'It looked hopeless on paper and did not improve during the hearing'
For the second time in a week, the BHA has taken a bruising from opposition counsel following the unsuccessful conclusion of a case at High Holborn.
Seven days after solicitor Rory Mac Neice described the regulator's decision to take Daryl Jacob to a hearing over a post-race altercation as a "total waste of time", the barrister representing Philip Hobbs branded the regulator's appeal against the verdict in his client's case as futile.
"It looked hopeless on paper and did not improve during the hearing," said Roderick Moore.
Moore was speaking after the appeal board upheld the original verdict, ruling rule (G) 11.4 was correctly interpreted as allowing for penalty to be waived in a prohibited substance case if a disciplinary panel is satisfied the substance was likely to have been administered unintentionally and all reasonable precautions had been 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.
The BHA had argued that if the source of a substance is not established, as it was not with Keep Moving in the Hobbs' case, it automatically follows the panel cannot conclude the substance was administered unintentionally and all reasonable precautions taken.
As such, the BHA's position was that rule 11.4 could not be satisfied in any case where the source of a prohibited substance was unknown, an interpretation that had previously been uniformly accepted by disciplinary panels.
However, the appeal board agreed with the panel that Hobbs had satisfied the rule as it was currently written and rejected the BHA's interpretation of the rule as going "well beyond the literal and natural meaning of the words in question".
Moore added: "The crux of the case was that the BHA hoped the appeal board would overrule the original panel and hold that to escape a personal penalty – in addition to the virtually inevitable disqualification of the horse – the trainer needs to prove exactly how the banned substance came to be in the horse, which in many cases is impossible, as the BHA well knows.
"But, as the appeal board has confirmed, that is not what the rule says, merely what the BHA want it to say. It is not the function of the appeal board to rewrite the rules to suit one side or another.
"Furthermore, it would be absurd for the rule to mean what the BHA contended for: in many instances it would lead to trainers who have done everything right and absolutely nothing wrong being hit with an entry point £1,000 fine. That would be flagellation, not regulation.”
Extract: 'I see your point and there is nothing I can say against it'
In the below extract from the transcript of the original hearing, the BHA's barrister Graham Gilbert (counsel) and disciplinary panel member Patrick Milmo QC (Mr Milmo) discuss the BHA's submissions on the crucial rule G 11.4. As the appeal board wryly noted, "the panel plainly found them unconvincing".
Counsel: The BHA’s position on this is that because a source cannot be identified we can’t rule out definitively, or certainly not to the required standard, that the horse wasn’t administered deliberately with the substance and, therefore, because it can’t be ruled out the test, the first part of the test, has failed and the second part of the consideration is not something that the panel should be concerned with.
Mr Milmo: Well, when it says, 'If the Responsible Person establishes …', the burden of proof, therefore, is on the responsible person, the trainer.
Mr Milmo: But what is the level of proof that is required?
Counsel: It remains the civil standard, sir; the balance of probability.
Mr Milmo: Yes, on the balance of probabilities.
Counsel: Yes, sir.
Mr Milmo: So if it is improbable that the horse was deliberately administered, that would be sufficient to avoid 11.4.1, is it not?
Counsel: Simply because the BHA will say because our inquiry has not revealed anything does not mean that the burden of proof on the trainer is satisfied, if I can put it that way, sir.
Mr Milmo: So there surely you’re putting the burden of proof at a higher level on the balance of probabilities?
Counsel: No, sir, I would say not simply because our officers going along for a very short morning period and get a snapshot of what’s going on at the yard. The trainer is in a far better position to then carry out a far more detailed inquiry into the procedures – he knows them, for a start – and to see what’s what. The BHA establish the breach. The burden does shift to the trainer to then show why 11.4 should bite and the BHA, not being able to show why it shouldn’t, is a different proposition to then ensuring that it does, if I can put it that way.
Counsel: I’m not sure I explained it terribly clearly, to be perfectly honest there, sir. The point remains that, yes, the burden shifts and simply because it can’t be gainsaid from this side is not enough to discharge it, if I can put it that way . . .
Mr Milmo: Let’s put it this way, and I am merely putting a proposition, I am not saying that I necessarily accept it, but there are a number of ways in which this horse could have ingested the substance. It could be contamination. It could have been administered unintentionally. There are about three and you can’t say, well, it’s more likely to be one or the other, can you?
Mr Milmo: No.
Counsel: But if that is the case then none of them could be ruled out.
Mr Milmo: Well, that’s where I think that I have problems because that’s not what the rule says, which is [that] it has to be ruled out, which is really meaning beyond doubt, but it doesn’t say that.
Counsel: Beyond doubt would be a higher bar. Yes, I see what you’re saying, yes, but it still has to be established on the balance of probabilities that it was not administered intentionally and therefore to say . . .
Mr Milmo: What I am really thinking about is, if our finding is that it’s improbable that it was administered intentionally, that would be sufficient to exculpate a trainer under 11.4.1.
Counsel: I’m sorry, sir? You said it was 'improbable'?
Mr Milmo: No, possible but improbable.
Counsel: Then that would establish that it was - yes, sir, I see your point and there is nothing I can say against it. It’s spot on.
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