By Dr Laura Donnellan, Lecturer in Law, School of Law, University of Limerick, Ireland
In 1987, Gay Kelleway became the first female jockey to win at Royal Ascot. It took another thirty-two years for a female jockey, Hayley Turner, riding ‘Thanks Be’ to win the Sandringham Stakes at Ascot. The win was marred by Turner breaching the whip rules resulting in a nine-day ban and a fine of £1,600.
The imposition of the fine and ban on Turner have brought to the fore the rules relating to the use of the whip in horseracing.
A major review of the use of the whip took place in 2011, in a report entitled: Responsible Regulation: A Review of the use of whip in Horseracing (http://www.britishhorseracing.com/wp-content/uploads/2014/03/WhipReview.pdf).
In short, the review concluded that the use of the whip remained appropriate and necessary for the safety of both jockeys and horses. However, the Review Group opined that the penalties for a breach of the Rules of Racing in relation to the whip were not enough of a deterrent as too many breaches of the whip rules were occurring.
The Review Group, in analysing the use of the whip from the point of animal welfare, concluded that the use of the whip for safety and encouragement should continue. It should only be used to encourage performance when
– the horse is in contention during the race;
– the horse is able to respond; and
– the jockey gives the horse time to respond.
The whip should only be used on a part of the horse, in the context of the race, where it would not cause pain. The whip should only be used a certain number of times and the whip must be a specifically designed energy absorbing whip that does not cause pain when used properly.
The issue of animal welfare was acknowledged by the Review, which referred to the agreement between the Royal Society for the Prevention of Cruelty to Animals (RSPCA) and the British Horseracing Authority (BHA) in relation to animal welfare and the Rules of Racing.
The RSPCA called for a reduction in the frequency and timing of the use of the whip and an increase in the penalties for a breach of the rules relating to the whip. The RSPCA referred to the Animal Welfare Act 2006, which prohibits unnecessary suffering under section 2.
The RSPCA stated that the use of the whip was not illegal; however, jockeys, racecourse owners and managers were under a moral and legal duty to ensure that the 2006 Act was not breached. The Review Group concluded that the use of the whip, in its current state, was not a welfare issue.
Following the Review, the BHA revised its rules on the use of the whip.
The current rules relating to the use of the whip fall under ‘Careless and Improper Riding’, Rule 54 of Race Manual B–Part 4-The Race-(B) 45-59 (BHA, Rules of Racing, http://rules.britishhorseracing.com/Orders-and-rules&staticID=126355&depth=3).
Under Rule 54 (3) improper riding includes the improper use of the whip, which is an offence under the rules and may result in disciplinary action against the rider (54 (4) (1) and (2). Part Two of Schedule Six of Race Manual B augments Rule 54 and provides examples of improper use of the whip. It provides four examples:
Example 1: Using the whip on a horse
6.1.1 with the whip arm above shoulder height;
6.1.2 rapidly without regard to their stride (that is, twice or more in one stride);
6.1.3 with excessive force;
6.1.4 without giving the horse time to respond.
Example 2: Using the whip on a horse which is
6.1.5 showing no response;
6.1.6 out of contention;
6.1.7 clearly winning;
6.1.8 past the winning post.
Example 3: Using the whip on a horse in any place except
6.1.9 on the quarters with the whip in either the backhand or forehand position;
6.1.10 down the shoulder with the whip in the backhand position; unless exceptional circumstances prevail.
Example 4: Using the whip on a horse above the permitted level for frequency.
The examples are not exhaustive as 6.2 provides that the ‘use of the whip may be judged to be improper in other circumstances’.
The procedure for horses, which have been subjected to the improper use of the whip are explained under Rules 7 and 8 of Schedule 6.
Rule 7 provides for the veterinary inspection of the horse.
Under Rule 8, trainers may also be subject to disciplinary action where the horse is injured or wealed as Part 3 of Manual C-General Duties of Trainers- Rule 45.4.2 states ‘in the event that an instruction is given to the Rider which, if obeyed, could or would lead to a contravention of Rule (B)54 (careless or improper riding) with regard to misuse of the whip’ (http://rules.britishhorseracing.com/Orders-and-rules&staticID=126629&depth=3).
The rules provide that a rider may not use the whip more than seven times for Flat races and eight times for Jumps races (PJA, ‘Guidance on the use of the whip’, http://www.thepja.co.uk/members-info/regulatory/useofwhip/). Stewards have the discretion to conduct an inquiry if the rider uses the whip in excess of these limits.
In deciding whether an inquiry will be held, the stewards will take into account a number of factors: the extent to which the rider used the whip during the course of the entire race and the stewards will pay close attention to the use of the whip in the final stages of the race (ibid). The stewards are not only concerned with the number of times the whip has been used; they must take a holistic view by examining the circumstances in which the improper use of the whip has been observed, including the degree of force which was used and ‘whether the horse has been given time to respond’ (BHA, ‘The Whip’, https://www.britishhorseracing.com/regulation/the-whip/).
The penalties for the improper use of the whip in flat racing are as follows: for one hit above the maximum of eight, the rider faces a minimum penalty of two days suspension. For two strokes above the limit, the rider may be suspended for a minimum of four days and for three strokes, the minimum is seven days suspension (BHA, ‘Guide to Procedures and Penalties 2018, An Explanatory Guide to Assist Effective Enforcement of the Rules’, https://www.britishhorseracing.com/wp-content/uploads/2019/04/Guide-to-Main-Bocy.pdf, page 26).
Turner was banned for nine days: she received seven days for the 11 strikes (frequency) on ‘Thanks Be’ plus two further days for the circumstances in which there was an excessive use of the whip (ibid page 26).
A rider may receive an additional two days for excessive force, if the whip is used and the horse is clearly winning or if the rider’s arm is above shoulder height. There is no statement on the BHA website as to the breakdown of Turner’s penalty; media reports refer to her exceeding the limits during the last furlong and a half (Kitty Trice, Hayley makes history as Thanks Be snares historic Sandringham triumph’, Racing Post, 21 June 2019, https://www.racingpost.com/news/thanks-be-gives-hayley-turner-historic-royal-ascot-win-in-the-sandringham/386637). She was also fined £1,600, which represents a percentage of her winnings from the race.
The rules relating to the improper use of the whip are found in numerous places. There is a lack of consolidation. A comprehensive section that puts the various rules relating to the use of the whip would make them more user-friendly. However, the BHA and PJA provide useful guidelines on their websites on the use of the whip.
It is interesting to note that Norway has strictly curtailed the use of the whip since 1982 and, since 2009, whips have not been used in most flat races (Bidda Jones, Jed Goodfellow, James Yeates and Paul D. McGreevy, ‘A Critical Analysis of the British Horseracing Authority’s Review of the Use of the Whip in Horseracing’ (2015) 5 (1) Animals 138-150; 141, doi: 10.3390/ani5010138). Cognisance is given to the fact that the industry in Norway is much smaller than in Britain; however, the Norway model demonstrates that the safety of riders and horses has not been compromised (ibid).
Perhaps the BHA should consider phasing out the use of the whip in flat racing, to begin with. Given that the Stewards are given discretion whether or not to hold an inquiry, the rules are not contained in a single section; the phasing out of the use of the whip would mean that there was no ambivalence and it would also signal more of a commitment to equine welfare!
Dr Laura Donnellan may be contacted by e-mail at ‘Laura.Donnellan@ul.ie’