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Results of BHA Disciplinary Panel enquries
05 Dec 2017 | British Horseracing Authority 
Richard Hannon

On 30 November 2017 the Independent Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry to consider
(1) If Richard Hannon a Licensed Trainer and Responsible Person was in breach of Rule (G)2.1 of the Rules of Racing by virtue of the fact that O-desmethyltramadol, a metabolite of Tramadol, a Prohibited Substance pursuant to Rule (G)16 was found in a urine sample taken from DE BRUYNE HORSE following its run in the Investec Woodcote Stakes (Condition Race) (Class 2) (Plus 10 Race) at Epsom Racecourse on 2 June 2017 and
(2) Should DE BRUYNE HORSE be disqualified from the above race pursuant to Rule (A)74.2 Ground 3 of the Rules of Racing.

2. In his Schedule (A)6 form Mr Hannon admitted that he was in breach of Rule (G)2.1. In a covering letter he explained what precautions had been taken since an earlier positive finding in respect of the same drug relating to a horse LOGOUT ISLAND which the Panel had dealt with on 9 June 2017. We will refer to this again later. There was no objection from either of the parties to the participation of the members of the Panel in this case. The BHA was represented by Mr Tim Naylor who referred to many of the documents and witness statements contained in the bundle put before the Panel a copy of which had been sent to Mr Hannon. It was not suggested to us that any of the documents were objected to or the contents of the statements challenged.

3. At this stage it is appropriate to set out the relevant provisions of the Rules which are as follows:-
(1) Rule (G)2.1 – The presence of a Prohibited Substance in a Horse’s sample.
Rule 2.1.1 It is each Responsible Person’s personal duty to ensure that no Prohibited Substance is present in a Horse’s body. Responsible Persons are responsible for any Prohibited Substance found to be present in a Horse’s sample. It is not necessary that intent, fault, negligence or knowing Use be demonstrated to establish an equine anti doping rule violation under Rule 2.1.
(2) Rule (G)11 – Penalties.
11.1 the Disciplinary Panel shall have power to impose penalties and consequences for equine anti doping rule violations committed under these equine anti doping rules as set out as follows:-
11.2 Automatic Disqualification of the Horse from the Race.
11.2.1 An equine anti doping rule violation in connection with a Race day Test automatically leads to disqualification of the Horse from the race in question pursuant to Rule (A)74 with all resulting consequences for the Responsible Person, member of the Support Personnel and/or the Horse including the forfeiture of all titles, physical prizes and trophies and prizes or other money.
11.3 Disqualification/Withdrawals and Fines for Responsible Persons or other Person.
11.3.1 Presence or use of a Prohibited Substance or Prohibited Method
The Authority will impose a penalty on the Responsible Person unless the condition for imposing no penalty on the Responsible Person in Rule 11.4 is met.
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 Rule 2.2 then no penalty shall be imposed on the Responsible Person.

4. O-desmethyltramadol is a metabolite of tramadol. Tramadol is an opioid analgesic used to manage moderate to severe pain in people. Tramadol hydrochloride is usually given orally, intravenously, or rectally as a suppository. It is also available as unlicensed gels and creams. The elimination half life of the parent drug in man is about 6 hours and in the horse varies from 1.5 – 2 hours after intravenous administration to 10 hours after oral administration. O-desmethyltramadol is directly used as a recreational drug in man and was classified in 2013 as a Class B drug under schedule 2 to the Misuse of Drugs Act 1971. There are no preparations of tramadol that are licensed for use in animals but it can be used under the “cascade” in animals in the UK including the horse. It can be given for pain relief. It is accepted that the exposure of a horse to the parent drug via cross examination from a person taking medication could result in the presence of tramadol in a urine sample from the horse. As tramadol has a pharmacological effect on multiple mammalian body systems it is a Prohibited Substance.

