DISCIPLINARY PANEL RESULT AND REASONS
1. On 22 September 2010, the Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry into the running and riding of CASELA PARK (IRE) in the [email protected] Handicap Stakes at Newcastle on 4 August 2010. The matter was referred to the Disciplinary Panel by the Newcastle Stewards. They held an enquiry on the day and decided that Jason Behan, CASELA PARK (IRE)’s jockey, had deliberately failed to ensure that the gelding ran on its merits.
2. Having considered both the evidence given at the enquiry at Newcastle and other matters, the BHA informed Behan that he would have to answer a charge that his failure to ride CASELA PARK (IRE) on its merits was intentional (i.e. that it fell within ‘Case 1’ set out in Rule (B)59.2) and also told the trainer, Eamon Tyrrell, that he was liable to disciplinary action under Rule (C)45 because of Behan’s breach of the Rules.
3. The BHA’s case was presented by Graeme McPherson Q.C. Behan and Tyrrell represented themselves. Though they had legal assistance in preparing their written submissions in answer to the BHA’s letters of 11 and 16 August which set out the allegations they had to meet, they said they were not able to pay for representation at the hearing.
4. The BHA’s case was that Behan deliberately stopped CASELA PARK (IRE) from winning at Newcastle, and that this was achieved through repeated restraint in the last three furlongs of the race and through manoeuvres designed to avoid going through obvious gaps. The case advanced by Behan and Tyrrell was that the gelding was a difficult ride, with an awkward head carriage, that its moves to left and right during the race were effectively uncontrollable because it was unwilling to go through gaps between other horses and that Behan feared from time to time during the race that he might clip heels. Though unrepresented, Behan and Tyrrell presented their evidence and arguments coherently and clearly (and even vehemently in Behan’s case).
5. The Panel viewed all the five available recordings of the race both during the hearing and when deliberating. It was particularly instructive to watch synchronised recordings of one of the side-on views with the head-on and scout camera views. Recordings of other races in which CASELA PARK (IRE) had taken part also helped in evaluating the extent to which the gelding might be seen as a difficult ride or one which disliked racing between other horses.
CASELA PARK (IRE) and the Newcastle race
6. CASELA PARK (IRE) is a 5 year old gelding which was bought out of Sean Treacy’s yard in early summer 2010. The registered owner is Ronan Buckley. Tyrrell told the Panel that he first met Mr. Buckley at Nottingham racecourse 3 or 4 years ago and had bumped into him a few times since, mostly at English racecourses. He said that Mr Buckley telephoned him to ask him to find a horse or two, and that they eventually settled on CASELA PARK (IRE) and one other. CASELA PARK (IRE) cost €24,000, the Panel was told. At the time it arrived at Tyrrell’s yard, the gelding had had 12 races, of which 8 had been on All Weather (AW) surfaces. There had been 3 wins and 2 placed finishes among these 8 AW starts. Its first race for Tyrrell was on the turf at Leopardstown on 22 July 2010 where it finished 4th on yielding ground, beaten 4 lengths in a handicap in which it made the early running.
7. Tyrrell said that his target was to try to improve the gelding’s record on turf and then sell it on. So, he said, he decided to bring it for the Newcastle race, intending to run it again just 2 days later at Musselburgh. (CASELA PARK (IRE) was of course already declared for the Musselburgh race before it ran at Newcastle).
8. Behan and Tyrrell gave the Newcastle Stewards basically the same description of the trainer’s instructions for the Newcastle race. It involved a change of tactics from its Leopardstown race and from its two races at Dundalk on 26 March and 9 April (when trained by Treacy). They said that the plan was to get the gelding settled, take time and try and come late with him. In a Racing Post report written by Johnny Ward which appeared in the 6 August edition (i.e. 2 days after the Newcastle race and on the morning of the race at Musselburgh), Tyrrell is reported to have said: “I told him [Jason Behan] not to kill him or get milled to finish third as we wouldn’t be able to go to Musselburgh”. Tyrrell denied saying this, and pointed out that Ward was not at the enquiry to be cross examined about this. But he accepted that all the other quotes attributed to him by Mr Ward were correct. It seems fanciful to suggest that Mr. Ward either invented or mistakenly recorded just this part of his conversation with Tyrrell.
