Disciplinary Panel reasons regarding Pat Cosgrave

28 Jul 2014

1. On 10 June 2014, the Disciplinary Panel of the British Horseracing Authority (BHA) heard an application by the jockey Pat Cosgrave for a direction that a four month suspension imposed on him by the Emirates Racing Authority (ERA) should not be reciprocated in Great Britain. This Panel is the body to which the BHA has delegated the hearing of applications under Rule (A)69 to challenge suspensions imposed by racing authorities abroad.

2. Cosgrave was suspended following his ride of ANAEROBIO (ARG) in the Group 1 Jebel Hatta at Meydan on 8 March 2014. He was originally suspended by the ERA Stewards for six months from 18 March 2014 for improper riding. He appealed to the ERA Appeal Panel, who heard the matter on 28 April. On 4 May 2014, the ERA Appeal Panel announced its decision. It upheld the finding of improper riding (being contrary to Rule 69 (i) of the ERA Rules), but reduced the suspension to 4 months expiring on 17 July 2014. Written reasons for the decision were issued on 13 May 2014. On the same day, the ERA wrote to the BHA requesting reciprocation of penalty.

3. Cosgrave then launched his application to challenge reciprocation. Pending the full hearing, the operation of the ERA penalty was itself suspended by direction of the Chairman of this Panel. It was left for argument at the hearing as to whether that period in which the ERA penalty was held in abeyance should be “added on” after 17 July in the event that this Panel rejected Cosgrave’s application.

4. Cosgrave’s case was presented by Graeme McPherson QC and the BHA was represented by Lyn Williams. As well as their helpful oral submissions, the Panel had the benefit of thorough and thoughtful written submissions on the issues arising.

5. The first consideration for this Panel was to identify the proper approach to its task.

6. Rule (A)69.2 of the Rules of Racing has the effect that a suspension imposed by a Recognised Racing Authority is automatically effective in Great Britain unless and until a decision is made not to reciprocate it. The ERA is a Recognised Racing Authority.

7. Rule (A)69.3 gives the BHA a discretion not to reciprocate, and as already said the exercise of that discretion has been delegated to this Panel. While the scope of the discretion is not limited by the terms of Rule (A)69.3, it seems clear to the Panel that it has to be read and understood against the background of Article 10 of the International Agreement on Breeding Racing and Wagering (the “International Agreement”). This Article sets out the terms agreed by nearly all the world’s racing authorities about disciplining riders. For instance, it prescribes “minimum rights” for riders who are subject to disciplinary process, such as having adequate time to prepare a defence, the right to examine and call witnesses, and a right to legal representation (Article 10 III). Article 10 IV provides for the automatic reciprocation of suspensions imposed by one country in the country where the rider’s licence is issued, “subject to the domestic rules of racing made in furtherance of Article 10 ter below”.

8. Article 10 ter then states a requirement that signatories should include in their domestic rules provisions which mirror a “Model Rule” set out within the Article. Though Rule (A)69 does not follow exactly the wording of the Model Rule, it is designed (in fewer words) to give effect to it. And it appears from the whole of Articles 10, 10 bis and 10 ter that the only objection to automatic enforcement of a foreign suspension which should be countenanced is that it was imposed in contravention of “the laws of natural justice”.

9. As the ERA (like the BHA) is a full signatory to Article 10 of the International Agreement, the Panel concluded that it should only exercise its discretion to refuse reciprocation if persuaded by Cosgrave that “the laws of natural justice” had not been respected in the proceedings which led to his suspension before the ERA. In this respect, the approach of the Panel is different from and narrower than that adopted in the recent cases of Hughes and Dwyer, where the foreign authority imposing the suspension had not signed up to the entirety of Article 10.

10. What is meant by “the laws of natural justice”? The Panel interpreted this to refer to the twin requirements of a fair procedure, namely (i) a fair opportunity to respond to an allegation of breach of the local rules and (ii) the right to be heard by an unbiased tribunal. The first of those requirements – the fair opportunity to respond – has as a minimum the specific rights described in Article 10 III for an appeal hearing or hearing of a reference by the Stewards of a meeting.

11. Applying that guidance, it was apparent to the Panel that a number of the objections to reciprocation raised on behalf of Cosgrave were of a different character. Thus, ground 2 of Cosgrave’s application was a submission that the ERA’s decision (both original and on appeal) did not accord with the ERA Rules. It was argued that the finding of improper riding contrary to ERA Rule 69 (i) was not supportable on the evidence and that it was a disguised finding of a breach of ERA Rule 68 (iii) – the non-trier rule. The Panel refused to go down the road of analysing this argument. It was not open to Cosgrave on the Panel’s view of the scope of its discretion. The interpretation of the ERA’s Rules is a matter for the ERA and not for this Panel.