5. The factual background to this case can be summarised as follows:-
(1) The sample taken from DE BRUYNE HORSE at Epsom on 2 June 2017 was analysed and revealed the presence of O-desmethyltramadol. Mr Hannon exercised his option to have the B sample analysed and this produced a similar result.
(2) On 19 June 2017 Tim Miller the BHA Investigating Officer Team Leader visited Mr Hannon’s yard along with Tessa Muir, Anti Doping Manager. A urine sample was taken from DE BRUYNE HORSE which was reported as not containing O-desmethyltramadol.
(3) Mr Hannon told Mr Miller that DE BRUYNE HORSE was stabled at his Everleigh yard and provided details of the staff who dealt with the horse. When Mr Miller spoke to the staff members who were responsible for dealing with the horse at home, travelling to Epsom and the work rider they all stated that they were not on any medication. On 19 June 2017 Mr Miller spoke to everyone else at the yard who had any dealings with the horse including Maurice Ahern who was responsible for feeding all the horses who told him that he measured the food into buckets and then gave the buckets to the waiting staff who took the feed to each horse’s stable where it was emptied into the plastic feed manger. The manger is washed out every day and all horses are fed the same. Mr Ahern told Mr Miller that he was on medication and provided a copy of his prescription which the BHA subsequently established was unlikely to have contained tramadol.
(4) Mr Miller also spoke to Michelle McCarthy who travelled with DE BRUYNE HORSE to Epsom along with Wayne Kavanagh and Joe Kirby who stated that after the horses were unloaded, hosed down and given water they were left alone and allowed to settle although she would check regularly to make sure the horses were okay. All the staff members contacted were asked if they were on medication and said that they were not.
(5) Mr Miller asked the yard manager if he was aware of any members of staff who might be on prescription medication for pain or who may use recreational drugs and they were unable to identify any.
(6) On 5 July 2017 Mr Miller returned to the yard and addressed all the staff at Everleigh yard advising them of the situation and asked anyone with any information to speak to Mr Hannon or himself. Nobody came forward with any information.
(7) Mr Hannon was interviewed at length on 5 July 2017 but could not offer an explanation as to how DE BRUYNE HORSE tested positive. He provided Mr Miller with details of a number of service providers who attended the yard and who could have had contact with DE BRUYNE HORSE. Thereafter Mr Miller contacted the various service providers including Jamie O’Gorman, Veterinary Surgeon, Mark Hewlitt and John Lownes, Farriers, and Tony Gilmore Equine Chiropractor. None of the service providers stated that they had taken tramadol.
(8) Mr Miller inspected the veterinary records relating to DE BRUYNE HORSE and checked the medications which are in the yard and nothing adverse came to his attention.
(9) On 12 July 2017 Mr Miller attended Epsom racecourse to view the CCTV at the stables. This did not disclose anything of interest to Mr Miller and he checked the Cleaning Certificate which confirmed that all previously occupied boxes at the racecourse had been disinfected as is mandatory.

6. The interview with Mr Hannon was lengthy and during the course of that interview the following points arose:-
(1) Mr Miller had noted that there were dogs in the yard which Mr Hannon clarified were owned by four staff members. When asked about this Mr Hannon said that all the staff lived in accommodation in the yard and they had been told that dogs should not be in the yards, barns or paddocks used by the horses but accepted that despite this instruction the dogs still accessed these areas. Mr Miller requested that a clinical history of each of the dogs be provided as tramadol could be prescribed to dogs under the cascade but no clinical histories were provided.
(2) DE BRUYNE HORSE is owned by Middleham Park Racing, a syndicate who have Regular Owners Days at the yard. Mr Hannon said at the Owners Days the Middleham Park horses would be transported to Herridge Yard but that the owners were not allowed to touch the horses. The last Owners Day had been on 18 March 2017 a considerable time before the race on 2 June 2017.
(3) Mr Hannon said that he had introduced a number of measures in an effort to prevent the possibility of cross examination. He said that a written message had been sent to all staff on 8 June 2016 requesting any medication being taken by staff be reported to the office. They were also reminded that urinating in the stables was forbidden. Mr Hannon said he had introduced a personal medication policy advising a range of measures designed to reduce the risk of cross examination and was amending the staffs’ employment contract for new starters to include the provision of staff to be subjected to drug or alcohol testing. Mr Hannon stated that he had recently installed a number of hand sanitizers at various locations around the yard and staff were going to be instructed to sanitize their hands prior to conducting various duties in the yard. Mr Hannon went onto say that on 5 July 2017 he had instructed an independent vet to collect blood samples from twenty horses of the vet’s choice and to test them for tramadol. Mr Hannon said that this would be repeated 2 weeks later and the programme reviewed after a month. The result of the first two test batches were forwarded to Mr Miller and all the samples tested negative for tramadol.

7. In their case summary the BHA stated that they had carried out all reasonable enquiries but were unable to ascertain the source of the adverse analytical finding. They submitted that as a result it was not possible for the trainer to establish that the substance was not administered intentionally i.e. deliberate administration was still a possible source and that for that reason Mr Hannon could not meet the requirements of 11.4.1.

8. Alternatively the BHA submitted that if the Panel found that the prohibited substance was not administered intentionally the BHA’s position was that Mr Hannon had failed to take all reasonable precautions to avoid contravening the Rules. While the BHA accepted that Mr Hannon had taken some precautions they noted that hand sanitizers, personal medication policy and other precautions taken by Mr Hannon had only been introduced after the adverse analytical finding and that their view was that for that reason all reasonable precautions were not in place at the relevant time.

9. The BHA also referred to two earlier Panel decisions in relation to Mr Hannon. It is important to set out the timeline in relation with these. The timeline is as follows:-
(1) A Panel decision on 26 May 2016 related to positive results for tramadol arising out of races at Ascot on 10 July 2015 and Goodwood on 23 September 2015. Mr Hannon had been interviewed in connection with these incidents on 10 August and 21 October 2015.
(2) On 26 May 2016 the Panel imposed a penalty of £2,000 and stated that it was unable to establish the source of the tramadol and could not therefore be satisfied that the administration was accidental and that the trainer had taken all reasonable care.
(3) A second enquiry was held on 9 June 2017. That related to a race at Newbury on 14 May 2016 in relation to which Mr Hannon had been interviewed on 9 June 2016. There is no explanation as to why it took a further year for the matter to come before the Panel. The Panel imposed a fine of £5,000 as again they said they could not be satisfied that the administration of the substance was accidental.
(4) In their decision the Panel noted that Mr Hannon had told all his staff to disclose all medications but that there had been little response, they also noted that the staff had not been required to wear gloves at any particular time unless they were using something hazardous and there was no fixed arrangement for feeding the horses. The Panel also stated that Mr Hannon had not implemented any changes to avoid further cross contamination since the first two positive findings in 2015.
(5) The positive test which has given rise to this enquiry arises from a race at Epsom on 2 June 2017 i.e. before the Panel sat to consider the May 2016 breach. It follows that Mr Hannon had no opportunity to take any action relating to the comments of the Panel of 9 June 2017 before the positive sample which was taken on 2 June 2017.

