Written reasons following enquiries (A. McCarthy F. Marsh) heard by the Disciplinary Panel on Thursday 25 March
Written reasons following enquiries (A. McCarthy, F. Marsh) heard by the Disciplinary Panel on Thursday 25 March 2021
Written reasons following enquiries (A. McCarthy, F. Marsh) heard by the Disciplinary Panel on Thursday 25 March 2021
30/03/2021 @ 13:00:00
Adrian McCarthy
The independent Disciplinary Panel of the British Horseracing Authority (BHA) convened on Thursday 25 March to consider whether Mr Adrian McCarthy was in breach of Rule (K)49 of the Rules of Racing.
1. On the 25 March 2021 the above Panel convened to consider whether the above named, a licensed professional flat Jockey, was/is in breach of the above Rule in that he failed to ensure that on the 15 October 2020 when he rode FAREGAAN in the 20.30 at Chelmsford Racecourse that no banned substance was present in his body. In fact, after analysis of a sample taken from him, a high concentration of metabolites of cocaine was found.
2. Following the above analysis, on application by the BHA, the Judicial Panel Chairman suspended his license pending a full disciplinary hearing. In the hearing, before us, Mr McCarthy was unrepresented and Charlotte Davison appeared for the BHA. There were no objections to the constitution of the Panel. As in the case of every unrepresented party the Panel ensured, as did Ms Davison, that Mr McCarthy was given a fair hearing and every opportunity to have his say. He admitted the breach.
The Investigation
3. Hair sampling indicated use of cocaine over a period of time which coincided with Mr McCarthy’s account. In the course of interview Mr McCarthy was fully frank and cooperative. He gave an account of being in a very dark place in terms of depression and anxiety and he sought solace from drink and cocaine. This became a spiral of deterioration of the condition. He told us that he had turned his life around since detection of his offence, sought help, counselling and treatment. He realised he had committed a very serious offence and was remorseful. We have no reason to doubt his sincerity.
Penalty Guidance
4. The entry point penalty for a first offence under Rule (K)49 is withdrawal of license for 2 months with a range between 1 and 6 months but where the banned substance is cocaine the withdrawal will normally be at the top of the range. There were no exceptional circumstances indeed the concentration of the banned substance was very high. Whereas we considered carefully Mr McCarthy’s account of what led up to the commission of the offence and recognised his frankness and the battle he has fought to rehabilitate himself the offence is, rightly, one of strict liability.
Conclusion
5. The use of cocaine by Jockeys is not only very dangerous for riders and horses but in our view it has a tendency to bring the sport of Racing into disrepute. We withdraw Mr McCarthy’s license for a period of 6 months from the 22 October 2020, the date of suspension until 21 April 2021 inclusive. He will be subject to an enhanced sampling programme with medical supervision before his license is returned.
Finlay Marsh
The independent Disciplinary Panel of the British Horseracing Authority (BHA) convened on Thursday 25 March to consider the conduct of Mr Finlay Marsh in relation to his non-attendance when booked to ride at Kempton Park Racecourse on 16 November 2020.
1. The above Panel convened on the 25 March 2021 to consider whether on the above date the above named jockey acted in a way that was prejudicial to the integrity, proper conduct or good reputation of horse racing contrary to Rule (J)19 of the Rules of Racing. The BHA was represented by Mr Andrew Howell and Mr Rory Mac Neice appeared for Mr Marsh. There was no objection to the constitution of the Panel.
2. By letter of 25 February prompt notice was given on Mr Marsh’s behalf that he accepted breach of the Rule. Indeed, he had admitted his conduct and the breach in interview in the course of the investigation. That position was confirmed in the hearing.
