Racing, Speaker's Corner,

Crossed Wires

This year’s St Leger resulted in the Doncaster stewards demoting Simple Verse for interference caused to second-placed Bondi Beach. On appeal the British Horseracing Authority panel reversed that finding and reinstated Simple Verse as the winner. Inevitably, some have suggested that this reversal implied criticism of the Doncaster stewards. The suggestion is misconceived.

The stewards and the BHA panel agreed that Simple Verse had twice caused interference to Bondi Beach in the final two furlongs. Both agreed that Bondi Beach had not interfered with Simple Verse. There was no suggestion of any procedural error by the stewards in their approach to the ultimate question of whether it was more likely than not that, but for the interference, Bondi Beach would have won. The Doncaster stewards concluded that the two incidents of interference probably cost Bondi Beach the 12-15 inches of ground represented by the winning distance of a head. The panel, on appeal, was not so satisfied.

This divergence of opinion is unremarkable. The unenviable task of assessing the impact of interference on the outcome of a race is necessarily a matter of subjective judgement and includes an element of educated guesswork. It requires an assessment of the extent to which balance, momentum and ground have been lost. It requires a judgement as to how well the two horses were going relative to each other. It requires the assessor to imagine how the sufferer would have performed if allowed a clear, uninterrupted run to the line.

Nobody could pretend that this could ever be an exercise in certainty. Opinions will differ. Consequently such decisions will rarely receive universal approval. Likewise the assessment by different stewards of different but similar races will give rise to cries of inconsistency, leading to calls for a centralised stewarding system.

Short of relegating all interferers, accidental or otherwise, which would lead to absurd injustice, this uncertainty is inevitable. The BHA guidelines recognise the difficulty of the task faced by stewards: “One of the most difficult and contentious decisions a panel has to make is to determine the result following interference.” Later the advice is given: “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.” Hence one of the guiding principles is said to be: “The benefit of the doubt should go to the horse which finished in front.”

These extracts recognise that in order to demote the interferer, the stewards have to be satisfied (on the balance of probabilities) that the interference improved the placing of that horse in relation to the horse with which it interfered; that that can be a difficult decision; that there will be occasions where it is really too difficult to say one way or the other, and that in those circumstances the test for demotion has not been met and therefore the interferer has the benefit of the doubt. Consequently it is hardly surprising that there has been a widespread perception of a presumption in favour of the horse that finishes in front. An unfortunate consequence is that it may embolden the deliberate rule-breaker.

In a previous edition of the Fitzdares Times, Sir Mark Prescott advanced a compelling argument for disqualification to follow excess use of the whip. The “Prescott System” would deter abuse of the whip rule and “punters and connections will not see their horse beaten by a rule-breaker. Simple, isn’t it?” said the great man. The attraction of so simple a rule is that everyone would know where they stood, a deliberate breach of the rules would no longer be worth it in pursuit of a major prize and, most importantly, there would be no question of stewards having to perform the impossible task of deciding whether the extra stroke(s) of the whip made the difference between winning and losing. A deliberate breach in order to enhance the chance of winning would, in itself, deny one victory.

Interference during a race may be caused by accident, by careless riding, by improper riding or by dangerous riding. Only in the last category does disqualification automatically follow. For obvious reasons the emphasis is on deterrence and safety, rather than on ensuring fairness in the outcome of the race. In the other three categories the result will only be amended if the stewards are satisfied that the interference improved the placing of the horse in relation to the horse or horses with which it interfered, in which case the horse causing interference will be placed behind the sufferer(s).

Thus in all cases of interference save that caused by dangerous riding, the rationale for demotion is identifying “the best horse” or “the right result” but for the interference. In most cases this is the right approach. Horses may cause interference for which the rider is blameless (eg jinking sideways inexplicably. as did Golden Horn in the Irish Champion Stakes). In other cases the rider may be culpable but has not intended to create interference. Horses may drift across the track and the rider may fail to take sufficient corrective action (eg Storm the Stars in the Great Voltigeur).

A rider may make a deliberate manoeuvre, causing unintended interference by inattention or misjudgement (eg failing to use wing mirrors or misjudging the size of a gap). Although culpable and guilty of careless riding, the rider has not deliberately caused interference. In such circumstances it is right that the horse and his connections and punters should not suffer for the rider’s error unless the horse has profited from the interference.

There is one category of interference in respect of which the approach is at least arguably wrong: the deliberate foul.

However, there is one category of interference in respect of which the approach is at least arguably wrong: the deliberate foul. Race-riding is, of course, inherently dangerous. When a half-ton horse is thundering down the straight at the business end of a race, deliberate interference so as to barge him aside – causing horse and jockey to become unbalanced – obviously exacerbates the danger to both.

The BHA guidelines identify dangerous riding as encompassing “purposely interfering with another horse” and give an example of “deliberately barging his way between two horses”. However, in order to amount to dangerous riding suchconduct must have caused “serious interference”, which is defined as interference which “causes a horse and/or rider to fall or very nearly fall or the horse is severely hampered, eg up against the running rail, or is pushed or nearly pushed off the course”. In other words, the deliberate interference has to have resulted in the harm actually being occasioned or very nearly occasioned. The focus is therefore on the result of the deliberate interference, rather than the risk created by that interference. If the horse interfered with or his rider does not fall or nearly fall etc, the requirement for “serious interference” is not met and the offence of dangerous riding does not arise.

One might think that in those circumstances such conduct would be dealt with as improper riding. Improper riding encompasses intentional interference that would be dangerous riding but for the fact that it did not cause serious interference (as defined). Bearing in mind that the rationale for disqualification in dangerous riding is deterrence in the interests of safety, one might also have thought that the same deterrent sanction would apply to the same deliberate conduct irrespective of whether the risk created materialised or not.

