18 Dec 2015 Disciplinary Panel - Other decisions

Easydoesit

On Thursday 17 December 2015, the Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry to consider whether EASYDOESIT(IRE) should be made the subject of restrictions from entering races following the gelding’s refusal to race in the Fakenham Selling Handicap Hurdle at Fakenham on 17 November 2015. This question was referred by the Fakenham Stewards on the day.

The Fakenham race was the first occasion on which the gelding actively refused to start, though on three other occasions in the past nine months it has been recorded by Stipendiary Stewards to have been “reluctant”, then “very reluctant” and thirdly “hugely reluctant to race; losing 40+ lengths as a result”. The trainer Tony Carroll, who did not attend the hearing, took a realistic position. He wrote to acknowledge the difficulties experienced with the gelding in National Hunt races. But he asked that the gelding be allowed to run in flat races because “we don’t have any trouble with him from a stalls start”.

The gelding’s record shows that since the first recent incident of misbehaviour (at Towcester on 23 March 2015), it has had 11 starts on the flat, including a win at Brighton on 5 August 2015. No problems with the gelding’s behaviour on these occasions have been reported. Indeed, two of these runs came after the Fakenham refusal – in a race at Wolverhampton on 21 November 2015, and then at Kempton on 16 December 2015.

The Panel decided therefore to restrict entries for the gelding to flat races started from stalls only. It also imposes a condition that if there is any further instance of unruly behaviour, that this is referred by the Stewards to the BHA for further consideration of the necessary action under Rule (F)66.

 

Marco Botti

On Thursday 17 December 2015, the Disciplinary Panel of the BHA held an enquiry to consider the allegation that the trainer, Marco Botti, was in breach of Rule (C)37.1 by declaring THOMAS SENSIAZONE to run in a race at Wolverhampton on 8 July 2015.

The basis of the BHA’s case, admitted by Botti was, that the gelding was not qualified to run because following the gelding’s import from Italy he had not notified the BHA of its whereabouts to enable the BHA to take a sample for anti-doping purposes. He should have filed information about the gelding’s whereabouts within seven days of its arrival in Great Britain on 22 May 2015. As he did not, there was no Certificate of Analysis giving a clean report about prohibited substances before the race at Wolverhampton.

In the Panel’s view, these undisputed facts established the gelding was not qualified to run on 8 July by virtue of the new provision at Rule (E)17.5. It follows that Botti was in breach of Rule (C)37.1, which puts a high duty upon trainers to declare only horses that are qualified to run in the race in question.

Botti (who did not attend the enquiry) had written to explain that his breach of the Rules occurred by mistake – owing to lack of familiarity with the new anti-doping Rules and procedures. He seems to have relied upon “clearance from Weatherbys” as a signal that he could enter the gelding for races. But this clearance seems only to have been an acknowledgement that an export certificate had been received. He did have blood samples taken from the horse by his Veterinary Practice, Rossdales, for his own training purposes. And he has since arranged to have a briefing from the BHA on the new anti-doping Rules.

While the Panel had some sympathy for Botti’s explanations, the central fact remains that trainers must acquaint themselves with the new procedures – information and guidance is provided by the BHA.

The Guide to Procedures and Penalties contains no indication of penalty guidance for this kind of breach. The Panel was told that the Rules Committee is presently studying a proposal to provide guidance that would indicate the same penalties as for breaches of Rule (A)29 i.e. an entry point of £1,000 with a range of £500 – £3,000.

The Panel felt that was too heavy an approach for the breach in question here. The novelty of the new Rules, Botti’s early admissions of breach and the fact that he himself eventually gave the BHA an unprompted notice of the horse’s whereabouts on 29 July 2015 caused the Panel to impose a fine of £250. The gelding must also be disqualified from the race at Wolverhampton because it was not qualified to run without the clean Certificate of Analysis.