Background and Facts
3. a) Mr Marsh has held an Apprentice Licence since 2016. He has been employed since 2015 by Mr Richard Hughes, the licensed trainer.
b) On 16 November 2020 Mr Marsh was booked by Mr Nick Littmoden the trainer to ride NO DIGGITY (IRE) in the 20.00 at Kempton Park. Mr Marsh failed to attend. A Stewards Enquiry was held from which it emerged that testers were present at the Course. Mr Littmoden informed the Clerk of the scales that he had been told by Mr Marsh that he would be unable to attend because he was unwell. In fact as is accepted he was not unwell but he had decided to lie about that to prevent possible detection - if he was selected for testing - of admitted deliberate ingestion of cocaine. In fact he may not have been selected for testing, he lied to avoid the risk and it is a matter of conjecture as to whether he would have ridden had he not been selected. Another Jockey was substituted with implications for the trainer, connections and the Racing public, with no disrespect whatsoever to the replacement Jockey.
c) On that day the BHA Head of Integrity Mr Chris Watts (the Investigating Officer (IO)) contacted Mr Marsh who stated that he had been ill and unable to ride. A sample collection was arranged for Mr Marsh at Newbury racecourse - no Racing there that day - at 13.30 on 17 November. Mr Marsh did not attend. Having reported symptoms to the NHS he had been instructed to self isolate and a text message was produced to confirm the instruction. It is important to note that the BHA case against Mr Marsh was expressly confined to the allegation in respect of failure to attend at Kempton and not at both Kempton and for the arranged test at Newbury. The COVID test which followed proved negative.
Investigation
4. An interview followed in which Mr Marsh was represented. Admissions followed. He admitted that he had taken cocaine on 14 November and at the time he knew of his race commitment on the 16th. Fearful of detection he telephoned a Jockey friend to find out if the sample collection officers were present at the course and it was confirmed that they were. He then reported that he was unwell whereas he was not. He did so and failed to attend for fear of being found out to have had the substance in his system if selected. Hair analysis followed and the results supported Mr Marsh’s account of a single ingestion on the 14th.
The Issues
5. As noted above, the BHA case was confined in the charge and in its presentation upon the failure to attend at Kempton. They rightly contended that such conduct was a deliberate deception to frustrate potential anti-doping regulation. They rightly contended that this was a serious breach of Rule (J)19 based as it was on a background of a licensed jockey taking cocaine when he knew that he was due to ride and then misleading the authorities as to inability to attend at Kempton. In that connection they invited the Panel to have regard not only to the guidance for penalty for breach of the rule charged but also to the application of the appropriate penalty for breach of Rule (K)58, failure to comply with the testing code. They considered that they could not have proceeded with such a breach given the technical fact that Mr Marsh had not been required formally to provide a specimen. The case for Mr Marsh was that while it was accepted that this was a serious breach in the context of cocaine taking that the penalty should be imposed upon the charged offence alone. Further that there was substantial mitigation particularly in MR Marsh’s important confession and voluntary conduct in undertaking not to ride under Rules thus avoiding any question of necessary further investigation and interim suspension.
Guidelines as to Penalty
6. For breach of Rule (J)19 the recommended penalty is a £2,000 fine or suspension, withdrawal or disqualification for 3 months, the range being between 1 month and 3 years. The entry point for breach of Rule (K)58 is 9 months with a range of 6 -12 months.
Conclusion
7. We decided that the Rule (J)19 covers a whole spectrum of possible offending conduct but given the range concerned that albeit in the context of cocaine taking that we could properly consider the appropriate penalty through the prism of that Rule. Cocaine taking by jockeys is anathema to the safety of jockeys and horses and hugely detrimental to the integrity and reputation of the sport. In the particular and unusual circumstances of this case, the way in which the case was put against Mr Marsh and applying the guidelines we chose a starting point of withdrawal of the license for 9 months and given a one third reduction for mitigation 6 months withdrawal backdated to 20 November 2020 the date of voluntary undertaking not to ride under Rules.
Notes to Editors:
1. The Panel for the Enquiries was: James O'Mahony, Chloe Fairley and Tim Etherington.
