of Maurice Power Solicitors. The BHA’s case was presented by Lyn Williams.

3. The hearing before this Panel operated, as always, as a re-hearing. This means that it fell to be decided in the light of the evidence and arguments presented at this appeal. It also means that this Panel did not apply any presumption in favour of the decision reached by the Doncaster Stewards, though of course evidence presented before the Doncaster Stewards could in principle be relevant: it was available, as is usual, in the form of a transcript of the enquiry they held. It is worth noting one further consequence of the appeal being conducted as a re-hearing, which is a feature of all appeals against decisions to alter placings. SIMPLE VERSE (IRE) undeniably finished first in the race, beating BONDI BEACH (IRE) by a head. That order could only be upset if the Panel was persuaded that interference by SIMPLE VERSE (IRE) with BONDI BEACH (IRE) was the reason why SIMPLE VERSE (IRE) finished first. The task of the Panel was to decide that issue on the balance of probabilities.

 

The Rules and the guidance

4. As this appeal concerned one of the major races of the year, which attracts a wide public interest, the Panel sets out below the Rules that are relevant for this appeal as well as the material notes set out in the Guide to Procedures and Penalties to help Stewards (and this Panel) to decide the placings following interference.

5. In cases of careless or improper riding, Rule (B)54.5 provides –

“54.5 Where

54.5.1 a horse or its Rider has caused interference by careless or improper riding, and

54.5.2 the Stewards are satisfied that the interference improved the placing of the horse in relation to the horse or horses with which it interfered,

the horse shall, on an objection by the Stewards…be placed behind the horse or horses with which it interfered.

 

54.6 For the purposes of Paragraph 54.5.2

54.6.2 if the Stewards are not satisfied the interference did improve the placing of the horse, they must overrule the objection and order that the placings remain unaltered.                

 

54.7 In deciding whether the Stewards are satisfied that the interference improved the placing of the horse, the Stewards shall make no allowance for any ground which the incident may have cost the horse causing the interference.”

 

6. The same basic regime applies in cases of accidental interference by virtue of Rule (B)55, which says –

“55.1 In any case where interference is caused by accident in any part of the race, the Stewards must apply Rules 54.5 to 54.7 to such interference in order to determine whether to order any alteration as to placings.

55.2 for the purposes of Paragraph 55.1, Rule 54.5.1 shall be read as if, for the reference to interference by careless or improper riding there were substituted a reference to interference by accident.”

 

7. The Guide provides this –

“… There are a series of factors to take into account. The questions…and Guiding Principles…provide a framework within which the Panel work in order to come to their decision. They do not provide the answer but try to ensure that the Panel addresses the correct questions when making a decision.

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 ie. 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 ie there is some doubt – proceed to question 5.

5. How easily did the interferer beat the sufferer?

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….

GUIDING PRINCIPLES

a) Dangerous Riding – the placing(s) must be altered as the interferer must be disqualified.

b) Careless, Improper or Accidental – if the Panel is satisfied that the interference improved the placing of the horse causing it, the placings must be altered.

c) The benefit of doubt should go to the horse which finished in front.

d) The Panel should have in mind that interference is likely to have impeded the sufferer to some degree and therefore a reversal of placings is more likely to follow where there is only a nose between the horses.

e) The further away from the winning post that the incident occurs, the less likely it is that the result should be changed.

f) 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.

g) The Panel must NOT make an allowance for any effect on the horse causing the interference.

h) The Panel must take into account the ease with which the interferer beat the sufferer.

i) If a horse is carried off its intended line, the effect will vary depending on the distance from the winning post.”

 

8. But as the Guide itself indicates, neither Stewards nor this Panel should get lost in the details of what it says. The core question that they have to answer is that which emerges from Rule (B)54.5 – would the sufferer have beaten the interferer but for the interference?

