Enquiries (R. Bastiman, P. Hobbs and G. Kelleway) heard by the Disciplinary Panel on Thursday 10 August 2017
10 August 2017
1. The Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry on 10 August 2017 to consider whether:
i. the trainer Rebecca Bastiman was in breach of Rule (G)2.1 of the Rules of Racing on the grounds that altrenogest, a prohibited substance within the meaning of Rule (G)16, was found in a urine sample taken from BIG RED following its run at Redcar on 17 July 2016 in the Watch Racing UK Today Just #10 Handicap Stakes,
ii. BIG RED should be disqualified from the above race pursuant to Rule (A)74.2 Ground 3,
iii. Miss Bastiman was in breach of Rule (C)13 on the grounds that she had failed to keep a record of treatment administered to a horse under her care and control.
2. Miss Bastiman asked that the matter be dealt with in her absence to which the BHA had no objection. In her Schedule (A)6 Form she admitted the breaches alleged.
3. The BHA was represented by Mr Graham Gilbert. He presented the case referring to documents and written statements which were substantially unchallenged and which provide the basis of our summary of the essential facts set out below.
4. Altrenogest is a synthetic orally active progestogen indicated for use in mares to suppress or prevent oestrus during the transitional period and to control the initiation of oestrus. The product containing altrenogest for use in horses is marketed under the name Regumate Equine. There is a similar product for use in pigs called Regumate Porcine. It is a prescription-only veterinary medicine which is not licensed for use in horses, but it is apparently cheaper than Regumate Equine.
5. It was Regumate Porcine that was administered daily to BIG RED in her morning feed. This treatment which began in February 2016 was on the advice of Miss Bastiman’s vet, Mr James Emerson, who provided the necessary prescriptions. The problem with the filly which required treatment was that she was continually in season and thus difficult to train.
6. Miss Bastiman, who readily admitted administering Regumate Porcine on the unannounced visit of the BHA Investigating officers on 17 August 2016 explained that she believed that Regumate was a supplement rather than a medication. On that account she was unaware of any withdrawal times and the administration of Regumate was not recorded in the Medication Record Book. The same explanation is provided in Miss Bastiman’s Schedule (A)6 Form: “I believed [Regumate] was a supplement given to me from [sic] my vet, Mr James Emerson, There was no mention of Regumate being a prohibited drug, If I’d known I wouldn’t have given the filly this product and certainly not run on it . . . I always keep my medical record book up to date daily, so if I’d known Regumate was prohibited prescription I would have filed it”.
7. There is some disagreement between Miss Bastiman and Mr Emerson as to whether she was ever informed by Mr Emerson about ‘withdrawal times’, that is to say the period of time that the medicine should be withdrawn before racing to ensure that it is not in the horse’s system at the time of racing. A discussion about withdrawal times would or should convey to the trainer that the medicine was or contained a prohibited substance. Mr Emerson stated that he had what he described as “a loose conversation” with Miss Bastiman about withdrawal times. Miss Bastiman denies that any such conversation took place. It is unnecessary for us to resolve this issue as in our view it was incumbent on Miss Bastiman to inquire and ascertain, if she did not already know, what were the constituents of the substance that was being administered to a horse that she was training.
8. Rule (G)2.1 imposes an absolute liability on a trainer to ensure that no prohibited substance is found in a horse’s body on a day it races regardless whether or not there was intent, fault, negligence or knowledge. Miss Bastiman has rightly admitted a breach of this Rule. An inevitable consequence is disqualification of the horse about which we will say more below.
9. The trainer is subject to a penalty under Rule (G)11.3.1 unless he/she can establish:
The prohibited substance . . . was not administered intentionally by [the trainer] or by any other person . . . and[the trainer] has taken all reasonable precautions to avoid violating Rule 2.1.
10. In this case it is indisputable that the prohibited substance was administered intentionally so Miss Bastiman cannot avoid a penalty.
