Results of an Appeal (J. Moore, K. Lee) and Enquiries (S. Dixon, Fakenham , Huntingdon) heard by the Disciplinary Panel On 29 March 2018
Press Release
3rd April 2018
1. On 29th March 2018, the Independent Judicial Panel of the BHA (‘the Panel’) heard an appeal by Kerry Lee (the trainer) and Jamie Moore (the rider) of KINGS MONARCH against the decision of the Stewards at Chepstow on 21st March 2018. The Stewards found Mr Moore in breach of Rule (B)58 and Ms Lee to be in breach of Rule (C)45 in the Foresters by Steve White Novices’ Hurdle Race. They imposed a fine of £3,000 upon Ms Lee and suspended Mr Moore for 14 days, and suspended KINGS MONARCH from running for 40 days.
2. Those attending this appeal included Jamie Moore, Rory Mac Neice, representing Mr Moore; Kerry Lee and Dawn Bacchus, representing Ms Lee. The BHA case was represented by Lyn Williams and no objection was taken to the composition of the Panel.
The events of the day
3. The Chepstow Stewards held an enquiry on the day into the running and riding of KINGS MONARCH in what was a 2 mile, Novice Hurdle. The horse started at 4/1 (opened 7/2) and finished fourth. We have a transcript of that hearing which, as the Rules require, was conducted as soon as possible after the race had been run.
4. We begin by noting that KINGS MONARCH, owned and trained by Ms Lee, was beaten 3 ½ lengths for third (COURT DUTY) and 20 ½ lengths by the winner (THE LAST DAY). The fifth placed horse, AIR NAVIGATOR, was a further ½ length down.
5.Of KINGS MONARCH’s run, the Racing Post noted “well off pace in midfield, 15 lengths, 5th at halfway, kept on steadily from 2 out, given very easy time, never near leaders but signs of ability.”
6. At the Stewards Enquiry, Ms Lee (who was not present on the day) was represented by her father, Richard Lee. The stewards heard from him and from Mr Moore who gave what is, in substance, the same account as he gave to this Panel. It is that the horse was ridden in that quiet way because both jockey and trainer considered that, in all the circumstances (particularly taking account of the horse’s history of bleeding and its inclination to run very keen as apparent in previous races), this was how they hoped the horse would settle, see the race out, and so achieve the best possible placing. For that same reason, we were told, the horse was run in a ring bit and with a grackle nose band so as to give the jockey better control.
7. The essence of this account was contained in an answer to a question put by the Stipendiary Steward, Mr Rutter, who asked Mr Moore what instructions he had received. Mr Moore said:
“Yes, I spoke to Kerry this morning. He’s very keen and just drop him in and get him to finish. He’s bled every other run that he ran for Kerry so my instructions were to drop him in and get him to finish the race. He’s a nice horse for next year, he’s a big baby. You see he’s very big and so Kerry wanted him looked after, get him to finish the race for a change because he hasn’t done that in every single run he’s had for Kerry. He ran off the track practically at Towcester on his first run and at Newbury I fell off him at the second, even blatantly when he was second. He’s just been bleeding so I had to look after him.”
8. The local Stewards looked carefully at the film of the race and noted that Mr Moore explained his riding as having been in the best interests of the horse. Although he did say he had given the horse "a nice educational run" (which might be taken to suggest schooling in public), Mr Moore also said he "saw no point" in giving the horse a hard ride and did not "want to get him on his head". He told the stewards, as he told us, that he rode the horse with a tight hold of its head because he considered that the best way to keep its head up and to hold the horse together. He rejected any suggestion that he might have achieved more by riding the horse more aggressively or closer to the pace and concluded by saying that he had tried his hardest and that he had given the horse "a nice run round".
