Result of an appeal (M Ennis & I Pickard) heard by the Disciplinary Panel on Thursday 29 October 2015
1. On Thursday 29 October 2015 the Disciplinary Panel of the British Horseracing Authority (BHA) heard an appeal lodged by Imogen Pickard the trainer and Mikey Ennis the rider of PRIVATE JONES in the Lewis Badges Handicap Chase (Class 4) at Worcester on 14 October 2015. The appeal challenged the findings of the Worcester Stewards that Ennis was in breach of Rule (B)58.1 in the way described in Rule (B)59.2 – that he had intentionally failed to ensure that PRIVATE JONES had run on its merits. The trainer’s appeal was against the finding that she was in breach of Rule (C)45.4, as she had failed to satisfy the Stewards that she had given instructions necessary to ensure that her horse ran on his merits. The Worcester Stewards considered that PRIVATE JONES was being given a schooling run. They suspended Ennis for 14 days and fined Miss Pickard £3,000. They also suspended the horse for 40 days.
2. The hearing before this Panel operated as a rehearing. Rory Mac Neice represented Ennis while Miss Pickard was represented by Roderick Moore. The BHA’s case was presented by Lyn Williams.
3. PRIVATE JONES is a six-year-old gelding, and was having its second ever outing over fences. On the first race, a novice handicap at Sedgefield on 29 September 2015, he unseated Robert Dunne (who had ridden him six times before) at the fifth fence. The Worcester race was a step up in class from the Sedgefield outing, PRIVATE JONES was 1lb out of the handicap and due to compete against much more seasoned performers. Though Miss Pickard said she had hopes of beating some in the field of six, the Panel saw this as a surprising race to enter a second-time performer over fences which had unseated his rider early in his only previous attempt. It was selected, the Panel concluded, because her main focus was upon giving PRIVATE JONES another experience over fences on suitable ground and on a track that, as she told the Worcester Stewards, “is flat and easy, nice.”
4. Ennis (a 5lb claimer) had never ridden the horse before, and this was his first ride in a chase in the 2015-16 season. His instructions from Miss Pickard were to “drop the horse out, take my time, give him plenty of light and get him jumping”, as he told the Worcester Stewards. Miss Pickard agreed those were the instructions during the Steward’s enquiry, and added that she told him to tuck in between fences and round the bends. But before the Panel, she said that she had not told him to take his time or get the horse jumping. The Panel did not accept this subsequent revision of her earlier evidence. The suggestion that she was somewhat overawed when attending her first ever running and riding enquiry was inconsistent with her confidence before the Panel also with the transcript of the Worcester enquiry, which shows she spoke at length and intervened whenever she felt she had something to say.
5. The race presented a striking spectacle from the outset. After the starter dropped the flag, the field remained stationary for 62 seconds as nobody wished to make the pace. They then set off at little more than a canter for the first four fences in the straight. PRIVATE JONES was not the back marker, but, like one or two other runners, was fighting for his head and jumped awkwardly. He maintained his position round the first bend and in the back straight until the seventh fence, which he ballooned. This cost ground and by the eighth he was three lengths adrift. After the eighth the field quickened, though not dramatically, and in the long run round the bottom bend he lost further ground. Ennis made no effort at all around that bend and he was about 10 lengths down on the next-to-last horse when jumping the ninth. He jumped that fence poorly, with Ennis causing him to slow and put in extra strides as he approached it. Thereafter, he hack cantered to the finish, jumping the three remaining fences slowly, deliberately and awkwardly. PRIVATE JONES was 28 lengths adrift of the fifth horse and 43 lengths behind the winner.
6. All in all, there was never at any stage a semblance of the “timely, real and substantial effort” that the Rules require. The Panel reached that view without reference to the evidence of Yogi Breisner criticising the ride, which Mr Moore for Miss Pickard sought to introduce. This was excluded by the Panel in exercise of its discretion because Mr Breisner was not available for cross-examination; because his analysis could easily enough be deployed by Mr Moore in cross-examination of Ennis; and because in a straightforward running and riding appeal such as this, the proportionate approach was for the Panel to take its own view of the quality of the ride from the other evidence and arguments presented.
7. At the outset of his case on behalf of Ennis, Mr Mac Neice accepted that his client had not made any timely real or substantial effort. Ennis’s evidence was to the same effect. But it was said that this did not establish breach in this case because PRIVATE JONES achieved his best possible placing, which was last, and that the reason for not making the effort required by the Rules was that if Ennis had ridden with any vigour and sought to jump fences at a competitive pace after the eighth, he would have fallen.
