Result of an Appeal (A. Cawley, J Farrelly) heard by the Disciplinary Panel on Tuesday 9 March 2021
Result of an Appeal (A. Cawley & J Farrelly) heard by the Disciplinary Panel on Tuesday 9 March 2021
Result of an Appeal (A. Cawley & J. Farrelly) heard by the Disciplinary Panel on Tuesday 9 March 2021
27/04/2021 @ 13:00:00
Alain Cawley & Johnny Farrelly
1. On 9 March 2021, the independent Disciplinary Panel of the British Horseracing Authority (BHA) heard appeals lodged by the jockey Alain Cawley and the trainer Johnny Farrelly against the decision of the Exeter Stewards that they had given WHISTLEINTHEDARK (IRE) a schooling or conditioning run in the Kenn Novices’ Hurdle Race at Exeter on 26 February 2021. Mr Cawley received a 14 day ban and Mr Farrelly a £3,000 fine for this. Both penalties are at the respective entry points for a jockey and trainer found responsible for a schooling or conditioning run.
2. It is now standard practice to record the Panel’s approach to an appeal such as this in the following terms. This Panel conducts a rehearing of the case, but it can give appropriate weight to the decision by the local Stewards.
3. All parties were represented at the hearing. Louis Weston of counsel presented the case on behalf of the BHA, and he submitted that the decision of the Exeter Stewards was correct and that the appeals should accordingly be dismissed. Mr Cawley was represented by Rory Mac Neice, a partner of Ashfords LLP, and Roderick Moore of counsel acted for Mr Farrelly.
4. On behalf of Mr Cawley, Mr Mac Neice admitted before and at the hearing that his client was in breach of Rule (F)37.2. Mr Cawley accepted that he had failed to take “all reasonable and permissible measures” after the last hurdle. But he denied that he was in breach of the basic requirement imposed on all riders by Rule (F)37.1 to “ask their horse for timely, real and substantial efforts to achieve the best possible position”. The Exeter Stewards had found Mr Cawley in breach of this requirement.
5. For Mr Farrelly, it was submitted that the performance could not be characterised as a schooling or conditioning run, so that any question of a liability imposed on him by Rules (F)39 and 40 did not arise. He asserted that he had given adequate instructions to his jockey. He further said that he agreed with and accepted Mr Cawley’s admission that the ride after the last hurdle was a breach only of Rule (F)37.2.
6. WHISTLEINTHEDARK (IRE) was an expensive purchase for Mr Farrelly, and joined his yard in early January 2021. The horse was bought after being placed in two point to point runs in Ireland before Christmas 2020. He described it as a lovely horse that worked well, but which could be keen. It had done sufficient work, he said, to be 100% fit at home which he felt translated into 95% race fitness. He had schooled it regularly before the 26 February race, and indeed showed the Panel a video taken the day before the race of the horse schooling very neatly over obstacles in his training yard.
7. Mr Cawley is an experienced jockey, who has been riding for 9 years in the UK. He had ridden many times for Mr Farrelly, but had never ridden WHISTLEINTHEDARK (IRE) in work. His instructions for the race, as relayed to the Stewards by Mr Cawley and confirmed by Mr Farrelly (who participated from home via a phone link) were that the horse was very keen at home, so he needed to be dropped in and settled, then “do the best we can".
8. Having heard and seen Mr Cawley give his evidence, the Panel concluded that he was a thoughtful and straightforward witness. There is no reason to doubt that he was giving a truthful account of his instructions and the Panel discounted any suggestion that he and Mr Farrelly were putting forward a version of instructions for public consumption while having a private plan to run a schooling or conditioning race. There was no such plan. But that, as all parties recognised, does not put an end to the analysis of what happened at Exeter. It is necessary first to determine the question whether the ride exhibited a breach of Rule (F)37.1 or 37.2, and then to consider how the breach found should be categorised for penalty purposes. It is at this later stage of categorising the breach that the Panel had to consider whether the ride looked to the reasonable observer like a schooling or conditioning run.