9. Some matters relevant for this appeal that emerge from the Rules and the guidance should be mentioned.

i) It is necessary to understand the implications of the references to establishing where the interference took place and to it being less likely that a result will be altered the further out that interference occurred (principle (e)). For this Panel, the implications are twofold. Firstly, they recognise that factors other than the interference may explain the eventual finishing positions, especially when interference has occurred some way out from the end of the race. Notably, tactical decisions by the jockeys and their actions after the interference can be an important, perhaps critical, explanation for the result. All sorts of variables unconnected with the interference itself can happen after it. Secondly, and this is a related point, they provide a warning that it can be unwise for Stewards to “over-read” what would have happened in a race after an incident of interference. The longer that remains of a race after an incident, the greater should be the caution in deciding that interference profited the offender. The Panel had to be conscious of these problems given that the first incident of interference relied upon in this appeal happened just about two furlongs from the finish.

ii) Interference which can be seen as deliberate (such as Atzeni’s manoeuvre just after the 2 furlong marker) is not treated by the Rules any differently from interference that is a result of an accident or of a jockey’s inattention or misjudgement[1]. Even deliberate manoeuvres are treated as falling within the definition of careless riding given in Rule (B)54.1, as they amount to a failure “to take reasonable steps to avoid causing interference”. The only question that needs to be answered following incidents of careless riding (which can include a deliberate manoeuvre as described above), incidents of improper riding or simple accidents is whether the resulting interference prevented the sufferer from finishing ahead of the interferer. There is plainly room for argument about whether a deliberate manoeuvre falling short of dangerous riding should be analysed in the same way as misjudgements or accidents, but the Panel must apply the Rules as they stand.

iii) It is sometimes suggested that the fundamental question to be asked is “did the best horse win”? The Panel accepted Mr Kelsey-Fry’s submission that that can be misleading. It is potentially a wider and more subjective inquiry than the Rules justify. It is in fact necessary to return always to the question stated by Rule (B)54.5 – are the Stewards satisfied (i.e. is it probable) that interference improved the placing of a horse in relation to another with which it interfered?

iv) The Guiding Principle (c) needs to be properly understood. In this Panel’s view, it does no more than refer in different words to the standard of proof which has to be applied. Unless Stewards or Panels conclude that it is probable that interference improved the position of a horse as against the sufferer from the interference, then their actual finishing positions will remain unaltered. It would be wrong to treat Guiding Principle (c) as creating some sort of presumption in favour of the horse which interferes.

 

[1] This is true for all cases except those which amount to dangerous riding. There are two gateways for a finding of dangerous riding. The first is that the riding involves either deliberate interference with another horse or rider, or riding in a way which is so bad as to amount to creating danger recklessly. The second is that the resulting interference should be “serious”, which is taken to mean interference which actually or potentially endangers life or limb of horse or rider. Nobody contended that this happened here. A finding of interference caused by dangerous riding leads to automatic disqualification of the interferer whatever its influence on the outcome of a race – Rule (B)53.3.

 

The race

10. From before the 3 furlong marker, O’Donoghue was pushing BONDI BEACH (IRE) for effort and gave him a couple of slaps with his whip on the shoulder. By the 3 furlong marker, BONDI BEACH (IRE) was making headway on the long time leader, FIELDS OF ATHENRY (IRE), as was STORM THE STARS (USA), which was about one length up on BONDI BEACH (IRE). Also making progress was SIMPLE VERSE (IRE). She was about ¾ length down on BONDI BEACH (IRE) at the 3 furlong marker but had made this up by the time of the incident 2 furlongs out, when she was more or less level with BONDI BEACH (IRE). During the run from the 3 furlong marker to the 2 furlong marker, BONDI BEACH (IRE) had been edging left, closer to SIMPLE VERSE (IRE) – or “lugging in” as O’Donoghue accepted in cross-examination by Mr McPherson. As they reached the 2 furlong point, Atzeni on SIMPLE VERSE (IRE) stopped riding for a few strides. This put the filly perhaps a head down on BONDI BEACH (IRE). He suggested that this was because he was being crowded for room by BONDI BEACH (IRE)’s move to the left. Though the leftwards path taken by BONDI BEACH (IRE) did tighten up SIMPLE VERSE (IRE), the Panel did not agree that this amounted to interference by BONDI BEACH (IRE) with SIMPLE VERSE (IRE). Atzeni took back because he was close to the heels of FIELDS OF ATHENRY (IRE) by this stage. And the Panel accepted O’Donoghue’s evidence, confirmed by the recordings, that he took steps to straighten BONDI BEACH (IRE). It was not suggested to O’Donoghue that he was deliberately trying to box in SIMPLE VERSE (IRE). But even if he did (which the Panel accepts he did not), no interference occurred. SIMPLE VERSE (IRE) was boxed in at the 2 furlong marker, but that was because SIMPLE VERSE (IRE) and BONDI BEACH (IRE) had made ground on FIELDS OF ATHENRY (IRE) and because STORM THE STARS (USA) beside FIELDS OF ATHENRY (IRE) presented a further obstacle.

