21 Oct 2013 Pre-2014 Releases

1. On 9 October 2013, the Disciplinary Panel of the British Horseracing Authority (BHA) heard an application by Martin Dwyer, a licensed jockey, for a direction under Rule (A)69.3 of the Rules of Racing that a suspension from riding imposed upon him in India should not be reciprocated in Great Britain. Prior to the hearing, the Panel members were provided with detailed written submissions on behalf of Dwyer prepared by Graeme McPherson QC (instructed by Andrew Chalk), and they both attended to put Dwyer’s case at the hearing on 9 October. The BHA also put written submissions before the Panel and was represented by Lyn Williams at the hearing to explain the BHA’s position.

2. The riding ban was imposed by the Royal Western India Turf Club (RWITC), one of the regulatory authorities responsible for Indian racing, on 7 September 2013. It was in respect of Dwyer’s ride on ICE AGE in Race 210 at Mahalaxmi on 17 February 2013. He was found not to have permitted the filly to run on her merits, and suspended for 56 days, from 9 September until 3 November 2013 (both days inclusive).

3. The RWITC promptly lodged a request for reciprocation of this penalty with the BHA and shortly afterwards supplied a file of papers setting out the rather tangled procedural history of Dwyer’s case in India. Dwyer challenged reciprocation on two bases – firstly that he was treated unfairly at a number of stages of the consideration of his case by the RWITC and secondly (if he failed in that first objection) on the ground that the decision that he had not ridden the filly on her merits was “perverse”.

4. The BHA’s position, announced in its written submissions, was that there had been some unfair aspects of the way Dwyer was dealt with by the RWITC. They identified two matters in particular. Firstly it was pointed out that immediately after the race, ICE AGE was declared by the Stewards to be a non-runner, so that all bets on her were refunded. It was said that this pre-emptive finding assumed that Dwyer had ridden her improperly before he was given an opportunity to explain himself, and that all stages of the disciplinary process against Dwyer were thereafter tainted because the impression was created that findings against him were made in order to support that original non-runner decision. Secondly, it was said that the evidence about the hearing held on 7 September 2013 revealed that the Chairman of the RWITC Board of Appeal had expressed an opinion about the case before it began which gave an appearance of bias.

5. Dwyer’s attacks on the procedures followed by the RWITC and upon the decision were much more extensive. He identified eight aspects of the case occurring before the 7 September hearing which were said to show unfair treatment and to justify non-reciprocation of the penalty eventually imposed on 7 September. He also complained about pre-hearing expressions of views by the Chairman of the Board of Appeal on 7 September, and about two other features of that hearing. He further argued that the decision was “perverse”. This last ground for his Application was not developed at the hearing before this Panel because it proved unnecessary to do so. The Panel first heard argument on the objections to the fairness of Dwyer’s treatment and concluded that one aspect of this was made out.

The approach and role of this Panel

6. The request to reciprocate from the RWITC was contained in a standard form prescribed for use between racing authorities that have agreed to apply Article 10 of the International Agreement on Breeding, Racing and Wagering. But Indian racing authorities have not agreed to be bound by the entirety of Article 10. They do not accept Article 10 III, which sets out minimum rights to be afforded to riders who face proceedings before disciplinary panels and appeal boards. One of these rights is to legal representation. The RWITC, in common with other regulators in India, does not permit that. It follows that the automatic reciprocation of penalties that the Article provides for does not operate in the case of a suspension imposed in India.

7. It was no part of Dwyer’s case before the Panel that the lack of a right to legal representation made his treatment unfair and should lead to a refusal to reciprocate – correctly in the Panel’s view for reasons given in the decision in Richard Hughes’ case in April 2012.

8. The BHA’s Rules provide for reciprocal enforcement of penalties imposed by “Recognised Racing Authorities” whether or not they are full signatories of Article 10 of the International Agreement. The RWITC is a Recognised Racing Authority (see Schedule (A)8). Therefore, Rule (A)69 of the BHA’s Rules of Racing governs this case. It provides:
“69.1 This Rule applies where a Jockey or a person who holds an amateur rider’s permit granted by the Authority has been suspended from riding by a Recognised Racing Authority.
69.2 The Jockey or amateur rider must not ride in any race on any day when such suspension is effective.
69.3 The Authority may
69.3.1 on the application of a Jockey or amateur rider, direct that Paragraph 69.2 shall not apply to him….”