9. The local Stewards reported as follows:
“An enquiry was held into the running and riding of KINGS MONARCH, ridden by Jamie Moore and trained by Kerry Lee, which appeared to be tenderly handled throughout before running on under minimal effort up the home straight, to finish fourth beaten by 20½ lengths. The rider and the trainer’s representative were interviewed and shown recordings of the race and the Veterinary Officer reported that two post-race examinations of the gelding failed to reveal any abnormalities. The rider stated that his instructions were to drop the gelding in and get it to finish its race as KINGS MONARCH is a keen horse and has a history of bleeding. He added that in order to get the gelding to settle and finish the race he was keen to let KINGS MONARCH creep into the race, allow it to do everything in its comfort zone and have a nice education to restore the horse’s confidence. The trainer’s representative stated that the ride accorded with his instructions and added that the horse was running in a ring-bit in order to get it to settle as it has been a tearaway at home. Moore was suspended for 14 days and Lee was fined £3,000 for schooling and conditioning the horse on the racecourse in that Moore failed to ride his mount in such a way that he could be seen to have made timely, real and substantial efforts to achieve the best possible placing. KINGS MONARCH was suspended from running in any race for 40 days.”
10. We should say straight away that, whilst this Panel has reached a different conclusion from the local Stewards, we fully understand why they decided as they did both in the light of the film they saw and bearing in mind Mr Moore’s references to an "educational" run and a "nice run round". This Appeal Panel, by contrast, had the luxury of a four hour hearing and of seeing many other views of the race in question as well as looking at film of the horse’s previous runs at Towcester on 21st December 2017, at Newbury on 17th January 2018 and at Chepstow on 24th February 2018 (when ridden by Mr Moore’s brother, Joshua) and hearing veterinary evidence about the horse’s history of bleeding.
The Relevant Rules
11. We should record the following rules relevant to the issues on this appeal.
Rule (B) 58. General requirement for a horse to be run on its merits and obtain best possible placing. It states that
58.1 Every horse which runs in a race shall be run and be seen to be run on its merits (see Rule (D)45 (riding to achieve the best possible placing)).
58.2No Owner, Registered Agent of a Recognised Company or Trainer may
58.2.1give any instructions which if obeyed could or would prevent a horse from obtaining the best possible placing, or
58.2.2 prevent or try to prevent in any way any horse from obtaining the best possible placing.
58.3No Rider or any other Person may in any way prevent or try to prevent any horse from obtaining the best possible placing.
Rule (B) 59 Failure to run a horse on its merits 59.1A Rider of a horse shall be taken to have contravened the requirement imposed on him by Rule 58.1 in each of the following cases.
59.2Case 1 is where the Stewards or the Authority consider that the Rider has intentionally failed to ensure that his horse is run on its merits.”
Rule (C)45 “Duty to Secure the Best Possible Placing”
“45.1 A Trainer must give, or cause to be given, to the Rider of any horse trained by him such instructions as are necessary to ensure the horse runs on its merits.
45.2Instructions must, among other things, cover the use of the whip when employing an Apprentice Jockey or Conditional Jockey.
45.3A Trainer must not send any horse to race with a view to schooling or conditioning the horse.
45.4A Trainer shall be liable to Disciplinary Action
45.4.1in the event of any failure to comply with Paragraph 45.1, 45.2 or 45.3;
45.4.2in the event that an instruction is given to the Rider which, if obeyed, could or would lead to a contravention of Rule (B)54 (careless or improper riding) with regard to misuse of the whip; or
45.4.3in the event that the Rider is found to have intentionally failed to ensure that his horse is run on its merits, including any case where the Rider was found to have been schooling or conditioning the horse.”
Rule (D)45 “Riding to achieve the best possible placing” :
“45.1 A Rider must
45.1.1 ride his horse throughout the race in such a way that he can be seen to have made a genuine attempt to obtain from his horse timely, real and substantial efforts to achieve the best possible placing, and
45.1.2take and be seen to take all other reasonable and permissible measures throughout the race, however it develops, to ensure the horse is given a full opportunity to achieve the best possible placing.
45.2For the purposes of Paragraph 45.1, whilst it is not necessary for the Rider to use the whip, the Rider must give his horse at least a hands and heels ride.”
Evidence on Appeal
12. As we have already noted, the Panel viewed videos of the race in question and of its previous races. We considered the submissions of Mr Williams on behalf of the BHA, and those of Mr Mac Neice for Mr Moore and Ms Bacchus for Ms Lee. Both Mr Moore and Ms Lee also gave oral evidence.