11. At this stage of the race, therefore, as Mr Kelsey-Fry accurately put the case, Atzeni had three options. He could “sit and suffer”, hoping that a gap might appear ahead of him; he could take back further to go behind BONDI BEACH (IRE) and begin a run on BONDI BEACH (IRE)’s right (the stands side); or he could do what he in fact did which was to manoeuvre out between STORM THE STARS (USA) and BONDI BEACH (IRE). He chose that last route, and in so doing SIMPLE VERSE (IRE) bumped BONDI BEACH (IRE) and carried BONDI BEACH (IRE) marginally right off a straight line for a few strides. This caused interference to BONDI BEACH (IRE). Atzeni accepted this, and did not appeal his three-day suspension for careless riding. But how serious was the effect on the sufferer? BONDI BEACH (IRE) changed legs, but O’Donoghue never stopped riding and within five strides O’Donoghue was increasing his efforts and using his whip behind. The Panel accepted that this incident created some loss of momentum for BONDI BEACH (IRE) while O’Donoghue rebalanced him. From having been down on BONDI BEACH (IRE) just before the manoeuvre, SIMPLE VERSE (IRE) moved ahead of him by a head or neck (depending on stride pattern) within about 30 or 40 yards. Part of this change of relative position was no doubt attributable to the effect of the interference suffered by BONDI BEACH (IRE). But the principal reason for it was, in the Panel’s view, because SIMPLE VERSE (IRE) was travelling better than BONDI BEACH (IRE) and having gained daylight (albeit through interference) was able to assert that advantage.

12. Mr Kelsey-Fry advanced the interesting argument that the net effect of this interference was not merely a gain by SIMPLE VERSE (IRE) of an advantage of a head or a neck, but as much as 1¾ lengths. He said that SIMPLE VERSE (IRE)’s only legitimate course (aside from “sitting and suffering”) was to drop back and come around to the right hand side of BONDI BEACH (IRE) to challenge, which would have lost her more than a length on top of what he said she gained from the interference. But that was asking the Panel to apply a criterion which the Rules do not require – i.e. what could have happened to SIMPLE VERSE (IRE) if she had been ridden in accordance with the Rules. The correct test stipulated by the Rules is to look solely at the effect on BONDI BEACH (IRE) of the interference in question. As indicated, this effect was limited, and it cannot even be viewed as amounting to the head or neck which separated them after the incident, because this was in substantial part due to the fact that SIMPLE VERSE (IRE) was going better at this stage of the race. There is then a further discount to be made for the fact that the incident happened so far out from the finish. Neither BONDI BEACH (IRE) nor SIMPLE VERSE (IRE) were at full stretch and the natural variables of racing that could occur over the remaining distance – almost 2 furlongs – provide a further caution against carrying forward the distance lost by BONDI BEACH (IRE) to apply against the eventual margin between them at the line (a head, which was about 12-15 inches to judge from the photograph).

13. The race continued without further relevant incident so far as the Rules are concerned until about ½ a furlong out. STORM THE STARS (USA) went ahead of FIELDS OF ATHENRY (IRE) 2 furlongs out and moved to the rail. But BONDI BEACH (IRE) and SIMPLE VERSE (IRE) were both improving and headed STORM THE STARS (USA) just inside the final furlong. Throughout this passage of the race, SIMPLE VERSE (IRE) remained sometimes a head, sometimes a neck up on BONDI BEACH (IRE), depending on stride patterns. Just before the ½ furlong marker, BONDI BEACH (IRE) again edged left and tightened up SIMPLE VERSE (IRE), but again the Panel absolved O’Donoghue of causing interference as Mr McPherson suggested. No evidence of a bump to SIMPLE VERSE (IRE) can be seen on the recordings just prior to the incident at the ½ furlong point. Using his whip in his left hand, Atzeni gave SIMPLE VERSE (IRE) a hit and she responded positively, but also edged right and again bumped BONDI BEACH (IRE). This did not appear to cause any unbalancing of BONDI BEACH (IRE) or any real effect on BONDI BEACH (IRE)’s effort. O’Donoghue continued to ride strongly. The only disadvantage he identified was that he was carried off his racing line, but the Panel viewed the effect of this as very limited and of short duration. The Doncaster Stewards characterised this as accidental interference and this Panel agreed. But even if one takes this incident as culpable on Atzeni’s part, it makes no difference to the analysis.