10. In his evidence Mr Hannon provided additional information. He said that since the most recent positive test he had spent a lot of time and money in trying to improve the situation. He said that after the May 2016 test in relation to LOGOUT ISLAND he had not known what additional steps to take but said that since the most recent test he had taken outside advice as to how the stable’s practices could be improved. He said that as a result a new clock-in system had been installed by which all the staff had to clock in and out and that there was a hand sanitizer next to the clock-in machine in order that the staff could wash hands whenever they clocked-in. When asked why that system had not been in place at the time of the BHA’s visit on 19 June 2017 he said that the system had been installed within 3 weeks of the last positive test which had been taken on 2 June.

11. Mr Hannon went onto say that the other major change which he had introduced was a system of elective testing. He said that Rossdales, a firm of veterinary surgeons whom he did not normally use, were testing a random sample of 10 horses from each of his yards on a regular basis. He said that at the date of the hearing three such test samples had been carried out and he expected that these would continue to be done four or five times per year.

12. When asked if he had taken any additional precautions following the first decision of the Panel on 26 May 2016 he said that he had arranged for an e-mail to be sent to all staff on 8 July 2016 advising them that if they were prescribed any medication they must let the office know immediately. The e-mail also pointed out that urinating in the stable was forbidden and that anyone doing so would face disciplinary action. A copy of the e-mail is at page 102. Mr Hannon went onto say that the other items at pages 103-105 including the Personal Medications Policy which set out rules about keeping human medication away from the horses and hand washing were all issued at the same time as the e-mail.

13. When asked about the issue of dogs in the yard which had been raised by the BHA he said that he did not allow dogs in the yard and whenever he saw one he told its owners to remove it but he said that this was difficult to enforce. Mr Naylor had pointed out that Mr Hannon did not appear to have followed up on his suggestion that he would obtain clinical records for the dogs. Mr Hannon said that he had chased this and records for two of them had been produced and forwarded to the BHA. Mr Naylor said that he was prepared to accept that that was the case.

14. There is one further point to which we should refer to at this stage although we stress that it did not form any part of the Panel’s deliberations. Mrs Pitman OBE asked Mr Hannon if outside work riders or jockeys came to ride work at the yard and he confirmed that they did and that there could be five or six of them there on any typical day during the Flat Season. Mrs Pitman’s point was that it seemed strange that while all the yard staff had been asked whether they took medication the same enquires had not been made of outside work riders and jockeys. The reason she made this point was that if an outside work rider or jockey had taken medication then it would be possible for cross contamination to occur when they were riding work. This is a matter which either the BHA or the trainer involved in future cases may wish to form part of their enquiries.

15. At this point it is necessary to refer to the decision of the Appeal Board of the British Horse Racing Authority in the matter of KEEP MOVING (FR) and the trainer Philip Hobbs which was handed down on 22 November 2017. The position in that case is very similar to the position in this one. Cetirizine was found in a urine sample taken from KEEP MOVING (FR) at Ludlow on 25 January 2017. Thereafter the BHA made enquiries which were very similar to those which they undertook in this case and were unable to identify the source of the Cetirizine. In that case the issues in relation to Rules 11.3 and 11.4 were the same as in this case. In relation to 11.4.1 the Panel in their decision had said at paragraph 13 “The burden of proof does not require the trainer to establish as a certainty that there was no intentional administration. He has to establish on the balance of probabilities that there was not an intentional administration, or to put it more simply that it is unlikely there was an intentional administration. In our view, given the absence of any product containing Cetirizine in the stable feed store or medicine cabinet in Mr Hobb’s yard, the evidence of the vet that so far as he could recall no product containing Cetirizine had ever been used to treat a horse in the stable, the evidence that no member of staff using or possessing a product containing Cetirizine could be identified, in the absence of any evidence or lack of security on the way to and at the racecourse a deliberate administration of Cetirizine to KEEP MOVING (FR) by anyone as to a high degree improbable. We consider the first condition in Rule (G)11.4.1 has been established on the balance of probabilities.” That interpretation of the Rule was upheld by the Appeal Board and is binding on us.

16. In KEEP MOVING (FR) the Panel went on to conclude that Mr Hobbs had taken all reasonable precautions and as a result satisfied the requirements of 11.4.2 and imposed no penalty on Mr Hobbs. The Appeal Board upheld that decision.

