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Eamon Tyrrell has today lost his appeal against his suspension over the running of Casela Park earlier this season.
He was also ordered to pay costs of £7000 plus the loss of his depositFull (very full) findings from BHA –
APPEAL BOARD RESULT – EAMON TYRRELL
Eamon Tyrrell’s appeal dismissed
Ordered to pay £7000 costs and forfeit his depositDECISION OF THE APPEAL BOARD
On 22 September 2010 the Disciplinary Panel of the British Horseracing Authority (the Panel) enquired into the running and riding of Casela Park (IRE) in the registeratsportspool.co.uk Handicap Stakes at Newcastle on 4 August 2010. In a decision published on 27 September 2010 the Panel found that Jason Behan, the rider of Casela Park (IRE), was in breach of Rule (B)58, in that he had intentionally failed to ensure that the gelding had run on its merits. At the same time the Panel found that Eamon Tyrrell, the trainer of Casela Park (IRE), was in breach of Rule (C)45. Following the receipt of written submissions in relation to penalty, in a further written Penalty Decision published on 5 October 2010, the Panel disqualified both Behan and Tyrrell each for a period of three years from 6 October 2010.
Behan has not appealed against either the decision that he was in breach of Rule(B)58 or the decision disqualifying him for a period of three years.
Tyrrell has appealed against both decisions. Originally there were three written grounds of appeal. However, in subsequent written submissions and in oral argument at the hearing, Mr Brian Kennelly representing Tyrrell, substantially refined and re-cast the grounds of appeal. They are:
there was insufficient material on the basis of which a reasonable decision maker, the Panel, could have made the decision in question;
there was procedural unfairness in the making of the decision in that the Panel took into account an irrelevant factor, namely a change in riding plans and “perhaps changed betting plans” following the Newcastle race;
the penalty imposed by the Panel was disproportionate to such an extent that no reasonable Panel could have decided upon it.
The background to the appeal
On 4 August 2010 Casela Park (IRE) ran in the above Handicap Stakes at Newcastle. The gelding finished sixth of the twelve runners, being beaten a total of two lengths by the winner. Following the race the Stewards at Newcastle held an enquiry into the running and riding of Casela Park (IRE). At the end of that enquiry the local Stewards concluded that Behan had, in breach of Rule B(59).2, deliberately failed to ensure that the gelding ran on its merits. Having so found the Stewards referred the matter to the BHA. In accordance with the standard operating procedures, the Stewards made no findings on the day in relation to Tyrrell.
The matter came before the Panel on 22 September 2010. Before the Panel it was the BHA’s case in summary that:
“…Behan deliberately stopped Casela Park (IRE) from winning at Newcastle, and that this was achieved through repeated restraint in the last three furlongs of the race and through manoeuvres designed to avoid going through obvious gaps.”
The proceedings before the Panel followed a normal course. It heard opening submissions, evidence and closing submissions. It also viewed videos of the Newcastle race, Casela Park (IRE)’s four previous races in 2010 and Casela Park (IRE)’s run in a race at Musselburgh on 6 August 2010 (i.e. two days after the Newcastle race).
The Panel reserved its decision which it handed down with written reasons on 27 September 2010. In summary, the Panel found that Casela Park (IRE) had been “stopped” by being subjected to strong and persistent episodes of restraint in the last 2½ furlongs and was manoeuvred several times away from gaps and back behind other runners. Further, it stated “The recordings show unequivocal restraint…” In the result Behan was in breach of Rule (B)58 and that his ride fell within “case 1” described in Rule (B)59.2 as an intentional failure to ride Casela Park (IRE) on its merits. It further found that “… but for its treatment by Behan [Casela Park (IRE)] would have won”.
Following these findings the Panel went on to consider the position of Tyrrell. In summary it found that Tyrrell had been complicit in Behan’s “stopping ride” and was thereby in breach of Rule (C)45.
The Panel’s Decision on Penalty was handed down with written reasons on 5 October 2010. It found that both Behan and Tyrell had committed “…one of the sport’s cardinal sins.” In the result each was disqualified for a period 3 years.
