Results of Enquiries (L. Eyre, P. Cosgrave) heard by the BHA Disciplinary Panel On Thursday 27 July 2017
31 July 2017
1. On 28 July 2017 the Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry into various matters concerning the trainer, Les Eyre, principally arising from the results of tests of samples of urine taken from a horse trained by Mr Eyre at the material time, namely COTE D’AZUR, after it had run at Ripon on 16 August 2016 and Beverley on 27 August 2016. The tests showed the presence of ranitidine, a prohibited substance as defined in Schedule (G)1, Paragraph 7 of the Rules of Racing,
2. The ambit of the enquiry was set out in a letter to Mr Eyre of 7 June 2017 in which it was stated that the enquiry would seek to establish whether
(1) Mr Eyre was in breach of Rule (G)2.1 of the Rules of Racing in respect of the finding of the prohibited substance, ranitidine, in the post-race samples of COTE D’AZUR following the races at Ripon and Beverley;
(2) The horse should be disqualified from these races;
(3) Mr Eyre was in breach of Rule (C)13 of the Rules by virtue of his failure to keep accurate records of treatment administered to horses under his care or control.
3. In his formal response (submitted as required by Schedule (A)6 of the Rules) Mr Eyre has admitted to being in breach of Rule (G)2.1 in respect of the finding of the presence of ranitidine in the post-race samples taken from COTE D’AZUR after the races at Ripon and Beverley and in breach of Rule (C)13 in respect of omissions in the stables’ medication records. In the response and in an accompanying letter prepared by his solicitors there has been set out the surrounding circumstances relating to the breaches intended to support his overall claim that “there was no malice nor incompetence on my part”.
4. Mr Eyre has asked that the enquiry proceed in his absence to which the BHA have taken no objection. Mr Andrew Howell presented the case on behalf of the BHA.
5. It is necessary to outline and consider some of the background facts to the admitted breaches revealed by the BHA’s investigations and Mr Eyre’s explanations. They are of crucial importance in the context of appropriate penalties
(1) Ranitidine is a drug that inhibits stomach acid production. It is used to treat stomach ulcers in humans. It is not licenced for use in animals, but can be used to treat ulcers in horses. In 2009 BHA issued an advice under the heading, “Anti-Ulcer Medication in horses” relating to ranitidine. In summary it discouraged but did not prohibit the use of the drug and ended with this advice “. . . it is recommended that extreme care is exercised in any use of ranitidine in horses in training; as with any prohibited substance, ranitidine must not be detectable on raceday”.
(2) Ranitidine was at no time directly administered to COTE D’AZUR.
(3) Ranitidine was twice daily administered, from mid-June to the end of August 2016, to another horse in Mr Eyre’ stable called MARMION. MARMION suffered from severe ulcers.
(4) MARMION was an uncooperative patient: he would not take the drug in his food. It had to be ground down to a powder, mixed with water and then syringed into the horse’s mouth. This could be a messy business: Mr Eyre’s staff described how the horse would often throw its head resulting in the mixture going ‘all over the place’ including on their hands, arms and clothing as well as the floor and walls of the stable.
(5) The staff did not, and were not instructed to, wear gloves or protective clothing or to wash their hands after administering ranitidine. No special measures were taken to clean or disinfect areas of the stables, like the horsewalker, where MARMION sometimes went having been ingested with ranitidine.
(6) The use of ranitidine (and esomeprazole) in treatment of MARMION’s ulcers was suggested by Rainbow Equine Hospital (at Malton) in advice given to the veterinary practice used by Mr Eyre which included Mr Charles Cook, Mr Eyre’s regular vet. Mr Cook knew that ranitidine was a prohibited substance and maintains he communicated this to Mr Eyre. This is not accepted by Mr Eyre who claims that until the unannounced visit of the BHA Investigators on 7 September 2016 he was not aware that ranitidine was a prohibited substance.
(7) The medication records of the stable contained no entries relating to the administration of ranitidine (or esomeprazole) to MARMION.
(8) Following the visit of the BHA Investigators on 7 September 2016 Mr Eyre had 5 horses in his stable electively tested. Four of the five showed the presence of ranitidine.
