Reasons following a Disciplinary Panel Hearing (Michael McConville, Stephen McConville) heard on 19 September 2017
12 December 2017
1. On 19 September 2017, the Independent Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry to consider allegations of breaches of anti-doping provisions in the Rules of Racing that were made against Stephen and Michael McConville. These arose out of events during the Cheltenham Festival, when Michael McConville was due to ride his horse ANSEANACHAI CLISTE (IRE), trained by his father Stephen, in the St James Place Foxhunter’s Challenge Cup Open Steeplechase.
2. There were no material disputes about the facts of the case, and there was a general admission (with one exception) by the McConvilles of the breaches alleged. The BHA’s position was represented by Mr Tim Naylor, Head of Regulation at the BHA. The McConvilles were represented by Mr Conor Dufficy of counsel. They both presented their respective arguments succinctly and with realism, and the Panel was grateful for their help.
3. ANSEANACHAI CLISTE (IRE) was a nine-year old gelding, registered to enter point-to-point races and also eligible for hunter chases. It was brought over from Northern Ireland, where the McConvilles live, and arrived in the stables at Cheltenham in the early hours of 16 March 2017. It was due to race the next day, Friday, 17 March 2017.
4. A random bag search by members of the BHA Integrity Team within the racecourse stables during the morning of 17 March led to the discovery within Stephen McConville’s bag of two 20ml syringes with hypodermic needles on which fresh wet blood was observed; a glass bottle labelled as containing “Haemo 15”; a glass bottle containing a substance labelled “adrenaline”; and finally two needles in unopened packages. The labels on both glass bottles indicated that the contents had been prescribed for another horse owned by the McConvilles, HOLLYBANK KING (IRE). The investigators took possession of these materials and reported the matter at once to the Stewards.
5. An enquiry began promptly. The Stewards were told by the McConvilles that the needles and bottles were in the bag as the result of an error – they had been there to enable treatment of a hunter on the previous weekend back in Northern Ireland, and that was why blood was observed on the needles. They denied that anything had been administered to ANSEANACHAI CLISTE (IRE). The enquiry was adjourned to enable veterinary examination of the gelding and the taking of samples. Though the racecourse vet could not identify signs of injection, the Stewards ordered the withdrawal of the gelding from its intended race as they were not be satisfied that it had not received anything other than normal feed and water on that day.
6. On 6 April 2017, the testing laboratory reported that the urine sample provided by ANSEANACHAI CLISTE (IRE) contained cobalt at a level of 719 ng/ml of urine, above the internationally permitted threshold of 100 ng/ml. Five days later, an unannounced visit was made to Stephen McConville’s licensed yard in County Armagh by BHA investigators with the permission of and in the company of Irish Turf Club representatives. (The Irish Turf Club regulates racing both north and south of the border in Ireland). Samples taken from other horses in the yard produced no adverse analytical findings. Inventories of medicines, feed supplements and additives on the yard were compiled, and medication records inspected. Both Michael and Stephen McConville were then interviewed. On this occasion a very different story emerged. Both admitted that Haemo 15 and adrenaline were administered by intravenous injection to ANSEANACHAI CLISTE (IRE) at about 0930 hrs on the morning of the race in the racecourse stables.
7. In due course, allegations of breaches of the Rules of Racing were levelled against both Michael and Stephen McConville. As the “Responsible Person” referred to in Rule (G)2.1, Michael McConville was charged with a breach of that provision, which establishes a strict liability on the Responsible Person in the event that his horse tests positive for a prohibited substance. This breach was admitted by him. His father was charged with a breach of Rule (G)2.9, which says that nobody should “assist, encourage, aid, abet, conspire, cover up or engage in any other type of intentional complicity involving an equine anti-doping rule violation”. This was the only charge brought by the BHA which was denied by either of the McConvilles. In the Panel’s view, Mr Dufficy was correct to argue against this. Quite apart from the language of Rule (G)2.9 being awkwardly framed, it is hard to see how there can be complicity in a strict liability offence which is established by simple proof of an adverse analytical finding by a recognised laboratory. And again, as Mr Dufficy pointed out, Stephen McConville was admitting primary liability for other breaches. This made an allegation that he was liable as an accessory for such a breach an odd concept. The Panel therefore held that no breach of Rule (G)2.9 was made out.
8. For Michael McConville’s admitted breach of Rule (G)2.1, the Panel decided to impose a disqualification of two years. This is the entry point penalty recommended in the Guide to Procedures and Penalties if disqualification rather than a fine is thought appropriate. Given that the prohibited substance (cobalt) found in the sample from the horse was plainly attributable to the injection of Haemo 15 given by Michael McConville a few hours before the sample was taken, it was obvious that disqualification rather than a fine was the right course to take. But for reasons explained below, the Panel kept the length of the disqualification at the entry point: in essence, because the cobalt came from a therapeutic dose of Haemo 15 rather than from an intended blood doping administration of cobalt salts.