12. Similarly, grounds 3A and 3B of the application were not objections that it was necessary to address in detail. It was argued that (i) the ERA’s original and appeal decisions were “perverse” – i.e. illogical and at odds with the clear facts and (ii) the penalty was “perverse” – i.e. it was not a penalty for improper riding in breach of ERA Rule 69 (i) but really a penalty appropriate for a non–trier. This Panel refused to trespass on such territory – questions and arguments about the facts of the case and about an appropriate penalty were pre-eminently matters for the ERA.

13. Therefore, only ground 1 of the application was in principle arguable. This alleged (i) procedural flaws in the hearings before the ERA Stewards, which culminated in the finding that Cosgrave was guilty of improper riding and would be suspended for 6 months, and (ii) procedural flaws in the appeal hearing which confirmed the finding of improper riding on a different factual basis and reduced the suspension to 4 months.

14. The Panel rejected the complaints about the conduct of the hearings before the ERA Stewards. It was said that the questioning of Cosgrave by Mr John Zucal, the Chairman, was excessively “accusatory” and that his mind was made up before hearing all the evidence. Having studied the transcript of that hearing, this Panel saw robust questioning and expressions of views by Mr Zucal, but nothing that came near to crossing the line into unfairness. In any event, it appears that the allegation of bias against Mr Zucal was withdrawn at the hearing before the Appeal Panel. Nor was this Panel persuaded that there was any failure to explain to Cosgrave the nature of the case he had to meet, either in relation to the facts of his riding or in relation to the ERA Rule whose breach was being considered. This last objection was in truth an attack upon the reasoning of the ERA Stewards when considering and later finding that Cosgrave was guilty of improper riding. As such, it is not a procedural complaint of unfairness. It is an attack on the validity of the ERA Stewards’ conclusions (i) that Cosgrave deliberately shifted away from the rail position he had at the front of the field when entering the straight, giving a clear run to the eventual first and second placed horses; and (ii) that this constituted improper riding. It has already been explained that objections of this kind are not appropriate for this Panel, which will not go behind the decisions about the facts and the local rules reached by the overseas stewards.

15. There were alleged to be two basic flaws in the appeal process. It was said that Mr Zucal’s participation in the appeal hearing was objectionable. And secondly it was argued that the nature of the appeal hearing itself – in particular whether it was a review process or a rehearing – entailed unfairness.

16. The Panel rejected the complaint about Mr Zucal’s role in the appeal hearing. It was said that he acted both as prosecutor and as a witness before the Appeal Panel. It is clear from the transcript of the hearing that he did present a variety of arguments and assertions both of fact and of his opinions to the Appeal Panel. This procedure has echoes for this Panel of the way in which hearings were conducted in Great Britain until about 10 years ago, when Stipendiary Stewards would appear before the Disciplinary Panel at Portman Square to present and argue cases when they had been involved in the decision at the racecourse which was under appeal. That procedure was changed, in part because of the preference here for the “prosecutor” to be independent of the decision-making process at the racecourse. But it does not follow from that that the ERA’s procedure was flawed because it allowed Mr Zucal to take the part he did before the Appeal Panel. It is not alleged that he did or said anything, either as the presenter of arguments or by expressing of his own views, which he was not entitled to put forward. Nor is it suggested that the Appeal Panel was improperly swayed to reach the conclusions it did because he was the Chairman of the Stewards whose decision was being appealed. On the contrary, the transcript of the hearing and the Reasoned Decision of the Appeal Panel show that they approached Mr Zucal’s submissions and evidence with independent minds. The clearest indication of that comes from their eventual conclusion on the critical moment in the race. The Appeal Panel decided that Cosgrave’s move away from the rail when entering the straight was not a deliberate manoeuvre, as the ERA Stewards had decided. It was held that Cosgrave gave the horse its head coming off the turn and did not correct its shift away from the rail. They further held that this amounted to improper riding under the ERA Rules: they said that the horse “had a history of coming off the rails when in a winning position” as, they believed, Cosgrave knew. This major difference between the decisions of the Appeal Panel on the one hand and the ERA Stewards on the other hand is an important indicator to this Panel that no unfairness was in fact suffered by Cosgrave through Mr Zucal’s participation in the appeal process.

17. The second objection to the conduct of the appeal process (the review or rehearing point) was upheld by this Panel. It arises in this way. The ERA Rules provide (by Rule 84 ix) –

“The Appeal shall, unless the Appeal Panel has otherwise ordered on a prior application, be by way of a review only of documents and video evidence considered at the original hearing. The Appeal Panel shall hear new evidence only where it has given leave following application to it that it may be presented. An application for leave to present new evidence must be made in the Appeal or the Reply, setting out the nature and relevance of the new evidence, and why it was not presented, or could not reasonably have been obtained and presented, and the original hearing. Save in exceptional circumstances, the Appeal Panel shall not grant leave to present new evidence.”