9. The race itself was a 9 runner event over 2m 2 ½f, run on soft ground. The relevant facts of WHISTLEINTHEDARK (IRE)’s performance were not really in issue, though their interpretation was contested. Consistently with the Panel’s conclusion about the reliability of Mr Cawley’s evidence, there was a general acceptance of his descriptions of what happened, though in the end a different interpretation of his actions was reached.
10. The horse was keen on the way to post, and took a keen hold from the start of the race. Mr Cawley took him to the rear of the field, but always in reasonable touch with those ahead of him. There were poor jumps at the first and second hurdles, both of which he hit. At one of these it is likely that the horse received the knock that produced a haematoma on the left knee that the on-course vet Mr Freeman noticed after the race. But his examination revealed no pain from this and full flexion of the joint. Mr Cawley was not aware of any problem from this during the race. Though Mr Farrelly said the horse was 1/5 lame on return to his yard and needed further veterinary examination, it is clear that the haematoma played no part in the performance of either horse or jockey during the race. That factor was not relevant for the Panel’s evaluation.
11. In the back straight, Mr Cawley eventually got the horse settled. It jumped the 3rd adequately. Thereafter its jumping was neat and efficient. Before the 4th last, the horse made some headway and went past three other runners to maintain touch with the leaders who were gradually increasing the pace. It was at about this point that Mr Cawley became conscious that the horse was experiencing a breathing problem. He did consider pulling up shortly after this began, but judged it was safe to continue without welfare consequences for the horse – a decision that was proved right by later events.
12. At about the same time that the wind problem emerged, Mr Cawley did ask the horse to go forward, during the run towards the end of the home turn. That maintained his contact with the leading group. Thereafter, during the long home straight at Exeter, Mr Cawley can be seen to bump up and down in the saddle. He let the horse find its own stride for the 2nd last (a perfectly legitimate riding decision) and it did this smartly while also jumping competitively the other hurdles in the home straight. However, at no stage can he be seen in the home straight to do more than bump up and down in the saddle. He never pushed for more response from his horse or take any other visible steps to try to get more from it. He explained that this was because he felt the wind problem meant that this was the best way to get the horse to the finish. Nevertheless, before the Panel (though not the Exeter Stewards), he conceded that he could have done more after the last. In fact, the horse continued to make progress, and passed two rivals in the home straight to finish 4th, beaten a total of 14 ¼ lengths by the winner. More relevantly he was just 3 ¼ and 2 ¼ lengths behind the second and third horses respectively.
13. After finishing, Mr Cawley dismounted promptly because of his concerns about the breathing problem, and then walked the horse back to unsaddle. At Scales he reported that the horse had been keen early and had made a noise. At the ensuing Stewards’ Enquiry, he provided the same account of events as he provided to the Panel, save that he maintained to them that he had made a normal effort in the home straight. Before the Panel, given his admission of a failure to use reasonable and permissible measures after the last, that could no longer apply. He told the Panel that having viewed recordings in more detail than he did at the hearing before the Stewards, he had not ridden a normal strong finish because of his concerns about the breathing problem and that if he had, the horse would not have got to the finish as well as it did.
The Panel's conclusions about the race
14. It should first be recorded that the Panel accepted what Mr Cawley said about the occurrence of the breathing problem. The critical question is whether that justified the lack of what he himself accepted was a normal effort in the home straight. The answer to that in the Panel’s view is clearly not. Mr Mac Neice referred the Panel to a recent decision in the case of JJ O’Neill Jnr, where reference is made (at paragraph 29) to a jockey “managing” a problem that emerges during a race. He submitted that that was what Mr Cawley was doing here in the home straight up to the time after the last hurdle when a breach was admitted. Mr Weston argued that that and other aspects of the JJ O’Neill decision were wrong and should not be followed. The Panel did not find it necessary to embark on a detailed analysis of that case. Whatever view may be taken of the concept of “managing” a problem, that cannot excuse a lack of visible and sufficient effort over a prolonged period – here from the end of the home bend, up the long Exeter home straight and all the way to the finish. No doubt a jockey can take a short time (to be measured in a few strides rather than in the more than 3 furlongs that Mr Cawley used here to give a tender ride) to assess a problem and decide if it is safe to continue in the race. But once that is done, he must then ride in the way that Rule (F)37.1 demands and make timely, real and substantial effort that is visible. He felt that he would achieve the best possible finishing position by the adaptation of his riding style. But compliance with the Rule (F)37.1 standard is refereed by the Stewards and (if necessary) the Panel, not by the participants in the race. His judgement that the horse might not get home as well as it eventually did because of the breathing problem might have been right, but equally it might well have done better still and finished 3rd or even 2nd if ridden with the necessary visible effort.