9. As for the race itself, the Panel found:
i) The gelding was drawn in stall 12, nearest to the stands rail. From the start it initially ran straight, near the rail. After a furlong, it switched left, dropping in behind all but one of the other runners. Behan said that it “veered left” and that he had no control over this. It did not. He steered it there.
ii) At the 3 furlong marker, CASELA PARK (IRE) was still 2nd last, but had been running straight for the previous 3 furlongs and had settled. When 2 ½ furlongs out, the gelding was manoeuvred fairly sharply left, about 3 horse’s widths. At the 2 furlong marker, Behan gave a firm pull with his right hand to move the horse back to the right to stay behind other runners. At no stage was any other horse crowding or impeding CASELA PARK (IRE)’s run. Shortly thereafter, Behan again ducked the gelding to the left, even though it still had plenty of racing room ahead as the nearest three horses in front were by this time (i.e. approaching the 1 furlong marker) between 2 and 5 lengths ahead. At this stage Behan briefly let the gelding down but there was no visible sign of any pushing or other encouragement. Nevertheless it made up ground on the leaders. It was then given 3 sharp restraining pulls which caused it to throw its head up, lose momentum and veer right. The action had the effect of avoiding an obvious gap between horses still ahead of him but gave the gelding a different 2 widths wide gap between other runners. Again the gelding was strongly restrained. At this stage the race was ½ a furlong from the line. Behan then initiated another switch to the left which afforded another 2 horse wide gap. Strong restraint and another switch back to the right positioned CASELA PARK (IRE) behind the eventual winner and second. The gelding was then permitted to run on (but without any encouragement from Behan) and continue to close the gap until it crossed the line in 6th, 2 lengths in arrears of the winner.
iii) Careful viewing of the recordings (particularly synchronised recordings of the side-on views with either the head-on or scout views) shows that there was never any remote danger of the gelding clipping heels with the runners ahead of it at any stage. Even making every possible allowance for the fact that Behan had had only a handful of race rides between 2006 and 2010, and did not have the instincts and judgement of a race-hardened jockey, his protestations about his fear of clipping heels were an invention. His evidence that he was riding as well and as strongly as he could was not believed. He was not a powerful rider, but his Leopardstown ride showed he was capable of encouraging a horse to go forward. But at Newcastle, his right arm in particular remained permanently bent throughout because he was exercising strong restraint. He did not have to fight a horse which “hung both ways” as he reported at Scales. He was the reason why there were so many sharp changes of direction during the last furlongs of the race.
iv) It was said by Behan and Tyrrell that the gelding’s failure to go through the many gaps available in the last 2½ furlongs was because it was difficult to steer and was unwilling to go between other horses. The Panel saw a recording of its race at Dundalk on 12 March 2010, when ridden by W. J. Lee. Then, it went through two tight gaps in the straight when ridden from off the pace in a much rougher race, without showing any signs of temperament or lack of genuineness. Of course, horses can behave differently on different days. But the Panel felt that it was Behan’s palpable restraint which stopped the gelding from taking the obvious gaps available throughout the last 2½ furlongs.
v) To summarise, the gelding was subjected to strong and persistent episodes of restraint in the last 2½ furlongs, and was manoeuvred several times away from gaps and back behind other runners. It was running on well in the last 50 yards (despite an absence of any driving or encouragement) and lost by just 2 lengths. But for its treatment by Behan, it would have won. That may seem a strong conclusion about a race in which it finished 6th, but the more the Panel viewed the recordings, the more it felt driven to this view. Tyrrell argued, fairly enough, that if it could have won at Newcastle, then it should have also won at Musselburgh 2 days later, when it finished 4th, beaten 1½ lengths when ridden by Patrick Mathers. It was running in the same class of race. But on this occasion the gelding did not settle as well as it had at Newcastle. It made awkward progress around the tight bend at Musselburgh before the straight, losing ground on the leaders before being produced with a run that took it into 4th. Another possible further explanation for its failure to win at Musselburgh was that it may have had the edge taken off it by its Newcastle treatment. A more revealing feature of the Musselburgh run was that the gelding showed no propensity to swerve left and right as alleged at Newcastle.
10. The Panel also considered what if any motive Behan may have had for his actions as part of the process of deciding whether his ride was a deliberate breach of the Rules. As explained below, no motive could be reliably identified (other than, of course, that he was doing this to somebody’s orders). Absence of motive for a deliberately bad ride may be an important ingredient in helping a Panel to decide whether the split-second decisions a jockey has to take during a race may be capable of innocent explanation – i.e. that the riding decisions were (in hindsight) errors rather than deliberate misconduct. But that was not this case. The recordings show unequivocal restraint and manoeuvres which cannot be ignored or discounted because a betting motive for misconduct cannot be identified with certainty.
