02 Apr 2015 Disciplinary Panel - Appeals against decisions on a Racecourse

Shane Kelly

1. On Thursday 2 April 2015 the Disciplinary Panel of the British Horseracing Authority (BHA) heard an appeal by Shane Kelly against the decision of the Wolverhampton Stewards to suspend his licence for 10 days for failing to ride WICKHAMBROOK (IRE) on its merits in the Ladbrokes Handicap Stakes at Wolverhampton on 23 March 2015. The particular failing identified by the Wolverhampton Stewards was that described in Rule (B)59.4 – that Kelly failed to take all reasonable and permissible measures to ride the gelding on its merits.

2. The enquiry before the Panel took the form (as always in such cases) of a rehearing rather than a mere review of the Wolverhampton decision. The BHA’s case was presented by Lyn Williams. Kelly was represented by Rory Mac Neice, and gave evidence to the Panel. The Panel recognised that Kelly gave his evidence thoughtfully and realistically though it ultimately decided that a breach of the Rule had occurred.

3. The BHA asked the Panel to focus upon the last two furlongs of this seven furlong race. Two areas of this part of the race were criticised. It was said that Kelly failed to ride the gelding with sufficient vigour into a gap which became available about 1½ furlongs from the finish, but rather let it go there itself. Secondly it was argued that his ride during the last furlong fell short of the requirement (stated in Rule (D)45) that riders should show substantial effort. It was accepted (and the Panel endorses this) that this was not a case of a deliberate breach: this was in no sense a “stopping” ride.

4. Kelly’s evidence, and Mr Mac Neice’s submissions on his behalf disputed this. They said that the failure to drive into a gap that was accepted to be available was a legitimate tactical decision by the jockey. The gelding did take the gap, so that by the one furlong marker it was in an ideal position to win if good enough. And thereafter it was said that the ride showed substantial effort, which resulted in the best possible placing. The gelding was beaten 1¼ lengths and a short head in to third. Kelly also pointed out that he was squeezed for room towards the finish by the first and second horses, which may have affected the result.

5. The Panel took the following view of events. The gelding, which had not raced for 220 days, was having its first outing for a new trainer. A different approach from previous races was decided upon. Rather that running prominently, it was decided to settle the gelding and get it to relax, and do the best work at the end. Those instructions were followed. Kelly quickly settled the gelding well at the rear of the 12 runner field. At the two furlong marker he was still at the back, but began then to move through back markers. Without having to get to work seriously, Kelly had moved through to fourth by the furlong marker. The criticism that he did not ride more aggressively than he did into the gap that opened for him about 1½ furlongs out was not accepted. He did manoeuvre the gelding into the gap, and was going well enough at this stage to hold back his serious effort until later. The Panel acknowledged the argument that it would be trespassing upon a legitimate area of a jockey’s judgement to treat this as a breach. It was accepted that he was in a good position to challenge to win by the time the gap was taken and the furlong marker was reached – if good enough.

6. At this point, Kelly began to ride in earnest, giving the gelding a hands and heels ride and a slap with his whip on the neck. The gelding responded and began to make ground on the three horses ahead of him. But at the point (about ¾ furlong from the finish) there was a perceptible reduction in Kelly’s effort. This persisted for several seconds until he resumed a noticeably stronger hands and heels ride, to which the gelding again responded. It made ground on the first and second and went down by a short head in to third. The Panel judged that the squeeze by the first and second on WICKHAMBROOK (IRE) did not affect the result: it occurred right on the line. The reason why the gelding did not take second was, in the Panel’s view, because Kelly had not ridden with the strength that the Rules require in the middle part of the final furlong.

7. It was accordingly decided that Kelly was in breach of the requirement to give WICKHAMBROOK (IRE) a ride on its merits. It was a ride that fell within Case 3 set out in Rule (B)59.4.

8. When considering penalty, the Panel felt that this was a breach akin to a failure to ride out for a place. It felt, in the circumstances where the criticism of the ride was a more minor one than the BHA advocated, that an eight day suspension was called for, from Monday 6 April to Tuesday 14 April 2015 on days on which Flat racing is scheduled to take place. As the penalty was less than that imposed by the Wolverhampton Stewards, Kelly’s deposit is automatically returned.

 

 Michael Appleby

1. On Thursday 2 April 2015 the Disciplinary Panel of the BHA held an enquiry into allegations of breaches of the Rules of Racing made against the trainer Michael Appleby. These arose from the return of a positive sample by BANCNUANAHEIREANN (IRE) an eight year old gelding trained by Appleby since July 2012. The gelding was randomly selected to be tested to provide a sample after it finished unplaced in the Betdaq 50% Commission Refund Handicap at Kempton Park on 10 December 2014. The sample was analysed and disclosed the presence of diclofenac.

2. Appleby did not challenge the finding, and did not elect for analysis of the ‘B’ sample. Furthermore, there was no challenge to the BHA’s contention that diclofenac is a Prohibited Substance on a raceday, as that term is defined by the Rules, because it is a non-Steroidal anti-inflammatory medication which also has pain relieving effects.

3. In January 2015, BHA investigators went to Appleby’s yard in Newark to interview him and to see how, if at all, the positive sample might be explained. Those investigations and subsequent admissions by Appleby have established to the Panel’s satisfaction that:-

i) diclofenac is found in Voltarol, a gel intended for treatment of rheumatic joint and muscle pain in humans. Some formulations of it are available over the counter in chemist’s shops.

ii) there are no veterinary formulations of diclofenac licensed for use in horses. It is in the same drug “family” as phenylbutazone, i.e. bute.

iii) Appleby has used Voltarol obtained from a local chemist to treat a number of horses in his care that he felt to be suffering muscle or back pain. The gelding was one of those treated on a number of occasions. He said that he had first used it many years ago when he trained point-to-pointers, on the recommendation of a vet.

iv) the Voltarol gel was applied to the gelding by Appleby’s head lad, on Appleby’s instructions, four days before the race. He told the investigators that his normal practice was to allow a five day withdrawal period.

v) the Medication Book (in the standard NTF form) contains no mention of the use of Voltarol, whether on the gelding in question in this enquiry or on any other occasion. Appleby’s head lad recorded the use of Voltarol in his diary, but not in the Medication Book because it was not thought to contain a Prohibited Substance.

4. Given these findings and Appleby’s admissions the Panel was satisfied that Appleby was in breach  of Rule (C)53, which imposes a strict liability upon a trainer if a horse in his care tests positive for a Prohibited Substance. The allegations of a breach of Rule (C)13 for failing to keep a proper record of the Voltarol treatments was dropped by the BHA when Appleby produced the diary entries for December 2014 at the hearing.

5. The usual penalty for a breach of Rule (C)53 is a financial one. The entry point is £1,000, with a range of £750 – £10,000. Despite initial misgivings, the Panel imposed the entry level penalty of a fine of £1,000, as it was eventually accepted that Appleby was guilty of an artless and uncalculated breach of the Rules. He did not seem to understand fully what constituted a Prohibited Substance. It noted Appleby undertaking not to use this substance again in treatment of his horses and to telephone the BHA if in doubt about the use of any other products. The Panel’s general doubts about the propriety of using unlicensed treatments remain, but this is recognised to be a matter for the BHA to consider and determine.

Finally, the horse was disqualified from the race pursuant to Rule (A)74.2, Ground 3.

 

Notes to editors:

1. The Panel for the hearings was: Philip Curl (Chair) Tim Charlton QC, Jeremy Barlow