 

David O’Meara

On Thursday 17 December 2015, the Disciplinary Panel of the BHA held an enquiry to determine whether the trainer David O’Meara was in breach of Rule (G)2.1 of the Rules of Racing because a urine sample taken from SO BELOVED after racing in (and winning) the Betfred Mile at Goodwood on 31 July 2015 tested positive for Phenylbutazone and its metabolite Oxyphenbutazone. These two substances, which are collectively referred to below as “bute”, are prohibited substances on a raceday pursuant to Rule (G)16. O’Meara faced a second allegation of breach of Rule (C)13 concerning the adequacy of medication records maintained at his yard.

Phenylbutazone is a non-steroidal anti-inflammatory drug, that may be administered to horses in training, but should not be present in the horse’s system on a raceday.

O’Meara attended the enquiry but was unrepresented. The BHA’s case was presented by Sheena Chohan.

The Schedule (A)6 form initially filed by O’Meara admitted breach “in part”, but failed to specify what part of the allegations was being referred to, or to give any other detail at all about his case. A second and later version of the Schedule (A)6 form made a general admission that he was in breach but failed again to give any other explanation of his position. On the morning of the hearing, O’Meara informed the Disciplinary Panel that he admitted the Rule (G)2.1 breach but denied the Rule (C)13 breach. This late change of position, and the absence of an earlier properly completed Schedule (A)6 form created some misgivings about whether there could be an adequate investigation of his case on Rule (C)13, but there was no objection from the BHA and the Panel proceeded to consider it.

Following the positive result for the A sample taken from SO BELOVED after winning its race at Goodwood, O’Meara exercised his right to have the B sample tested. It was, and on 10 September 2015, the laboratory returned and analysis confirming the A sample result.

The BHA conducted substantial investigations to try to ascertain the source of the bute. O’Meara himself was unable to offer any explanation. The BHA’s interviews of his stable staff and of personnel at Goodwood did not throw up any likely source. O’Meara drew the Panel’s attention to two matters – firstly the evidence that a CCTV camera at Goodwood was not properly focused on the box occupied by SO BELOVED, and secondly that there were inadequacies in the record of when SO BELOVED and three other horses from O’Meara’s yard arrived at Goodwood on the evening before their races. But in the Panel’s view, neither of these points came remotely near to providing an explanation for the likely source of the bute. They nevertheless remain points which the BHA may wish to consider further.

So the Panel approached the question of penalty for the undoubted breach of Rule (G)2.1 upon the basis that the positive sample was unexplained. It was recognised that O’Meara had never had a case of a positive sample before, even from testing in training, to which he was made subject in 2014. In the circumstances, the entry-level fine of £1000 was imposed. SO BELOVED was disqualified from the race placing BELGIAN BILL first, THE RECTIFIER (USA) second, BASEM third, MUNAASER fourth, AVAAR (IRE) fifth and DONNCHA (IRE) sixth.

As part of the investigation by the BHA at O’Meara’s yard, his medication records were carefully inspected. These consisted of the standard NTF medication book, his secretary’s diary, his head lass’s diary and the Yardman software. Comparison of these yielded what the BHA said were discrepancies or inaccuracies over the last 10 days of July 2015, which appears to have been a test period for analysis. Two of these, concerning minor treatments for the horses MADE WITH LOVE with Gastrogard and MON BEAU VISAGE (IRE) with Trimediazine, did not seem to the Panel to reveal any breach, and the charges were dismissed in respect of them. In relation to a treatment of AWAKE MY SOUL (IRE), O’Meara produced on the day of the hearing a letter from his Veterinary Surgeon (Vet), Mr Brian Abbott, accepting blame for a failure to make an entry in the medication book through forgetfulness. The Panel was also shown a copy of the medication record compiled by Mr Abbott on the day of his attendance on this horse and others. This did appear to specify the nature of treatment and the drug used. Mr Abbott’s letter said that the copy of the medication record was kept at the yard. Despite the Panel’s reservations arising from the late production of this material, which the BHA had had no opportunity to check, it did appear to fill the gap in the record-keeping. But this still left O’Meara in breach of a different part of Rule (C)13, namely Rule (C)13.3, which requires that such records are made available for inspection. These were not disclosed to BHA Investigators during their investigation, and production at the last minute during the hearing is plainly no fulfilment of the Rule.

