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Result of an Appeal (Dragon Symbol) heard by the Disciplinary Panel on Thursday 1 July 2021
                                             

Result of an Appeal (Dragon Symbol) heard by the Disciplinary Panel on Thursday 1 July 2021


20/07/2021 @ 12:30:00

1. On 1 July 2021 the independent Disciplinary Panel of the British Horseracing Authority (BHA) sat to consider the appeal from the owner and trainer of DRAGON SYMBOL, (ridden by Oisin Murphy) against the finding on 18 June 2021 of the Ascot Stewards who reversed the placings in The Commonwealth Cup (Class 1) (Group 1) (British Championship Series) over 6f where DRAGON SYMBOL was first past the post beating CAMPANELLE (IRE) (ridden by Frankie Dettori) by a head.

2. Separately, Mr Murphy was found guilty of careless riding and suspended for four days.  That decision is not the subject of any appeal.

3. Of necessity the hearing was virtual and followed the agreed rules for this procedure.  Mr Graeme McPherson QC appeared for the owner Mr Yashiro Kabata and the trainer Mr Archie Watson.  The BHA’s position was presented by Louis Weston of counsel.  Mr John Kelsey-Fry QC was also in attendance representing the connections of CAMPANELLE (IRE).  No objection was taken to the constitution of the Panel.  Detailed bundles of submissions had been provided to the Panel in advance which assisted the Panel in identifying the issues.

4. The Panel take the standard approach of attaching such weight to the Stewards’ assessment of whether there had been a breach of the Rule in question, (F)35, as they considered appropriate.  Nevertheless, as a re-hearing, matters were considered afresh with the benefit of submissions and analysis from both sides.

The issue

5. That there was interference was never in issue – the consideration was the effect of the interference by DRAGON SYMBOL and whether that interference on the balance of probabilities improved his placing in relation to CAMPANELLE (IRE).  Did the interference make any probable difference to the chance of CAMPANELLE (IRE) winning?

The Steward's hearing and ruling

6. The detailed hearing had to be split, with the first part focused on the placings question. Mr Dettori gave this account:
“Well, Oisin made a good challenge towards me, and we both drew clear of the field and at this moment, given a little bump here, then he corrected his horse, and then furthermore given another bump here and he kept on taking me off my line throughout the last furlong, he kept on shifting right. You’ve got to bear in mind the ground conditions today is very heavy, with this little nudge to take off balance and definitely cost me the race. It was very clear that he shifted about six lanes from his original challenging position."

7. While looking at the screen he was asked if there was contact. He responded:
"Yes. On my shoulder, yes. And as he pulled it through, there’s another contact here and there is another contact here. And he kept on taking me off my line."

8. Having heard what Mr Dettori had said and having seen the videos Mr Murphy was asked for his statement:
"Yes sir. I respect what Mr Dettori has to say. I raced behind him, and I challenged slowly from about two furlongs out, and I’ve hit the front hands and heels, my horse is obviously lightly raced, he hasn’t much experience, so when I’ve hit the front and I’ve given him a few smacks, he has drifted fractionally into Mr Dettori. When I have pulled my stick through to the left, he’s actually running straight and true at that point, and if you want to go back to that last angle we could see that, and in the last kind of hundred yards when the horses there are getting very tired, CAMPANELLE (IRE) comes back and probably heads him then my horse gets his head back in front and although he drifts slightly left away from her at the line, he pulls up and gallops down the hill. Yes he is green, but I don’t think there’s doubt in anyone’s mind he ran babyish today, but he was the best horse in the race."

9. He was then asked: ‘Just for the purposes of the record, the winning margin is a head. How far would you say Mr Dettori has been carried off his intended line Mr Murphy? He replied:
"So without going back to the replay, I suppose my horse initially goes looking for him, when I go past him, I went past him hands and heels and quite quickly. I have drifted over to race with him, which is fine, the little nudge, I’m in front of him, probably half a length, I’ve straightened him, he’s run straight and true here, but again he’s getting tired, he slightly leans into CAMPANELLE (IRE), but he runs clear with my stick in my left hand, I pull it back through, he’s running in a straight line here, and at the line he’s drifting back left, he’s very tired but he was clearly the best horse."