15. It follows that he was in breach of the basic requirement of Rule (F)37.1. Furthermore, that breach occurred for the whole of the period from the end of the home bend. His admitted tender riding after the last hurdle was indistinguishable from his ride in the preceding part of the straight. And the whole of that performance has to be characterised as a breach of the “timely, real and substantial efforts” part of the Rule. It was a considered adaptation of his usual style to respond to the breathing problem, rather than a lazy or negligent ride that might only fall foul of the “all other reasonable and permissible measures” requirement in Rule (F)37.2. That said the Panel is not saying that he had to be hard at work throughout the length of the home straight. Having made up some ground during the run from the 4th last (which is after he became aware of the breathing issue), it is reasonable to have expected at least some further visible effort to join the group ahead of him at the earlier stages of the home straight. Certainly a much more vigorous effort after the last hurdle had to be shown.
16. The first task is to identify the seriousness of the breach. The Guidance annexed to Rule (F)37 first requires the Panel to decide if the conduct was intentional or negligent. Here, the Panel took the view that Mr Cawley’s conduct had to be classified as intentional, because he adopted a considered tactic which he wrongly thought was legitimate.
17. But this was not in any sense pre-planned. It was a disappointingly mistaken decision from shortly after the breathing irregularity came to his attention. The Penalty guidance also annexed to the Rule identifies a number of different grades of seriousness for breaches of Rule (F)37.1, stretching from deliberate “stopping” in the knowledge that the horse has been laid to lose, down to a deliberate failure to ride on the merits when the horse would have finished outside the first three. There then follows a separate section headed “Rule (F)37 and (F)38 Schooling and Conditioning…”. This identifies examples of “Using the racecourse as a training ground”. Among these examples is to be found – “First time out in a Flat, Steeplechase or Hurdle Race”. Of course, cases of schooling or conditioning can themselves vary enormously in seriousness, from the planned excursion to the case where such a run was unplanned but looks to the informed observer like such an exercise.
18. In this instance, the Exeter Stewards concluded that this was a case of schooling or conditioning. The Panel readily understood that conclusion, but on the basis of the arguments and evidence it heard, it came to a different view. This plainly was a classic example of the type of run which could in principle be seen as using the racecourse as a training ground. WHISTLEINTHEDARK (IRE) was having its first run under Rules. As already explained, the Panel dismissed the idea of a pre-planned exercise and teaching run. But did this look like either schooling or conditioning?
19. It was easy to discount schooling. There was no criticism that could be made about the way the horse was presented to the hurdles. This was genuinely competitive at all stages. It had proved itself a capable jumper in its Irish point to point runs and had schooled well the day before the Exeter race. In the Exeter race itself, its jumping was perfectly good after the first two when it was running keenly.
20. “Conditioning” raised a more serious argument. The Panel accepted Mr Mac Neice’s apt observations that Mr Cawley was plainly making tactical racing decisions when moving the horse past other slower rivals in the back straight and then putting in effort to move closer to the main contenders on the home turn. Those showed he was competing rather than conditioning his horse. But the race must be judged as a whole, and Mr Cawley’s lack of the required effort in the home straight was telling. If one judged this case on the evidence provided by the recordings alone, then the conclusion might well be that this should be treated as a conditioning run – letting a horse which had been engaged in the race during its earlier stages coast home when fitness proved inadequate for the last furlongs. But the films are not the only evidence to be inspected for an objective view of whether this was a conditioning run. The Panel also had Mr Cawley’s evidence, which was accepted, that he was in fact reacting to a breathing problem. His ride thereafter was a misplaced reaction to this and of course a breach of the basic need for “timely real and substantial efforts”. He in fact misjudged how much horse he had under him. The ride in the home straight is better characterised as the product of the jockey’s misjudgement than a conditioning effort.