In order to understand Tyrrell’s main ground of appeal, ground (1), it is necessary to set out in a little more detail the proceedings before the Newcastle Stewards and the Panel. The Stewards viewed four videos of the race and sought explanations for the running of Casela Park (IRE) from both Behan and Tyrrell. The Panel viewed five videos of the race; three videos of races at Dundalk in which Casela Park (IRE) took part when trained by his previous trainer and ridden by a different jockey; one video of a race at Leopardstown in which Casela Park (IRE), trained by Tyrrell and ridden by Behan, took part; and one race at Musselburgh two days after the Newcastle race when the horse, ridden by a jockey other than Behan, was placed fourth. At the request of counsel for the BHA, Mr Graeme McPherson QC, we viewed all the videos seen by the Panel.
The Stewards Enquiry
The Newcastle Stewards asked Behan to explain the instructions he had been given by Tyrrell before the race. Behan’s answer recorded in the transcript of the proceedings before the Stewards was:
“Get the horse settled, take time, and just ride him. He is a very difficult horse to ride at home … Today he seemed to settle with me early on, because they went a real good pace, but as I started to make ground, he actually frightened me, the horse, he was swerving from left to right that much with me”
Tyrrell, a little less coherently, gave a similar answer to the same question. Later in the Enquiry Tyrrell was asked if he was satisfied with the jockey’s ride. He replied:
“I was satisfied with the ride, knowing the horse. I’ll be a hundred per cent satisfied because I know the horse – he’s a big awkward horse”.
At a later stage in the Enquiry the Stewards showed the video of the race. Behan was asked again for explanations of the way he rode Casela Park (IRE) and essentially repeated that the horse was a very difficult ride. Tyrrell was asked by the Stewards whether, having seen the video, he was satisfied with the ride given by the jockey. Tyrrell replied, “Yes, I would be satisfied” and went on to explain that the horse was a runaway and that he thought “today was an achievement”. When the Stewards’ concern that the horse had been restrained was put to him, Tyrrell vehemently rejected the suggestion.
Having heard the respective explanations of Behan and Tyrrell, the Stewards announced their decision that Behan was in breach of Rule (B)59.2 of the Rules of Racing and referred the running and riding of Casela Park (IRE) to the Disciplinary Panel.
The Disciplinary Panel
Before the hearing before the Disciplinary Panel solicitors acting for Tyrrell completed the BHA Form Required by Schedule (A)6 of the Rules of Racing. It contained the following passage:
“It became apparent during the latter stages of the race that the horse does not like coming between horses when pressure is put on him to do so. It is a different matter when horses in front of him are triring (sic) and coming back to him and he is under less pressure. This is something we were unaware of before the Newcastle race.
If I had known this, I would have instructed Jason to get the horse settled on the outside and then bring him wide (around the other runners) so he did not have to go between horses. Those were my instructions two days later at Musselburgh but that was obviously with the benefit of hindsight.
Having looked at the race on a number of occasions since it was run at Newcastle, I can understand why the ride given to the horse has attracted questions and criticism and would accept that it was not Jason’s finest hour. On reflection, Jason could probably have given the horse a more positive ride. But in Jason’s defence, it would be easy to judge him too harshly or come to the wrong conclusions as the horse is very difficult to ride. It was no more than a bad day for Jason riding a very difficult horse. I accept that I indicated to the Stewards on the day of the race that I was satisfied with Jason’s ride. However, it has to be appreciated that I have now had longer to reflect upon the race, and also the fact that my loyalty to Jason, combined with the fact that the horse is so difficult, makes it hard for me to be too critical of him. It may be relevant to note that Jason told the Stewards that the horse frightened him.”
In fact neither Behan nor Tyrrell were legally represented before the Panel.
As we have already stated, the Panel saw five videos of the race and five videos of other races in which Casela Park (IRE) took part. Both Behan and Tyrrell gave evidence. Behan repeated the explanation to the Newcastle Stewards that the horse was a difficult ride and his instructions were to settle him before making a challenge. He said the movements shown in the video were caused by Casela Park (IRE) swerving of his own accord. He would not go through gaps and Behan was worried that the horse might clip the heels of horses in front of him. When he was cross-examined by counsel for the BHA he said he had done his best to carry out Tyrrell’s instructions. He also said that Tyrrell had criticised the ride he gave the horse, saying, “You gave the horse a terrible ride”. However he was not asked by Tyrrell to give up the ride at Musselburgh. He stood himself down because he was ill.