10. To the observation: "You say that at one stage, you said you were about half a length up?" Mr Murphy replied:
"I’d say I went further, I think I was three-quarters of a length up, but once he went clear he did through babyish, kind of wait for the other horses."

11. To the question; "Would that then necessarily equate to the fact that Mr Dettori’s horse has basically stayed on and made up some ground on you to get to a head at the line?"  He responded:
"I actually think she might have headed me again with about a hundred yards to go.  It’s impossible to see even from the camera angles we have, but at the line I galloped out down the hill and I think we need to bear that in mind."

12. Asked if he had anything else to say, Mr Dettori said: 
"Sir, it is very obvious, he has carried me across, eight widths off my intended line, its clear again he’s brushed me three times, I’ve got beaten by a head, you have got to give me the benefit of the doubt.  I was on the best horse, and I just got taken off my true line."

13. An adjourned hearing later considered Mr Murphy’s riding during the incident. Both riders gave a ‘recap”. Mr Dettori when asked how far he thought that he had been carried across the track said: ‘it’s hard to tell, maybe six lanes.  But you will have to look at that yourselves,’ and took no further part.  Mr Murphy gave a detailed account while viewing the head on frames and responded to a number of queries by Mr Parker, the Chief Steward.  He agreed that he had drifted, ‘but not the eight widths that Frankie said in the enquiry earlier’, and after discussion as to the amount said; ‘Ok, I’ve carried him four horse widths’.

14. The published decision of the Stewards was:
... “following interference over the final furlong and a half when the winner DRAGON SYMBOL ridden by Oisin Murphy, interfered with CAMPANELLE(IRE) placed second ridden by Frankie Dettori. The Stewards considered that the interference had improved DRAGON SYMBOL’s placing as at the time of interference, both horses were travelling equally as well, and they believed that the distance lost by CAMPANELLE (IRE) who was taken notably off her intended line and bumped on a minimum of two occasions, equated to more than the head by which she was beaten. Murphy was suspended for 4 days for careless riding for allowing his mount to hang right-handed for a sustained period without sufficient correction, making contact with CAMPANELLE (IRE) on a couple of occasions and causing her to be taken notably off her intended line. They ordered the placings to be revised as follows: CAMPANELLE (IRE), first, DRAGON SYMBOL, second.”

The case for the BHA

15. The BHA sought to uphold the decision and conclusions of the Stewards in that there was an incident of careless riding over a considerable distance within the final 1½ furlongs of the race, and CAMPANELLE (IRE) was taken substantially off of her line and driven to ride diagonally. There was physical contact on two or three occasions and on each occasion, CAMPANELLE (IRE) was forced further across away from the stands and Mr Dettori had to take steps to rebalance and straighten up losing momentum thereby.  Further, the winning margin was only a head and there is a presumption that interference is likely to have impeded CAMPANELLE (IRE), and/or CAMPANELLE (IRE) was making up ground during the interference.

The case for DRAGON SYMBOL

16. A Notice of Appeal dated 21 June 2021 was lodged by Messrs Royds Withy King on behalf of DRAGON SYMBOL’s owner and trainer accepting that ‘interference took place and that it was caused by the ride of DRAGON SYMBOL’ but contends that the Stewards were ‘wrong’ to reverse the placings on the oral evidence and race videos.

17. Mr McPherson QC in a notice dated 29 June 2021 submitted further arguments which were expanded during the course of the hearing. It was common ground that because of the interference CAMPANELLE (IRE) was carried off a straight line. Mr Dettori’s assertion to the Ascot Stewards that he was ‘shifted about six lanes’ when racing between 1½ furlongs and ½ furlong from the line looked about right.  That once the drift to the right started DRAGON SYMBOL was up by about a neck and the first contact was about 1 and 1½ furlongs out.  The second contact was about a furlong out and while there was further drift there was no third contact. They were approximately level and then able to have an approximately 19-stride, straight run to the line.  There was no sustained interference and DRAGON SYMBOL was going better of the two.  The interference did not improve DRAGON SYMBOL’s placing in relation to CAMPANELLE (IRE). DRAGON SYMBOL would always have finished in front of CAMPANELLE (IRE).  It was also contended by applying Pythagoras that CAMPANELLE (IRE) had to travel no more than 9cm further than she would have travelled had she been able to run in a straight line over those 200 metres (between 1½ furlongs and ½ furlong from the line).

