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de Sousa appeal dismissed

Silvestre de Sousa (Appeal)

1. On 12th July 2018 the Independent Disciplinary Panel of the British Horseracing Authority (BHA) heard an appeal lodged by Silvestre De Sousa the rider of MASSAM against the decision of the Stewards at Chelmsford City on Friday 6th July 2018 to find him in breach of Rule (B)59.4c in failing to take all reasonable and permissible measures to obtain the best possible placing in that he failed to ride out on a horse that could have finished third.  They suspended him for 7 days.
 
2.  There was no objection to the participation of any of the members of the Panel in the hearing of the appeal.  Mr De Sousa was represented at the hearing by Mr Harry Stewart-Moore and the BHA’s case was presented by Mr Lyn Williams.
 
3.  In this type of appeal the Panel has to approach the appeal as a re-hearing and the relevant standard of proof is the balance of probabilities.
 
4.  The issue in the appeal is whether if Mr De Sousa had ridden out MASSAM he could have been placed third as opposed to fourth.  The horse placed third was ZMHAR (IRE) ridden by Robert Winston and the distance between the two horses was a nose.
 
5.  The conclusion of the Stewards was as follows: - “Silvestre De Sousa, the rider of MASSAM, placed fourth, had appeared to stop riding shortly before the winning post to be beaten by a nose for third.  After being interviewed and shown recordings of the incident, De Sousa was suspended for 7 days for failing to take all reasonable and permissible measures to obtain the best possible placing on a horse that could have finished third”.
 
6.  The Panel heard submissions from both Mr Williams and Mr Stewart-Moore and evidence from Mr De Sousa and viewed the videos taken at Chelmsford.  In addition, the Panel had before them the transcript of the Steward’s enquiry, the photo finish print, Racing Post report and a letter of support from Mark Johnston the trainer of MASSAM.
 
7. Having considered all the evidence carefully the Panel concluded that Mr De Sousa had not ridden out the horse as required by Rule (B)59.4c and Rule (D)45.2 which states “……whilst it is not necessary for the rider to use the whip, the rider must give his horse at least a hand and heels ride”.
 
8.  The race at Chelmsford City was MASSAM’s first run and the Panel accept the evidence of Mr De Sousa as confirmed by Mr Johnston in his letter that the horse was difficult during the preliminaries and ran green during the race.  The videos show that the horse hung right at the 2 furlong marker as it turned into the straight which Mr De Sousa corrected, however the horse then hung left approximately one furlong out which Mr De Sousa had again to correct.  No criticism can be made of Mr De Sousa’s riding until the last few strides of the race at which point it appeared from the videos that he eased off.
 
9.  When Mr De Sousa began his challenge he was one off the rail.  The horse nearest the rail was CHANCE ridden by Jack Mitchell who weakened inside the final furlong.  As MASSAM was hanging left the horse which eventually finished third, ZMHAR (IRE), was hanging right with the result that JFOUL (IRE) and INDOMITABLE (IRE) came between MASSAM and ZMHAR (IRE) and finished first and second a length and a quarter ahead of ZMHAR (IRE).
 
10. Having considered all the evidence carefully the Panel were satisfied that Mr De Sousa had not ridden out MASSAM as required by the Rules and that during the last 6/7 strides of the race he did not give his mount a hands and heels ride required by the Rules.
 
11. The principle factor in the Panel reaching their decision was the video evidence.  The Panel had the benefit of viewing the race from four different perspectives.  Having done so they were satisfied that for the last 6 or 7 strides of the race Mr De Sousa had ridden less vigorously than up to that point and that at that point the horse was not hanging.
 
12. In the Panel’s view Mr De Sousa did not explain satisfactorily why his riding became less vigorous which is what the side on video shows.  Mr De Sousa only reported to the Stipendiary Steward at the outset of the enquiry that his horse had been hanging.  When he was asked at the enquiry why he had not reported this when he weighed in as he was required to do he said “I kind of forgot”.  At the appeal his explanation was “I did not feel the need to tell anyone as I tried to keep the horse on a straight line”.  What the Panel took from this was that while the horse was hanging until shortly before the line Mr De Sousa did not regard that as affecting his ability to ride a finish otherwise he would have reported that at weigh in.  Further, Mr De Sousa stated at the appeal that his mount “had nothing more to give” which he had not mentioned at the enquiry.
 
13. For these reasons the Panel’s conclusion was that Mr De Sousa’s ride during the last few strides of the race was in breach of Rule (B)59.4c.  After announcing our decision the Panel heard submissions in regard to penalty.  Mr Williams’s submission was that for a first offence of failing to ride out approaching the finish on a horse that could have been placed 2nd / 3rd the penalty was a fixed penalty of 7 days suspension.  He also referred us to paragraph 5.5 of the Penalty Guidelines which states “where no ‘range’ is provided for the offence, the recommended entry point is a fixed penalty.   A Panel should impose this sanction in all cases unless exceptional circumstances are found”.  Mr Williams said that there were no exceptional circumstances.
 
14. In his submissions Mr Stewart-Moore said that on the evidence we should consider whether there were exceptional circumstances.   He did not detail these but we assume he was referring to the fact that this was the horse’s first run, that it ran green and that it had been difficult both in the paddock and going to the start.
 
15. The Panel’s conclusion was that there are no exceptional circumstances in this case.  Issues of this type occur regularly when a horse is having its first run, Mr De Sousa is a senior jockey who knew what the Rules were and what was required of him.  We accept that there was probably no more than a momentary lapse of concentration during the last few strides of the race but nevertheless the result was that MASSAM was denied the chance of finishing third with the resulting loss of prize money etc and it is for that reason that the Rules are as they are.
 
16.  The appeal is therefore dismissed in its entirety.  The deposit will be forfeited.
  
Notes - The Panel for the Appeal was: Stuart Morrison (Chair), Diana Powles and Steve Winfield.
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