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Results of a Referral (D. Brock) and an Appeal (A. Haynes) heard by the Disciplinary Panel on Thursday 22 July 2021
                                             

Results of a Referral (D. Brock) and an Appeal (A. Haynes) heard by the Disciplinary Panel on Thursday 22 July 2021


29/07/2021 @ 14:00:00

Danny Brock 

1. On 22 July 2021 the independent Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry to establish whether or not Danny Brock, the rider of SOLOMONS JUDGEMENT (IRE), had used his whip above the permitted level inside the final 1½ furlongs in the Ministry of Sound Classical 21st August Handicap Stakes (Class 6) race at Chelmsford on 4 July 2021.
The matter was referred to the Panel by the Stewards at Chelmsford following an enquiry on the same day which found Mr Brock in breach of Rule (F)45 (using his whip above the permitted level), that the breach warranted a suspension of between 2 and 6 days and noting that this was Mr Brock’s fifth such suspension for improper use of the whip within the previous six months.

2. Mr Brock was in attendance and was represented by Mr Rory Mac Neice. The BHA was represented by Ms Charlotte Davison. There was no objection to the composition of the Panel, nor to the hearing taking place via Zoom.

3. The Panel viewed video films of the race and heard submissions from Ms Davison and Mr Mac Neice respectively.

4. The Panel concluded, as agreed by both Mr Mac Neice and Ms Davison, that Mr Brock had used his whip on 10 occasions over the final 1½ furlongs.  All such hits were in the forehand.  There were no concerns about the use of the whip other than the number of hits.
The only issue at this stage for the Panel was that whilst Mr Mac Neice maintained that two of the hits could be discounted, the BHA maintained that only one should be.  Mr Mac Neice submitted that given the manner in which Mr Brock had ridden the horse until 1½ furlongs out (i.e. previously giving it an appropriate hands and heels ride), and viewing the race overall, it was proper to discount 2 of the 10 hits.  The BHA, whilst accepting that Mr Brock after the first couple of hits had put his hands down and taken a new hold on the horse’s head before using the whip a further 8 times, noted that all 10 of the hits were significant hits.
Having viewed the video of the race and considered the submissions, the Panel concluded that one hit could properly be discounted given the use of the whip overall over the last 1½ furlongs.  Mr Brock had thus used his whip on this occasion two times over the permitted level and the appropriate suspension for this Chelmsford ride was 4 days.

5. This being Mr Brock’s fifth suspension within the previous 6 months, the Panel then turned their attention to the “totting-up” procedure under Rule (F)45.

6. The previous relevant suspensions were as follows:-
5 January 2021            Wolverhampton           Above shoulder height              2 days
6 January 2021            Kempton                      Above permitted level                 2 days
14 March 2021             Lingfield                       Above permitted level                 2 days
19 April 2021               Pontefract                    Above permitted level                 2 days
and the present matter
4 July                           Chelmsford                  Above permitted level                 4 days

7. The offences occurred over the full 6 months period (05.01.2021 – 04.07.2021), and from 35 rides during that period.

8. Where there has been a fifth suspension of 2 – 6 days within the previous 6 months the Disciplinary Panel will usually impose a suspension of between 14 – 42 days with an entry point of 21 days.
Part of the suspension may be deferred for a period of between 42 days and 4 months, but it will take effect in the event of the rider being further suspended during the said period.  The entry point for a deferred suspension is 2 months for a fifth suspension of 2 – 6 days ….. the number of days of the suspension that should be deferred is a ⅓ (fractions of days will be rounded down).

9. Ms Davison on behalf of the BHA submitted that whilst the offences occurred over the full 6-month period, nevertheless they occurred in a ratio of a whip offence for every 7 rides.  In the circumstances the BHA submitted that the penalty should be well above the entry point of 21 days.