18. Subsequently, just before the hearing, the appellants supplied a bundle which included the approach they invited the Panel to adopt and observations as to the status and participation at the hearing of the legal representatives of CAMPANELLE (IRE)’s connections.  Also included was the statistical race analysis showing among other things that CAMPANELLE (IRE) has run two metres further.  There was a further examination of the period between 1½ furlongs out and the finish and the contention that DRAGON SYMBOL was going better of the two, supported by the sectional times showing that at the one-furlong mark CAMPANELLE (IRE) led by two one hundreds of a second and at the line by eight one hundreds compared with two one hundreds from the official finish times.

The relevant rule and guidelines

19. In determining the result following interference, the Stewards are advised in the Guide to Procedures and Penalties – an explanatory guide to assist effective enforcement of the Rules,’ of the following:
"One of the most difficult and contentious decisions a Panel has to make is to determine the result following interference. If the Panel considers that interference might have affected the result i.e. the interferer might have improved his placing as a result of the interference, an enquiry must be called...”
Thus: “the stewards have to decide whether the sufferer would have beaten the interferer but for the interference."

20. The series of factors to be taken into account being mindful of the Guiding Principles are:
  1. Where did the incident take place in relation to the winning post?
  2. How were the horses involved in the interference going at the time of the incident?
  3. How serious was the interference i.e. how much momentum did the sufferer lose and/or how much ground was lost?
  4. If the sufferer had had an uninterrupted run to the line, might it have finished in front of the interferer? If NO-order placings to remain unaltered If YES i.e. there is some doubt - proceed to question 5.
  5. How easily did the interferer beat the sufferer?
21. The guidance goes on:
“Having considered those factors relevant to the incident in question, if the Panel is satisfied that on the balance of probabilities the interference did improve the placing of the interferer in relation to the sufferer(s), the placings must be altered. Otherwise, the placings must remain unaltered. Generally speaking, the longer the Panel discusses whether the placings should be altered, the less likely it is that they should be. If the Panel is unable to conclude one way or the other, the result should stand."
And concludes: “Remember: in amending the placings you are demoting the interferer not promoting the sufferer."

22. Finally, a number of ‘Guiding Principles’ are set out.  Those relevant to this hearing are:
d) The benefit of doubt should go to the horse which finished in front.
e) The Panel should have in mind that interference is likely to have impeded the sufferer to some degree and therefore a reversal of placings is more likely to follow where there is only a nose between the horses.
f) The further away from the winning post that the incident occurs, the less likely it is that the result should be changed.
g) The Panel must make allowance for the momentum and ground lost by the sufferer by imagining that it had an uninterrupted run to the line.
h) The Panel must NOT make an allowance for any effect on the horse causing the interference.
i) The Panel must take into account the ease with which the interferer beat the sufferer.
j) If a horse is carried off its intended line, the effect will vary depending on the distance from the winning post.

The hearing

23. During a preliminary exchange, Mr Kelsy-Fry QC for the connections of CAMPANELLE (IRE) made it clear that he was content for Mr Weston to present and conduct the response to the appeal and that he regarded himself as ‘an interested observer’ only.

24. As part of his opening, Mr Weston introduced five sets of video recordings namely: the totality of the race, the head-on, the auxiliary head-on from the stands side, the side-on, the close up side-on and the remote from the rear.  He submitted that in the round CAMPANELLE (IRE) had momentum notwithstanding suffering physical contact and intimidation.

25. In giving evidence Mr Dettori described how he was leading for most of the way but then Mr Murphy came by him on the left by about half a length.  The ground was heavy and slippy underfoot.  He received a bump pushing him off-line, then a second bump and was carried across from the middle to the far side and had reason to believe (in that he felt it) there was a third contact.  His horse was intimidated, unbalanced and slowed.  He was taken off his true line ‘at least six or seven lines over’; but CAMPANELLE (IRE) fought back from half to three quarters of a length down.  Had it not been for the interference, he said, he would have won.

26. In cross examination he agreed that CAMPANELLE (IRE) had worn blinkers in the past and was wearing blinkers on this occasion but was unaware of any tendency to drift right or whether the blinkers were one cup or two.  His stick was in his right hand the entire race.  Although he did not have to take a check at each contact, she broke rhythm as her legs were not running straight.  He agreed that there was no interference in the nineteen strides to the line where they started more or less together and that he used his stick rhythmically to give her encouragement from which she benefited.  The damage had been done, however, before the straight run to the finish.

