AJA response to the proposed "Rider Whip Penalty Template"

Submitted by News on Mon, 01/06/2009 - 00:00

In response to the Rider Whip Penalty Template proposed by stewards to address breaches of AR137A, and after extensive consultation with Australian riders through its state branches, the AJA submits the following:

The AJA is categorically opposed to the adoption of such a template because it is:
  • flawed in that it embraces the concept of mandatory penalties;
  • draconian in the penalties it proposes;
  • demeaning to both professional stewards and riders in that it removes the discretionary powers of stewards to impose a fair and reasonable penalty for a breach of the rule based on the circumstances of the breach.
We recognize the over-riding aim of the ARB is to ensure a complete overhaul of the use of the whip in Australian racing.
 
Rider compliance is an integral part of achieving that overhaul, but having passed rules relating to the change to the type of whip to be used and the manner and circumstance in which it may be used, we are adamant that the ARB’s adoption of the proposed template for penalizing breaches of AR137A would be detrimental to the common goal of encouraging rider participation in the process of change.
 

FLAWED IN CONCEPT:

Mandatory penalties are flawed in the context of applying AR137A because:
  • They do not allow for the principles of natural justice to apply in that they prevent the consideration of mitigating circumstances.
  • In the wider community, lawmakers consider mandatory penalties to be applicable usually in areas of Public Interest and Safety (for example: the Road Traffic Act).
  • Those consulted who are responsible for applying the law were unanimous in their belief that mandatory penalties deny the offender his right to natural justice because the law prevents the taking into consideration of what can be highly mitigating circumstances applicable to his case.
  • They ignore the principles of sentencing (which in itself is an inexact science).
  • They can lead to grave injustices that go far beyond the actual intention of the rule.
  • The key to achieving appropriate penalties is that they need to be seen to be in accordance with the offence. Each case needs to be judged on its particular circumstances. Mandatory penalties do not allow this.
  • They do not allow for variation in penalty based on the persons record, plea of guilt or contrition.
  • The essential problem with mandatory penalties is inflexibility. Stewards dealing with a matter would have no discretion because if the particular case falls within the mandatory provisions then the mandatory penalty must be imposed even though, in certain cases, the circumstances of the offence will make the penalty quite inappropriate.
  • There are similar problems with the concept of the imposition of a mandatory penalty on a jockey with a relevant prior conviction. Firstly the circumstances of the present breach may not objectively speaking justify the penalty and secondly, the fact of the earlier offence, and not the circumstances of that earlier offence, is often problematic. In other words a prior offence cannot lead to the imposition of a greater sentence than the subsequent breach warrants; it can only be used to limit the degree of any leniency that might be shown to the offender.
  • The current method of imposing penalties could probably be described as the broad discretionary approach which is at the other end of the scale to the mandatory penalty approach. In the middle is what could be regarded as a structured discretionary approach; in other words the penalty is not simply a mathematical or mechanical process and the stewards, using this approach, must look at a wide variety of factors which are determined to be relevant in deciding the ultimate penalty.
Our belief is that the introduction of mandatory penalties that remove the use of discretionary powers by Stewards will prevent the successful application of AR137A.
 
We contend that should the ARB adopt such a template, it would convey a lack of confidence in the competence and common sense of Australia’s professional stewards. To remove the discretionary powers of professional stewards will influence the respect riders and the wider industry currently has for stewards.
 
Professional stewards MUST have the competence to be able to achieve an acceptable level of consistency without having to refer to a template to reach a decision that displays a level of consistency re: penalty.
 
Appeals Tribunals will refuse to be bound by mandatory penalties. Precedents already exist when the Racing Victoria Limited Board set as mandatory, that any rider found by Stewards to be responsible for causing the fall of another rider should receive a minimum suspension of one month regardless of the circumstances. Subsequent appeals by riders Childs, McEvoy and Schmitt to the Racing Appeals and Disciplinary Board in Victoria made it absolutely clear that Appeals Boards are independent and not legally bound in any way by mandatory penalties recommended by organizations such as PRA’s or the ARB.
 
The same principles apply when considering Australian Rule of Racing 64H which states, a horse “shall” be ineligible and AR177 which states a horse “must be disqualified”. Mandatory rules are dangerous and flawed as seen in the Bauer case where stewards were forced to run with “under the circumstances the Rule of Racing could not be applied, because... each case must be dealt with on its merits”.
 

THE PENALTIES PROPOSED ARE DRACONIAN:

Even if it was accepted that the template was a reasonable process by which to determine penalties, for stewards to propose that a rider who uses the whip once more than permitted during the last 200 metres faces the mandatory forfeiture of riding fee and prizemoney percentage is nothing short of bizarre.
 