9. Both Michael and Stephen McConville were each alleged to be in breach of Rules (G)2.5 and (G)2.6, and both admitted breach. These charges were at the core of the case. There is no doubt that “Haemo 15” contained substances prohibited on race day. Equally, the bottle labelled “adrenaline” contained adrenal cortex which is also prohibited on race day. Furthermore, it is plain that the substances were being administered by the McConvilles with the general aim of improving the horse’s performance in the race to take place later that day. They were doing this in obvious breach, as they were fully aware, of the prohibition of administration of such substances on a racecourse, and of the prohibition of the possession of such substances (and the means to administer them) on a racecourse. There was also a degree of premeditation in these breaches. They brought the substances and syringes with them from Northern Ireland, and then brought them onto the racecourse at Cheltenham.
10. Those features of the case show fundamental and considered breaches of racing’s anti-doping rules. These immediately establish the need for serious periods of disqualification for the protection of the sport. But there were a number of other considerations which the Panel had to bear in mind when assessing the length of the disqualification that was called for. There was an overriding impression that this was an amateurish and inept piece of cheating by the McConvilles. The substances that they were using would probably only have had a small effect on the horse’s performance. In the case of the adrenal cortex, there may well have been no effect at all, because its effect from an injection at 0930 hrs would have dissipated by the time of the race. In the case of the “Haemo 15”, the BHA understandably concentrated upon the finding of an elevated cobalt level from the sample taken later that morning, and suggested that this indicated a period of disqualification at the upper end of the range recommended in the Guide to Procedures and Penalties, which is a disqualification of between 6 months and 10 years. Cobalt is an essential trace element and a normal constituent of diet, being present both in soil and plants. It is incorporated within vitamin B12. Cobalt salts, however, have the potential to activate the EPO gene and increase production of red blood cells. Because cobalt is naturally found within normal constituents of diet, it is a substance for which a threshold level is prescribed for racehorses. Haemo 15 contains both vitamin B12 and a therapeutic dose of cobalt salts. It is widely used as a pick-me-up or tonic. Though it has the capacity to elevate the cobalt content of a sample beyond the permitted threshold level (as it plainly did in this case), it would not be used for blood doping purposes, which require a much greater concentration of cobalt salts. Indeed, the Panel concluded that the McConvilles were unaware of the cobalt element in Haemo 15. They were using it to attempt to improve performance, but not by blood doping through the use of cobalt salts.
11. Bearing all this in mind, the Panel decided that this was not a case in which it was necessary to go to the upper end of the range identified in the Guide. Instead, it was determined, in principle, to impose disqualifications of four years on each of Stephen and Michael McConville for their breaches of Rule (G)2.5 and a disqualification of two years for their breaches of Rule (G)2.6. These penalties are to run concurrently with that imposed on Michael McConville for the breach of Rule (G)2.1.
12. Next, the Panel considered the admitted breach by Michael McConville of Rule (C)28, which imposes upon a trainer a liability to ensure that all treatments and medication administered to a horse are given in the interests of its best health and welfare. That plainly was not the case here. Neither substance was prescribed for ANSEANACHAI CLISTE (IRE). He had, at best, a hazy understanding of the nature and constituents of the substances he was using. Nor, technically, was Michael McConville entitled to administer the injections. This appeared to the Panel to be a serious additional breach of obligation. It imposed, in principle, a one year disqualification to run consecutively to the periods of disqualification imposed for other breaches. This penalty was made consecutive to reflect the serious and separate welfare concerns that this conduct raised in the Panel’s thinking.
13. Finally, the Panel had to deal with the admitted breach by both McConville’s of Rule (A)31.2. This was the allegation that they misled the Stewards at Cheltenham on the day of the race. More accurately, this was viewed as an attempt to mislead the Stewards, who were not taken in by the story they were told on that day. They required the withdrawal of the horse from its intended race. In the circumstances, the Panel decided upon a disqualification for each of the McConville’s of three months, to run concurrently with the other, larger, penalties.
14. The overall result, therefore, of the decisions referred to above would be a disqualification of Michael McConville for a period of five years, and a disqualification of Stephen McConville for a period of four years. The Panel then performed the exercise of considering what if any reduction of those penalties was appropriate in the light of the early admissions made by the McConvilles. In Michael McConville’s case, an overall reduction of 40% of that penalty was felt to be justified, to reflect the clear admissions he made in interview, before charges were brought, and to reflect his unqualified admissions of the charges when they were formulated. That reduced the overall period of disqualification in his case to three years. In the case of Stephen McConville, the admissions he made at interview were less clear, but he did admit the charges (other than in relation to Rule (G)2.9, in respect of which the Panel has found in his favour) at the outset. A reduction of penalty of 25% was decided upon, which produced in his case as well an overall period of disqualification of three years. The Panel was fortified in its decision to make these reductions by the evident and genuine remorse of both McConvilles for what they had done: this was not mere disappointment at being caught. The impressive and thoughtful references provided by three people who know the McConvilles well in their local community provided additional reinforcement for the Panel’s conclusions.
15. The three year periods of disqualification run from the date of the hearing were which they were imposed – 19 September 2017 until 18 September 2020 inclusive.