17. In this case despite the extensive and further tests carried out by the BHA to which we have already referred they have been unable to trace the source of the tramadol. Similarly Mr Hannon has not been able to provide any evidence as to the source. As it is clear from the Appeal Board’s decision in the KEEP MOVING (FR) case what Mr Hannon has to do is to establish on a balance of probabilities that it is unlikely that there was an intentional administration. In this case it seems to the Panel that there is no evidence which points to an intentional administration and Mr Naylor was not able to refer us to any particular factor which would lead to that conclusion. In those circumstances the Panel is satisfied that the tramadol was not administered intentionally by Mr Hannon or by any other person for whom he is responsible. Mr Hannon has therefore established that he falls within Rule 11.4.1.

18. The difficult issue in this case is whether the trainer has taken “all reasonable precautions.” Again the standard remains the balance of probabilities but the addition of the word “all” suggests that the standard required is high. The Panel acknowledges that the BHA cannot be expected to issue a set of recommendations which would cover every yard, clearly what amounts to all reasonable precautions in a yard with only a handful of horses maybe very different from what is required in a yard containing 200 horses with multiple locations. Each case will be fact specific.

19. In order to show compliance it is the Panel’s view that the Responsible Person has to show that they have considered what is required by the Rule, taken steps to implement the Rule and also be prepared to enforce the Rule. In effect what is required is that the Responsible Person undertakes a risk assessment. In a large yard such as Mr Hannon’s it may be necessary to engage outside help to do this as Mr Hannon has done but doing so will go a some way towards indicating that responsibilities are being taken seriously.

20. From the evidence which we have heard our conclusion is that prior to the test on DE BRUYNE HORSE on 2 June 2017 Mr Hannon had not put in place an adequate system and that no changes to the previous system had been made since the positive test on LOGOUT ISLAND on 14 May 2016 other than the email and other items at pages 102-5. It is however in Mr Hannon’s favour that the Panel’s decision in relation to that incident was not issued until after the positive test of 2 July 2017 and there was no way that he would have been aware of the criticisms which the Panel were about to make in their decision of 9 June 2017. The position is however that apart from the documents which were issued to staff in July 2016 there had been no meaningful attempts to improve the system since the original positive samples taken in July and September 2015.

21. The Panel’s conclusion is that Mr Hannon did not exercise all reasonable care and that he cannot therefore benefit from Rule 11.4.2.

22. In addressing the Panel in relation to penalty Mr Naylor referred to the two earlier decisions as “very clear aggravating factors” he reminded us of the range of penalties but stated that he did not think that this was a suitable case for disqualification but asked that the penalty be at the top end of the range. He also reminded us that if we thought that that figure was inadequate we could go above that and referred us to Rule 1 (A) in the Guide to Procedures and Penalties which authorises the Disciplinary Panel to impose a fine not exceeding £75,000 although he stated that he was not making a positive case for us to go beyond the range in relation to Rule (G)2.2 of a fine of between £1,000 and £10,000.

23. The positive test on DE BRUYNE HORSE was the fourth positive test for tramadol in Mr Hannon’s yard in a period of 2 years. We acknowledge that Mr Hannon operates a successful business with a large number of horses and that he operates from two different yards but nevertheless this fourth finding is a cause for serious concern in that apart from the documents issued to his staff in July 2016 no serious attempt to improve the system was implemented until after the fourth positive on 2 June 2017. For that reason the Panel’s view was that, absent of other factors, the appropriate penalty would be at the top end of the range. The Panel were however impressed by Mr Hannon’s candour in relation to the past and in particular his acknowledgement that following the test on 2 June 2017 he realised that he had to take outside advice with a view to improving the position. In effect he had a proper risk assessment carried out. As a result he has installed the clock-in system and hand sanitizers and has also introduced the system of elective testing carried out by independent veterinary surgeons. The Panel’s view is that Mr Hannon should be given credit for this and as a result the penalty will be a fine of £8,000.

24. Disqualification of DE BRUYNE HORSE in the Investec Woodcote Stakes run at Epsom on 2 June 2016 is inevitable pursuant to Rule (A)74.2. As a result the placings must be altered. This was a race where there was prize money for the first six finishers and the revised placings will now be as follows. CARD SHARP will be promoted to first place, ZAP to second, CAMPION to third, DIAMOND PERSUIT to fourth, VENTURA DRAGON (IRE) to fifth and HOLDENHURST TO sixth. The Panel also directed that any prize money paid out in relation to the above race be returned

Marco Botti

1. On 30 November 2017 the Independent Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry to consider
(1) If Mr Marco Botti a Licensed Trainer and Responsible Person was in breach of Rule (G)2.1 of the Rules of Racing by virtue of the fact that Cetirizine, a Prohibited Substance pursuant to Rule (G)16 was found in a urine sample taken from INDIAN DANDY (IRE) following its run in ‘The Trafalgar Restaurant at Yarmouth Racecourse Handicap Stakes (Class 4)’ on 2 May 2017 and
(2) Should INDIAN DANDY (IRE) be disqualified from the above race pursuant to Rule (A)74.2 Ground 3 of the Rules of Racing.

2. In his Schedule (A)6 form Mr Botti has admitted he was in breach of Rule (G)2.1. He asked that the matter be dealt with in his absence to which the BHA have raised no objection. There was no objection from either of the parties to the participation of the members of the Panel in this case. The BHA were represented by Mr Tim Naylor who referred to many of the documents and written statements contained in the bundle put before the Panel a copy of which had been sent to Mr Botti. It was not suggested to us that any of the documents were objected to or the contents of the statements challenged.