10. Mr Mac Neice underlined that the offences, which were well spaced out, occurred over the full 6-month period, and that the “totting-up” procedure would not have applied if the Chelmsford offence had taken place just one day later.  He also stressed that four out of the five offences had been worthy of 2-day suspensions, the lowest suspension to which the “totting-up” provisions apply.  Mr Mac Neice said that Mr Brock had given thought to his whip offences and concluded that because he got limited opportunities to race he consequently became anxious when he got those opportunities.
Mr Mac Neice submitted that in all the circumstances a period of suspension at or about the entry point of 21 days was appropriate, with ⅓ deferred for 2 months.  He also told the Panel that Mr Brock had no objection to a requirement to undergo remedial training as to the use of the whip.

11. The Panel was informed that Mr Brock received his Apprentice Licence in 2009 and a full Jockey’s licence in 2016.  He had thus been race riding for a number of years.

12. The Panel took into account all the matters placed before them by both Ms Davison and Mr Mac Neice, and particularly bore in mind that these offences occurred over the full 6-month period, and that 4 out of the 5 offences received 2-days suspension, the lowest to which the “totting-up” provisions apply.  Also, the Panel heard that Mr Brock had not previously been subject to the “totting-up” procedures.

13. Nevertheless, the Panel considered the fact that these 5 whip offences had been committed in just 35 rides to be a factor of particular importance.  It meant a ratio of a whip offence every 7 rides.  Since the “totting-up” previsions were introduced several years ago this was one of the highest ratios, if not the highest, ever seen.
At a time when use of the whip and the reputation of racing are under scrutiny, the Panel considered it important that the whip Rules are and are seen to be, fairly but firmly enforced.  The Panel concluded that a ratio of one whip offence in every 7 rides was a substantial aggravating factor which took the suspension well above the entry point of 21 days.

14. In all the circumstances, the Panel concluded that Mr Brock should be suspended for 30 days under the “totting-up” provisions.  One third (10 days) will be deferred for 2 months.  The Panel also directed, and Mr Brock agreed, that one day of the suspension should be spent by Mr Brock attending remedial training.  Therefore, Mr Brock will be suspended from Friday 30 July 2021 to Wednesday 18 August 2021 inclusive with the 10 days deferred until 18 October 2021.

Alice Haynes

1. On 22 July 2021 the independent Disciplinary Panel of the British Horseracing Authority (BHA) sat to consider the appeal from the trainer of MUHALHEL (IRE), ridden by Kieran O’Neill, against the finding on 24 June 2021 of the Nottingham Stewards who reversed the placings in the Racing TV Profits Returned to Racing Handicap Stakes (Class 5) over 1½ miles where MUHALHEL (IRE) was first past the post beating DICKENS (IRE), ridden by David Probert, by a nose.

2. Separately, Mr O’Neill was found guilty of careless riding and suspended for 2 days as he allowed his mount to drift left-handed without timely or sufficient correction, causing DICKENS (IRE) ridden by Mr Probert to become unbalanced.  That decision is not the subject of any appeal, although it became clear at the hearing before the Disciplinary Panel that Mr O’Neill did not accept the finding.

3. The BHA were represented by Ms Charlotte Davison.  The Appellant, Alice Haynes (the trainer of MUHALHEL (IRE)) was not represented and chose to represent herself.  The hearing was of necessity virtual and followed the agreed rules for this procedure.  No objection was taken to the constitution of the Panel.

4. In the course of the hearing the Panel watched the video footage a number of times, heard evidence from Mr Probert called as a witness for the BHA and cross-examined by Ms Haynes, heard evidence from Mr O’Neill and cross-examined by Ms Davison and finally heard closing submissions from each side.  Both sides, and the Panel, had been provided with a bundle of relevant papers, including submissions, in advance of the hearing.

5. The Panel took the standard approach of attaching such weight to the Steward’s assessment of whether there had been a breach of the relevant Rules, as they considered appropriate.  Nevertheless, as a re-hearing, matters were considered afresh with the benefit of submissions and analysis from both sides.