Tyrrell was asked by the Panel whether he remained of the view that the horse had been ridden in accordance with his instructions. His reply was,:
“Well, he didn’t disobey my instructions because I told him to drop the horse in, get him settled and come with a run. Well, he dropped him in, he got him settled and he tried to come with a run. The horse didn’t want to run between the horses. What am I supposed to do? You know, am I supposed to turn round to the Stewards and say, ‘Well, he didn’t run between the horses and I want you to shoot the jockey’? Like, he actually run to my instructions but the horse did run well and also (inaudible) the run. On the day, I was there and I was reasonably happy with the way the horse had gone. But even if I wasn’t, I’m not going to go in and – there’s no trainer in this world is going to go in and nail his jockey to the cross because he gave a horse a bad race.”
This assertion that he was happy with the ride and the horse ran in accordance with his instructions was repeated by Tyrrell during the course of cross-examination by Mr McPherson.
The Panel’s findings
The case advanced by both Behan and Tyrrell before the Panel was that Casela Park (IRE) was a difficult ride, with an awkward head carriage. The horse’s movements to the left and right during the race were effectively uncontrollable because it was unwilling to go through gaps between horses and Behan feared from time to time during the race that he might clip the heels of other horses. In respect of the race the Panel made the following findings:
The gelding was drawn in stall 12, nearest to the stands rail. From the start it initially ran straight, near the rail. After a furlong, it switched left, dropping in behind all but one of the other runners. Behan said that it ‘veered left’ and that he had no control over this. It did not. He steered it there.
At the 3 furlong marker, Casela Park (IRE) (IRE) was still 2nd last, but had been running straight for the previous 3 furlongs and had settled. When 2½ furlongs out, the gelding was manouevred fairly sharply left, about 3 horse’s widths. At the 2 furlong marker, Behan gave a firm pull with his right hand to move the horse back to the right to stay behind other runners. At no stage was any other horse crowding or impeding Casela Park (IRE) (IRE)’s run. Shortly thereafter, Behan again ducked the gelding to the left, even though it still had plenty of racing room ahead as the nearest three horses in front were by this time (i.e. approaching the 1 furlong marker) between 2 and 5 lengths ahead. At this stage Behan briefly let the gelding down but there was no visible sign of any pushing or other encouragement. Nevertheless it made up ground on the leaders. It was then given 3 sharp restraining pulls which caused it to throw its head up, lose momentum and veer right. The action had the effect of avoiding an obvious gap between horses still ahead of him but gave the gelding a different 2 widths wide gap between other runners. Again the gelding was strongly restrained. At this stage the race was ½ a furlong from the line. Behan then initiated another switch to the left which afforded another 2 horse wide gap. Strong restraint and another switch back to the right positioned Casela Park (IRE) (IRE) behind the eventual winner and second. The gelding was then permitted to run on (but without any encouragement from Behan) and continue (sic) to close the gap until it crossed the line in 6th, 2 lengths in arrears of the winner
Careful viewing of the recordings (particularly synchronized recordings of the side-on views with either the head-on or scout views) shows that there was never any remote danger of the gelding clipping heels with the runners ahead of it at any stage. Even making every possible allowance for the fact that Behan had had only a handful of race rides between 2006 and 2010, and did not have the instincts and judgement of a race-hardened jockey, his protestations about the fear of clipping heels were an invention. His evidence that he was riding as well and as strongly as he could was not believed. He was not a powerful rider, but his Leopardstown ride showed he was capable of encouraging a horse to go forward. But at Newcastle, his right arm in particular remained permanently bent throughout because he was exercising strong restraint. He did not have to fight a horse which ‘hung both ways’ as he reported at Scales. He was the reason why there were so many sharp changes of direction during the last furlongs of the race.
It was said by Behan and Tyrrell that the gelding’s failure to go through the many gaps available in the last 2½ furlongs was because it was difficult to steer and was unwilling to go between other horses. The Panel saw a recording of its race at Dundalk on 12 March 2010, when ridden by W.J. Lee. Then, it went through two tight gaps in the straight when ridden from off the pace in a much rougher race, without showing any signs of temperament or lack of genuineness. Of course, horses can behave differently on different days. But the Panel felt that it was Behan’s palpable restraint which stopped the gelding from taking the obvious gaps available throughout the last 2½ furlongs.