3. At this stage it is appropriate to set out the relevant provisions of the Rules which are as follows:-
(1) Rule (G)2.1 – The presence of a Prohibited Substance in a Horse’s sample.
Rule 2.1.1 It is each Responsible Person’s personal duty to ensure that no Prohibited Substance is present in a Horse’s body. Responsible Persons are responsible for any Prohibited Substance found to be present in a Horse’s sample. It is not necessary that intent, fault, negligence or knowing Use be demonstrated to establish an equine anti doping rule violation under Rule 2.1.
(2) Rule (G)11 – Penalties.
11.1 the Disciplinary Panel shall have power to impose penalties and consequences for equine anti doping rule violations committed under these equine anti doping rules as set out as follows:-
11.2 Automatic Disqualification of the Horse from the Race.
11.2.1 An equine anti doping rule violation in connection with a Race day Test automatically leads to disqualification of the Horse from the race in question pursuant to Rule (A)74 with all resulting consequences for the Responsible Person, member of the Support Personnel and/or the Horse including the forfeiture of all titles, physical prizes and trophies and prizes or other money.
11.3 Disqualification/Withdrawals and Fines for Responsible Persons or other Person.
11.3.1 Presence or use of a Prohibited Substance or Prohibited Method
The Authority will impose a penalty on the Responsible Person unless the condition for imposing no penalty on the Responsible Person in Rule 11.4 is met.
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 Rule 2.2 then no penalty shall be imposed on the Responsible Person.

4. Cetirizine is a long acting, non sedating antihistamine used for the symptomatic relief of allergic conditions. There are no veterinary preparations containing Cetirizine that are licensed for use in animals. There are many products containing Cetirizine that are licensed for use in humans. Cetirizine can be used in animals including horses and is so used for horses in the treatment of allergic conditions such as “hives”. Cetirizine must be prescribed by a veterinary surgeon. As Cetirizine may have a pharmacological effect on multiple mammalian body systems it is a Prohibited Substance.

5. The factual background to this case can be summarised as follows:-
(1) The sample taken from INDIAN DANDY (IRE) at Yarmouth on 2 May 2017 was analysed and revealed the presence of Cetirizine.
(2) On 5 June 2017 Mr Mark Beecroft, Stable Inspecting Officer, and Mr Nathan Taylor, Investigation Officer attended Mr Botti’s yard at Prestige Place, Snailwell Road, Newmarket and on his arrival Mr Botti was served with a letter confirming the adverse analytical finding.
(3) Mr Botti told the Investigating Officer that he was not able to provide a possible reason for the adverse analytical finding. He went onto say that he had trained the Horse since it was a 2 year old, the Horse had never really had any problems and had always been straightforward to look after and was generally healthy, that no horses in the yard had been treated for hives or similar conditions and that Cetirizine was not regularly used in his yard.
(4) In relation to the precautions which he took to reduce the risk of cross contamination Mr Botti stated that the risk of cross contamination was drummed into the staff, buckets of disinfectant were placed around the yard for the washing of tack, the head lads were instructed to wash their hands after contact with a horse, there were multiple locations for washing hands in the yard, each horse had its own feed bucket, prior to feeding the contents of each bucket were inspected by the head lad and the staff were told to notify the head lad if they were taking any medication.
(5) In addition the Investigating Officers spoke to Christopher Robinson who was responsible for the care of the horse at Yarmouth who told them that he was not taking any medication. They also spoke to Mr Peter Ramazan, veterinary surgeon, who told them that he had not prescribed medicine containing Cetirizine to INDIAN DANDY (IRE) or any other horse in the yard, and Mr Ramazan also provided a copy of the horse’s clinical history.
(6) The Investigating Officers also conducted interviews with other staff members and service providers including work riders and farriers who all stated that they were not taking any medication containing Cetirizine. They also inspected the yard’s medical records and took an inventory of all the medications at the yard.
(7) On 17 August Mr Taylor attended Yarmouth Racecourse in connection with a separate matter and spoke with a member of the racecourse staff who disclosed that they had been taking anti-histamines between June and August for two years. During the discussion Mr Taylor was told that it was unlikely that the staff member had been taking anti-histamines on 2 May 2017.

6. The enquiry into this matter was originally due to be heard on 19 October 2017, however in his form(A)6 Mr Botti stated that he had become aware that Christopher Robinson had been taking medication in the days prior to the yard visit and that that had not been disclosed to the Investigating Officers. The enquiry was adjourned to allow the BHA to make further inquiries.

7. On 24 October Mr Tim Miller of the BHA attended Mr Botti’s yard to interview Mr Robinson. Mr Robinson disclosed that he had been on holiday in Thailand between 1 and 25 April 2017 and that during that time he had used a mosquito repellent on a daily basis. He said that he had used a product called “Skelotene” which was available free of charge at the resort and that in addition he had purchased his own mosquito repellent called “Wild Lives Insect Block 28” He said that he had last used either product on 25 April. He said he had not needed to consult a doctor in relation to the mosquito bites he had sustained while in Thailand. He acknowledged that he had in the past urinated in the stables both in the yard and at the racecourse but said that he was sure that he did not do so on 2 May at Yarmouth. He said that he had never taken any anti-histamines.

