Result of a Referral (S. De Sousa) and an Appeal (H. Main) heard by the Disciplinary Panel on Thursday 9 September 2021

Result of a Referral (S. De Sousa) and an Appeal (H. Main) heard by the Disciplinary Panel on Thursday 9 September 2021

14/09/2021 @ 12:00:00

Silvestre De Sousa 

A hearing of the independent Disciplinary Panel of the British Horseracing Authority (BHA) to consider a referral by the Stewards at Haydock Racecourse on 4 September 2021 concerning their finding that the licensed jockey Mr Silvestre de Sousa was in breach of Rule (F)45 of the Rules of Racing in that he had “used his whip above the permitted level from inside 3 furlongs out” ; Further that given their conclusion that the breach warranted a suspension of 2 – 6 days and that this was Mr de Sousa’s fifth such suspension within the previous 6 months that referral to the Panel was required.

A: On 9 September 2021 the above Panel convened to consider the above referral.  Mr Lyn Williams presented the case for the BHA. Mr de Sousa also appeared virtually of course and was not represented.  He was assisted by the Panel and by Mr Williams consistent with the duties of all concerned to put his case. There was no objection to the constitution of the Panel and Mr de Sousa accepted the facts leading to the referral.

B. The Race. This was the Betfair Exchange Old Borough Cup Race, a 1 mile 6f handicap.  Mr de Sousa rode the winner ISLAND BRAVE (IRE). He used the whip in total 10 times from inside 3 furlongs out.

C. It must be emphasised that the overall concern of every right thinking person involved in Horseracing is equine welfare and the Rules apply in that context. This applies in racing at all levels and not just as here in a high profile race on a Saturday on terrestrial television. Therefore any case of use of the whip in breach of the Rules is a very serious matter.

D. The Panel followed the clear guidance as to the procedure to be followed and considered mitigating factors. In particular the following matters were taken into account.
  • Mr Williams conceded, correctly in our view, that on close analysis and inspection 2 of the uses of the whip could and should be discounted;
  • The previous “whip” offences did not all involve excessive use of the whip as opposed to use thereof in the wrong part of the horse and such offences were associated with limited shoulder activity due to injury; 
  • In the Haydock race the horse was given time to respond to use of the whip;
  • The previous penalties imposed are at the lowest end of the 2-6 days scale;
  • The single previous referral was a long time ago.
E. In conclusion we decided the penalty as follows:

I- we considered the appropriate penalty for the Haydock breach was a suspension of 2 days;
II- applying that into the matrix of the aggregate offence taking into account the previous 5 offences in the previous 6 months we impose a penalty of suspension of 15 days;
III- following the guidance we defer 5 days of suspension for 2 months.

F. In these cases the issue of a Jockey undergoing training may arise. This should of course apply potentially to all jockeys whether a previous champion such as Mr de Sousa or a claimer. Having said that after we gave our ruling we asked Mr de Sousa if he would agree to a day’s training without making any order that he should do so. We were impressed by his immediate agreement to do so.  The day spent will serve 1 day of the suspension.  Mr de Sousa is suspended for 10 days from Friday 17 September to Sunday 26 September 2021 that includes 1 day’s coaching at the British Racing School.  5 days are deferred until 26 November 2021.

Heather Main

An appeal by Ms Heather Main, a licensed trainer, against a finding by the Stewards at Lingfield Park of a breach by her of Rule (G)13 of the Rules of Racing and the penalty imposed.
1. On 9 September 2021 the Independent Disciplinary Panel of the British Horseracing Authority (BHA) convened to hear the above Appeal. The BHA were represented by Miss Charlotte Davison; Ms Main was represented by Mr Rory Mac Neice. There was no objection to the constitution of the Panel.
2. The Race and the Stewards Enquiry.

On 21 July 2021 after the Free Racing Tips Handicap Stakes (Class 5) at Lingfield Park the Stewards heard an objection from the Clerk of the Scales to TINDRUM , placed second, ridden by Jason Watson and trained by the Appellant. As set out in their written report, the Stewards found as follows:
a- that the rider weighed in at 9st 4lbs having weighed out at 9st 6lbs;
b- the rider, trainer and the Clerk of the Scales were interviewed. It was noted that despite warm weather all the other jockeys required to be weighed in did so at either the same weight or slightly heavy but still within required parameters;
c- as they were unable to establish an explanation for the weight difference Mr Watson was suspended for 2 days and the Appellant was fined £500;
d- TINDRUM was disqualified and placings altered accordingly.

3. By a Notice of Appeal of 27 July 2021 the Appellant appealed the above decision and penalty. Mr Watson has not appealed.

4. Process of Appeal and Procedural Rulings:
Following this Appeal being fixed there followed an exchange of emails as to procedural and to some extent substantive issues where case management was required and the Chairman made rulings. Although Jason Watson is not a party to the proceedings the BHA notified him on 6 September that he was required to attend the hearing. In particular given that a clear legal issue had emerged between the BHA and the Appellant (see below) a ruling was made that Mr Watson was not required to attend. In preparation for the Appeal both parties served detailed submissions.

