8th January 2018
The Panel decided not to impose a disqualification for the admitted breach of Rule (G) 2.1 in this case. Full reasons will be given later, but a summary of the Panel’s approach is as follows.
1. Our Little Sister (IRE) (referred to below as “OLS”) was the subject of random sampling after racing at Wolverhampton on 14 January 2017. This sample tested positive for nandrolone and its major metabolite.
2. On 18 May 2017, Mr Morrison, the trainer of OLS, was charged by the BHA with breach of Rule (G) 2.1, a provision which imposes a strict liability in the event that a Prohibited Substance is found in the sample. There is no doubt that that was the case here, and this was eventually admitted by Mr Morrison. Therefore, Rule (G) 11.3 makes him liable to a mandatory penalty unless he could establish the two matters set out in Rule (G) 11.4, which, if established, exempt him from any penalty.
Those two matters are, on the face of Rule (G) 11.4, firstly that the substance 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 secondly that the Responsible Person had taken all reasonable precautions to avoid a prohibited substance getting into the horse. Even if Mr Morrison failed in his reliance upon this “no penalty” provision, the Panel had to exercise its discretion to arrive at an appropriate sanction.
3. Nandrolone is an anabolic steroid. Anabolic steroids are banned from use at any time in racehorses. Analysis of hair samples taken from OLS was conducted by Dr Mark Dunnett, a consultant equine toxicologist, engaged by Mr Morrison. This convincingly demonstrated that the steroid was likely to have been administered in the form of nandrolone laurate, and that the time window within which this administration is likely to have occurred runs from about 8 December 2016 to 8 January 2017 – i.e. between 3 and 2 months before the hair samples were taken on 8 March 2017. A further attempt to narrow that window and tie the likely time of administration to the date of the filly’s trip to race at Southwell on 2 January 2017 was made by Mr Morrison in reliance on the evidence of a senior toxicologist and vet, Prof Thomas Tobin. That evidence did not persuade the Panel, essentially for the reasons advanced by the expert called by the BHA, Dr Stuart Paine. The Panel was left with the window identified by Dr Dunnett – 8 December 2016 to 8 January 2017 – and his evidence that the administration is more likely (though this is not scientifically certain) to have fallen somewhere around the midpoint of that period.
Furthermore, there is likely to have been a single administration or at least no more than 2 or 3 within a day or so of each other. The midpoint of the window eventually spoken to by Dr Dunnett falls just before Christmas 2016, when the filly was at all times housed at Mr Morrison’s yard.
4. It was common ground that the nandrolone laurate must have been given by injection. Though it is possible in theory to conceive of circumstances in which this could have been done by accident, the overwhelming probability, in the Panel’s view, is that whoever did this knew what they were doing.
5. The Panel therefore agreed with the position adopted by both parties, which was that the nandrolone was administered intentionally. That raised an initial question about Mr Morrison’s reliance upon the “no penalty” provision in Rule (G) 11.4. On its face, the first condition it states is that he should demonstrate that the prohibited substance was not administered intentionally. Mr MacPherson QC for Mr Morrison argued that the Panel should not accept the literal meaning of the words but should give them what he called a “purposive construction”. He highlighted what he said was the unfairness of on the one hand
exempting from penalty a trainer who demonstrates accidental administration for which he bears no fault and on the other hand exposing to penalty a trainer who is the victim of an intentional administration which occurs without his fault. The Panel recognised that there was some force in these arguments. However, it was concluded that it was not possible to conduct a wholesale rewriting of a carefully drafted provision. It is possible to divine a regulatory purpose behind restricting the “no penalty” provision to cases of accidental administration only, even if there might not be universal agreement about this within the industry. Therefore, the attempt to invoke the “no penalty” provision fell at its first hurdle, because the administration of the prohibited substance was undoubtedly deliberate.
6. That conclusion means that the Panel must impose a penalty – Rule (G) 11.3 so provides. The Guide to Procedures and Penalties says, at page 56, that in the case of a substance prohibited at all times, the trainer should be disqualified for a period of between one and 10 years, with an entry point of 2 years. Importantly, however, the Panel retains a discretion to depart from this and impose a penalty which is outside the range (page 45 of the Guide). That is what the Panel decided to do here.
7. It is relevant to note that, when making findings relevant for the exercise of this discretion, the Panel had to reach its decisions on the balance of probabilities. This was not an exercise in which the overall burden of proof fell exclusively on one party or the other, as it does when conducting the exercise required by Rule (G) 11.4.
8. The first and central question is – who did it? The BHA argued that it must have been done by Mr Morrison or somebody at his direction. Mr Morrison, on the other hand, denied his involvement and argued that it must have been done maliciously by someone intending to injure him.