8. Following the interview with Mr Robinson details of both substances taken by Mr Robinson were forwarded to the BHA veterinary advisor who advised that neither of them contained or could reasonably be considered to contain Cetirizine.

9. In their case summary the BHA acknowledged that they had been unable to establish the source of the Cetirizine to the standard required, namely, the balance of probabilities. They went on to state “Without establishing the source, it is not possible to establish that the substance was not administered intentionally-ie deliberate administration was still a possible source.” For that reason the BHA’s position was that as it was not possible to establish the administration was unintentional that the first condition in Rule 11.4 had not been met and the second condition as to whether Mr Botti had taken all reasonable precautions to avoid the breach fell away.

10. At the hearing Mr Naylor submitted that if the Panel found that the prohibited substance was not administered intentionally the BHA’s position was that MrBotti had failed to take all reasonable precautions to avoid cross contamination. He said that there was evidence that the staff were urinating in the stables and that no steps had been taken to prevent this, we take this to be a reference to Tim Miller’s interview with Christopher Robinson on 19 October 2017 – tab 14. Mr Naylor went on to state that what would amount to “all reasonable precautions” would be different for each yard and that each case would be fact specific.

11. Mr Botti had chosen not to attend the hearing but had indicated that he would be available by telephone if required. The Panel decided to make contact with Mr Botti by telephone as there was nothing in the BHA bundle to suggest that the question of urination by staff had been raised with Mr Botti at an earlier stage of the enquiries and there was no transcription of Mr Botti’s original interview in the bundle.

12. When contact with Mr Botti was made the Panel explained to him that an issue had arisen about staff urinating in the stables and asked Mr Botti if there was a history of this. He said that there was a lad whom he described as “an old guy” who had left the yard after the INDIAN DANDY (IRE) positive who did urinate in the boxes. Mr Botti described this as a bad habit and said that the individual had admitted that he had done this before. Mr Botti said that the staff had been instructed to use the toilets which were in the yard. He said that there was a problem because of high turnover of staff. He was asked if he had ever given notices to staff in relation to this and he said that he had. When asked if disciplinary action had been taken against anyone he said that if he did take action he “probably would dismiss them”. He concluded by stating that he was aware that at Yarmouth Racecourse the toilets were situated some distance from the stables.

13. At this point it is necessary to refer to the decision of the Appeal Board of the British Horse Racing Authority in the matter of KEEP MOVING (FR) and the trainer Philip Hobbs which was handed down on 22 November 2017. The position in that case is very similar to the position in this one. Cetirizine was found in a urine sample taken from KEEP MOVING (FR) at Ludlow on 25 January 2017. Thereafter the BHA made enquiries which were very similar to those which they undertook in this case and were unable to identify the source of the Cetirizine. In that case the issues in relation to Rules 11.3 and 11.4 were the same as in this case. In relation to 11.4.1 the Panel in their decision had said at paragraph 13 “The burden of proof does not require the trainer to establish as a certainty that there was no intentional administration. He has to establish on the balance of probabilities that there was not an intentional administration, or to put it more simply that it is unlikely there was an intentional administration. In our view, given the absence of any product containing Cetirizine in the stable feed store or medicine cabinet in Mr Hobb’s yard, the evidence of the vet that so far as he could recall no product containing Cetirizine had ever been used to treat a horse in the stable, the evidence that no member of staff using or possessing a product containing Cetirizine could be identified, in the absence of any evidence or lack of security on the way to and at the racecourse a deliberate administration of Cetirizine to KEEP MOVING (FR) by anyone as to a high degree improbable. We consider the first condition in Rule (G) 11.4.1 has been established on the balance of probabilities.” That interpretation of the Rule was upheld by the Appeal Board and is binding on us.

14. In KEEP MOVING (FR) the Panel went on to conclude that Mr Hobbs had taken all reasonable precautions and as a result satisfied the requirements of 11.4.2 and imposed no penalty on Mr Hobbs. The Appeal Board upheld that decision.

15. The first issue to decide is whether or not the Cetirizine was administered intentionally by Mr Botti or any other person. The onus is on Mr Botti and the standard is a balance of probabilities. The BHA have carried out very through and extensive enquiries and have been unable to pinpoint the source of the Cetirizine. These enquiries were extensive and we do not propose to repeat them other than to say that enquiries were made of staff both at the yard and the racecourse, all relevant service providers and there was an inspection of the stables’ medical records. It is clear from Mr Beecroft’s statement of 21 August 2017 – tab 11 that when Mr Botti was interviewed he could not identify the source and was able to explain to Mr Beecroft what steps he took to prevent cross contamination occurring between his staff and the horses. There was no evidence before the Panel to suggest that Cetirizine was administered intentionally and for that reason the Panel has concluded that the requirement of Rule 11.4.1 has been established on the balance of probability.