One would be wrong.

Firstly, improper riding does not result in automatic disqualification.

Secondly, the BHA guidelines say that improper riding includes intentional interference which “is not intended to improve the interferer’s performance but rather to affect the performance of the sufferer” and give the example of “a rider intentionally interferes with another horse… but not with the intention of improving his own position”. This is difficult to fathom.

Thirdly, the BHA panel in the Simple Verse appeal said: “Interference which can be seen as deliberate (such as Atzeni’s manoeuvre just after the two-furlong marker) is not treated by the rules any differently from interference that is a result of an accident or of a jockey’s inattention or misjudgement. Even deliberate manoeuvres are treated as falling within the definition of careless riding given by Rule B54.1 as they amount to a failure ‘to take reasonable steps to avoid causing interference’.”

It might be thought inapt at best, if not bizarre, that intentionally causing interference to an opponent in order to enhance one’s chances of winning should be treated as failing to take reasonable steps to avoid the very thing one intends to achieve under a category designed to deal with inattention and misjudgement.

The BHA panel went on to note: “There is plainly room for argument about whether a deliberate maneouvre falling short of dangerous riding should be analysed in the same way as misjudgements or accidents, but the panel must apply the rules as they stand.”

It is reasonable to argue that such intentional interference should be in a separate category, and that the consequences should be more severe. Some have argued that it would be sufficient to increase the penalties for the rider without penalising the horse and his connections. However, while it is right that the horse and connections should not suffer for the rider’s error, can the same be said for a rider’s deliberate rule-breaking by interfering with an opponent in order to enhance his own chance of winning?

Is it appropriate, and does it reflect well on the sport, for such deliberate rule-breaking to be no bar to victory so long as the stewards are persuaded that the rider probably didn’t need to break the rules because he would have won anyway – or, more accurately, that they can’t be satisfied he wouldn’t have won? Just as under the “Prescott System”, ought not a deliberate breach of the rules in order to enhance the chance of winning deny one victory?

Is the answer not all the more obvious when the deliberate rule-breaking engages issues of the safety of horse and rider? With the rules as they stand, and with the benefit of the doubt in favour of the interferer, is it not obvious that a holiday for careless riding is insufficient to deter a rider in a prestigious race with a major prize from causing deliberate interference in pursuit of victory?

These might be considered legitimate questions. There is a strong argument that in the interests of both safety and fair play, deliberate rule-breaking by intentionally causing interference should result in disqualification, irrespective of the outcome or what the outcome would otherwise have been. Many will say that such an approach is hopelessly draconian. When, some time in perhaps the not too distant future, one of racing’s larger audiences is watching one of our most prestigious races and such deliberate interference causes a horse and rider to go down, perhaps with serious consequences, will they say the same?

In the event that automatic disqualification is nevertheless considered too extreme, surely deliberate interference cannot continue to be dealt with in the same way as careless interference when determining the result. In the Simple Verse case, the panel noted that “given the closeness of the race, the panel recognised the possibility that Bondi Beach could have won. But given the standard of proof, which required the panel to conclude that Bondi Beach probably would have won, that possibility is not enough.”

In effect, the burden was on the victim to demonstrate that he probably would have won. Surely in the case of deliberate interference, this is unjust. At the very least, the burden must be placed on the deliberate offender to demonstrate that the outcome was not affected.

As a result of the Simple Verse hearing, there is another reason why a deliberate breach might be considered worth it in pursuit of a major prize. Simple Verse found herself in a position whereby her rider had only three options: to sit and suffer and hope for a gap, to take a pull and come around to the stand side behind Bondi Beach, or to move Bondi Beach aside. In the event her rider admittedly took the third option, thereby getting daylight.

The panel was invited to take into account the fact that, had Simple Verse remained within the rules and, rather than sitting and suffering, had chosen to come back around Bondi Beach, then that legitimate manoeuvre would have cost Simple Verse at least a length, which would obviously be significant when the distance at the line was only a head. This might be thought an obviously important factor when considering whether Bondi Beach would have won but for the interference and whether Simple Verse had improved her placing as a result of it. The panel, however, found that this approach “was asking the panel to apply a criterion which the rules do not require – ie what could have happened to Simple Verse if she had been ridden in accordance with the rules. The correct test stipulated by the rules is to look solely at the effect on Bondi Beach of the interference in question.”

In other words, the panel was saying that in determining who would have won but for the interference, one does not take into account how the offender has profited from the offence, only the extent to which the victim suffered from the offence. The temptation for a rider in a major race to have a go must be overwhelming. It may well be that confusion has arisen between the rules and an equivalent entry in the guidelines. Rule 54.7 states: “In deciding whether the stewards are satisfied that the interference improved the placing of the horse, the stewards shall make no allowance for any ground the incident may have cost the horse causing the interference.” (My italics.) This is obviously right. A horse that carries another horse across the track cannot get credit for the extra distance he has travelled in causing the interference.

In the guidelines two of the guiding principles are: “(f) 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. (g) the panel must NOT make allowance for any effect on the horse causing the interference.”

This is surely no more than a reference to Rule 54.7 depriving the interferer of any allowance for ground lost in causing the interference. It cannot mean that the stewards ignore the extent to which the interferer has profited by gaining a clear run. The BHA may wish to revisit this interpretation.

The interference rules will never be simple and are always likely to be contentious. However, at least in respect of deliberate interference there is a legitimate argument for greater simplicity and deterrence.

John Kelsey-Fry is one of the UK’s leading criminal QCs, specialising in corruption and fraud. He also has great experience of sporting and regulatory tribunals.

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