To summarise, the gelding was subjected to strong and persistent episodes of restraint in the last 2½ furlongs, and was manoeuvred several times away from gaps and back behind other runners. It was running on well in the last 50 yards (despite an absence of any driving or encouragement) and lost by just 2 lengths. But for its treatment by Behan, it would have won. That may seem a strong conclusion about a race in which it finished 6th, but the more the Panel viewed the recordings, the more it felt driven to this view. Tyrrell argued, fairly enough, that if it could have won at Newcastle, then it should have also won at Musselburgh 2 days later, when it finished 4th, beaten 1½ lengths when ridden by Patrick Mathers. It was running in the same class of race. But on this occasion the gelding did not settle as well as it had at Newcastle. It made awkward progress around the tight bend at Musselburgh before the straight, losing ground on the leaders before being produced with a run that took it into 4th. Another possible further explanation for its failure to win at Musselburgh was that it may have had the edge taken off it by its Newcastle treatment. A more revealing feature of the Musselburgh run was that the gelding showed no propensity to swerve left and right as alleged at Newcastle.”
On appeal to the Board the Panel’s conclusions in respect of the ride which Behan gave Casela Park (IRE) was not challenged. Although the Board’s view of the race is, in the circumstances, not strictly relevant, the Board entirely agreed with the Panel’s assessment of the race. In the collective opinion of members of the Panel this was a very obvious example of a horse deliberately being restrained from running on its merits. The issue in this appeal is whether the Panel’s decision that Tyrrell was complicit in Behan’s conduct can be impugned.
The Panel’s findings in respect of Tyrrell’s responsibility for the running of Casela Park (IRE) were as follows:
“After the detailed study of the race recordings which took place at the Enquiry, Tyrrell was asked whether he saw signs of any restraint by Behan during the ride. He continued to maintain there was none, despite it being obvious that there were, perhaps because he recognized that in truth there were no legitimate reasons for the restraint. Behan was a long-time associate of Tyrrell’s and was his apparently unpaid work rider. The Panel was aware that trainers sometimes showed misguided loyalty to a jockey in situations like this. It was also alive to the possibility that a person or persons other than Tyrrell might have procured Behan’s stopping ride. But Tyrrell’s denial of the obvious was so striking that the Panel felt bound to conclude that he caused his work rider, Behan, to ride as he did. Generally, Tyrrell chose to paint a portrait of the gelding as very difficult to ride and as sometimes uncontrollable, which was plainly false. There is no doubt that some recordings of his earlier races show that he was headstrong and difficult to settle, with an occasionally high head carriage, but the important picture that emerged from those recordings was that the gelding was a genuine trier and could be relied upon to run straight, even under strong driving. This was not merely a case where a rusty jockey (Behan) over-interpreted the instruction ‘not to kill the horse or get milled to finish 3rd’. This was a deliberate stopping ride on Tyrrell’s instructions.”
On the basis of these findings the Panel found that Tyrrell was guilty of a breach of Rule (C)45.1. It also found that Tyrrell’s instructions to Behan were in breach of Rule (C)45.1; and that in any event Tyrrell had failed to satisfy the Panel that he had given adequate instructions with which the jockey did not comply: see Rule (C)45.5.
Before leaving the Panel’s findings it is relevant to note that the Panel considered the question of motive. Having discussed this issue, the Panel found that it was left in the position that there was no clear or obvious motive for the ride.
The Grounds of Appeal
Mr Kennelly’s submissions on the grounds of appeal were short, simple and attractively put. He accepted that having concluded that Behan had deliberately restrained Casela Park (IRE), there was an obvious inference that someone had put him up to do so. However, he submitted that bearing in mind the required standard of proof in respect of findings of dishonesty, and Tyrrell’s exemplary character, it was inherently improbable Tyrrell was party to this dishonest ride. Further, he submitted there was insufficient evidence upon which the Panel could properly conclude that Tyrrell participated in the plan to restrain Casela Park (IRE).
Mr Kennelly submitted that the basis for the Panel’s findings of complicity were three insufficient factors. They were first, the long association between Tyrrell and Behan in which Behan was apparently Tyrrell’s unpaid work rider. Secondly, Tyrrell’s denial that Behan had deliberately restrained Casela Park (IRE) was so striking as to lead to the inference that he caused Behan to ride as he did. Thirdly, the falsity of Tyrrell’s evidence that Casela Park (IRE) was a difficult horse to ride.