18. Cosgrave and his representatives prepared for a hearing of the kind contemplated by that Rule – i.e. a review of the evidence before the ERA Stewards. There was no application by either side to expand the appeal to allow new evidence or to allow a general rehearing of evidence, old and new. Prior to the hearing, the Appeal Panel indicated that it wished to explore the issues in the Appeal “to the full extent it deems appropriate in the interests of both parties, and accordingly wishes to do so with Mr Zucal, without limitation, and similarly with the Appellant.” But that was not a direction that seems to have been intended or understood as a general opening up of the appeal hearing to constitute a rehearing rather than a review.

19. It might be thought that the appeal regime established by ERA Rule 84 (ix) is in itself contrary to Article 10 III of the International Agreement, which requires that a rider should have the right to examine witnesses against him and to call his own witnesses on an appeal from Stewards of a meeting – i.e., to have a rehearing. However this point was not argued before this Panel, perhaps because the ERA Appeal Panel eventually decided to remove the restrictions of Rule 84 (ix) in their entirety for Cosgrave’s case. The real thrust of the submission on Cosgrave’s behalf was that he did not get a fair chance to take advantage of the Appeal Panel’s relaxation of Rule 84 (ix).

20. When the hearing began on 28 April 2014, there was some preliminary discussion between the Appeal Panel and Mr Crockett (counsel for Cosgrave) about the nature of the hearing to be held. Mr Crockett stated his understanding that the appeal was to be a review rather than a rehearing. The Chairman of the Appeal Panel affirmed his approach: the hearing was to be a review, but questions might be asked of Cosgrave or the Stewards if thought fit. So there was no notification through this exchange of the Appeal Panel’s intention to broaden the appeal and allow a general rehearing: on the contrary it was to remain a review.

21. Yet when the Reasoned Decision was published, it contained this in Section D at paragraph –

“the Appellant, by reference to Rule 84 (ix), appears to seek to restrict the Parties to a review of documents and video evidence given at the Stewards’ Inquiry, together with permitted new evidence. As indicated above, and given the lengthy SGA containing detailed submissions, and the new evidence, and also the exceptional Punishment imposed by the Stewards in what appears to be the first hearing by the Stewards of an Offence of this nature in recent UAE riding history, to try to restrict the Parties in this way, and effectively segregate and disallow submissions and evidence would not assist the Panel or the Parties as to a fair conclusion. The Appealed matter is exceptional, and any restriction that the Appellant may find in rule 84 (ix) is, in consequence, opened up and removed in this particular case.”

22. It seems, therefore, that the Appeal Panel had decided to remove all restrictions on calling evidence before it. But that was not notified or explained before or at the hearing to Cosgrave. If it had been, the Panel has no doubt that he would have called Mike de Kock (the trainer of ANAEROBIO (ARG)) and perhaps also C Soumillon (the rider of the winner, also trained by Mr de Kock but in separate ownership) to give their evidence live before the Appeal Panel. It is impossible to say just what evidence they would have given, and with what effect upon the thinking of the Appeal Panel. The BHA submitted to this Panel that their evidence is likely to have been the same as before the ERA Stewards and that it is likely therefore to have been received in the same way by the Appeal Panel. But that is a forecast which this Panel cannot share: who knows how the Appeal Panel might have questioned Mr de Kock and Soumillon, or with what result. They plainly had highly material evidence to give. Mr de Kock would have been an important witness on a new, central issue eventually decided against Cosgrave – namely the propensity of ANAEROBIO (ARG) to shift away from the rail towards the end of the race. And both Mr de Kock and Soumillon would have had much to say about the Appeal Panel’s observation that “[it] found it hard to believe the varied denials of pre-race discussions made by the Appellant, Soumillon and their trainer Mr de Kock. The Panel imagines that jockeys riding horses from the same stable and with a mutual trainer may well have had pre-race discussions as to the form and characteristics of the horses being ridden.”

23. Again, this Panel does not seek to usurp the role of the Appeal Panel to decide these questions: it does however decide that Cosgrave was not given a sufficient chance to present evidence to the Appeal Panel which could have had an effect on their conclusions. This deficiency arose in the circumstances already described – the general lifting of the restrictions imposed upon the nature of an appeal hearing by Rule 84 (ix) was not notified to the parties before this was set out in the Reasoned Decision published after the hearing.

24. This Panel therefore decided that there had been a failure to observe one aspect of the requirements of natural justice and accordingly refused to reciprocate the penalty imposed upon Cosgrave by the ERA.


Notes to editors:

1. The Panel for the hearing was: Timothy Charlton QC (Chair), Lucinda Cavendish, William Barlow.