9. Rule (A)69.3 gives a general discretion to decide that a suspension imposed abroad should not apply here. In Richard Hughes’ case, the Panel sought to give guidance about how that discretion might be exercised and identified three types of case where reciprocation could be refused –
(i) where the procedure followed abroad was materially unfair – i.e. cases where there has been a failure to observe “natural justice”.
(ii) where the result reached abroad does not accord with the Rules operated by the relevant authority abroad.
(iii) where the result reached by the authority abroad, though in accordance with its Rules, is nevertheless seen as “perverse” – i.e. a result which is so illogical or at odds with the clear facts that it should not be respected here.

10. In the present case, it was not suggested that this guidance was wrong, and the Panel decided to apply it. Dwyer’s objections to reciprocation fell within categories (i) and (iii) above.

11. Thus, it is no part of the Panel’s role to retry the case which the RWITC decided, or to substitute its view of the right result for that reached by the RWITC. Only in the exceptional case of an allegedly perverse result would it be appropriate for this Panel to analyse the reasoning and result arrived at by a regulator abroad. Though this was Dwyer’s contention here, it proved unnecessary for the Panel to go down this route, and it declined for instance to look at recordings of the race.

12. At the outset of the hearing, the Panel explored the implications of the BHA’s admission that some of Dwyer’s objections to reciprocal enforcement were well founded. It was not said by either party that the Panel was bound to accept this and to act as a rubber stamp for the BHA’s admission. The Panel therefore proceeded upon the basis that it had an independent judgement to reach by its own exercise of the Rule (A)69.3 discretion.

The course of events in India

13. In the race at Mahalaxmi on 17 February 2013, Dwyer’s filly ICE AGE was a strong favourite. She finished third after taking what all agree was an erratic course throughout the six furlong race, though she was apparently finishing faster than the other runners. Immediately after the finish, Dwyer dismounted because he was concerned about her. She was found to have bled, and Dwyer had blood on his breeches. Almost immediately, and before Dwyer had returned to the weighing room, a Stewards’ Enquiry was held at which ICE AGE was declared to be a non-runner, so that all bets were returned.

14. The Stipendiary Stewards conducted interviews of Dwyer and the trainer, Mr C D Katrak, some time afterwards. Transcripts of these were prepared. They were put before the Stewards’ Enquiry that was eventually held on 21 March 2013, which Dwyer attended along with his spokesman, Mr S Padmanabhan, a trainer in India. The Stewards concluded that Dwyer had prevented the filly from running on her merits throughout the race, and (by a majority) decided to impose a suspension of 56 days. A minority had advocated a longer penalty.

15. Dwyer appealed this decision. A Board of Appeal was convened in early April, it is believed, and it seems that it ordered a new hearing at which Dwyer would be able to question further witnesses.

16. In the interim, the Stipendiary Stewards conducted further investigations themselves with renewed questioning of the trainer, Mr Katrak; plus questioning of two of his stable staff and of Mr Katrak’s vet, Dr P T Khambatta. The focus of this was the filly’s well-being before the race and Mr Khambatta’s diagnosis of an EIPH Grade 2 bleed shortly after her previous race.

17. The second Stewards’ Enquiry took place on 12 August 2013. All the Stewards who sat on this enquiry had also sat on the first occasion. Dwyer was not able to be present, but his spokesman Mr Padmanabhan represented him. It appeared to this Panel from the record of the enquiry that Dwyer was represented capably and with thoroughness by Mr Padmanabhan. A number of witnesses were heard. The outcome was again a finding that Dwyer had not allowed ICE AGE to run on her merits. The summary of the reasons given for this decision repeated word for word the findings of the first Stewards’ Enquiry back in March 2013, but with one addition. The new reason given was that “the Stewards of the Club did not accept [Dwyer’s] contention that the filly had bled in the race as she was underprepared and unfit because if that was so, the filly would have tired at the finish, however, in the race in question ICE AGE was the best moving horse at the finish”. On this occasion, a majority of the Stewards decided to impose a penalty of 8-months suspension.