13. Both Mr Moore and Ms Lee confirmed that they were very pleased with the horse’s run at Chepstow on the day in question and satisfied that Mr Moore had ridden KINGS MONARCH to obtain the best possible placing. Ms Lee explained that she had bought the horse at the sales for a substantial sum and hoped that she would be able to sell it, preferably to an important owner who would be new to the yard. She had therefore every reason to want it to run to the best of its apparent ability. Indeed, she told us, and we accept, that she had been bitterly disappointed with its first run at Towcester after which it was found to have bled. The same thing happened, though not necessarily to the same extent, after each of its subsequent runs and, in accordance with veterinary advice and good stable management practices, she took particular care to try and minimise the risk that it might bleed again.
14. This account of the horse’s veterinary history was confirmed by a report from Jeremy Swan, BVSc, MRCVS, dated 22nd March 2018. He noted that the horse had run on 21st December 2017 (the reference to 2018 being an error) and bled, as he established when he examined the horse a week later. Mr Swan also noted that blood was still present in the horse’s trachea (Grade 2 / 5) at a repeat scope on 24th January 2018 and the horse ran again on 24th February 2018, following which “on returning home blood was seen in both nostrils”.
15. Mr Swan added that the horse was examined “after his last run on 21st March 2018 (when) there was blood (2/5) in the distal trachea”. He expressed the opinion that whilst blood in the trachea is not of itself “performance limiting”, it “does indicate that there was effort up to a physiological limit beyond which the horse may well have bled more severely”.
16. Mr Swan concluded by saying that “Although the blood seen in (the horse’s) trachea after the last run is not in itself performance limiting.it does indicate that there was effort up to a physiological limit beyond which the horse may well have bled more severely. Each time a horse bleeds severely there is irreparable damage to the lung tissue. In my opinion, more aggressive riding in horses that are prone to bleeding will increase the risk of bleeding severely".
17. It follows that, even if Mr Moore tried to ride horse so as to minimise the risk that it might bleed, it did in fact bleed. But it might have bled worse had he ridden harder and, in that case, it would follow that, regardless of the harm to the horse, it is highly unlikely that it would have achieved a better placing.
18. This constitutes the background to the decision taken jointly by trainer and jockey as to how KINGS MONARCH would be ridden at Chepstow on 21st March 2018. In those circumstances and bearing in mind that this was a horse that tended to take a strong hold, (Ms Lee having also decided it should be fitted with a ring bit and grackle noseband), the jockey was told to drop the horse in and try and get it to settle and see how the race developed on what was testing ground (Soft but heavy in places).
19. With the help of the witnesses and the parties’ lawyers, we studied the race with care. It is evident that KINGS MONARCH was indeed keen early and Mr Moore restrained it and did a good job of getting it to settle. Mr Moore also explained – and the Panel accepted – that he had intended to make a forward move at about four out with the intention of following COURT DUTY (the eventual third). However, KINGS MONARCH got in close to and hit the fourth last and lost momentum after which Mr Moore reckoned he had no chance with the winner or of getting third but hoped to stay on for fourth place, as in fact he did.
Our findings as to the race and Mr Moore’s ride
20. We accept that KINGS MONARCH was settled off the pace and given what may fairly be described as a quiet ride, that is one in which the jockey is relatively still on the horse as opposed to being (and being seen to be) strong and aggressive. But, as we all know, riders’ styles differ and different styles of rides suit different horses. Not every horse benefits by being ridden very aggressively.
21. We consider that, bearing in mind the horse’s history of bleeding and style of running, it was consistent with trying to obtain the best possible placing that it should be ridden as it was on that day. We also find that it is very unlikely that KINGS MONARCH would in fact have finished in any better position however it had been ridden. It might, perhaps, have got closer to COURT DUTY (who finished third) had it not hit the fourth last but what happened at that hurdle had nothing to do with any shortcoming in the way the horse was ridden.
Discussion and Findings
22. In terms of culpability, there is a clear distinction to be drawn between a jockey/trainer who deliberately give a horse an “easy” race with a view to disguising its ability from the handicapper and/or the general public, and those who give the horse an ‘easy’ run for "educational reasons" – otherwise known as schooling in public.
23. Nevertheless, both are covered by the Rules because they require a horse to be seen to be run on its merits, that is, to try and obtain the best possible placing (see (B) 58.1).