6. In summary, the Stewards found that interference had been caused to DICKENS (IRE) inside the final furlong.  That such interference was due to the careless riding of Mr O’Neill on MUHALHEL (IRE) in that he allowed his mount to drift left under a right-handed whip drive, and that the interference to DICKENS (IRE) included contact on a couple of occasions which unbalanced DICKENS (IRE) and caused loss of momentum.  The Stewards concluded that the sufferer (DICKENS (IRE)) would have beaten MUHALHEL (IRE) but for the interference.  “The Stewards considered that the interference had improved MUHALHEL (IRE)’s placing as DICKENS (IRE) had been moved off its line of running and had been unbalanced in the process when bumped twice by MUHALHEL (IRE) which caused the horse to lose momentum and it cost it more than the nose by which it was beaten".

7. The BHA supported the findings of the Stewards, and submitted that at some stage after the 2 furlong marker DICKENS (IRE) moved in to a gap between MUHALHEL (IRE) and MATAMUA (the leading horse at that stage).  Both Mr O’Neill on MUHALHEL (IRE) and Mr Probert on DICKENS (IRE) had a clear run to the line.  Inside the final furlong, Mr O’Neill begins to drift left-handed towards Mr Probert.  As Mr Probert told the Stewards and repeated before the Panel, in the last 150 yards, his mount received one and probably two bumps from MUHALHEL (IRE).  Mr Probert said that he had been travelling well before the bumps and thought he would win.  He said as a result of the first bump he could not use his whip which was in his right hand because of the pressure from MUHALHEL (IRE).  He said that as a result of the interference DICKENS (IRE) was moved off his line and Mr Probert put his hands back on the reins.  The horse had become unbalanced and lost momentum, and Mr Probert was attempting to regain his balance and momentum.  Mr Probert told the Panel that as a result of the bumps from MUHALHEL (IRE), DICKENS (IRE) “became very unbalanced and changed legs a number of times in the last 150 yards”.  Mr Probert told the Panel that the interference had a dramatic effect on his chances of winning the race.

8. Mr O’Neill in response stated that any interference by MUHALHEL (IRE) had been accidental, and that in any event his horse was always doing enough and would have won.Mr O’Neill told the Stewards that about 2½ furlongs out he heard a shout from Mr Probert and considered that DICKENS (IRE) had changed legs and bumped MUHALHEL (IRE).At the hearing before the Panel it was pointed out to Mr O’Neill that the video footage did not show contact between the horses at this point, and Mr O’Neill then told the Panel that it was not contact so much as intimidation from DICKENS (IRE) on to MUHALHEL (IRE) at this point, and that DICKENS (IRE) had probably taken MUHALHEL (IRE) a horse’s width off his line.
Mr O’Neill said that whilst the video showed contact between the horses inside the final furlong, he did not consider that there had been any real interference.
Mr O’Neill, in his evidence before the Disciplinary Panel, agreed that DICKENS (IRE) was slightly taken off his line, but he said that Mr Probert had no need to put his hands back on the reins, that it was just a “soft brush” and that Mr Probert never needed to stop riding.He agreed that there had been a second light brush between the horses, but that had no effect on DICKENS (IRE) and Mr O’Neill’s horse was always going the better and would have won in any event.
Mr O’Neill accepted that the Stewards had found him guilty of careless riding (for the reasons set out earlier) and suspended him for 2 days for his riding in the final furlong, but made it clear that he did not agree with or accept that finding.  He told the Panel that any interference was accidental and his riding had not been at fault.