5. The issue

The discrete legal issue concerned the correct construction of Rule (G)13 of the Rules of Racing and in simple terms whether in circumstances where the cause of the weight discrepancy could not be established that the Trainer, quite apart from the jockey, was strictly liable although no fault or failure on her part had been established. The BHA submitted that there was strict liability; Mr Mac Neice submitted not so.

6. The Rules and Penalty Guidance:
Reference was also made to Rule (E)21 which sets out the responsibilities of both Jockey and Trainer after weighing out for control of clothing, equipment, saddle etc. These specific duties can be breached by each or jointly.
Rule (E)21 has its own separate penalty structure.

7. Summary of Submissions:
For the BHA: a- That Rule (G)13 imposes strict liability; b- that the Rule is informed by (E)21: “Both Jockey and trainer are responsible...” c- the Old Rules are instructive in that they imposed strict liability and when the new Rules were formulated in 2019 there was no intention to make substantive changes as opposed to clarification, structure and presentation d- the current penalty guideline makes it clear by use of the words “cause not established “ then going on to indicate a suggested penalty for a Trainer that it assumes strict liability d- in considering the reason for strict liability the Panel should have regard to the importance of the weighing in/out Rules in the context of the integrity of the sport ; in some other circumstances strict liability is required to protect that integrity eg the human and equine anti-doping / substance abuse Rules. e- In other cases fines have been imposed upon Trainers where no cause has been established without those cases being appealed.
For the Appellant a- It is common ground that no fault or offence has been made out as far as she is concerned; the unchallenged evidence of Mr Musto, Mr Watson’s valet confirmed the same b- the reliance placed upon Rule (E)21 is misguided; it is a discrete Rule referring specifically to both Trainer and Jockey as to specific duties (unlike Rule (G)13 which only refers to a Jockey and weight) ; in any event it does not impose strict liability c- it is the new Rules which must be applied and not the Old Rules d- there is no need to import strict liability in the context of the integrity of Racing as to the weighing in Rule ; the important principle is that in the event of breach the horse is disqualified e- it is wrong to use penalty guidelines to interpret the Rules of Racing as the BHA’s guidance makes clear ; the current penalty guideline for (G)13 has been carried over mistakenly from the Old Rules without regard for the specific wording of (G)13 ; the SHEEHAN/GREATREX case supports this approach f- in any case where the rights of a party in law are potentially undermined by the imposition of strict liability there is a duty of those who legislate to state that in clear terms as for example in the anti-doping / substance abuse Rules.

8. Our Conclusions:
I- The wording of Rule (G)13 refers only to a Jockey and weight. There is no reference to strict or joint liability. The Rule imposes on its face no liability upon a Trainer. For the BHA to succeed in its case it would have to show that strict liability applies to widen its ambit. There is a striking contrast between the Rule and (E)21 which specifically imposes precise duties on both Jockey and Trainer.
II- Reliance placed by the BHA on Rule (E)21 is misplaced. The Rule has its own separate entity and penalty structure. The Rule itself on its face and by construction does not impose strict liability therefore it cannot assist in imputing strict liability into (G)13 which is concerned with weighing in/ out.
III- The Panel’s duty is to apply the Rules of Racing as they currently stand not as they were as a matter of history.
IV- With respect we reject the contention that importing strict liability under (G)13 is required to protect the reputation and integrity of the sport. The protection concerned is provided by the inevitable disqualification of the horse. No benefit can accrue to connections of a horse who seek to circumvent the Rule.
V- The BHA rely on the penalty guidance for (G)13, understandably given its reference to both Jockey and Trainer and the suggestion of an appropriate penalty for the Trainer. Mr Mac Neice made the unchallenged point that the BHA‘s guidance is that the penalty guidelines are just that and they should not be used in interpretation of the Rules themselves. In any event we conclude that they should not be so used as a matter of general principle. There must be an offence before a penalty can arise.  Without being bound by it the decision of the Panel in SHEEHAN/GREATREX is relevant.
VI- it is a principle of construction of penal provisions and of general fairness that strict liability should be imposed only in express and unambiguous terms. For example, Rules (K)2 and (K)49 dealing with equine doping and substance abuse by Jockeys are specifically qualified by (K)11 and (K)50 which clearly set out that the Rules impose strict liability.
VII- The BHA understandably referred to other decisions applying (G)13 by Racecourse Stewards since the 2019 revision which have been made on the basis of strict liability. However, the Stewards in those cases, and this one, did not have the advantage of the detailed analysis presented to us. So far as we are aware, the points at issue here were not argued.

9. We allow the Appeal and the fine imposed on the Appellant is quashed.

Notes to Editors:

1. The Panel for the Referral and Appeal was: HH James O'Mahony; Anthony Connell and Austin Allison. 

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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