24. In the present case, Mr Williams, presenting the case on behalf of the BHA, very properly acknowledged that it was no part of his case that the trainer/jockey were cheating in the sense of trying to disguise its true ability from the handicapper or the racing public. Nevertheless, he sought to place the ride in the second of those two categories. He argued that giving it such a quiet ride in the circumstances for whatever reason means that the horse was not "seen to run on its merits" and that, in breach of (D) 45.1.1, such a ride did not amount to making a "genuine attempt to obtain from his horse timely, real and substantial efforts to achieve the best possible placing".
25. We note that the rule in question focuses on the efforts of the horse whereas Mr Williams’s arguments tended to suggest that it was the rider who should be seen to be making such efforts. If that was his contention it is mistaken but we nevertheless do accept that the rules require the jockey to be seen to make all reasonable efforts to obtain the best possible placing, subject to the qualifications identified in Rule 45.3 (see above).
26. Mr Mac Neice, supported by Ms Bacchus, argued that the breach of the Rules relied on could not be made out unless it could be demonstrated by the BHA that the horse in question would probably have finished in a higher finishing position had it been ridden differently.
27. We were not persuaded that this is a correct statement of principle. We think there could well be cases where the jockey in, say, a three horse race makes an obviously inadequate effort (cheating) but, for whatever reason (such as when the horse it ought to have finished ahead of if ridden more positively falls at the last) he actually finishes second. In such a case, there would still have been a breach of the rules.
28. We prefer to judge the issue according to all the circumstances of the particular case. We apply a test of deciding whether we think the horse had any reasonable prospect of achieving a better finishing position had it been ridden differently. In our view, bearing in mind the horse’s history and Mr Moore’s reasons for giving it the ride he did – which we accept – we think he intended to achieve the best possible placing and that in fact he did so.
29. We were, however, concerned about whether a horse should be running at all when it has an underlying physiological condition which compromises its capacity to perform to the best of its natural or underlying ability. However, Mr Williams very fairly acknowledged that it is regarded as legitimate and appropriate to run a horse even though it has a tendency to bleed. In that case, our view is that the trainer and jockey are entitled to decide it should be ridden in such a way as to allow for that condition and do its best in those circumstances. We reject the approach Mr Williams commended to us which was that such a horse should be ridden as normal (as it were) whatever the consequences, including the risk that it might suffer a more serious bleed. We think that is not in the interests of equine welfare or the sport.
30. In summary, therefore, the Panel accepts that Ms Lee gave the instructions she did and Mr Moore rode the horse as he did because of a concern that to ask it for any greater or more obvious effort might well have caused it to bleed. As we have said, we consider that the way in which KINGS MONARCH was ridden in fact enabled it to obtain the best possible placing and that it is highly unlikely that, however it might have been ridden, it would have finished any closer than fourth. Indeed, we think had it been put into the race much earlier or given a more aggressive ride from, say, four or five hurdles from home, it might well have finished further down the field than in fact it did.
31. There remains one issue on which we should comment. The racing public is clearly entitled to assume that the race in which they are interested is being run fairly and that the horse they have backed or are watching is trying its best. However, someone watching this particular race could very well have considered that he was watching a non-trier. That is because the history of the horse’s previous runs and the explanation for why the horse was ridden as it was on the day in question were not matters of which any such member of the public will have been aware. Hence a race reader (such as the Racing Post reporter, for example) justifiably described the horse as having being given a very easy ride, with all the sinister implications such description carries.
32. However understandable it may be that Ms Lee, wanting to sell the horse on, will have had no wish to publicise the fact that the horse had bled before, procedures are in place which, as we understand matters, mean that she should have notified the fact that the horse had bled on at least one of its previous runs, whether to the local stewards or to the BHA (although it would be necessary to allow for the fact that this not have been apparent or recognised until the horse had been taken home after the race in question). This is a sensible requirement in the interests of fair play so that the racing public has a reasonable opportunity to understand that a horse may be ridden in a particular way for a reason. Ms Lee acknowledges her fault in this respect but this error of judgment on her part is not a breach of the Rules with which she has been charged, and we mention it because transparency in this respect is part of what we were told was established procedure and is certainly good practice.