9. Ms Haynes also told the Disciplinary Panel that she considered that any interference between the two horses was accidental.  She said that DICKENS (IRE) is a bigger horse than MUHALHEL (IRE) and that DICKENS (IRE) did not look balanced throughout the race.  Ms Haynes said that DICKENS (IRE) changed leads a few times in the latter stages of the race and that any interference was caused equally be her horse and DICKENS (IRE).
Ms Haynes in her notice of Appeal stated “No ‘bump’ on the video evidence has actually occurred.  The head on and side proves this.  I am very aware he (MUHALHEL (IRE)) only won by a nose, however, in my professional opinion and the jockeys, he was doing his best work at the finish and does stay further.  If contact has actually occurred, then I would agreed the horse should be demoted”.
She felt as a small trainer up against a big yard in an enquiry, she was at a disadvantage.

Conclusion

10. Whilst it was important for the Panel to focus on all the evidence, the video footage was of particular significance.
Whatever exactly occurred between the two horses some 2½ furlongs out, the Panel is satisfied that there was no contact between them, a fact that Mr O’Neill now acknowledges.Whether or not DICKENS (IRE) did cause MUHALHEL (IRE) to move a horse’s width off his line as Mr O’Neill claimed, (and the video was unclear on this), the Panel was satisfied that no riding offence had been committed, and more importantly, the incident occurring as it did approximately 2½ furlongs from the finish did not affect the finishing positions.
What was clear to the Panel on viewing the video is that well into the final furlong, Mr O’Neill who had his whip in his right hand began to drift left-handed into the line of Mr Probert.His mount, MUHALHEL (IRE) bumps DICKENS (IRE) (06:24:27:21) for the first time. DICKENS (IRE) is moved to the left and Mr Probert places both hands on the reins to try and straighten his horse.The Panel accept Mr Probert’s evidence that as a result of the first bump, DICKENS (IRE) became very unbalanced, lost momentum and changed legs.
The Panel also concluded that whilst Mr Probert was seeking to straighten his mount, Mr O’Neill (with the whip still in his right hand) used the whip again and MUHALHEL (IRE) made contact with DICKENS (IRE) a second time (06:24:28:19) causing the latter to be moved left, off his intended line and to become unbalanced.Despite the interference DICKENS (IRE) was making up ground and was only a nose adrift at the line.
As mentioned above, Mr O’Neill, whilst not having appealed the finding of careless riding the subsequent suspension of 2 days, nevertheless before the Panel disputed the findings of the Stewards.  For the avoidance of doubt, having considered all the evidence and viewed the video footage several times, the Panel is in full agreement with the findings and penalty in relation to Mr O’Neill for the reasons clearly and succinctly set out by the Stewards.

11. The Panel acknowledges that determining the result following interference is often difficult and contentious, and we have approached the matter with appropriate care.  In answer to the questions and Guiding Principles to be posed, the Panel concludes that (i) the incidents took place well within the final furlong (ii) both horses were travelling equally well (iii) the interference was significant in that DICKENS (IRE) was bumped twice by MUHALHEL (IRE), taken off his line, unbalanced and lost momentum.  (iv) If DICKENS (IRE) had had a clear run to the line, DICKENS (IRE), in the judgement of the Panel would in all probability have finished in front of MUHALHEL (IRE).  (v) In the event, despite the interference, DICKENS (IRE) made up ground and MUHALHEL (IRE) despite being hard ridden all the way, only won by a nose.

12. In all the circumstances, the Panel is satisfied that on the balance of probabilities the interference did improve the placing of MUHALHEL (IRE) in relation to DICKENS (IRE), and the Panel conclude that the placings must be altered.  The Panel therefore agrees with the Stewards that DICKENS (IRE) should be placed first and MUHALHEL (IRE) second.  The Appeal by Ms Haynes is therefore dismissed.

13. So far as the deposit is concerned, although the Panel had come to clear conclusions, there were some arguments put forward in support of the Appeal which just about justify the return of the deposit.  In all the circumstances, including the assistance that Ms Haynes gave to the Panel, the deposit is returned.
 

Notes to Editors:

 
1. The Panel for both hearings was: HH Philip Curl, Rachel Spearing and Lyn Griffiths. 

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. 
Copyright © 2021 BHA, All rights reserved.


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