13 Nov 2015 Disciplinary Panel - Other decisions

Keith Dalgleish

1. On Thursday 12 November 2015 the Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry into admitted allegations of breach of the Rules of Racing by the trainer Keith Dalgleish. His horse SANTEFISIO ran in the Tilbrooks Landscape & Tuddenham Nurseries Handicap at Newmarket on 29 May 2015, nine days after it had received an intra-articular corticosteroid injection, Duphacort Q, on 20 May 2015. This was administered by Dalgleish’s Veterinary Surgeon, William Marshall, and recorded in the trainer’s medication book. An inspection of Dalgleish’s yard revealed this when the BHA’s Veterinary and Equine Welfare teams visited to conduct out of competition testing because of previous positive sample findings for horses from his yard.

2. This meant that Dalgleish was in breach of Rule (A)74, Ground 4, which provides that a horse will be disqualified if it emerges that it was not qualified to run in a race as provided by Schedule (B)3. That Schedule states (at Paragraph 11A) that a horse must not have been administered an intra-articular corticosteroid on the day of its race or on any of the 14 days before the race.

3. The second breach admitted by Dalgleish was of Rule (A)29. This provides that a person who “knows or believes that a horse is not qualified for a race” must not enter or run it in a race.

4. But it was clear on the evidence that neither Dalgleish nor his Veterinary Surgeon, Mr Marshall, knew of the change to the Rules at the end of 2014 which introduced the 14 day stand down period after intra-articular injections of corticosteroid. They both certainly should have known of this. In Dalgleish’s case, he could and should have known of it at least from a BHA message to trainers on 21 November 2014 and from the National Trainers Federation November/December 2014 newsletter.

5. Dalgleish’s failure to pick up on this provides no excuse: he is deemed by Rule (A)2.3 to know the Rules, including amendments to them. The change to the Rule was introduced because of veterinary concerns about the increased risk of injury to horses who run within the 14 day period.

6. When considering penalty, the Guide to Procedures and Penalties indicates a fine of between £750 and £2,000 with an entry point of £1,000 for a breach of Rule (A)74 and Schedule (B)3 Paragraph 11A. Given Dalgleish’s prompt admission of breach, and the evidence which did establish that neither he nor his Veterinary Surgeon were acting in any underhand way, the Panel imposed the entry level fine of £1,000.

7. At the hearing, which Dalgleish did not attend, the Panel indicated that it would not impose any separate penalty for the admitted further breach of Rule (A)29, as there was no additional wrongdoing which was alleged to be an ingredient of this breach but not of the Rule (A)74 breach. Having considered the matter further when preparing these reasons, the Panel came to the conclusion that there was in fact no breach of Rule (A)29. It is a provision mainly designed to catch cases where a trainer (or owner) runs a horse which is, for instance, the wrong age or which did not meet other race conditions. If Dalgleish had actually known of the 14 day stand down period and then run SANTEFISIO, he would have been in breach. But the Rule requires actual knowledge or belief, rather than deemed knowledge.

8. So the only penalties remain the £1,000 for breach of Rule (A)74 and Schedule (B)3 Paragraph 11A and the disqualification of SANTEFISIO from the race, placing BALTIC BRAVE (IRE) sixth.

Dale Swift

1. On 12 November 2015, the Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry into the allegation that the jockey Dale Swift was in breach of Rule (D)65, because a urine sample he provided at Leicester racecourse on 21 September, 2015 contained a banned substance. That substance was benzoylecgonine, which is a metabolite of cocaine. Swift admitted the breach.

2. Through his representative at the hearing, Rory Mac Neice, Swift admitted that he had used cocaine. The Panel was asked to approach the question of penalty upon the basis that the account of events which he gave in an interview with BHA Investigators was correct (with one change). He originally told them that he had “snorted” cocaine when out with friends at Malton on the evening of Wednesday 16 September. He also said that he had taken cocaine on just one previous occasion. Before the Panel, his case was that he was likely to have taken the cocaine on the evening of Thursday 17 September, when he was still in Malton. This change of date was notified in his Schedule (A)6 defence form and was prompted by the comments of Allan Traynor, Head of Scientific Development and Toxicology at the testing laboratory, Alere Toxicology plc. This cast serious doubts upon whether the level of the metabolite found in Swift’s sample (produced on Monday 21 September) of 1100ng/ml could have been the result of cocaine use on 16 September. The information in the letter from Mr Traynor in fact also casts doubt upon whether the cocaine can have been used as early as 17 September.