11. Consideration of the appropriate penalty involves an assessment of Miss Bastiman’s behaviour in permitting the Regumate to be administered to BIG RED without regard to whether it was or might be present in the horse on raceday. Her claim is that she never realised that Regumate was a medicine believing that it was merely a food supplement. It can be said that she was not assisted by a lack of clear, specific veterinary advice, but for her to regard a substance that was only obtainable on prescription and was for controlling or regulating the oestrus cycle of a filly as nothing more than a food supplement can at best be described as naivety bordering on recklessness. The Guide to Procedures and Penalties puts the range of financial penalties for a breach of Rule (G)2.1 as between £750 and £10,000 with an entry point of £1,,000. We consider a fine of £1,000 the appropriate penalty.
12. As for the breach of Rule (C)13 the failure to record the administration of Regumate Porcine in the stables Record of Treatment Book is we acknowledge entirely consistent with Miss Bastiman’s claim that she did not consider the Regumate to be a medicine. We do not however consider that a valid reason for not imposing a separate penalty, bearing in mind that the omission of any reference in the Book to the medicine continued for a period of about six months. The Guide states that the recommended range of fines for breach of (C)13 is £250 to £2,000 with an entry point of £500. We consider that a fine of £500 is appropriate in this case.
13. As already stated BIG RED must be disqualified from the Watch Racing UK Today just #10 Handicap Stakes run at Redcar on 17 July 2016. That is a formality as the filly finished last. No alteration of placings is required.
1. The Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry on 10 August 2017 to consider whether the trainer Philip Hobbs was in breach of Rule (G)2.1 of the Rules of Racing on the grounds that cetirizine, a Prohibited Substance within the meaning of Rule (G)16, was found in a urine sample taken from the horse KEEP MOVING (FR), trained by Mr Hobbs, following its run in The Perrott Properties Steeple Chase at Ludlow on 25 January 2017,And whether KEEP MOVING (FR) should be disqualified from the above race pursuant to Rule (A)74.2 Ground 3.
2. In his Schedule (A)6 Form Mr Hobbs has admitted he was in breach of Rule (G)2.1. He has asked that the matter be dealt with in his absence to which the BHA have raised no objection.
3. Mr Graham Gilbert represented, and presented the case on behalf of the BHA. He referred to documents and written statements contained in a bundle put before the Panel. A copy of the bundle was sent to Mr Hobbs. Our understanding is that none of the documents were objected to, or contents of the statements challenged. Our summary of the essential facts set out below is principally derived from the documents and statements in the bundle.
4. Cetirizine is a long-acting, non-sedating anti-histamine used for the symptomatic relief of allergic conditions. There are no veterinary preparations containing cetirizine that are licensed for use in animals. But there are numerous products containing cetirizine that are licensed for use in humans. But cetirizine can be used in animals including horses and is so used for horses in the treatment of allergic conditions such as ‘hives’. It 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. Following the analysis of the sample taken from KEEP MOVING (FR) after the race on 25 January 2017 and the detection of cetirizine in the sample, Mr Hobbs’ stable was visited by a BHA Investigating Officer, Nathan Taylor, in company with Robin Gow a BHA Stable Inspector. Mr Hobbs had already been informed of the result of the analysis of the KEEP MOVING (FR) sample.
6. Before interviewing Mr Hobbs, Mr Taylor carried out an inspection of the stable and spoke to some members of the staff. His purpose was to ascertain a possible source of the drug found in the sample. The results of that inspection can be summarized as follows:
- The medical record book had no entries relating to KEEP MOVING (FR).
- There was no trace of cetirizine in the medical cabinet or food stores, or of any drug which contained cetirizine.