In the case of the treatment for ALGAR LAD on 20 July 2015, the BHA pointed to the fact that the NTF medication book entry was illegible and that the gaps were not filled by the other materials relied upon and accepted by the BHA as constituting medication records. Mr Abbott apologised for the illegibility. In his letter he identified the medications used and said that the amounts appeared in another page of his treatment book, a copy of which was always at the yard. Again with misgivings, the Panel accepted that this supplied the missing information for the purposes of Rule (C)13.2. But that still left O’Meara in breach of the Rule (C)13.3 obligation to make the relevant medication records available for inspection. It provided no answer that the fault lay with his Vet. O’Meara has to accept responsibility for his Vet’s actions just as much as for the actions of his stable staff.

The breaches of Rule (C)13.3 appeared to the Panel to be less serious than the alleged breaches of Rule (C)13.2 which Mr Abbott’s evidence disproved. Accordingly, the Panel imposed a fine of £250. However, the Panel records its concern that the assumption underlying the approach both of the BHA and O’Meara to the question of medication records – namely that these can be found in a variety of sources – maybe unsound. In the Panel’s view, there ought in principle to be one definitive record within any trainer’s yard that accurately provides the information that Rule (C)13 requires. A “jigsaw” approach, taking bits of information from a variety of paperwork or computer entries maintained within a yard, is unsatisfactory. This can create concern about what is the authoritative record. Furthermore, the authoritative record of treatments and medications should be readily and swiftly available to BHA Investigators without having to follow a trail that may involve (as here) a vet having to supply missing or illegibly recorded information.

 

Robert Mike Smith

On 17 December 2015, the Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry into the allegation that the licensed trainer Robert Michael Smith was in breach of Rule (C)37.1 because he administered substances other than normal feed or water to his horse KNIGHT WOODSMAN on the days of two of its races – at Hexham on 7 and 22 June 2014.

Smith acknowledged that he was in breach, and did not attend the enquiry in person, though he did give evidence by telephone. The BHA’s case was presented by Ms Shruti Sharma.

The breaches of the Rules came to light following a routine out of competition testing visit to Smith’s yard in April 2015. His medication records revealed that KNIGHT WOODSMAN was being treated with “Stop Bleed” for a 7 day period finishing on 7 June 2014, the date of the horse’s first race at Hexham. They also revealed that the horse was being treated with “Zylkene” on a daily basis between 18 May and 23 June 2014, so that this substance was given to the horse on the occasions of both the first and second of its races at Hexham.

Smith explained to the Panel that he was unaware of the prohibition upon giving any substance to a horse on a race day other than normal feed and water. Though sceptical of this, the Panel did note that the breaches came to light because they were openly disclosed in the yard’s medication records.

When assessing penalty, the Panel recognised that there were two separate breaches here of Rule (C)37.1, involving two separate substances. In principle, that would indicate the need for a fine substantially above the £1000 entry point for Rule (C)37.1 breaches. But the Panel imposed a fine of just £1000 to reflect the facts that Smith was entirely open about what he had done, both in his medication records and in interview; that he made a prompt admission of breach; and that the substances he administered were composed of natural products.

A further consequence of racing the horse on a day when it had ingested substances other than normal feed and water is that it was not qualified to run in either of the two races at Hexham. The Panel disqualified KNIGHT WOODSMAN from its race on 7 June 2014, placing SOLIS (GER) fourth, CHICAGO OUTFIT (IRE) fifth and FINBIN (IRE) sixth. It also disqualified KNIGHT WOODSMAN from its race of 22 June 2014, placing WINTER ALCHEMY (IRE) first, EVERLASTING (IRE) second, BOB WILL (IRE) third and GET READY TO GO (IRE) fourth.