The ARB, in its release of the 19th March, requested the National Chairmen of Stewards conference to examine the development of policy covering penalties to include...
 
“...a policy of forfeiture of prizemoney percentages in the case of EGREGIOUS breaches of the new controls, in addition to other penalties.”
 
Any reasonable interpretation of this request would see penalties (such as prizemoney forfeiture or suspension) considered for breaches of the rule that could be held to be conspicuously or outstandingly bad or reprehensible, outrageous, atrocious, deplorable, extreme, flagrant, intolerable, insufferable, monstrous, preposterous or glaring.
 
A breach that can be considered in these terms would be an “egregious” breach of the rule.
 
It is ludicrous to think that striking a horse a couple of times in excess of the rule can be considered egregious. It is ludicrous to consider a rider who has an excellent overall record but is a first time minor offender to be worthy of losing his riding fee, prizemoney percentage and suspension, particularly if that breach happens to be in a major race.
 
In summary, the proposed template fails to satisfy the ARB’s request.
 

INTERNATIONAL RESEARCH INDICATES THAT THE RULE OF “COMMON SENSE” IS THE BEST ARBITOR IN DETERMINING ACCEPTABLE v UNACCEPTABLE USE OF THE WHIP:

 
In the UK, where stewards are NOT professional, it may have been seen as reasonable to provide set rules as to what is unreasonable or unacceptable use of the whip, but that is no reason to adopt such a policy here in Australia. We contend it is demeaning to professional Australian stewards to propose such a policy.
 
At a Rules Review Meeting in December last year between the British Horseracing Board and the Professional Jockeys Association, it was put that the Stewards need to exercise common sense and discretion. If the number of times the whip was used marginally exceeded the guidelines, but it didn’t look bad to the eye and the horse was clearly responding, then flow with it. The emphasis on the response of the horse had to be the over-riding factor. If it looked bad to the eye of a professional steward, then certainly act on it.
 
When considered in context, minor breaches of the rule are just that and should be treated as such when determining penalty. Conversely, dealing with a win at all costs attitude that shows a blatant disregard for the rule, or dealing with a repeat offender, is the appropriate time for a severe penalty to be imposed so as to provide specific and general deterrence.
 

PARTS OF THE RULE ARE UNWIELDY AND WILL PROVE IMPOSSIBLE TO INTERPRET:

 
The AJA continues to oppose sections of AR137A, those sections being parts (5) and (6) that relate to number of strikes.
 
Whilst we endorse the spirit of the rule that will result in a change of culture regarding whip use by Australian riders, we believe the absolute counting of strikes will prove unwieldy and unnecessary.
 
Put simply, what looks unreasonable or excessive use of the whip in the eyes of a professional steward will usually prove to be so.
 
Riders are entitled to expect professional stewards to get interpretation of appropriate use right, if stewards are given appropriate guidelines.
 
The same applies for consistency of penalty: stewards should simply consider if the spirit of the rule has been breached and to what degree it has been breached when considering penalty.
 
This belief was confirmed with the statement of a senior steward, when stating he will not be instructing his stewards’ panels to count every strike by every jockey in every race to identify breaches.... More so he’ll be instructing his stewards panel to note any glaring breaches on race day and then a more general look (but not count each hit by each rider) in the days following the meeting.
 
The only possible interpretation of this is that some stewards intend to apply the rule of common sense and do not intend to rigidly apply sections (5) and (6) of AR137A, yet the proposed template allows no room for discretion or interpretation.
 
Finally, a number of stewards seem most uncomfortable having their powers of discretion removed from their decision-making concerning penalties.
 

MORATORIUM ON PENALTY:

 
The AJA requests the ARB adopt a moratorium with regards to application of penalties for a period of twelve months.
 
We believe it is completely unreasonable to expect riders to adopt the new restrictions to style in tight finishes prior to 1st August. As one rider recently pointed out... he’s not prepared to come back after running a close second and say to connections... “probably could have got a bit more out of him but I’m concentrating on practicing for the new whip rule requirements that’ll be in on 1st August...”.
 
It’s clear a significant period of ‘on the job’ learning and adjustment will be required after 1st August despite the best intentions of riders to conform to the new rules.
 
Obviously, we would support a policy whereby a rider who consistently shows a flagrant disregard for the spirit/intent of the new rules should be subject to appropriate penalties as determined by stewards on a case by case basis.
 

SUMMARY:

 
The AJA would look forward to the opportunity of again meeting with stewards to formalize such recommendations prior to the ARB meeting later in June.
 
If consensus cannot be reached with Stewards regarding penalties, then we would call on the ARB to urgently appoint a mediator (there are several eminently qualified people available) to negotiate a path through this extremely difficult and sensitive situation.