- Three of the staff identified as having taken medication for hay fever in the previous months were spoken to.None of the medication taken by them contained cetirizine. Neither Mr Hobbs or Mr Johnson White, the assistant trainer, were aware of any staff taking medication containing cetirizine,
- The persons who travelled with KEEP MOVING (FR) on its way to Ludlow were spoken to.None of them were taking any medication and the journey was without incident.The horse had never been left on its own
- Mr Hobbs’s stable was in excellent condition. There were ample soap dispensers around the yard for staff to wash their hands after having contact with the horses.
7. Having completed his inspection Mr Taylor interviewed Mr Hobbs. In the course of the interview Mr Hobbs said that KEEP MOVING (FR) had never required medication, that he could not recall ever having anti-histamines on the premises, that every employee had varying degrees of access to KEEP MOVING (FR), that he had no explanation as to how the horse came to test positive for cetirizine.
8. About two weeks later Mr Taylor contacted Mr Hobbs’ regular vet, Phil Brown. Mr Brown confirmed that KEEP MOVING (FR) had never required medical treatment for any condition. He could not recall using a product containing cetirizine on any horse at Mr Hobbs’ yard.
9. Mr Taylor also contacted Ben Parker, Mr Hobbs’ regular farrier who shooed KEEP MOVING (FR) frequently. Mr Parker was not taking any medication prescribed or otherwise.
10. There have been no other instances of a horse trained by Mr Hobbs testing positive for cetirizine.
11. The BHA has accepted that it has been unable to identify a source of the cetirizine that was in the sample taken from KEEP MOVING (FR) or establish how it came to be ingested by the horse. It maintains, as must be the case, that Mr Hobbs is in breach of Rule (G)2.1 for the trainer is responsible for any prohibited substance found present in a horse’s sample regardless of whether there was intent, fault, negligence or knowledge on his part. Further the horse must be disqualified under Rule (A)74 from the race in which it had run. The trainer is also subject to a penalty unless he can bring himself within the conditions set out in Rule (G)11.4 which are that he establishes,
The Prohibited Substance was not administered intentionally by [him] or by any other person . . . and the[trainer] had taken all reasonable precautions to avoid violating Rule 2.1.
12. As is explicit in the Rule the onus of establishing these matters is on the trainer. The point arises as to whether his presence is required or at least written arguments put forward on his behalf before we can consider whether the conditions have been established. In our view the presence of the trainer or written arguments on his behalf are desirable where reliance is placed by him on the penalty avoiding provisions in Rule (G)11.4, but not essential. Where on the undisputed facts put before the Panel it is apparent that the conditions set out in the Rule might apply it is our view that the Panel can and should determine whether they have been fulfilled always bearing in mind that the burden of proof is on the trainer.
13. Mr Gilbert on behalf of the BHA has argued that neither of the conditions have been established. First as regards the absence of intentional administration, despite the inability to identify the source of the cetirizine, he contends it must still be a possibility that some unknown person fed a tablet containing the drug to the horse or slipped it into his feed. We accept that proposition as far as it goes, but it does not take account of the fact that 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 at Mr Hobbs’ 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 the staff using or possessing a product containing cetirizine could be identified, and the absence of any evidence of lack of security on the way to or at the racecourse, a deliberate administration of cetirizine to KEEP MOVING (FR) by anyone is to a high degree improbable. We consider the first condition (in Rule (G)11.4.1) has been established on the balance of probability.
