Pat Cosgrave in the firing line
The Professional Jockeys Association (UK) have called for the Emirates Racing Authority to withdraw its costs order against jockey Pat Cosgrave following the publication of the BHA disciplinary Panel’s reasons explaining why it decided not to reciprocate the four-month suspension issued by the ERA Appeal Panel.
Chief Executive Paul Struthers said: “We welcome the finding of the BHA’s Disciplinary Panel that Pat Cosgrave was denied natural justice at his appeal in Dubai. However, our concerns about the Rules and processes of the Emirates Racing Authority, or at least the current interpretation of them, goes deeper than the issue raised by the BHA Disciplinary Panel.
“The cause of the denial of natural justice was the discrepancy between the Appeal Board ruling on the day of the appeal that it was by way of review but then concluding in their reasons that they had ruled it was exceptional circumstances and was a re-hearing.
“The discrepancy between what was said on the day of the appeal hearing and the Appeal Panel’s reasons is extraordinary, particularly given the Appeal Panel had the benefit of the transcript when producing their reasons. However, of equal concern was a further extraordinary conclusion reached in the Appeal Panel’s reasons that Mike De Kock thought Anaerobio could have won.
“Bearing in mind the transcript of the Stewards Enquiry finds Mr De Kock stating that ‘I will give up the game if that horse could have won’ and the matter was further clarified at the ERA Appeal Panel hearing, it is a quite staggering conclusion for them to have reached.
“Yet despite these serious errors, and despite Mr Cosgrave being successful in his appeal to the ERA (his ban was reduced to four months from six), the Appeal Panel awarded costs against Mr Cosgrave, and the ERA are now trying to collect close to £35,000 for the costs of the Appeal Panel. He has until Monday 4 August to pay, or he may be placed on their Forfeit List.
“It is perverse and unjust that Mr Cosgrave should bear any costs given that he was successful in having his suspension reduced and it has been found that he was denied natural justice. We are not aware of any other jurisdiction that awards such punitive and unreasonable costs for failed, let alone successful, first stage appeals when those appeals have merit.
“The ERA’s approach to Appeal Panel costs goes against the principles of fairness and reasonableness, and appears to be against common UAE legal practice. We have therefore written to the ERA requesting that they withdraw the costs order against Mr Cosgrave.
“We believe the only way that jockeys can be assured of being subjected to a fair process, and for the ERA to repair the inadvertent damage inflicted upon it by its Stewards and Appeal Panel, is by undertaking a thorough review of its Rules and processes to ensure that they are not acting in an unfair and unreasonable manner.
“If the status quo is allowed to continue, the threat of punitive and unreasonable costs means that, in reality, there is no route of appeal whatsoever for jockeys racing under the ERA’s jurisdiction. It must then follow that whilst on paper they are signatories to Article 10 of the IFHA, in practice they no longer are.”
ERA Chief Steward John Zucal
Notes:
1. The transcript extract referred to in the above statement is below:
Mr. de Kock (addressing John Zucal): You have been a Steward for a long time, and you are telling me that ANAEROBIO could have won this race?
Chairman: No I’m not saying that . . .
Mr. de Kock: You said it now.
Chairman: I am saying it could have . . . I’m saying it is possible. But it is unknown.
Mr.de Kock: Mr. Zacal . . .
Chairman: Zucal, Zucal Mr. de Kock.
Mr. de Kock: You have been reading races for a long time. . .
Chairman: I may have been reading races a long time but all I am saying I’m not ruling it out.
Mr. de Kock: He could have won…
Chairman: He may have.
Mr. de Kock: I have been training for 30 years, I will give up the game if that horse could have won, I’ll be honest with you.
2. The extract from the BHA Disciplinary Panel’s reasons is below:
20. When the hearing began on 28 April 2014, there was some preliminary discussion between the Appeal Panel and Mr Crockett (counsel for Cosgrave) about the nature of the hearing to be held. Mr Crockett stated his understanding that the appeal was to be a review rather than a rehearing. The Chairman of the Appeal Panel affirmed his approach: the hearing was to be a review, but questions might be asked of Cosgrave or the Stewards if thought fit.
Mike De Kock-not always great with names, but he knows his horses!
So there was no notification through this exchange of the Appeal Panel’s intention to broaden the appeal and allow a general rehearing: on the contrary it was to remain a review.
21. Yet when the Reasoned Decision was published, it contained this in Section D at paragraph 5.2.3.1 – “the Appellant, by reference to Rule 84 (ix), appears to seek to restrict the Parties to a review of documents and video evidence given at the Stewards’ Inquiry, together with permitted new evidence.
As indicated above, and given the lengthy SGA containing detailed submissions, and the new evidence, and also the exceptional Punishment imposed by the Stewards in what appears to be the first hearing by the Stewards of an Offence of this nature in recent UAE riding history, to try to restrict the Parties in this way, and effectively segregate and disallow submissions and evidence would not assist the Panel or the Parties as to a fair conclusion. The Appealed matter is exceptional, and any restriction that the Appellant may find in rule 84 (ix) is, in consequence, opened up and removed in this particular case.”
22. It seems, therefore, that the Appeal Panel had decided to remove all restrictions on calling evidence before it. But that was not notified or explained before or at the hearing to Cosgrave.3. BHA Rule (A)67 deals with individuals who are placed on the Forfeit List of Recognised Racing Authorities:
67. Person whose name appears in official forfeit list of Recognised Racing Authority
67.1 Where a Person’s name appears in an official forfeit list published by a Recognised Racing Authority, that Person shall be treated as a Disqualified Person for the purposes of these Rules until his name is removed from that list.
67.2 The Authority may, on application to it, direct that Paragraph 67.1 shall not apply to such Person as it may specify.
67.3 Any application under Paragraph 67.2 must be made to the Authority’s Office before the end of the period of 7 days starting with the day after that on which the Person’s name is first published in the relevant official forfeit list.
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