A lynchpin of the BHA’s argument was that the sampling of OLS at Wolverhampton was random and that there was no tip-off to the BHA.
It was contended by Mr Morrison that the testing was not random and must have been prompted by intelligence. That was clearly not the case. The BHA went on to argue, consistently with the factual position with which the Panel agreed, that the absence of a tip-off made it was inherently improbable that a malicious third-party was responsible.
Anybody wanting to create trouble for Mr Morrison, it was suggested, would seek to do so by trying to get the filly tested after injecting it. Hence, the only probable culprit was the trainer, who had the filly in his care and control over the likely window of the administration of the injection.
9. Mr Morrison’s riposte was that he had not done it; he did not direct anybody to do it; he was not complicit in in it being done; and that there were other possibilities that might explain how it was done. Over the months since the news of the positive sample became known, he has canvassed a variety of possible culprits – one or more of three disgruntled former employees; a hostile neighbour; local “travellers”; a trainer in Herefordshire who had got it into her head that OLS was owned by one of her owners with whom she was in dispute; and most particularly someone or other who gained access to the filly when she was at Southwell to race on 2 January 2017. This last possibility became the most persistent and believable in Mr Morrison’s mind, encouraged by the fact that Southwell’s CCTV footage was no longer available for that day when it was eventually sought at the end of March 2017.
10. The Panel decided, on the balance of probabilities, that Mr Morrison was innocent of any involvement in the administration of the nandrolone laurate to OLS. These are the factors that led the Panel to this conclusion:-
(i) Although it seems most likely that the administration happened shortly before Christmas 2016, when the filly was always housed at his yard, that of itself does not establish his complicity, though it undoubtedly raises a serious case to answer.
(ii) There was no evidence in this case of systematic use of nandrolone or any other “prohibited at all times” substances either for this filly or any other horse in the yard. On the contrary, there was positive evidence that Mr Morrison is a “low medication” trainer, with a genuine hostility towards the use of anabolic steroids in racehorses. In over 20 years in training, he has never had a horse which has failed a drug test.
(iii) The purpose behind the trainer giving a single dose of nandrolone for this filly in December 2016 is impossible to fathom if it was done. She had no injury at the time which the steroid might have helped. The performance-enhancing effect of a single dose would have been negligible at best. And even if he
mistakenly thought that it might make a difference to performance, what gain was to be had from this? The January races provided the lowest levels of prize money available in racing. There was no hint that some form of betting coup was in mind. The Panel was persuaded that Mr Morrison himself bets only in nominal sums. OLS was a poor racehorse which he used, not with the expectation of winning performances, that largely to give opportunities to amateurs and claimers. Though motive or its absence do not determine whether a particular event occurred, they are useful guides in the decision-making process.
(iv) It is inherently probable that others at the yard or others who visited from time to time, like his vet or his farrier, would have at least known that something odd was being attempted by Mr Morrison, if that was indeed the case. An impressive array of evidence from yard personnel and from service providers to the
yard was assembled both by Mr Morrison’s legal team and the BHA. This all speaks with one voice – nobody has any knowledge of how the administration occurred and nobody suggests Mr Morrison’s involvement. The Panel did not believe that this evidence was false and part of a conspiracy to protect Mr Morrison.
(v) Further, if he had been involved himself in the administration, it would have been, as he said, “professional suicide” for him to create the risk of discovery by sending the horse to race twice at Southwell on 2 and 26 January and at Wolverhampton on 14 January, when she could be tested. (And tested she was on 14 January).
(vi) Mr Morrison himself was not engaged in an elaborate charade to protest his personal innocence through expensive legal and scientific investigations. Experience teaches that the vehemence with which a person protests innocence can be an uncertain guide to that fact, but the view taken here was that he has been in a state of genuine agitation and high stress from the outset of the investigation that indicates his innocence.
(vii) The conclusion was that he was not involved. The administration of the nandrolone was done by person or persons unknown, for unknown reasons. It may have been done to target Mr Morrison, but even that remains speculative.
(viii) It should be noted that the Panel was not persuaded in its decision by the strength of the alternative possibilities for how the administration of the nandrolone laurate happened. While it is impossible to discount most of these possibilities, none of them impressed as the most likely alternative. One of Mr
Morrison’s suggested possibilities was positively discounted – the involvement of a fellow trainer – for reasons described below.