3. But the Panel was not in a position to resolve these doubts: whether he used cocaine on 16 or 17 September or even closer to 21 September as Mr Traynor’s evidence suggests, the undoubted fact was that he produced a sample with a metabolite of cocaine on 21 September. Cocaine is a Class A drug. Likewise, the Panel was not able to resolve doubts about other aspects of Swift’s account, such as his assertion that he had only used cocaine once before. Even if that version of events turned out upon proper investigation to be true, it would not provide a reason to mitigate penalty in the Panel’s view. This was particularly so given that even on his story he had taken cocaine shortly before riding at Wolverhampton on Saturday 19 September. Or, as Mr Traynor’s evidence suggests, he had taken it shortly before racing at Leicester on 21 September. On a worst case scenario, he may have taken it before both. Whatever the truth, there was no reason to mitigate penalty. The Panel decided not to increase it because it was persuaded that Swift felt a sense of relief at having been discovered, and that may bode well for a positive change in his lifestyle and ultimately for his rehabilitation.

4. The Guide to Procedures and Penalties indicates that for a first offence of use of cocaine, a rider will “normally have his licence withdrawn at the top of the range” – the range being 1 – 6 months. The Panel saw no reason to depart from that recommended action, and decided that a 6 month period was appropriate. This runs from 30 September 2015, when Swift’s licence was suspended pending this enquiry, after the sample result became known. As his licence was due to expire on 17 March 2016 in any event, the effect of this decision is that:-

(i) his licence due to expire on 17 March 2016 is hereby withdrawn
(ii) he may not be granted a new licence to begin before 30 March 2016. In this regard, the Panel noted that a rider may seek to begin the process of completing reinstatement protocols “halfway through the period of [licence] withdrawal” – see Schedule (D)4 paragraph 75. For this purpose the halfway point shall be treated as being 30 December 2015.

Martin Harley

1. On 12 November 2015, the Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry into the allegation that the jockey Martin Harley was in breach of Rule (D)33 of the Rules of Racing, which proscribes the use of mobile phones by jockeys on racecourses.

2. Harley admitted the breach. It occurred on 19 February 2015 at Chelmsford City racecourse. On 24 February 2015, he was required by the BHA to produce his telephone records for 19 February 2015. He obtained these and promptly sent them on to the BHA, with a covering letter dated 4 March 2015 saying that the records would show that he had been sending texts to a friend of his who was on holiday in Brazil. The records did show that these were no fewer than 14 texts to the number he identified as belonging to his friend Ed Russell, sent during the restricted period for phone use while he was at the racecourse. He described these as “light-hearted exchanges”.

3. Harley was interviewed about this by the BHA in July 2015, when he further admitted sending texts during restricted periods on previous occasions. He was asked by the Panel about the contents of the texts on 19 February 2015, but could not produce them, he said, because they had by then been deleted. The BHA’s investigations about Mr Russell produced nothing untoward.

4. The Guide to Procedures and Penalties recommends a penalty range of a £350 – £2,000 fine or a suspension/withdrawal of licence for between 7 days and 1 year. The entry point penalties are a fine of £500 or a licence suspension/withdrawal of 1 month.

5. The Panel decided not to suspend or withdraw Harley’s licence. However, it did see several reasons why it should impose a fine above the entry point. There were repeated breaches on 19 February (i.e. 14 texts), and this was misconduct he admitted to having engaged in on previous occasions. Furthermore, despite his early admission of wrongdoing, the Panel did view his inability to prove his point about the texts being “light-hearted exchanges” by disclosing their contents as an aggravating feature. Though he may not have been asked about them until July 2015, it was his responsibility to make good what he said about them by disclosing them rather than deleting them.

6. A fine of £750 was imposed. This would have been higher (or a licence suspension might have been called for), if the Panel had not been persuaded that Harley fully understood his errors, admitted them swiftly, and was unlikely to repeat such misconduct. All jockeys need to realise that the control of the use of mobiles at the racecourse is an important aspect of the regulator’s fight to prevent corruption, and that transgressions which a jockey cannot positively demonstrate to have been innocent may call for tougher penalties, including licence suspensions.
Notes to Editors:

1. The Panel for the hearings was: Tim Charlton (Chair), Celina Carter, Diana Powles.