21. Having reached that conclusion, the Panel had then to consider what if any category of breach described in the Penalty guide best fitted the ride. On one view, it should be allocated to a more serious category – “intentionally not riding a horse on its merits that would not have finished first second or third”. But that would be unjust, in the Panel’s estimation, because at the root of Mr Cawley’s conscious adoption of an inadequate riding style in the home straight was a misjudgement of the situation and of what was required of him by the Rules. Therefore, it was appropriate to approach penalty on the basis that this was a sin of omission on his part rather than a sin of commission. The guidance for a “failure to take all reasonable and permissible measures” was used. That prescribes an entry point penalty of a 10 day suspension. An aggravating feature of the ride was that there was a chance that more vigorous handling might have led to third or even second place. But against this the Panel had to set the point made by Mr Mac Neice about the admission by Mr Cawley before the hearing. He recognised he was in breach of the Rules. The Panel decided that the breach was more serious than that admitted, but has approached penalty on the basis of the regime prescribed for the breach that was acknowledged.
22. Balancing these factors, the Panel imposed a suspension of 10 days. His appeal against the decision of the Exeter stewards was allowed to the extent that the suspension they imposed of 14 days is reduced to 10.
Mr Farrelly's position
23. Rule (F)40 says that if a jockey deliberately does not ensure that his horse runs to achieve its best possible position, or if the race is used for schooling or conditioning, the Trainer will be held responsible unless he shows that necessary instructions were given. The “necessary instructions” are described in Rule (F) 39 – they must allow the jockey to ensure the horse is given a full opportunity to achieve the best possible position.
24. The traditional way of testing that in Stewards’ enquiries has been to ask if the trainer was happy with the ride his jockey gave. But as Mr Moore observed on behalf of Mr Farrelly, that may not necessarily always answer the question posed by the actual words of Rule (F)40. Mr Farrelly did express himself to be content with the ride at the Exeter enquiry, but he had only seen it on TV when the relevant view in the home straight was largely the head on, from which it is difficult to assess Mr Cawley’s ride. He attended the enquiry on his mobile phone, and did not have a real chance to see the recordings played in the Stewards’ room.
25. At the hearing before the Panel, by which time he had seen fuller pictures, he recognised the inadequacy of the ride in the same way as did Mr Cawley. That was in the Panel’s estimation a genuine position rather than one adopted for his tactical needs at the hearing. Were, therefore, the instructions sufficient in the way Rule (F)39 requires? Though a faint attempt was made by Mr Weston that the phrase “do your best” at the end of Mr Farrely’s instructions was inadequate, the Panel did not agree. For a jockey of Mr Cawley’s experience, that is clearly enough to convey what probably does not even need to be said to an experienced rider – achieve the best possible position.
26. The Panel therefore concluded that Mr Farrelly’s instructions were sufficient. The fault in this case lay with Mr Cawley alone. Hence, Rule (F)40 does not operate here to hold Mr Farrelly liable as well for that fault. His appeal was allowed.
27. As the appeals were either partially successful (in Mr Cawley’s case) or wholly successful (in Mr Farrelly’s), the deposits they lodged as a condition of being allowed to appeal are returned.
Notes to Editors:
1. The Panel for the Enquiry was: Timothy Charlton QC, Alison Royston and Steve Winfield.
Please note, the BHA Judicial Panel is an independent body which encompasses the Disciplinary Panel, Appeal Board and Licensing Committee. It receives administrative support from the BHA via the Judicial Panel Secretary.