18. Dwyer appealed again to the RWITC Board of Appeal. The hearing took place on 7 September 2013. On this occasion, Dwyer presented his own case. The hearing took the form of a rehearing with evidence given by Dwyer, the trainer and the trainer’s vet. It is evident from the record of that hearing that the Board of Appeal members were sharply split in their view of the case. Three of the six-man board felt that Dwyer had done nothing wrong, and further stated their opinions that there had been deficiencies in the fairness with which Dwyer had been treated in earlier proceedings. The other three members, including the Chairman, Mr A S Narielwala, concluded that Dwyer had acted deliberately to prevent the filly from winning. This deadlock was resolved, in accordance with RWITC Rules, by a casting vote from the Chairman to find Dwyer in breach. The reasons given were that, in the last 150 metres of the race, “the jockey made no effort to correct the horse’s drift. In fact…it is evident that the jockey is pulling the horse to a collision course and makes no effort to correct himself – further, even after colliding, when the horse again picks up momentum to win the jockey again is seen to pull the horse inwards with the right hand so as to bang the inside horse again. This according to the Chairman and some members of the Board of Appeal appears to be the clinching evidence that the jockey tried every trick to lose the race and the Chairman agreed with the Stewards of the Club that the jockey made sure that even if he would have won the race, the Stewards would have had no option but to disqualify him for foul riding.”

19. The three dissenting members of the Board of Appeal each gave separate, strongly argued reasons for their differing view. The reasons of Mr S L Maneshinde were given in the course of the Board’s deliberations and are recorded in the official minute of the hearing. The reasons of the other two dissenters were given by letter a few days later. It is a common theme of these dissents that they rely both upon earlier instances of unfairness to Dwyer in the procedures followed and upon their views of the evidence, including recordings of the race. They felt that the erratic course taken by the filly during the race was not caused by Dwyer, but was likely to have happened because she bled.

20. It is of course no part of this Panel’s remit to decide which of those opposing views it prefers.

21. The penalty imposed was a suspension from riding of 56 days, and it is this penalty which Dwyer asked the Panel to refuse to reciprocate.

Dwyer’s complaints about the fairness of the proceedings in India

22. His complaints fell into two categories – firstly criticisms of the conduct of the disciplinary process up to and including the second decision of the Stewards of the RWITC on 12 August 2013, and secondly complaints about the fairness of the final hearing by the Board of Appeal on 7 September 2013.

23. There were eight challenges to the process up to and including the 12 August 2013 decision. These were –

(i) That the outcome was prejudged against Dwyer before he had any chance to put his side of the argument by the decision to declare ICE AGE a non-runner.
(ii) That Mr Tariq Vaidya (who sat on both the first and second Stewards’ Enquiries) should not have participated because he had provided evidence, which Dwyer was unable to test, of a pre-race report that ICE AGE would not win.
(iii) That the second Stewards’ Enquiry was conducted by Stewards who had all sat on the first enquiry at which they had found Dwyer in breach.
(iv) That key veterinary evidence produced by Dwyer was ignored.
(v) That some evidence was taken in Hindi, which Dwyer does not understand.
(vi) That there was inadequate investigation of the trainer’s evidence, because the filly was a bleeder who had not been out of her box for a week before the race.
(vii) That still photographs were evaluated as part of the evidence about Dwyer’s ride.
(viii) That Dwyer was differently treated than others had been after riding a bleeder.

24. Only the first three of these complaints require any detailed analysis. The last five were either not instances of unfairness at all, or (even if they were) they became irrelevant. For instance, the complaint about taking evidence in Hindi did not bear scrutiny. That material was later translated into English and Dwyer and his representative had a fair opportunity to consider it and deal with it at the hearings which followed. Again, this Panel did not accept that Dwyer’s veterinary evidence was ignored: it does not follow from lack of mention of it in the records of the two Stewards’ Enquiry decisions that it was not taken into account, and in any event that material falls well short of an answer to the allegation of a stopping ride. There is no automatic Rule that still photographs cannot be taken into account – they might no doubt mislead in some cases, but their evaluation is a matter for the fact-finding tribunal. Finally, the complaint on different treatment was not made out on the facts. The Panel was not persuaded that a recent decision of the RWITC in another case was comparable. Finally there was a substantial investigation of the trainer’s evidence; Dwyer’s complaint in this regard was in reality a complaint that the various enquiries had failed to accept his analysis that the filly’s state of health explained the way she ran.