11. It follows that Behan was in breach of Rule (B)58 and that his ride falls within ’Case 1’ described in Rule (B)59.2. His failure to ensure CASELA PARK (IRE) ran on its merits was intentional. Further, when considering the various categories of intentional breach set out at pages 10 and 11 of the Guide to Procedures and Penalties, the Panel concluded that the ride came within category (b) – “deliberately preventing a horse from winning”.
Motive for a stopping ride and the trainer’s position
12. Rule (C)45.5 requires a trainer to satisfy the Panel that he gave appropriate instructions to secure the best possible placing and that the rider failed to comply with them. Tyrrell did not really attempt to meet this burden. He expressed his approval of the ride to the Newcastle Stewards. He retreated from this to a limited degree before the Panel, but only to the extent of saying that he thought Behan just made an honest mistake in failing to bring CASELA PARK (IRE) to challenge on the outside of the other runners. But Behan’s ride was not misjudged: it was deliberate, and Tyrrell’s late criticism of a different aspect of it did not touch on that. He did not identify any aspect of the ride which failed to meet his instructions. He is therefore to be treated as in breach of Rule (C)45 because he did not satisfy the Panel in the way that Rule (C)45.5 requires.
13. But the Panel felt bound to go further and to consider the extent of Tyrrell’s actual complicity in the stopping ride. Firstly, it concluded that the instruction “not to kill him or get milled to finish 3rd as we wouldn’t be able to go to Musselburgh” amounted to a breach of Rule (C)45.1. But it was necessary to go on to determine whether Tyrrell went further and caused Behan to give the stopping ride.
14. It was for this purpose that the Panel considered such evidence as there was about Tyrrell’s (and Behan’s) motive for such a ride. There were a number of points seemingly in their favour to evaluate here. There was no evidence of any untoward lay betting, at least on Betfair accounts. But there was no access to lay betting from other exchange operators such as Betdaq. In the absence of evidence that there was unusual lay betting, the Panel proceeded on the basis (which may or may not be correct) that this obvious modern day motive for a stopping ride was absent. Then it was suggested by the BHA that the motive may have been to set up a win betting coup for Musselburgh. To the rational mind, that also seems unlikely, given that the gelding went off at 17/2 at Newcastle (having opened at 10/1). Why not bet to win at attractive odds in Newcastle with a fresh horse, if the motive was a win betting coup? Why risk a worse price in a race just 2 days later at Musselburgh? The more likely possibility is that, for whatever reason, the money was not planned to be down for Newcastle but was planned to be down for Musselburgh. This explanation finds some support from Tyrrell’s remark about not killing the gelding or “we wouldn’t be able to go to Musselburgh”. But at the end of the day, the Panel was left with the position that there was no clear or obvious motive for the ride given at Newcastle. There may have been one but it did not emerge.
15. But again, the absence of clear motive does not lead to the conclusion that Tyrrell was not party to Behan’s conduct. After the detailed study of the race recordings which took place at the enquiry, Tyrrell was asked whether he saw any signs of restraint by Behan during the ride. He continued to maintain that there were none, despite it being obvious that there were, perhaps because he recognised that in truth there were no legitimate reasons for the restraint. Behan was a long time associate of Tyrrell’s and was his apparently unpaid work rider. The Panel was aware that trainers sometimes show misguided loyalty to a jockey in situations like this. It was also alive to the possibility that a person or persons other than Tyrrell might have procured Behan’s stopping ride. But Tyrrell’s denial of the obvious was so striking that the Panel felt bound to conclude that he caused his work rider Behan to ride as he did. Generally, Tyrrell chose to paint a portrait of the gelding as very difficult to ride and as sometimes uncontrollable, which was plainly false. There is no doubt that some recordings of its earlier races show that it was headstrong and difficult to settle, with an occasionally high head carriage, but the important picture that emerged from those recordings was that the gelding was a genuine trier and could be relied upon to run straight, even under strong driving. This was not merely a case where a rusty jockey (Behan) over interpreted the instruction “not to kill the horse or get milled to finish 3rd”. This was a deliberate stopping ride on Tyrrell’s instructions.
16. But even if that conclusion were wrong, it remains the case that Tyrrell’s instructions, even as revealed to the Panel, were a breach of Rule (C)45.1. In any event, he failed to satisfy the Panel that he gave adequate instructions with which the jockey did not comply (Rule (C)45.5).
17. In the light of its findings the Panel next has to consider penalty. Before deciding upon this, it is necessary first for the BHA to identify any matters relevant to penalty which it submits should be brought into consideration by the Panel. This should be done in writing by close of business by Tuesday, 28th September (to be copied, obviously, to Behan and Tyrrell). Behan and Tyrrell then have an opportunity to identify matters which they wish the Panel to bring into account by close of business by Friday, 1 October 2010.