 

Tom Scudamore

On 17 December 2015, the Disciplinary Panel of the British Horseracing Authority (BHA) heard an appeal brought by the jockey Tom Scudamore against the decision by the Aintree Stewards to suspend him for 5 days for careless riding in the Betfred Becher Handicap chase on 5 December 2015. His appeal was presented by Rory MacNeice, and the BHA’s position was put forward by Lyn Williams.

The suspension arose from Scudamore’s riding from the final fence. He was riding SOLL, and was prominent in the race approaching the last, when positioned towards the inside of the track. Nearer still to the inside, and about 1½ lengths behind when jumping the last, was FINANCIAL CLIMATE (IRE), ridden by Tom Garner. As this race was run on the Grand National course, it was necessary for the horses to move to their right, crossing the Mildmay course and onto the hurdle course for the finish. This required them to go around the elbow beginning beside the Chair fence. Scudamore on SOLL and most of the other runners in contention took a fairly direct run towards the elbow after clearing the last fence. However, Garner on FINANCIAL CLIMATE (IRE) took a less direct route. Having jumped the last, he ran straight on for several strides as if heading for the Chair. This separated him from the main body of the runners in contention, though it was clear that he was gaining gradually on SOLL. Garner corrected his direction in order to go round the elbow, and began, therefore, to move closer to Scudamore. As they approached the elbow, FINANCIAL CLIMATE (IRE) was just ½ length down on SOLL. However, he was rapidly running out of room as Scudamore reached the curved part of the rail at the elbow. FINANCIAL CLIMATE (IRE) struck into the rail and bumped SOLL, who in turn inconvenienced (but did not make contact with) a runner on his outside. The effect of the collisions was more severe for Garner on FINANCIAL CLIMATE (IRE), and they effectively put him out of the race.

For the BHA, Mr Williams submitted that it was Scudamore’s obligation in the circumstances to give room to Garner’s mount as they approached the elbow, as he must have been fully aware of Garner’s presence just ½ length down on him. Scudamore told the Panel (as he told the Aintree Stewards) that he was unaware of Garner on his inside until just before the elbow, when he said it was too late to do anything. The Panel did not accept that evidence. He must have been aware that the line he was taking would cause Garner to hit the rail unless he (Garner) effectively stopped riding and took his horse behind and around SOLL.

But on behalf of Scudamore, Mr Mac Neice developed an argument that had not been deployed by his client before the Aintree Stewards. It was based upon the terms of Schedule (B)6, Part 1, which provides –
“Interference

Overtaking on the inside

1.1 Where a Rider attempts to pass another horse on the inside on an unrailed part of the course
1.1.1 the Rider must ensure that his horse has the speed to do so;
1.1.2 he must be clear of the horse which he has overtaken on the inside well before the next Obstacle or section of running rail;
1.1.3 he must ensure that he does not interfere in any way with the horse which he is overtaking; and
1.1.4 if he does cause interference it may be regarded as dangerous riding or careless riding.
2.1 The Rider being overtaken is entitled to maintain his line to the inside of the next Obstacle or section of running rail but he must not ride across to ride off any horse trying to pass him on the inside.
2.2 If he does ride across, such interference may be regarded as dangerous or improper riding.”

Did this apply in the present case? It was not, of course, the Panel’s task to decide whether this elaboration of the basic Rule on careless riding was necessary or sensible: it was necessary to apply it if the circumstances required this. That raised the question of whether Garner on FINANCIAL CLIMATE (IRE) was attempting to pass SOLL “on the inside on an unrailed part of the course”. The Panel concluded, contrary to Mr Williams’ argument, that the section of the course from the last fence to the elbow should be regarded as “unrailed”. Though there is of course a running rail on the inside of the track after the last, it runs towards the Chair fence. A temporary tape was in place, running from that rail to the elbow, to indicate to horses and jockeys that they are to go around the elbow. But this cannot be seen as a “rail”. Horses following a racing line to the elbow from the last do not go anywhere near either the fixed rail on the inside of the course or the temporary tape.