16. The difficult issue in this case is whether or not Mr Botti has established to the required standard that he took “all reasonable precautions”. Again the standard is the balance of probabilities but the use of “all” suggests that to do so the requirement of the Rules is that a Responsible Person has to show that they have considered what is required by the Rule, taken steps to implement the Rule and also to enforce the Rule where necessary. The Panel accept Mr Naylor’s submission that what amounts to all reasonable precautions will vary from yard to yard. Clearly what will be necessary in a yard containing only say twenty horses will be very different from what is required in a yard with 200 horses operating from multiple locations. Each case will be fact specific.

17. To show that all reasonable precautions have been taken we think that it will be necessary for the Responsible Person to show that he has carried out some form of risk assessment to ascertain where the potential risks lie and has taken steps to minimise these risks, made staff aware of their responsibilities and of the importance of avoiding cross contamination and has put in place a system to deal with any issues which arise.

18. As the onus is on the trainer the Panel’s view is that in most cases it would be preferable if the trainer either attended the hearing to give evidence himself or presented a detailed written statement setting out exactly what steps he had taken. In this case Mr Botti chose not to attend and we have some sympathy for him in relation to this as he did attend on the date of the original hearing which had to be postponed because Mr Botti had only recently been provided with the additional information about Mr Robinson which the BHA required to investigate. It was for that reason that the Panel felt it incumbent upon them to contact Mr Botti to allow him to deal with the issue of urination which had not been referred to in Mr Beecroft’s original witness statement.

19. The Panel’s conclusion is that in this case Mr Botti has not established that he took all reasonable precautions to prevent cross contamination. The reason for coming to this conclusion is the evidence we have heard in relation to the issue of urination in the yard. Mr Robinson’s account as given to Mr Miller was that in the past he did urinate in the stables both at the racecourse and at Mr Botti’s yard and there is no suggestion that he had ever been told that this was a practice which had to be stopped. Of more importance is the information Mr Botti provided in relation to the employee whom he described as “the old guy” whom Mr Botti acknowledged had urinated in the stables on various occasions and which Mr Botti accepted was a bad habit. What concerned us about this was that although Mr Botti told us that the staff were aware that urination in the stables was against his rules and that when asked about disciplinary action he said staff breaking the rules would probably be dismissed, it is clear from Mr Botti’s account that he was aware of what was happening in the yard involving this particular employee and that although Mr Botti himself acknowledged that this was a bad habit no disciplinary action was taken. Mr Botti was aware that a possible cause of cross contamination was as a result of staff urinating in the boxes but despite this he appears to have allowed at least one employee to carry on doing so without taking any active steps to prevent the practice. For that reason we have concluded that Mr Botti has not established that he took all reasonable precautions and that as a result he cannot benefit from 11.4.2.

20. The range of penalties for a breach of Rule (G)2.1 in relation to a raceday substance is a fine of between £750 and £10,000 with an entry point of £1,000. There is also the possibility of disqualification but Mr Naylor did not suggest that this was a case where disqualification should be considered. It is in Mr Botti’s favour that he has cooperated fully with the BHA throughout and that it was he who brought to their attention the additional information which had come into his possession about Christopher Robinson. This is the first adverse analytical finding in relation to Mr Botti’s yard and that again counts in his favour. The reason the Panel have decided to impose a penalty greater than the entry point penalty of £1,000 is that they were concerned that Mr Botti was aware of an ongoing issue with one member of staff in relation to urination to the extent that he acknowledged it was a bad habit but that he failed to take any steps to discipline the employee. For that reason the Panel’s conclusion is that a fine of £2,000 is the appropriate penalty in this case.

21. There is no issue that INDIAN DANDY (IRE) has to be disqualified from ‘The Trafalgar Restaurant’ at Yarmouth Racecourse Handicap Stakes at Yarmouth on 2 May 2017. The placings must be altered. ACROSS DUBAI who finished second will now be placed first and ERNSTSTAVROBLOFELT (USA), ZYMYRAN and XRATED (IRE) will all be promoted one place to third, fourth and fifth respectively. The Panel also directed that any prize money paid out in relation to the above race be returned.

John McConnell

1. On 30 November 2017 the Independent Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry to consider the allegation of a breach of Rule (F)71 of the Rules of Racing by John McConnell, the trainer of PLAY THE GAME (IRE) which ran at Perth on 16 July 2017. The Rule requires that notification of the gelding of a horse must be given to the Racing Calendar Office in circumstances where the horse has been trained outside Great Britain.

2. The BHA case was presented by Mr Lyn Williams. By e-mail dated 21 September 2017 Mr McConnell had indicated that he wished the matter dealt with in his absence. There was no objection to the constitution of the Panel.

3 . There is no issue as to the background to this case. PLAY THE GAME (IRE) ran at Perth on 16 July 2017 but no notification had been given that the horse had been gelded.

4. Rule (F)71.6 of the Rules of Racing requires that trainers making an entry from outside Great Britain must include the sex of the horse and that such notification must be made when the horse is entered for a race. This was not done. As regards to penalty the BHA position was that the case should be treated in the same way as a breach of Rule (C)17 (the requirement in respect of horses trained in Great Britain), the entry point guideline is a fine of £200 with a range of £100 to £500.

5. As has been stated in other cases this Rule is not one of a bureaucratic nature. The public and all concerned are entitled to know of facts concerning the horse which may affect its performance.

