The BHA will seek to amend the rules of racing "to avoid weakening the ability for penalties to be imposed" in anti-doping cases after it suffered defeat in a landmark appeal against a disciplinary panel decision.
In the first case in which the regulator challenged a disciplinary panel verdict, the BHA appealed against the decision not to impose a penalty on trainer Philip Hobbs after one of his horses, Keep Moving, tested positive for cetirizine, an antihistamine and a prohibited substance.
The appeal board upheld that decision, however, ruling that the original panel had correctly interpreted the rules of racing as stating that when a substance has been unintentionally administered and all reasonable precautions taken by the trainer no penalty should be levied.
The BHA had argued that when the source of a substance is not established, as it was not in the Hobbs case, it logically follows that it cannot be satisfied that the substance was administered unintentionally and all reasonable precautions taken.
The key rule
11.4 If the Responsible Person establishes in an applicable case under rule 11.3.1 or 11.3.2 that
11.4.1 The Prohibited Substance or Prohibited Method was not administered intentionally by the Responsible Person or by any other Person (whether or not connected to the Responsible Person in any way); and
11.4.2 The Responsible Person had taken all reasonable precautions to avoid violating Rule 2.1 or 2.2
then no penalty shall be imposed on the Responsible Person.
In rejecting that argument, the appeal board has, in effect, created a precedent under which a horse can test positive for a prohibited substance of unknown origin yet incur no greater punishment than disqualification, with the trainer absolved of a penalty, although not fault.
As such, the ruling muddies the water in terms of whether strict liability, the principle which states a trainer is responsible for his or her horses' tests regardless of intent or motive, applies to racing. The appeal board concluded that while strict liability applied to disqualification and forfeiture of prize-money, it did not apply to penalty.
The BHA's chief regulatory officer Jamie Stier said: "Whilst the appeal board’s judgment does not challenge the principle of strict liability, it has shown there is an issue with the way the rules of racing are currently written.
"In order to address the point raised by the appeal board, there needs to be an amendment to the current rules.
"We are proud of the approach of British racing to doping violations. International and UK owners invest tens of millions in our sport because we have a good reputation for maintaining a level playing field and fair competition.
"Racing cannot afford to see this reputation undermined so it is imperative we move swiftly to ensure that a proper framework is in place to underpin a robust anti-doping policy.
"A sufficient deterrent is fundamental to the enforcement of an effective anti-doping regime in any sport and therefore it is of vital importance that the principle of strict liability is backed up with appropriate penalties."
The National Trainers' Federation has "strongly discourage[d]" the BHA from pursuing a rule change. In a statement, it welcomed the appeal board decision and argued the current rule encouraged good yard management.
The statement said: "We note that, in response to this decision, the BHA will seek a rule change. We would strongly discourage them from this.
"Each case will still turn on the facts. Far from obstructing its ability to regulate the sport, the BHA should recognise that this ruling gives trainers an incentive to ensure they apply the very best management practices to prevent their horses from being administered with or contaminated by a prohibited substance whether in their home stables or at a racecourse. There is no such incentive if the trainer is penalised whatever the circumstances.
"It should not be forgotten that the result does not change the inevitable disqualification of the horse, with serious consequences for the connections including the trainer. This in itself is sufficient deterrent."
It added: "We want to be clear that the NTF fully supports British racing's rules on equine anti-doping and their objective to ensure that everyone competes on level terms on British racecourses. Our interest in the appeal was to ensure fair treatment of trainers under those rules.
"Finally, we hope this result serves as a warning to the BHA to use its appeal powers in future with extreme caution."