25. The allegation that the cards were stacked against Dwyer by the initial decision of the Stewards to declare ICE AGE a non-runner was more substantial. This was done before Dwyer was asked for his side of the story. When first seeing the papers in this case, the Panel was interested to understand how Dwyer could be held to be a non-trier on a non-runner. Before the Panel was aware even of the BHA’s position on Dwyer’s Application, it caused a request for an explanation to be sent to the RWITC. This was answered helpfully by Mr Riyaz Khan, one of the Stipendiary Stewards. He explained that the Stewards took the non-runner decision in exercise of the power given by Rule 31(a) of the RWITC Rules “if satisfied that the result of a race has been materially affected due to a contingency arising…” Mr Khan explained that the contingency that arose here was that the filly “was not ridden on its merits”. The decision was therefore one that fell within the RWITC Rules, which allayed the concern that the Panel had felt. But that still left the problem that the non-runner ruling involved a pre-judgement of Dwyer’s guilt before the enquiry in which he gave his version began. The practical reality underlying this back-to-front procedure seems to have been the pressure caused by a near riot by punters dissatisfied with ICE AGE’s performance. Dwyer had to return to the weighing room and later leave the racecourse with police protection.

26. It was argued that all subsequent proceedings against Dwyer were tainted by this initial unfairness. But it would seem to follow from this proposition that no further consideration could be given to Dwyer’s ride just because of the making of the non-runner decision. The Panel did not agree with that. Ideally, there should have been an explicit recognition of the difficulty posed by the earlier non-runner ruling and of the need to disregard it when considering Dwyer’s case. No such recognition appears in the records of any of the later decisions. The legal test which this Panel has to apply is this – would a fair-minded and informed observer, having considered the facts, conclude that there was a real possibility that the later tribunals were biased in these circumstances? More specifically, were either of the Stewards’ Enquiries or the final Board of Appeal hearing influenced by a perception that they needed to uphold the original non-runner decision? The identity of the Stewards who took the non-runner decision is not known to this Panel: in particular it is not known whether some or all also sat on the later Stewards’ Enquiries that reached decisions adverse to Dwyer or even whether any of them sat on the second Board of Appeal which took the operative decision in this case. Despite that, this Panel concluded that the necessary “real possibility of bias” was not demonstrated. The later decisions were akin to appeals against the original non-runner decision so far as it affected Dwyer. All of the Stewards’ Enquiries and the second Board of Appeal hearing were full rehearings. An appeal by its nature can operate as a correcting mechanism for any prior unfairness, particularly where that appeal entails a rehearing of the case. Whatever doubts there might be about the first and second Stewards’ Enquiries, the Board of Appeal decision on 7 September was not shown to have been wrongly influenced by some desire to support the non-runner decision.

27. The objection based upon the participation of Mr Vaidya in both Stewards’ Enquiries had merit, in this Panel’s view. He was both a provider of evidence (in the form of information given to him before the race that ICE AGE would not win) and a Steward involved in deciding the case. Dwyer objected to his participation. The RWITC took legal advice about Mr Vaidya’s position in advance of the second Stewards’ Enquiry, and was told by its legal consultant, Mr Dosu Bodhanwalla, that he should not act as a Steward “as it could be said, in the given circumstances, that the concerned Steward participated in the decision-making with a prejudicial view in mind”. Yet for some reason that advice was not followed. At the second Stewards’ Enquiry, Mr Padmanabhan attempted to ask questions of Mr Vaidya, but this was not allowed in any effective way.

28. But again, that deficiency ceased to have any relevance once the Board of Appeal held its 7 September hearing, which took the form of a full rehearing with witness evidence. Put another way, there could be no suggestion that the Board of Appeal members were influenced to reach a decision adverse to Dwyer because Mr Vaidya had been a participant in the Stewards’ Enquiries.