14. As regards the second condition, that the trainer had taken all reasonable precautions, Mr Gilbert’s contention is that the trainer should have kept a record of all staff taking medication containing cetirizine and Mr Hobbs’ failure to do so was a failure to take all reasonable precautions. This contention gives rise to a fundamental point touched upon by Mr Hobbs in paragraph 7 of his Schedule (A)6 form. (“since I am found guilty [sic] due to the fact that I was unaware whether or not my staff were taking products containing cetirizine, then surely it should be a rule of racing that all trainers should keep a record of all medication that their staff are taking and be aware of all the substances they contain that could be positive on a sample taken from a horse”). That hypothesis would seem to be justified. The record of staff medication could not sensibly be confined to one particular drug, but would have to cover all medicines which contain substances which if found in, or administered to, a horse would qualify as prohibited substances. In practice a trainer would have to insist at regular intervals on full disclosure by each member of his staff of all medicines they were taking and a record kept in relation thereto. This might well be sensitive personal information and if the practice of disclosure became mandatory it could give rise to issues relating to confidentiality and privacy. Therefore, we do not accept that the maintenance of staff medical records should at present be regarded as a “reasonable” precaution. If it is to be introduced as a practise to be recommended or directed as advisable or necessary that should be done by the BHA who would no doubt feel it incumbent as a preliminary to consult with the various branches of the racing industry.
15. There is the further point in this particular case that there is no evidence that the precautions suggested by Mr Gilbert would have resulted in an avoidance of a violation of Rule (G)2.1. Extensive enquiries were made by the Investigating Officer which did not result in the identification of anyone who was in possession of, or had been taking, medicaments containing cetirizine. So the probability is that if medical records relating to the staff had been compiled they would not have contributed to avoidance of a positive sample as there was according to the evidence no member of the staff taking a medicine containing cetirizine. In our view the precaution which the trainer is said to have failed to take must relate or be connected in some way to the event which the trainer has to avoid, a positive sample in a horse on raceday.
16. No other measures or actions that Mr Hobbs should have taken have been put forward by the BHA. The statement of Mr Taylor describes the stables as being in “excellent condition” and the medical record book as comprehensively detailing times and dates of all medication administered. There are no flaws or failings in the running and organisation of the stable mentioned by Mr Taylor. We consider it significant that no other horse in Mr Hobbs’ yard has been tested positive for cetirizine. We conclude that a review of the relevant evidence establishes on the balance of probability that Mr Hobbs took all reasonable precautions to avoid a breach of Rule (G)2.1. Accordingly, no penalty shall be imposed.
17. As already stated disqualification of KEEP MOVING (FR) in The Perrott Properties Steeple Chase run at Ludlow on 25 January 2017 in which it finished third is inevitable. The placings must be altered. BREATH OF BLIGHTY (FR), which finished fourth, will now be placed third. There will be no other alterations as there were no other finishers.
1. The Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry on 10 August 2017 into whether the trainer, Gay Kelleway was in breach of Rule (C)18 of the Rules of Racing by not sending to The Racing Calendar Office details of a horse’s racecourse performances as soon as reasonably practicable after the horse’s arrival from outside Great Britain.
2. The horse in question was COSMELLI (ITY). It was imported from Italy by Miss Kelleway on 24 March 2017 and by 6 May 2017 when it was entered for a race at Chester no information concerning the horse’s racing performances in Italy had been sent to the Racing Calendar Office. It had in fact won several races in Italy.
3. Miss Kelleway admitted the breach and asked for the enquiry to be held in her absence. No objection was raised by the BHA.
4. The BHA was represented by Miss Lauren Robinson.
5. In a letter to the BHA Miss Kelleway stated that she was led to believe that when you purchased a horse from abroad its past performances were automatically transferred to the “concerned official body” (meaning, on our understanding, Weatherbys); it was only when a horse trained in this country ran abroad that the trainer had to inform Weatherbys of its performance abroad.
6. It is not an acceptable excuse for a trainer that he/she was unaware of the Rule in question. Rule (C)18 is quite clear in its meaning and application being entitled “Information about new horse arriving from outside Great Britain and Ireland.” Miss Kelleway has quite recently, in September 2016, been fined for breach of a similar Rule ((C)19) relating to disclosure of racing performances abroad of a horse trained in this country.
7. The Guide to Procedures and Penalties recommends for breaches of Rule (C)18 a fine in the range £200 to £500 with an Entry Point of £300. We consider having regard to the circumstances outlined above that a fine above the entry point is warranted, in the sum of £400.