14. SIMPLE VERSE (IRE) and BONDI BEACH (IRE) continued to battle to the line with the distance between them remaining pretty much constant. The Doncaster Stewards observed that the eventual margin was “a diminishing head”, but having studied the recordings for much longer than was available to the Stewards on the day, the Panel did not agree. The margin remained much the same after the incident at the 2 furlong marker. Mr McPherson floated the suggestion that BONDI BEACH (IRE) showed some reluctance to go past SIMPLE VERSE (IRE). The Panel did not agree with that on the evidence of the recordings it saw. Both horses and both jockeys were doing their utmost. It appeared to the Panel that SIMPLE VERSE (IRE) remained ahead after the winning post, though the recordings only give a limited sight of this. Further, the relative body positions of Atzeni and O’Donoghue stayed pretty constant during the closing 2 furlongs, and generally show that Atzeni was more than 12-15 inches ahead throughout their duel. The margin of the line may have been just 12-15 inches, but it was perhaps shortened by the two horses’ respective stride patterns at that point.

 

 Conclusions

15. The Panel was not therefore persuaded that BONDI BEACH (IRE) would have finished ahead of SIMPLE VERSE (IRE) if the two instances of interference had not happened. Whether one takes those incidents individually or cumulatively, they did not cost BONDI BEACH (IRE) the race.

16. While that conclusion has been reached by addressing the five questions set out at page 16 of the Guide, it helps to summarise the answers –

1) Where did the incident take place in relation to the winning post? There were two incidents, the first at the 2 furlong marker and the second just ½ furlong out.

2) How were the horses involved in the interference going at the time of the incident?

At the time of the first incident, SIMPLE VERSE (IRE) was under noticeably less pressure from her jockey than BONDI BEACH (IRE), was travelling better, and when getting daylight after the incident was able to move ahead of BONDI BEACH (IRE). At the time of the second incident they were maintaining the margin between them, and this interference did not alter that.

3) How serious was the interference i.e. how much momentum did the sufferer lose and and/or how much ground was lost?

The first incident did have some effect on BONDI BEACH (IRE), who was unbalanced by it for a few strides and lost some ground on SIMPLE VERSE (IRE) as a result. But the difference in their relative positions before and after the incident was primarily explained by SIMPLE VERSE (IRE)’s capacity at this point of the race to move ahead of BONDI BEACH (IRE). The second incident had a negligible effect on BONDI BEACH (IRE).

4. If the sufferer had had an uninterrupted run to the line, might it have finished in front of the interferer?

Given the closeness of the race, the Panel recognised the possibility that BONDI BEACH (IRE) could have won. But given the standard of proof, which required the Panel to conclude that BONDI BEACH (IRE) probably would have won, that possibility is not enough.

5. How easily did the interferer beat the sufferer?

This question raises just one consideration among many in coming to an ultimate conclusion on the appeal. SIMPLE VERSE (IRE) maintained a constant lead over BONDI BEACH (IRE) after the time of the first incident, and always seemed capable of maintaining the lead she held at the line. Though all out to win, she was put under less pressure by Atzeni than was BONDI BEACH (IRE) by O’Donoghue. Atzeni used his whip just 5 times during the race; O’Donoghue used his by more than the permitted maximum and received a whip ban. (The Panel refers to this as an indication of the relative pressure that each horse was under. There is no disguised penalty being applied to BONDI BEACH (IRE) in this placings appeal because of the whip ban for O’Donoghue).

17. As a result the appeal was allowed. The alteration to placings made on the day at Doncaster was corrected so that SIMPLE VERSE (IRE) was placed first and BONDI BEACH (IRE) was placed second. It follows from this decision that the deposit put up as a condition of bringing this appeal is returned.

 

Notes to editors:

1. The Panel for the hearing was: Timothy Charlton QC (Chair),  Celina Carter, Ian Stark.