Conclusion
33. For those reasons, we consider that KINGS MONARCH ran on its merits and in such a way as to achieve the best possible finishing position it might have achieved in the circumstances. We therefore allow these appeals and direct that the Appellants’ deposits be returned accordingly.
Scott Dixon
1. On Thursday, 29th March 2018, the Panel met to decide whether Scott Dickson, the trainer of RED DOUGLAS was in breach of Rule (C)17 of the Rules of Racing in that RED DOUGLAS ran at Southwell on 18th January 2008, but the Racing Calendar Office had not previously been notified that the horse had been gelded.
2. Rule (C)17 provides as follows:
“(C)17. Information about gelding a horse. 17.1 A Licensed Trainer or Permitted Trainer must notify The Racing Calendar Office when a horse under his care and control has been gelded. 17.2Subject to 17.3, this must be notified no later than the closing time for entries for the next race in which the horse is entered in Great Britain.”
3. In advance of today’s hearing, Mr Dickson asserted that he had attempted to notify the Racing Calendar Office by fax, but he also acknowledged that the fax had not been received by Racing Calendar Office and he was unable to substantiate the date upon which it was sent or, indeed, to provide any other copy or record of it.
4. No objection was taken to the constitution of the Panel and the case was heard in Mr Dickson’s absence.
5. We were told a little about how the process for notification had been changed recently so that (six months or more ago) an online system was introduced. However, this is only one of a number of ways in which a trainer is able to satisfy his obligations under Rule (C)17 to notify the Racing Calendar Office of such an event. These would now include online notification, notification by phone, fax, letter, or by email.
6. The Panel is satisfied that Mr Dickson failed to ensure that notification was properly given to the Racing Calendar Office by any of these means. Accordingly, the breach of the Rules is proved.
7. This case would ordinarily have been dealt with under the fast track procedure but, because there was no agreement to the offer that such procedure should apply here, the matter was referred to this Panel.
8. The BHA, which was represented by Ms Lauren Robinson, BHA Case Manager, submitted that the appropriate fine would be at the entry level of £200, as provided in the Guide to Procedures and Penalties 2017. We agree and that is the fine imposed in this case.
Fakenham Racecourse
1. On Monday, 22 January 2018, the Fakenham stewards held an enquiry into the positioning of the wing support at the third hurdle in Race 1. The matter was referred to this Panel, who had to consider the circumstances in which such wing support had been incorrectly left on the racing side of the wing at the third hurdle in the first race (1:25pm).
2. The issue was whether or not the Managing Executive of Fakenham Racecourse had “committed a breach of Rule (F)15.3.6 of the Rules of Racing in that, by failing to reposition the wing support at the third hurdle prior to racing commencing on 22 February 2018, resulting in the first race being run with the wing support on the racing side, the Executive failed to carry out their responsibility to ensure that, before racing commenced and on a race-by-race basis thereafter, the course was fit for racing to take place”.
3. The BHA was represented by Mr Lyn Williams and no objection was taken to the constitution of the Panel. The Managing Executive of Fakenham Racecourse asked for and was excused attendance to this hearing.
4. The breach of the Rules was admitted. As the Clerk of the Course (David Hunter) explained on the day, and as was set out in more detail in a letter to Mr Williams by the Chief Executive and Mr Hunter on 2nd March 2008, what went wrong was the result of human error. In short summary, a member of the Racecourse staff had placed the “leg support” inside the wing in advance of racing to stop it blowing over in the strong wind. Despite the fact that the Clerk of the Course and the Head Groundsman, and later the Chairman of the Stewards’ Panel and another Steward, had noticed this support was in the wrong place and had asked that it be moved, a member of the staff (who we do not need to identify) forgot to carry out that instruction.
5. As a result, it was still on the wrong side of the wing for the first race, a matter which (commendably) one of the jockeys, Jack Quinlan, drew to the attention of the Racecourse Authority.
6. We accept and find that this breach of the Rules has been made out and, in relation to the question of penalty, we note that there is a wide range within the recommendations in the Guide to Procedures and Penalties at page 55 (2017 edition, applicable at the time of breach). The range is £1,000 to £15,000, with a suggested entry point of £3,500. The BHA submits that the appropriate penalty would be “towards the bottom end of the range applicable”.