11. Much of the hearing was taken up with a forensic attack developed by Mr MacPherson QC on behalf of Mr Morrison and by Mr Morrison himself in his evidence upon the adequacy and even the good faith of the BHA’s investigations in this case. On the whole, this attack wholly failed in the Panel’s view. One particularly regrettable example was the raising of the possibility that another trainer, Imogen Pickard, and/or her former partner Mr Flook, might have been responsible for the nandrolone injection. An allegation that she and/or they were responsible was not made in Mr Morrison’s Schedule A6 document, where he is required to set out the nature of his case, despite the fact that he and his team had full access to records of interviews conducted both by his own legal team and later the BHA. The story of Miss Pickard’s supposed involvement is ludicrous. It should not have been raised. It emerged in cross-examination of Mr Morrison that a private investigator engaged by him (independently of his lawyers) has been in recent touch with Miss Pickard, and dangled the prospect of the
£10,000 reward offered by Mr Morrison in front of her in exchange for a revision of the detailed denials by her of involvement in her June 2017 interview by the BHA. Mr Morrison professed ignorance of how the private investigator had acted on his behalf. The Panel wasunconvinced by this, particularly because Mr Morrison has not revealed the content of his exchanges with his private investigator. This episode shows a disturbing lack of judgement on Mr Morrison’s part, which the Panel eventually attributed to his state of stress and agitation. It was a distraction from the relevant issues, but is dealt with here because of its potential effect on Miss Pickard.
12. With one possible exception, Mr Morrison’s criticisms of the BHA’s conduct were misplaced. The exception is the matter of taking hair samples. This was not done on the day of the BHA’s unannounced visit to Mr Morrison’s yard following news of the positive test for nandrolone. If it had been, and if it had been tested promptly, it is likely that results similar to those obtained by Dr Dunnett which narrowed the window for administration would have been available earlier, with the result that CCTV from Southwell of events on 2 January 2017 might still have been obtained. This was no longer available by the end of March 2017 when Dr Dunnett’s work commissioned by Mr Morrison was revealed to the BHA. There may have been good reason why the BHA did not take hair samples at the outset, but the Panel was not persuaded by the suggestion proffered by Mr Miller, a BHA investigating officer, that it may have been because of the lack of adequate testing facilities. To be fair, this was not his direct area of responsibility.
13. Otherwise, the Panel felt that the criticisms of the BHA’s conduct of the investigation were based upon a fundamental misconception. This misconception was implicit in an answer given by Mr Morrison towards the close of his evidence. He had declared himself a firm supporter of the new zero-tolerance regime for drugs such as anabolic steroids. He then said – “Since the new regime came in, it has been effective. But the BHA has not raised their game to protect me and my staff. They could have done a better job”. In the Panel’s view, it was no part of the BHA’s duty to protect Mr Morrison. He was, legitimately enough, the principal suspect for the administration of nandrolone. Though the Panel has eventually concluded that he was innocent, the BHA properly ran the case that he was responsible. The BHA’s duty to Mr Morrison was a duty to act fairly, and everything the Panel has seen indicates that they did so.
14. In the light of the finding that Mr Morrison was not involved in the administration, would it be right to disqualify him? The Guide does indeed give that recommendation, and the Panel can see why a trainer might suffer that sanction simply because the use of “prohibited at all times” drugs like steroids occurs on his watch as the Responsible Person. There might be cases where a Panel is left in real doubt as to whether the trainer was involved in this. Then, it might be said, a discretion to impose a penalty of disqualification is justified unless the trainer positively satisfies the Panel that he was not involved. But that is not this case. The Panel decided that Mr Morrison was not involved. There is no suggestion that his security precautions and practices were so lax that he bears responsibility in that sense. On the contrary, the evidence showed his security practices were adequate and found to be adequate from time to time by BHA stable inspections.
15. What if any penalty is then called for? Mr MacPherson QC accepted that if his reliance on Rule (G) 11.4 did not succeed, then a financial penalty akin to that imposed on trainers in the case of positives for substances banned only on raceday was appropriate. The entry point in such cases is £1000. The Panel did indeed consider whether in the light of its findings it should impose just a nominal penalty on Mr Morrison of, say, £1. But it felt that at the end of the day it was right to impose the entry level penalty referred to of £1000. Though this may be an area ripe for reconsideration, the Panel can see that there is a
reason to impose fines of that substance, even in cases where trainers may demonstrate a lack of fault. Such fines can act as a practical encouragement to try to explain exactly how positive samples have been produced.
16. Two further consequences flow from the return of a positive nandrolone sample by OLS. There was no dispute about these. Firstly, the filly is
disqualified pursuant to Rule (A) 74.2 from all races after the administration of the nandrolone laurate. This therefore applies to both races at Southwell on 2 and 26 January 2017 and to the Wolverhampton race on 14 January 2017. Secondly, pursuant to Rule (G) 11.6.2, the filly has to be suspended from racing for 14 months and is also subject to a 12 month mandatory stand down period. These periods run concurrently from the date when the positive sample was provided, which was 14 January 2017.