In the course of his oral submissions Mr Kennelly laid stress on passages in the evidence which he submitted demonstrated that although Tyrrell had immediately after the race supported Behan’s account to the Newcastle Stewards, following that enquiry he had criticised him. Further he submitted that even if Tyrrell had not criticised Behan’s ride it was a “leap too far” to infer that for this reason he was part of a conspiracy to restrain Casela Park (IRE).
Mr Kennelly further relied on two factors which he submitted the Panel wrongly took into account. The first was evidence in a newspaper report of what Tyrrell was recorded as saying to a journalist after the race. The journalist was Johnny Ward, who was the author of an article in the Racing Post of 6 August 2010 in which he recorded Tyrrell as saying he had given the following instructions to Behan:
“I told him (Jason Behan) not to kill him or get milled to finish 3rd as we wouldn’t be able to go to Musselburgh.”
Ward was not called by the BHA and Tyrrell disputed that part of the quote in which he is alleged to have said the words “… milled to finish 3rd”. Tyrrell did not deny speaking to the reporter, nor that he told him he had instructed Behan not to kill the horse and that he intended to run it at Musselburgh.
The Panel found that Tyrrell had told Ward what was reported in the article. Mr Kennelly submitted that the BHA ought to have called Ward to give evidence if it intended to rely on this report.
Secondly, paragraph 23 of the Panel’s decision contained a reference to the fact that Tyrrell had not gained financially because “… that is at least in part because the furore generated by the Newcastle ride caused changed riding plans for Musselburgh and probably changed betting plans”. It is submitted that the remark about changed betting plans was pure speculation and indicated that the Panel in reaching its decision had given some weight to the possibility of some financial gain.
The BHA’s submissions
The BHA relied upon a number of factors which it submitted demonstrated Tyrrell’s complicity in the ride. In summary, these factors were the close pre-existing relationship between Behan and Tyrrell which involved Behan being Tyrrell’s unpaid work rider at home. Behan had ridden for Tyrrell in 2010 and before the Newcastle race had been the only flat race jockey used by Tyrrell in 2010. Next it is submitted that it was inherently unlikely that someone in Behan’s position would have done something as serious as stopping a horse which he rode every day at home other than with the knowledge and blessing of the trainer. Further, the BHA relied heavily on the fact that Tyrrell had made no real criticism of Behan’s ride and in essence before the Stewards and the Panel sought to defend the indefensible. Mr McPherson also submitted that the BHA was entitled to rely on instructions which Tyrrell was reported to have given, namely “not to kill the horse or get milled to finish 3rd”. There was no suggestion by either Behan or Tyrrell of any third party involvement in the ride. Finally, Mr McPherson submitted that Tyrrell was not an honest witness and sought to invent explanations for the ride.
Discussion and conclusions
Since much of the arguments made by counsel for both parties centered on Tyrrell’s alleged support for Behan’s ride both before the Stewards and the Panel, we deal with this factor first. It is clear from passages cited by both counsel that before the Stewards Tyrrell did not criticise Behan. He did not do so even after he had seen the videos of the race during the course of that Enquiry.
There is some evidence given by Behan that he and Tyrrell spoke after the Stewards’ Enquiry. In that conversation Tyrrell had been critical of his riding. It is also right to record that in the course of his evidence to the Panel Tyrrell did make some criticism of Behan. But in our judgment such criticism as Tyrrell made in the course of his evidence, when seen in the context of Behan’s conduct during the race, was distinctly muted. Mr Kennelly submitted that a dishonest trainer would have immediately criticised his jockey after viewing the video, whereas Tyrrell did not. But, in our view, the question which needs to be answered is what would be the reaction of an honest trainer if he had seen in the videos such a blatantly dishonest ride. In our judgment it is far more likely that the honest trainer, on seeing what the video demonstrated, would have roundly criticised his jockey and not just have accused him of having a bad day.
For these reasons, in our judgment the Panel was entirely justified in regarding Tyrrell’s reaction to the videos and his failure forthrightly to condemn Behan’s conduct as an important and significant factor pointing to his complicity. In our opinion there is force in the submission that he was attempting to defend the indefensible.