7. We do take the view that the presence of this leg support constituted a potential hazard, especially to any horse on the inner and about to jump this third hurdle. On that basis, it would not be appropriate to go to the bottom end of the suggested range and the fine that we regard as appropriate in all the circumstances is one of £2,500.
Huntingdon Racecourse
1. On 29th March 2018, the Independent Judicial Panel of the BHA met to consider whether or not Jockey Club Racecourses, in its capacity as Managing Executive of Huntingdon Racecourse), had committed a breach of Rule (F)15.2.3 of the Rules of Racing (and BHAGI 12.3, paragraph 6) in that, on inspection prior to racing on 12 January 2018, one of the sampling boxes to be used that day was found to be unclean and did not meet the standard of being “scrupulously clean and hygienic” that was required.
2. The hearing was attended by Liam Johnson, General Manager at Huntingdon and Jack Pryor, Clerk of the Course at Huntingdon. BHA’s case was presented by Lyn Williams, BHA Case Manager.
3. No objection was taken to the constitution of the Panel.
4. As had been the case at the Stewards Enquiry, held on 12 January 2018, the Managing Executive of Huntingdon Racecourse admitted a breach of the Rules.
5. The matter was reported when, prior to the day’s racing, the Equine Welfare and Integrity Officer inspected the unit and radioed the Veterinary Officer to say that he was unhappy with the condition of the Sampling Unit because it was not clean. The Veterinary Officer attended and he confirmed those findings, explaining to the local Stewards that, on closer inspection, “there was a patch of urine in the bed and a dropping in the bed, which is not an acceptable standard of cleanliness for the sampling unit. Well, any stable actually, but particularly the sampling unit”
6. Photographs were presented to the Panel, showing the dirty bedding in the sampling box and, as we have recorded, the breach of rule (F)15.2.3 was acknowledged and, we find, clearly established.
7. In a letter dated 1st March 2018, Mr Johnson wrote to the BHA explaining that there had been “significant rainfall on 27th December 2017 which resulted in large areas of the racecourse flooding, this included the stable yard”. The letter went on to say that contractors had been supposed to have carried out their work on 5th January 2018. For some reason, perhaps (Mr Johnson acknowledged) because of a failure to give clear instructions, the contractor did not properly clear the bedding from the Sampling Unit and, during pre-racecourse checks, the visit to the Sampling Unit had failed to disclose that the box was not at a satisfactory standard of cleanliness. Mr Johnson’s point, one repeated in mitigation today, was that this rule breach was “down to miscommunication between the Clerk of the course, Ground Staff and (the Contractor), compounded by the absence of a Head Groundsman, which would ordinarily have provided a second tier of checking to ensure our standard practices are undertaken”.
8. Mr Johnson assured the BHA that this would not happen again, explaining that a better inspection procedure is now in place.
9. Mr Williams drew our attention to the Guide to Procedures and Penalties 2017, and particularly to page 55, indicating the applicable range and entry point for breaches of Rule (F)15. He submitted that a penalty in the region of £5,000 would be appropriate, whereas the entry point would be £3,500. The distinction that Mr Williams draws is between uncleanliness in what one might call an ordinary box and uncleanliness in relation to the sampling boxes where, he submits, the highest possible standards should be maintained.
10. Mr Williams’ submission finds support in the General Instructions (BHAGI 12.3) at paragraph 6, which is in these terms:
“The Sampling Unit, its equipment and Loose Boxes are to be kept scrupulously clean, hygienic and in good condition. Leather head collars are to receive attention, and horse sheets washed between meetings. One (three) Loose Box(es) is (are) to be bedded with paper and the second (the fourth) with wood shavings free from contaminants. An adequate reserve of papers and shavings is to be available for each meeting.”
11. In our view, the appropriate fine should be above the entry point for the reasons that Mr Williams has submitted, which reasons are not challenged by Mr Johnson and Mr Pryor who very properly recognised the importance attached to the cleanliness of the Sampling Unit in particular.
12. Given that it is clear that there was a breakdown in the racecourse’s procedures in this case, and that the stables should have been cleared by the contractors a week before the race meeting, and that there should have been a more thorough and effective pre-race day check of the Sampling Unit, we consider that a fine of £4,500 would be appropriate in all the circumstances.