29. Similar reasoning applies to the third of Dwyer’s objections listed earlier – that the second Stewards’ Enquiry was conducted by the same Stewards who decided the outcome of the first enquiry. The second Stewards’ Enquiry was held because the first Board of Appeal ordered a reconsideration of the case. It took the form of a rehearing. Where the first hearing had reached an adverse view on Dwyer’s credibility, it would plainly have been better if a fresh panel of Stewards had conducted the second enquiry. But that defect had no effect in the end, because a yet further rehearing took place in front of the Board of Appeal on 7 September, and that was conducted by wholly different personnel.

30. Hence none of the objections to the conduct of matters up to and including the second Stewards’ Enquiry on 12 August provided a basis for refusing to reciprocate penalty in this case.

31. The next category of complaints focused upon the second Board of Appeal hearing on 7 September 2013. The allegations were –
(i) that the Chairman, Mr Narielwala, had prejudged the outcome of Dwyer’s appeal.
(ii) That Mr Narielwala should not have been on the Board of Appeal because of his business relationship with Mr K N Dhunjibhoy, who had participated in both Stewards’ Enquiries.
(iii) That the Board of Appeal reached a conclusion about Dwyer’s riding which was not put to Dwyer in the hearing to give him a chance to counter it.

32. The basis for the first argument was found in the dissenting reasons provided by Mr Z S Poonawalla. These gave detail of the discussions between tribunal members at the outset of their meeting on 7 September, before Dwyer was called in. His dissent and the official extract from the minutes of the Board of Appeal meeting show that, at the Chairman’s request, the tribunal members began by examining still photos that had been taken from the recordings of the race. Mr Narielwala expressed a view to them that these (and the recordings) would show that Dwyer had been “tugging the filly inwards” – i.e. had been deliberately steering her into trouble during the race. Mr Poonawalla records also that Mr Narielwala expressed the view that Dwyer’s ride was “a certain case of malpractice”. These dissenting reasons of Mr Poonawalla are dated 17 September. They will have been supplied to all those who sat on the Board of Appeal, as these (along with the dissent of Mr B N Jeejeebhoy also written shortly after the hearing) have been annexed to the official minute of the 7 September meeting. Nothing has been forthcoming from the RWITC to contradict what Mr Poonawalla has recorded about Mr Narielwala’s views expressed before the hearing.

33. This evidence shows much more than a pre-hearing discussion among Board of Appeal members of the issues they would have to decide. It shows, in this Panel’s view, an unacceptable pre-judgement of them by the Chairman. Applying the legal test referred to earlier, this Panel concludes that a fair-minded and informed observer would think that there was a real possibility of bias on the part of the Chairman in the hearing that began within minutes of the views he expressed. This bias played a critical part in influencing the outcome of the appeal hearing, because Mr Narielwala not only exercised his personal vote in favour of a finding of breach but also then exercised his casting vote in favour of the decision which led to the penalty that this Panel is asked to reciprocate. There was, therefore, a sufficiently serious and material departure from the required standards of fairness to cause this Panel to refuse to reciprocate that penalty.

34. Neither of the two remaining objections by Dwyer was made out. Mr Narielwala did have a business relationship with Mr Dhunjibhoy. They have been co-directors of Parshwa Securities Ltd and have both been engaged in a stud farm business owned by Mr Dhunjibhoy. That degree of connection, viewed in isolation, raises no real doubts about Mr Narielwala’s ability to exercise an independent judgement on the merits of Dwyer’s case.

35. The final complaint was that Dwyer was not given a chance to rebut the conclusion of those members of the Board of Appeal who found against him that Dwyer had “tried every trick to lose the race” including taking action to get himself disqualified. That view does seem remarkable on its face, involving as it does an opinion that Dwyer was deliberately colliding with other runners at considerable personal danger to himself and others. But the real issue decided adversely to Dwyer was whether he had deliberately steered into trouble that involved collisions, and that issue was fairly and openly canvassed with him. The addition of a conclusion about a supposed plan to get himself disqualified did not really add to that. It certainly does not seem to have had a part to play in the setting of penalty.

36. However, for the reasons given earlier about Mr Narielwala’s approach to the appeal before and when it began, this Panel decided to refuse reciprocation of the penalty. Though this may seem at first glance to be a purely procedural matter, it is far from a mere technicality. Dwyer had a basic right to an unbiased evaluation of his case. Nobody knows what the result would have been if all six of the Board of Appeal members had approached it with open minds.