This factor, coupled with the other factors relied on by the BHA, namely the pre-existing relationship between Tyrrell and Behan, in our view provide powerful evidence upon which the Panel could properly base its conclusion that Tyrrell gave Behan instructions to restrain Casela Park (IRE).
As to the two factors which Mr Kennelly submitted the Panel wrongly took into account both, in reality, relate to the issue of motive. As recorded above, the Panel found there was no proved motive. Rightly, in our judgment, it did not regard proof of motive as a necessary ingredient to show a deliberately dishonest ride. The Panel found that no betting motive for this conduct could be identified “with certainty”. In our judgment this was a clear indication that it did not take into account any financial factor relating to betting. In any event, paragraph 23 of the Panel’s decision, in which the comment was made, only appeared in that part of the decision which related to penalty having been added after further submissions made on penalty.
So far as the alleged quote in the Racing Post, the BHA could have called Ward to give evidence. That it did not do so does not mean the report had no evidential value. Tyrrell admitted speaking to Ward. He admitted saying that he had instructed Behan not to kill the horse and that he intended running it at Musselburgh two days later. He denied the passage about milling the horse to finish third. The Panel disbelieved this denial, as it was entitled to do.
We need to deal with two further matters. It is common ground between the parties that this Board should only interfere with the Panel’s conclusion that a witness was dishonest where there is no evidence upon which the Panel could reach such a conclusion or if for some other reason the conclusion was perverse. As we have endeavoured to explain above, in our judgment there was evidence upon which the Panel could disbelieve Tyrrell’s evidence. In our view its decision not to accept his evidence was not perverse. We bear in mind that the Panel had the opportunity of seeing Tyrrell give evidence and we have not.
Next, counsel also agree that the test for the standard of proof in a case such as this is that enunciated in Re H [1996] AC 635, as endorsed and explained by the Supreme Court in Re B (Children) (Care Proceedings: Standard of Proof) (Cafcass Intervening) [2009] 1 AC 11. Mr Kennelly relied on these authorities to submit that the fact that Tyrrell had an exemplary character hitherto was powerful evidence that it was inherently improbable that he would be complicit in the dishonest conduct alleged and that high standard of proof was not satisfied.
The Panel did not make any specific reference to the standard of proof. However, it was composed of experienced members with an experienced legal Chairman. There is no reason to think that it did not have well in mind the appropriate legal standard of proof. Perhaps, one clue to this can be found in the observation relating to motive in which, as we have already recorded, the Panel stated no motive of financial gain had been shown with “certainty”.
Even if the Panel did not have in mind the requisite standard of proof, adopting the correct standard of proof we would have reached the same conclusion.
It follows from the above that in our judgment the Panel was quite entitled to find that Tyrrell was complicit in the dishonest ride and thereby in breach of Rule (C)45.1. The further alternative findings by the Panel of breaches of that Rule must also stand. Accordingly, this appeal against the findings of breach of the Rules of Racing is dismissed.
As for penalty, at the hearing it was agreed that submissions on penalty, costs and forfeiture of deposit be deferred for the parties to deliver written representations on these issues within 72 hours of receipt of this written decision.
DECISION OF THE APPEAL BOARD ON PENALTY
By a decision dated 26 January 2011 the Board dismissed Mr Eamon Tyrrell’s appeal against breach of Rule (C)45.1 of the Rules of Racing. Tyrrell also appealed against the penalty imposed by the Panel of a period of three years suspension from 6 October 2010. We now deal with that appeal together with decisions on costs and forfeiture of deposit.
The facts which found the charge of breach of the Rules of Racing are fully set out in the Panel’s decision on breach and summarised in the Board’s decision dismissing Tyrrell’s appeal against that decision. They need no repetition in this decision.
So far as penalty is concerned, the Panel’s reasons for their decision are set out in paragraphs 23 to 25 of the Panel’s combined reasons for its decision on breach and penalty. The Panel decided that there was no reason to differentiate between Tyrrell and Behan (the jockey). It further described them as having “… committed one of the sport’s cardinal sins”. It correctly identified the penalty guideline in the BHA’s Guide to Procedures and Panelties 2010 set out at page 10 of the Guide. There is no dispute that the Guide provides for a range of 18 months to 5 years suspension for such conduct; with an entry point of 18 months suspension.