6. In this case there are however no aggravating factors and for that reason the conclusion of the Panel is that the proper penalty, applying the guidelines, is a fine of £200.

Gary Moore

1. On 30 November 2017 the Independent Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry to consider whether the trainer Gary Moore was in breach of Rule (C)31.4 of the Rules of Racing following a sample taken from AIGUILLE ROUGE (FR) at Leicester of 17 October 2017 was reported by the Animal Health Trust as positive for ringworm.

2. Rule (C)31 contains a prohibition on bringing a horse affected with ringworm to a racecourse. Rule (C)31.4 states “Skin scrapings may be taken from any horse which appears to be affected with any form of ringworm and if the culture of these scrapings subsequently proves positive, disciplinary action may be taken”.

3. Mr Moore accepted the breach and asked that the matter be dealt with in his absence.

4. The BHA was represented by Mr Lyn Williams and there was no objection to the constitution of the Panel.

The Background

5. The background to this case is straightforward and can be set out as follows:-

1. Mr Moore entered AIGUILLE ROUGE (FR) to run at Leicester on 17 October 2017 in the Stewards Handicap Stakes (Class 5) (Division 1). The Veterinary Officer reported that when the horse was inspected by one of the Equine and Welfare Integrity Officers for markings in its passport she discovered that there were some circular lesions on the horse’s face and some skin lesions around the girth that were suspicious and could be contagious. As a result the Integrity Officer alerted the Veterinary Officer who examined the horse and agreed with her. This was reported to the Stewards.

2. The Stewards held an enquiry which was attended by John Salvage representing Mr Moore. At the enquiry the veterinary officer confirmed her suspicions with regard to the lesions and stated that she had taken skin scrapings and photographs. Mr Salvage said that he had seen the horse for the first time that day as he was a travelling lad and did not groom the horses. He said that so far as he was aware there was no ringworm activity in the yard.

3. The Stewards considered the position and found that Mr Moore was in breach of Rule (C)31.1 and fined him £140.

4. Mr Moore then entered the horse to run at Fakenham on 1 November 2017. At Fakenham the stable representative produced a certificate of non-contagiousness signed by Dr M. Waterhouse of Sussex Equine. At section C of the certificate it was declared that the horse had been treated with Imaverol starting on 16 October 2017, one day before the race at Leicester. A course of Imaverol lasts 10 days and allows the horse to race on the 11th day.

5. The scrapings taken from AIGUILLE ROUGE (FR) at Leicester subsequently tested positive for ringworm.

6. In the initial submissions received from the BHA, the BHA asked for an increased penalty in this case on the basis that when AIGUILLE ROUGE (FR) ran at Fakenham on 1 November 2017 the filly was accompanied by a certificate of non-contagiousness which stated that the filly had started a course of Imaverol on 16 October 2017, the day before the race at Leicester. The BHA’s view that as a course of Imaverol lasts 10 days and allows the horse to run on the 11th day this inferred that Mr Moore had sent AIGUILLE ROUGE (FR) to Leicester while knowing or suspecting the filly had ringworm.

7. Events have moved on since then in that various documents have been submitted on behalf of Mr Moore. These are as follows:-
1. A submission on his behalf from the National Trainers Federation.
2. A statement by Mr Moore.
3. A letter dated 22 September 2017 from Dr M. Waterhouse at Sussex Equine.
4. A copy of the stable’s medication records.

8. The information set out in these documents is to the effect that there was a typographical error on the certificate of non-Contagiousness which was produced at Fakenham on 1st November 2017. In their statements Mr Moore and Dr Waterhouse state that the certificate should have been dated 18 October and not 16 October 2017 and that Dr Waterhouse had subsequently examined the filly on 30 October 2017 and was satisfied that there was no evidence of ringworm and for that reason Mr Moore felt able to run the filly at Fakenham. The statements provided by Mr Moore and Dr Waterhouse are corroborated by the stable’s medication records which disclose that a course of Imaverol commenced on 18 October and concluded on 27 October 2017.

9. In view of this additional information the BHA made .an amended submission in which they stated that the recommended penalty of £750 would be appropriate in this case. They also made clear that it would not be necessary for Mr Moore to attend the hearing if did not wish to do so.

10. The Panel have considered all the evidence before them carefully and are satisfied that Mr Moore was in breach of Rule (C)31.4 when AIGUILLE ROUGE (FR) ran at Leicester on 17 October 2017. They are however satisfied with the explanation put forward on behalf of Mr Moore which has been accepted by the BHA and for that reason the conclusion of the Panel is that the appropriate penalty in this case is a fine of £750.

Notes:

1. The Panel for the Enquiries was: Stuart Morrison (Chair), Jenny Pitman OBE and Simon Rowlands.

2. O-desmethyltramadol is a metabolite of tramadol, an opioid analgesic (painkiller). Tramadol may be legitimately prescribed by a veterinary surgeon to horses in training for therapeutic purposes, but is a prohibited substance on raceday which means it must not be present in a horse’s system on a raceday.

3. Cetirizine is a long-acting, non-sedating anti-histamine. It may be legitimately prescribed to horses in training by a veterinary surgeon for therapeutic purposes, however, it is a prohibited substance on raceday which means it must not be present in a horse’s system on raceday.