9th April 2021
1. On 29 March 2021, the Independent Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry to consider the allegation of a breach of (the then) Rule (G)2.1 of the Rules of Racing and the possible consequences under Rule (A)74.2 Ground 3.
2. The hearing was the result of HELL’S KITCHEN, a 2011 gelding, owned by John P McManus and trained by Mr Harry Fry - the Responsible Person, providing a random post-race sample indicating the presence of a prohibited substance (arsenic) above the permitted threshold after running in the 15.30 Betway Queen Mother Champion Steeple Chase (Grade 1) over two miles at Cheltenham racecourse on 13 March 2019. The race was won by ALTIOR (IRE), HELL’S KITCHEN, finishing fourth of nine runners. Prize money was withheld.
3. Of necessity the hearing was virtual and followed the agreed rules for this procedure. Mr Fry was represented by Roderick Moore of counsel and was excused from attending at his request. The BHA’s position was presented by Charlotte Davison of counsel. No objection was taken to the constitution of the Panel. Detailed bundles of submissions and witness statements had been provided to the Panel in advance which assisted the Panel in identifying the issues which centred on the differing views of a distinguished expert from each side.
4. Mr Fry, who held a trainer’s licence granted by the BHA, admitted the breach of Rule (G)2.1 as the Responsible Person and accepted from the earliest stage the inevitable disqualification of the horse under Rule (A)74.2. He denied, however, that he had anything to do with the administration. The permitted international threshold for arsenic is 300 ng/ml. The result of the analysis of the A sample on 5 April 2019 showed a concentration of 337 ng/ml, and a month later the B sample from the French laboratory LCH showed a reading of 347 ng/ml. Testing for arsenic has only become routine since 2019 and this is the first occasion that a finding over the international limit has been detected.
5. The real issue for the Panel having concluded a view was the appropriate sanction having regard to Rule (G)11.4: “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." Arsenic
6. Mr. David Sykes (former BHA Director of Equine Health and Welfare) provided an unchallenged background drug brief concerning arsenic. It is a metalloid chemical compound which is ubiquitous in the environment, including water, soil and plants, and as such may be naturally present in equine feeds and grazing. High concentrations of arsenic may be present in some areas due to local geochemistry, water pollution and industrial effluents.
7. Veterinary preparations which contain arsenic may be used as a ‘general tonic’ in horses, to stimulate appetite, treat anaemia, weakness and debility, and to promote healthy coat growth. There are no veterinary preparations which contain arsenic that are licensed for use in the UK. There is one veterinary preparation (Jurocyl Injection (Ceva)) containing arsenic which is licensed for use in Australia. This medication may be prescribed for use in horses in the UK.
8. He clarified that arsenic should be listed under Schedule (G)1 (Prohibited List) paragraph 10 (Threshold Substances) as a threshold substance prohibited on race day only.
9. The LGC laboratory had, in fact, tested four samples from the horse in 2019, of which three indicated the presence of arsenic below the cut off. The estimated concentrations of arsenic in the negative samples were: 104ng/ml (5 April 2019 – Aintree); 91.8ng/ml (17 April 2019 – Out of Competition); and, 101ng/ml (11 November 2019 - Carlisle). Investigations and Background
10. The unannounced inspection of Mr Fry’s yard by BHA investigating officers took place on 17 April 2019. The team were given unrestricted access and full co-operation. Nothing in the locked medicine cabinet contained or was likely to contain arsenic. Upon inspection of HELL’s KITCHEN’s stable a wood preservative treated beam showed evidence of gnawing which had exposed the wood. The beam ran through the length of the stable row. Following the usual procedure, various samples were taken from feed, supplements, cardboard bedding etc., including from a quantity of creosote. The analysis showed wood from HELL’S KITCHEN’s stable had an arsenic content of 2000 ug/g whereas wood from an adjacent stable had a content of 472 ug/g. Urine samples were collected from HELL’S KITCHEN and eleven other horses stabled in the vicinity. None contained arsenic above the international limit. HELL’S KITCHEN recorded 91.8 ng/ml and JUST A STING (IRE), next door, 105 ng/ml.
11. Nothing was found in the examination of feed, supplements and additives products to suggest arsenic presence and the examination of the horse medicines register from January to April 2019 showed no record of the administration of any product that could be considered to contain arsenic.
12. In the course of his interview Mr Fry was at a loss to provide any explanation for the findings. He thought highly of the horse who won a race at Ascot on 22 December 2018 but had not been able to run in either January and February and had been confined to his box due to sickness and airway challenges. As a result the horse was not as fit as Mr Fry would have liked. In those circumstances he was delighted with the fourth-placed finish at Cheltenham. Nothing unusual had happened on Race day. The horse was accompanied at all times. Mr Fry had no concerns. The horse had had regular routine blood testing by the vet in the months prior to the race. In his next race on 5 April 2019 at Aintree - a Grade 1 - he ran less well and was fourth of six. A post-race test proved negative. The only change in training since Cheltenham was that the horse had been turned out daily for an hour.
