As someone whose pleasure is watching jump racing and makes their modest living from practising law, I have what some might consider an unhealthy interest in studying the decisions of the BHA’s Disciplinary Panel. Reading the Panel’s judgments and those of the Appeal Board, which are all published on the BHA website, is my definition of a good night in.
Among some of the least interesting reports concern cases brought for breaches of Rule (G) 2.1, of which there are many. They usually go something like this:
A horse tests positive for a prohibited substance following a race. An investigation is conducted which includes a visit to the trainer’s stables and it is concluded the presence of the substance is the result of cross contamination from a member of staff working with the horse, who had been taking the drug themselves quite legitimately – If you want to read one the more unusual cases, you can do no better than look at the proceedings against Dean Ivory, where it was found the prohibited substance was probably transferred due to a work rider who had been taking Tramadol urinating in the stable while mucking out.
At the hearing the trainer tends not to appear, but accepts the allegation on the basis it is a strict liability offence, which is sent with written submissions. The disqualification of the horse and forfeiture of the prize money is mandatory, but the Panel then have to consider whether to impose a penalty. The test is if all reasonable precautions had been taken to avoid violating Rule 2.1. In all the cases I can find of accidental transfer from a worker, the Panel find that they hadn’t and impose a fine usually of around £1000.
On the face of it the hearing against Philip Hobbs on 10th August looked like it would follow the usual pattern. Keep Moving had tested positive for a prohibited substance, Cetirizine, following a Chase at Ludlow. Mr Hobbs didn’t attend, but admitted the breach in his absence and the inevitable disqualification and forfeiture of prize money followed. However, what made this case different is that after a visit to his stables, which were found to be in “excellent condition”, no source of the prohibited substance could be discovered by the investigators. It came within the bracket of what are called the “mystery cases”.
The learned Mr Graham Gilbert representing the BHA argued for a penalty, essentially on the grounds that in the absence of a central register in which staff listed their medication, all reasonable precautions had not been taken. Following an exchange between Mr Gilbert and the Chair on the burden and standard of proof, which would interest only the most academic of lawyers, The Panel dismissed the submissions and no penalty was imposed.
Not content with the outcome, the BHA decided to appeal the decision on what they described as a point of principle. And that I would suggest was tactically their first mistake. My experience is that you should think very carefully before pursuing an appeal on a point of principle and if you do, pick the right case against the right opponent – Philip Hobbs’ stables were described as being in excellent condition, the drug was one not subject to an outright prohibition (only on raceday) and there was no history of his horses having testing positive for Cetirizine- This was the wrong fight against the wrong person. Secondly, the BHA put its Appeal on the basis it sought no more than a nominal penalty. As the Appeal Board said “That means, say 5 pence, which in reality is no penalty” As opening shots go this placed the BHA on the back foot and a stance the Appeal Board described as “surprising and we are bound to say that we find it incongruous”. Having started with a misaimed blow, what followed reads like an intellectual punishment beating of the BHA’s finest legal minds by the Board, as humiliating as it is brutal. The appeal was dismissed.
Having lost the battle, the BHA remained determined not to be defeated and resorted to the nuclear option, announcing in a press release on 23rd November that it would seek to amend the rules. The statement was dressed up by saying this was only part of a significant re-writing of the Rules of Racing which it had already embarked on. This strikes me as the BHA again acting incongruously, as it has all the hall marks of a knee jerk reaction.
I should say I believe the BHA to be a fairly decent regulatory body – I’ve certainly known far worse – and I have written positively about it on this blog. On this occasion, however, I find it difficult to defend its actions. The Panel and Appeal Board is there for a purpose and you can’t simply change the rules because you don’t like their decisions. To do so is to act as a dictator and we all know what happens to the judiciary in a dictatorship.