In paragraph 24 of the decision the Panel explained its reasons for going beyond the entry point. These were:
“Firstly, their untrue accounts do make worse what happened. Secondly, the Panel formed the view that the entry point (18 months) is pitched too low for what is a fundamental breach.”
The single ground of appeal is that the penalty was disproportionate. In written representations Mr Kennelly has expanded this ground to include a submission that the Panel adopted an improper approach to the entry point. He submits that the entry point encompasses a fundamental breach of the Rule and in addition it is not open to a panel to describe the entry point as “pitched too low”. Mr Kennelly in his written representations also returned to a submission made on breach, namely that in its decision on penalty, having found that there was no evidence of financial gain, the Panel hinted at a motive described as a change of betting plans for the race at Musselburgh.
Mr McPherson in his written representations reminded the Board that the decision on penalty can only be interfered with by the Board if the penalty was one which no reasonable Disciplinary Panel applying the relevant principles to the facts could have imposed. We accept that this is the correct test for us to apply. Mr McPherson further submits that the penalty imposed by the Panel falls squarely within the Guidelines and that the Panel’s reasons are unimpeachable.
In our view the penalty was one which was, in all the circumstances, well within the limits of what a reasonable Panel might impose. The submission that a fundamental breach of the Rule without more must always attract a penalty at the entry point, is in our view unsustainable. The facts of each case may vary in many different ways yet remain a fundamental breach of the Rules. The purpose of the Guide is to provide a range as a guide which does not fetter the discretion of the Panel to deal with each case on its own facts.
In this case the Panel, rightly in our view, did not differentiate between jockey and trainer. It found that Tyrrell was complicit in what was very obvious conduct designed to stop the horse from winning. It succeeded. Tyrrell, the trainer, denied not only that he was involved in this conduct, but before the Stewards and the Panel persisted in advancing the argument that this was not a dishonest ride when it clearly was.
Allowing for Tyrrell’s hitherto good record we are quite satisfied that a suspension of double the entry point of 18 months was justified.
We should deal with two other points. First, there is in our view some force in Mr Kennelly’s submission that the Panel should not seek to go behind the Guide. The purpose of the Guide, as the Introduction to it states, is to provide consistency within parameters. It is always open to a Panel to find that the Guide’s range or entry point for any particular breach, on the facts does not provide an appropriate sentence. But it defeats the point of the Guide if Panels undermine its value by stating that the range or entry point in general terms is too low.
In this case, in our view, the Panel would have been quite entitled to rule that on the facts, as found by it, it was not appropriate to adopt the entry point of 18 months and then gone to impose a suspension of three years. In our opinion, not only would this have been the right course to adopt, it would provide on the facts of this case the correct penalty.
Finally, we do not regard the Panel’s remark about the possible change of betting plans for the race at Musselburgh is in any way vitiating its decision. No financial motive was proved but there must have been some reason for the horse being stopped. Neither Tyrrell nor Behan have chosen to reveal what it was.
For these reasons, the appeal against penalty is dismissed.
We have also been asked to deal with the issue of costs and forfeiture of Tyrrell’s deposit of £800. The BHA ask for an order for costs incurred by it on the appeal. The sum claimed is £10,176.05. The bulk of the costs are those incurred in leading counsel’s fees.
Mr Kennelly submits that this was an appeal which did not merit leading counsel being instructed. He further submits that the submissions made at a very late stage on behalf of Tyrrell did not increase the BHA’s costs.
We think there is some force in the above arguments. In our view this was not a particularly complicated appeal. The BHA chose to instruct leading counsel, as was its right, but we think the increase in costs was not justified. We also take the view that delivery of a reconstituted notice of appeal and written submissions on the morning of the appeal did not increase the costs to any great extent. Dealing with costs on a summary basis, in our judgment, the correct figure, making allowance for some deduction for the increased cost of instructing leading counsel, is £7,000.
No argument is advanced, and none can be, against the forfeiture of Tyrrell’s deposit. The sum of £800 is therefore forfeit.
- Total Posts 17716
He should be banned for life for having the audacity to appeal in the first place.
- Total Posts 17716
Or at least fined him much more for wasting people’s time. Then maybe the next guy won’t chance his arm when he knows it was an open and shut case.
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