BHA whip rule enquiries

Results of Enquiries (J. Spencer, P. Hanagan) heard by the Disciplinary Panel on Thursday 8 November 2018

14/11/2018 @ 14:45:00

Jamie Spencer

1. On 8 November 2018, the Independent Judicial Panel of the British Horseracing Authority (“BHA”) held an inquiry to establish whether Jamie Spencer (“Mr Spencer”) had committed a breach of Schedule (B)6 Part 2 of the Rules of Racing when riding PHOENIX OF SPAIN (IRE) in The Vertem Futurity Trophy Stakes (Class 1) (Group 1) at Doncaster on 27 October 2018.  
2. The matter was referred to this Panel by the Doncaster Stewards because it was Mr Spencer’s fifth offence of misuse of the whip which had warranted a suspension of between two and six days over the preceding six months.  
3. Mr Spencer attended today’s hearing in person and represented himself.  The BHA’s case was represented by Mr Lyn Williams, Case Manager. No objection was taken to the constitution of the Panel. 
4. At the beginning of the hearing, as had been the case at the hearing before the Doncaster Stewards, Mr Spencer admitted that he was in breach of the Rule.  He and the BHA agreed – and the Panel accepted - that Mr Spencer used the whip on ten occasions, two in the back hand and eight in the forehand, and that there was an additional occasion when he tapped the horse down its shoulder (which latter occasion we disregard, as is also common ground). 
5. Having viewed the films of the race and having heard Mr Spencer’s explanation, we accept that Mr Spencer had felt the need to use his whip slightly earlier than he would otherwise have intended to keep his position relative to TURGENEV, ridden by Frankie Dettori.  We also accept that Mr Spencer’s horse responded to the use of the whip and that he had every good reason to use his whip again when suffering a degree of interference from the eventual winner, MAGNA GRECIA (IRE), ridden by Donnach O’Brien, inside the final furlong.  Nevertheless, as Mr Spencer very fairly acknowledged, in doing so he exceeded the permitted limit of seven. 
6. We mention our findings as to the reasons for Mr Spencer’s use of the whip on this particular occasion because the appropriate penalty, had that offence stood alone, is not determined solely by the fact that he used his whip twice more than the permitted level, which would ordinarily result in a “minimum penalty” of four days.  Rather, we bear in mind that page 23 of the 2018 Guidelines records that the Stewards (and, for present purposes, this Panel) have a discretion to find that “provided that the manner in which the whip had been used was measured, [they] may choose to disregard occasions when the whip has been used”. 

7. On that basis, we consider that the appropriate penalty for the Doncaster offence, assuming it had stood alone, would have been a two day, rather than a four day, period of suspension. 
8. Our attention was drawn to Mr Spencer’s riding record.  It is, of course, true that he has been penalised on four previous occasions during the relevant six month period and that, whereas three of those previous occasions resulted only in two days’ suspension, one of them (Ascot – 14 July 2018) was a six day suspension. 
9. Whereas that previous six day suspension can be seen as an aggravating factor, mitigation is to be found in the fact that Mr Spencer has had as many as 325 rides during the relevant period during which those suspensions have been imposed. More particularly, he has a very good record for use of the whip, having not been referred previously since September 2002.  
10. In all those circumstances, we had to consider the Notes on Penalties at page 24 of the current (2018) Guide to Procedures and Penalties.  This provides that: 
Fifth suspension of 2 – 6 days within previous 6 months
14 – 42 days suspension with an entry point of 21 days.”
11. In the view of this Panel, bearing in mind the findings we have made as to the ride that Mr Spencer gave PHOENIX OF SPAIN (IRE) in the race at Doncaster, and bearing in mind also what we have heard about his record, we regard an entry point penalty of 21 days as appropriate in all the circumstances.  The suspension we impose is therefore one of 21 days, which one third will be deferred for two months.  The initial suspension will be on 16, 17, 19, 20, 21, 22, 23, 24, 27, 28, 29, 30 November and 1 & 3 December 2018.  7 days will be deferred until 3 February 2019.

Paul Hanagan

1. On 8 November 2018, the Independent Judicial Panel of the British Horseracing Authority (“BHA”) held an Inquiry into whether or not Paul Hanagan had committed a breach of Schedule (B)(6) Part 2 of the Rules of Racing when riding INVIOLABLE SPIRIT (IRE) in The Watch More with Racing UK Extra Handicap Stakes (Class 4) at Catterick on 30 October 2018.  The matter was referred to us by the Catterick Stewards because it was Mr Hanagan’s fifth offence of misuse of the whip warranting a suspension of between two days or more during the preceding six months. 
2. In advance of the hearing, Mr Hanagan asked if his attendance could be excused and that request was granted.  He was represented at the hearing by Rory Mac Neice and the BHA’s case was presented by Mr Lyn Williams, BHA Case Manager. 
3. At the beginning of the hearing, Mr Mac Neice admitted on Mr Hanagan’s behalf that he was in breach of the relevant Rules, as had been his candid admission to the Catterick Stewards.  The present Panel, having viewed various films of the race, accepted that Mr Hanagan had used his whip on ten occasions from approximately the two furlong marker. Accordingly, we find that he was in breach of the whip Rule as he admits. 
4. It was accepted on both sides that those ten occasions included one in the backhand and the others were in the forehand, and also that they were relatively light hits administered to the horse.  We also note that the horse finished sixth in a race where there was prize money down to eighth place.
5. Mr Williams acknowledged, and the Panel accepted, that had this offence stood alone it would have resulted in the imposition of two days suspension – see page 26 of the Penalty Guidelines of the 2018 Guide.
6. In seeking to substantiate a submission that this is a case in which the Panel should, exceptionally, impose a suspension below the lower end of the range of “14 – 42 days suspension with an entry point of 21 days” for a fifth suspension of 2 to 6 days within the previous six months, Mr Mac Neice drew our attention to the fact that paragraph 11 gives us a discretion: it provides that this is the range of penalty that would be “usually” imposed.  He drew our attention to other paragraphs which also emphasised the Panel’s broad discretion, namely paragraph 2 on page 25 and the third paragraph of the introduction on page 3. 
7. We had, therefore, to consider whether this referral could indeed be treated as “exceptional” such as to justify us imposing a penalty below the bottom end of that range (i.e. less than 14 days). 
8. In considering that submission, our attention was drawn to a number of relevant factors.  First, the various offences which have totted up to the extent that Mr Hanagan has been referred to us occurred over a period of five and a half months. Second, none of those previous offences has resulted in a suspension exceeding two days. Third, since 1st May 2018 Mr Hanagan has had 638 rides, which is a very considerable number and means that, as compared with the Guideline average of a whip offence being committed one in every 40 or 50 rides, Mr Hanagan’s rate of offending is only one in 128 rides.  Fourth, Mr Hanagan has not been referred on any previous occasion. Fifth, the horse was responding to his use of the whip in the instant case.
9. For all those reasons, we take the view that this can be regarded as an exceptional case and, as such, we feel that we should impose a suspension which is below the range “usually” imposed. 
10. The suspension in the present case will be ten days, of which one-third will be deferred. We recognise that (at page 25 of the 2018 Guide) it is provided that the number of days of the suspension that should be deferred will be one-third and that “fractions of days will be rounded down”.  That means that he will, in practice, serve a suspension of seven days, which is what we regard as just and appropriate in all the circumstances.  The suspension will be on 20, 21, 22, 23, 24, 27 & 28 November 2018.  3 days will be deferred until 28 January 2019.