In the light of that conclusion, the paragraphs relied upon by Mr Mac Neice in Schedule (B)6 did apply. These meant that it was Garner’s obligation to pull back and go around Scudamore’s mount as he was unable to get past him before the elbow. And paragraph 2.1 of the Schedule quoted above makes clear that Scudamore was doing nothing wrong in maintaining a direct racing line to the rail at the elbow. It followed that his riding could not be characterised as careless.

But did he do no more than maintain a direct racing line to the rail at the elbow? Mr Williams for the BHA fairly raised the question whether Scudamore was in fact guilty of the more serious breach of improper riding. He suggested that Scudamore was, in the language of paragraph 2.1, “riding off” Garner by preventing him from making a run along the rail beginning at the elbow. He pointed out that SOLL reached the rail at a point where it was still curved and that there was a small but perceptible change of direction to his left by Scudamore shortly before he got there. Scudamore’s response was that he was aiming for the “apex” of the curve of the rail, and that he did not have to pull off to his right to avoid himself running into it.

The Panel found this to be a finely balanced issue. There were pointers in both directions. On the one hand, the Panel did not believe Scudamore’s evidence that he was unaware of the presence of Garner until it was too late to move to give him room. And there was a perceptible shift to his left shortly before reaching the elbow rail which was capable of supporting the conclusion that he was deliberately trying to “shut the door” on Garner. On the other hand, there was an absence of any indication from Scudamore’s body language that he was targeting Garner and trying to ride him off. It was also possible to explain the marginal shift to the left as being caused by a tiring horse seeking the sanctuary of a rail to run against as early as possible, as well as there being the influence of two horses near him on his outside.

At the end of the day, the Panel acquitted Scudamore of any deliberate misconduct that could support a finding of improper riding. It could not be said to be probable (that being the appropriate test) that he had deliberately ridden Garner into the rail. The Panel was left with the conclusion expressed on the careless riding question – Scudamore was doing no more than paragraph 2.1 of Schedule (B)6 permitted him to do.

The end result was that there was no breach by Scudamore of the Rules of Racing in the race in question, so his appeal was allowed and his deposit returned.

 

Gary Mahon

On 17 December 2015, the Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry to consider a matter referred by the Southwell Stewards on 12 December 2015, namely the use of the whip by the jockey Gary Mahon when riding NOSEY BARKER (IRE) on that day. The matter was referred because this was Mahon’s fifth offence of misuse of the whip, warranting a suspension of between 2-6 days, in the previous 6 months.

Having reviewed recordings of the race, the Panel accepted Mahon’s admission that he was in breach of the requirements of Schedule (B)6 part 2 of the Rules of Racing in that he used his whip to give more than the permitted number of hits to his horse. He gave it 9 hits on this occasion, which warranted a two day suspension.
When considering the overall penalty to be imposed, the Panel took into account that Mahon had had 150 rides in the six-month period before the breach at Southwell, which was fewer than the expected average of 250 rides. It also noted that the earliest of the breaches within the six-month period was within 8 days of dropping out of consideration for “totting up” purposes. But the previous four occasions of breach within the six-month period revealed a series of suspensions that were for more serious misuse of the whip than in the average case. Those previous breaches produced one suspension of 2 days and three suspensions of 4 days each. The Panel was also made aware that the BHA had offered to help Mahon in getting some coaching assistance, and he was willing to take this up.

Bearing in mind all those factors, the Panel decided that a total suspension above the entry point was called for. It imposed a 27 day suspension, of which 9 days were deferred. The period of suspension therefore ran from 26 December 2015 through to 12 January 2016 inclusive. The 9 deferred days will expire on 12 March 2016.

 

Notes to editors:

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