27. Giving his evidence Mr Murphy said that his horse was relaxed, and he was happy early on and did not wish to hit the front too soon.  He arrived at the front at about 1 and 1½ furlongs out and after a little squeeze DRAGON SYMBOL gave a real burst but unfortunately drifted right.  It was his first Group 1 and he was ‘green and babyish’, looking for company and slowed down.  Mr Murphy had no recollection of a third bump although they were close.  In the last half furlong his horse was concentrating, coming out on top, and beyond the line still had something to give.

28. To Mr Weston he agreed that he had ridden carelessly for a furlong and had not corrected his horse properly taking CAMPANELLE (IRE) off her line, but this had not affected her performance.  On reflection he had drifted six lane widths but had only seen the film once when in with the Stewards.  To the suggestion that CAMPANELLE (IRE) had made up half a length, he said that his horse was waiting.

29. Mr. Watson, DRAGON SYMBOL’S trainer, confirmed that DRAGON SYMBOL had come to racing late, was still learning and that it was his first race in front of a crowd.

Assessment of the evidence

30. Having in mind the Guiding Principles, the succinct and helpful arguments of counsel and a careful analysis of the five sets of race film we have concluded the following on the balance of probabilities in relation to the questions to be answered:
(i) There was clear interference and intimidation for approximately a furlong between 1½ furlongs and ½ a furlong out.  This comprised of a continual, predominantly unchecked drift from the centre of the course over to the right-hand side and included two clear bumps and a third minimal ‘coming together’ between 15.41.55.20 and 15.42.12.20.  Both horses then ran unrestricted and straight for the final half furlong.
(ii) Around the commencement of the interference DRAGON SYMBOL was more than a neck up although CAMPANELLE (IRE) had ‘battled back, while at the separation with half a furlong to run, they appear fairly adjacent. Efforts to control the drift were insufficient and the drift to the right continued.  We are not persuaded that DRAGON SYMBOL ‘idled’ during this period and conclude that CAMPENELLE (IRE) was going as well as was able while being impeded.
(iii) CAMPANELLE (IRE) was moved at least six ‘lanes’ off her line (although it is difficult to be precise even using other horses behind as comparison markers) and we conclude that as a result of the intimidation at a critical time she was restricted in giving her full effort and from getting back in front.
(iv) They both ran well to the line, but we conclude on balance that but for the period of interference, CAMPANELLE (IRE) would have been ahead at the last half furlong and stayed ahead; and the previous interference equated to more than the losing distance at the line.
(v) By a head.

31. We also note in relation to Guiding Principles (d) “the benefit of doubt should go to the horse which finished in front” that we adopt the interpretation given in the case of SIMPLE VERSE (IRE) 23rd September 2015 that this Principle ‘does no more than refer in different words to the standard of proof which has to be applied….it would be wrong to treat the principle as creating some sort of presumption in favour of the horse which interferes.'

32. Although a proportion of time was spent considering sectional times and actual distance run these factors are not of themselves definitive as to where effort was made or lost.  Although of some interest, in this case the predominant feature is the overall impression gained from the various video footages.

Conclusion

33. In determining the difficult question of the effect of the interference on CAMPANELLE (IRE) we have in mind primarily that the visible interference was continuous for a furlong – one sixth of the race – and that CAMPANELLE (IRE) was only able to run straight and separated in the last 100 yards; and that the process involved moved her a significant distance off her intended line on what was heavy going.   There were at least two contacts and we, on balance, accept that these additionally would have impeded her balance, freedom of movement and forward progress.

34. It was there that ‘the damage was done’ and the momentum that CAMPANELLE (IRE) had before the interference was nullified, and in our judgment that the distance lost, in the words of the Stewards, ‘equated to more than the head by which she was beaten’.

35. In our consideration of the totality of evidence placed before us, we see no reason to disagree with the decision of the Ascot Stewards, and we dismiss the appeal.

36. As to the deposit there were some arguments to be made, and were well made, and we think it appropriate that the deposit be returned.
 

Notes to Editors:

 
1. The Panel for the Appeal was: HH Brian Barker CBE QC, Tim Etherington, 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. 
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