8. Mr Williams for the BHA suggested to Ennis in cross-examination and argued that Ennis only had two options from the eighth: either put in the effort the Rules require or pull up. In the vast majority of cases, (and in fact in this one), the Panel accepted that those are the only two courses open to a rider. Mr Mac Neice’s retort was that there can be acceptable reasons for not making the usual necessary effort, yet still riding to the finish. Though initially sceptical of this proposition, the Panel did recognise that this might happen when a rider is actually prevented from making an effort, for instance because his horse is hemmed in and unable to deliver a challenge. (Such a situation might raise other issues about how and why he got hemmed in, and why he was unable to extricate himself). But that is quite different from the present case. Ennis could have put in an appropriate challenge, but did not do so because he felt that he risked falling. Of course, if any welfare reason had supported that view, his obligation was to pull up at once. But nobody suggested that there was any welfare problem, least of all Ennis. Similarly, if a jockey finds himself riding a horse whose jumping is so bad that he legitimately judges it to be a danger to itself, to him or perhaps to others if it competes properly in a race, then again he should pull up rather than complete the race distance at his leisure. In the present case, PRIVATE JONES put in some awkward jumps, but was by no means causing danger. And there was no excuse for the failure to try in the long run (almost 3 furlongs on the flat) between the eighth and ninth.
9. So the Panel concluded that Ennis was in breach of his obligation to ride PRIVATE JONES on his merits. This was a breach which fell within Class 1 described in Rule (B)59.2 – an intentional breach. Ennis was not prevented from making timely real and substantial efforts: he chose not to. He lost sight of his basic obligation to compete and concentrated upon getting PRIVATE JONES to complete the race safely. To say, as he did, that his best possible placing was last, which he achieved by finishing the race, and thus fulfilled his obligation to compete ignores that part of Rule (D)45.1 which requires effort to be made, and be seen to be made. Nobody is entitled to settle for last (or for any other placing) without making an effort to compete, unless some external factor prevents that effort being made.
10. Having concluded that Ennis intentionally failed to ensure that PRIVATE JONES was run on his merits, the next question is whether Miss Pickard was also deemed to be in breach by Rule (C)45.4. That depended upon whether she could satisfy the Panel that she gave appropriate riding instructions but that Ennis failed to comply with them (see Rule (C)45.5). In front of the Worcester Stewards, Miss Pickard did not attempt to prove this. On the contrary, she repeatedly expressed her satisfaction with the ride and with Ennis’s compliance with her instructions. But before the Panel, her approach changed. She became highly critical of the ride, especially of Ennis’s restraint of PRIVATE JONES before fences and of the lack of effort after the eighth fence. As already noted, the Panel rejected her revised evidence about the instructions she gave. So did she persuade the Panel that she gave instructions which Ennis did not follow? The Panel accepted in principle Mr Moore’s argument that a trainer’s instructions can be express or implicit, so that it is not necessary for example for a trainer to say, in every case – “of course you must at some stage make a timely real and substantial effort”. But it is equally the case that express instructions can give a jockey a different impression of what is really required of him, and that is what happened here. Her emphasis upon the need for the gelding to be moved out for a clear sight of the fences, to take time and to get him jumping all fitted in with a schooling run, as did her immediate, less calculated, responses to questions from the Worcester Stewards. She told them more than once that Ennis had done well to get the horse round. Though Miss Pickard explained that she became critical of the ride after having more time to study recordings at home than she had in the enquiry room, the Panel took her answers before the Worcester Stewards as a more reliable guide to what she wanted above all else for PRIVATE JONES from the race – a safe round of jumping. This was a classic instance of using the racecourse as a training ground for a schooling run. The Panel did however accept her case that factors other than her instructions may have contributed to Ennis’s performance. This was Ennis’s first ride in a chase for the season and his mind was in part on an important flat ride he was due to have three days later at Ascot on Champions Day. But Miss Pickard’s allegation that Ennis was scared was rejected – he was justifiably uncertain about PRIVATE JONES’s abilities, and inconvenienced by the very slow early pace.
11. The lack of even a semblance of effort from the eighth, when in an adequate position to challenge and to see what PRIVATE JONES could produce, was a serious breach of Ennis’s obligations. In principle, that justified increasing the suspension above the 14 day entry point. But the difficulties of the ride experienced by Ennis in the early part of the race lead the Panel to leave his suspension at the 14 day level.
12. For Miss Pickard, the Panel recognised that her instructions were a substantial cause, but not the only cause, of the excessive caution of Ennis’s ride. The fine was therefore reduced below the entry point to £2,500. It follows from this decision that, having been partially successful in her appeal, her deposit is returned.
13. The admission by Ennis, at the outset of his appeal, that he had not made any “timely real and substantial effort” made it initially difficult to understand why an appeal was being pursued. Nor did the excuse offered for this – that the horse’s jumping was too untrustworthy to be attempted at racing pace – find any favour. Nevertheless, the Panel decided to return his deposit because the appeal did raise arguable points about the circumstances in which a jockey might in principle excuse a failure to make appropriate effort.
14. The Panel found Ennis in breach of Rule (B)59.2 and confirmed his suspension of 14 days from Wednesday 28 October 2015 to Tuesday 10 November 2015 inclusive.
15. The Panel also confirmed the 40 day suspension from running of PRIVATE JONES from Saturday 17 October 2015 to Wednesday 25 November 2015 inclusive.
Notes to editors:
1. The Panel for the appeal was: Philip Curl (Chair), Diana Powles, Timothy Charlton.