13. The horse had occupied the same stable over several seasons and Mr Fry noticed that it chewed at internal timberwork. This had been treated with creosote ‘last summer’ meaning 2018. It was bedded on cardboard/paper because of susceptibility to airway infection. The yard followed a consistent feeding regime, fed from the floor, administered by a dedicated feed man and the regime included a tube of GastroGard first thing. Any medication would go directly into the feed, disinfectant was used widely, and the risks of cross-contamination were stressed to the staff. BHA Expert Evidence
14. Dr Stuart Paine (Associate Professor of Veterinary Pharmacology at the University of Nottingham) prepared a report based on the assumption that the horse has ingested at least 1gram of treated wood and that the ingestion had occurred 5 - 7 hours before the race (while still in the stable). In his report of 20 December 2019, he concluded that arsenic per gram of each of the non-wood samples collected meant that each was highly unlikely to have caused the adverse analytical finding. Whereas the ingestion of approximately 100 grams of treated timber from the stable, either as a one off or a series of ingestions over several days could have explained the adverse finding. An Australian paper was cited where five standard bred horses were fed 100 grammes of treated timber containing 2750 ng of arsenic per gram and three of the horses returned samples exceeding the international threshold. The time taken to reach peak arsenic concentration was approximately 24 hours after ingestion.
15. Having considered a report provided by Mr David Rendle in support of Mr Fry’s case, Dr Paine provided a supplementary report dated 20 November 2020 focusing on hydration. The Case for the BHA
16. It was accepted that timber from the horse’s stable had a high concentration of arsenic, that the horse was prone to chewing the timberwork and had been confined to the stable for longer than usual prior to the race. Also, that no other substance found at the yard and tested by the BHA was believed to contain arsenic and Dr Paine observed that it was plausible that ingestion of 100 grams could give rise to the impermissible level. These factors could indicate that arsenic was not intentionally administered and the source may be wood from the stable. Nevertheless, these matters had to be balanced against the sequence of test results which were consistent apart from this one extreme spike. Further the fact that the wood used in the Melbourne investigations had a 37.5% increase of arsenic level and involved sawdust mixed into a soyabean feed and the authors suggest that a horse would likely need to ‘chew and ingest considerably more that 100 grams of wooden fencing’ in order to reach the urinary threshold.
17. Thus the BHA accepted the timber as ‘only a possible source’ of the adverse finding, and did not accept that the timber is the source, and therefore intentional administration remained a possibility and Mr Fry would be unable to establish the burden that lay with him. The Case for Mr Fry
18. Mr David Rendle, an independent equine medicine and therapeutics consultant and Chair of the British Equine Veterinary Association Health and Medicines Committee, was instructed on behalf of Mr Fry and produced a report dated 28 October 2020. In his view the most plausible explanation of the level of arsenic in the sample was ingestion of timber within the stable.
19. Among the points made were that arsenic is rapidly excreted and has no performance enhancing effect, and that little is known of the pharmacokinetics of arsenic. That other horses in the yard excreted significant concentrations of arsenic, that the investigations indicated a marked variation in levels of arsenic in treated timber within the stable buildings with levels in the HELL’S KITCHEN’s stable being over four-fold higher than that of the neighbour, and it was unknown whether the wood tested by the BHA was truly representative of wood potentially ingested ahead of the positive test. Further there is reliance on a small unpublished study in Australia which has important differences in circumstances, and the concentration identified was only marginally above the accepted threshold which could be explained by dehydration following a hard run two-mile steeplechase. Late Developments
20. Consequent on its responsibility to conduct a thorough investigation and to seek to establish the source of the positive finding if possible, the BHA found itself unable to establish conclusively the probable source, only that the timber in the box was a possible source. It was accepted on all sides that this was a difficult case with no evidence of deliberate administration in breach of the anti-doping provisions, and there was no reliable evidence of the amount of timber that might have been ingested. Also, there was an absence of any proper precautions that the BHA could point to that should have been taken and were not. Further conversations then took place last week leading to a BHA review of both the totality of the expert evidence and the factual background which was not in dispute.
21. As a result the BHA accepted the view that Mr Fry was likely to be able to establish, on the balance of probabilities, and that he could satisfy both limbs of the exemption of Rule (G)11.4. Thus a pragmatic solution was to reach an agreement so that both sides need not be put to the additional time and costs of preparing a complex hearing involving several expert witnesses. All this being subject to the approval of the Panel. Supplementary skeleton arguments and papers were then provided to the Panel. Hearing
22. The Panel invited further short summaries from both sides and took the opportunity to test some of the observations before retiring to consider the position. After careful deliberation it concluded that given the unique and novel circumstances of this case, the proposed agreement was a proper and sensible way forward.
23. In coming to this decision, the Panel noted additionally that arsenic as a metalloid chemical compound is ubiquitous to the environment and as Mr Rendle observed ‘there is a constant risk of exposure of horses to the substance due to factors that are beyond any reasonable person’s control.’ The sample was only marginally over the race day limit, and importantly that the concentration of arsenic in the treated wood samples taken from HELL’S KITCHEN’s box was higher by a factor of 4 compared with the adjoining box.
24. In relation to the second limb it was clear to the inspectors that the standards and procedures in the yard were high and that there had been openness and cooperation throughout. Decision
25. The Panel acknowledged the care with which this case had been approached from both sides. It noted the unique background and the high standards in Mr Fry’s yard to combat known potential problems. The investigation of this breach had in the end taken an unusual course late in the day but one that was, nevertheless, appropriate. In the light of the Panel’s approval of the procedure and the endorsement of the agreement on the particular facts of this case, the only and inevitable consequence was the disqualification of HELL’S KITCHEN under Rule (A)74.2 with the placings to be amended and the withheld prize money to be redistributed accordingly.