6. There can be little doubt that the source of the ranitidine found in COTE D’AZUR samples was the ranitidine intended for ingestion by MARMION, or perhaps temporarily ingested by MARMION. That is more or less accepted by Mr Eyre. His theory is that contamination came via the horse walker, our understanding of this theory being that MARMION after administration of the drug dribbled whilst in the horsewalker and then this excretion, perhaps solidified, was licked up by another horse in the machine, on occasions COTE D’AZUR. Equally plausible is that a member of the staff who had been sprayed with the ranitidine mixture during the course of the syringe operation with MARMION then attended to COTE D’AZUR who licked his skin or clothing. But how the contamination occurred has not been, and cannot be, definitely established. What the Panel has to decide, however, is whether the trainer, Mr Eyre, though automatically responsible for any prohibited substance found in one of his horse’s sample can escape a penalty under Rule (G)11.4. Under this Rule no penalty shall be imposed on the trainer if the trainer can establish (1) that the prohibited substance was not administered intentionally by the trainer or any other person and (2) the trainer had taken all reasonable precautions to avoid a prohibited sample being found in the horse’s sample.
7. It is quite clear that ranitidine was not administered intentionally by anyone to COTE D’AZUR. So the question is whether Mr Eyre has established that he has taken “all reasonable precautions”. Mr Eyre has, it could be said, largely answered this question himself, in his interviews with the Investigators and in his written statement in which he claimed that had he known that ranitidine was a prohibited substance he would have taken “additional precautions” to avoid any contamination of another horse. This brings into focus the conflicting accounts of Mr Cook and Mr Eyre as to whether Mr Cook informed Mr Eyre about the properties of the drug. But even if we were able to make a finding on this issue it is unnecessary for the purpose of deciding whether “all reasonable precautions” had been taken. In our view if Mr Eyre did not know whether ranitidine was a prohibited substance, it was incumbent upon him to find out. This was a drug he had not encountered or used before; its purpose was to treat an internal ailment of a horse, which would seem to bring it within the general definition of a prohibited substance. If he was not told by the vet, he should have asked him about the drug, and consulted the BHA or the website for information about the drug. On his account he did neither. In our view he has failed to displace the burden which Rule (G)11.4 places upon him to establish that he has taken all reasonable precaution to avoid a breach of Rule (G)2.1. Thus he is liable to a penalty.
8. Mr Eyre has argued that as the same underlying facts gave rise to COTE D’AZUR running at Ripon and Beverley when contaminated with ranitidine there should be only one penalty for the breaches of Rule (G)2.1. We do not accept this reasoning. Each occasion was a separate incident meriting a separate penalty. It could not be suggested, had the four other horses electively tested with positive results run in the period before 7 September with further breaches of Rule (G)2.1 occurring no additional penalties should be imposed as the root cause was the cross contamination from MARMION. The further breach of the Rule resulting from the run of the horse at Beverley happened because the state of affairs at Mr Eyre’s stable giving rise to the risk of cross contamination from the administration of ranitidine was allowed to continue. We accept that the breach of Rule (G)2.1 was not intentional or malicious but for reasons which we have given above we cannot acquit Mr Eyre of all fault or responsibility.
9. The entry point in respect of a financial penalty for presence of a prohibited substance is a fine of £1,000. We consider that is the appropriate penalty in respect of each occasion at Ripon and Beverley when COTE D’AZUR ran in breach of Rule (G)2.1.
10. As regards the breach of Rule (C)13 arising from the failure to keep accurate medication records Mr Eyre has explained that his staff were under the mistaken impression that as the ranitidine treatment was initiated outside the stable by Rainbow Equine Hospital there was no requirement for the stable to keep a record in respect of the continuation of the treatment. That was clearly misguided. Though the administrative task of making entries in the record was not undertaken by Mr Eyre he accepts that he must accept overall responsibility for the accuracy of the medication records. We must further take into account that there was no entry in the record in respect of a Duphalyte drip administered to COTE D’AZUR on 26 August 2016. The entry point for a breach of Rule (C)13 is a fine of £500 and we consider this to be the appropriate penalty in this instance.
11. By virtue of Rule (G)11.2 and Rule (A)74.2 Ground 3 where a prohibitive substance has been found in a horse’s sample following a raceday test thereby amounting to a violation of the anti-doping Rule the horse is automatically disqualified from the race in question. Thus COTE D’AZUR must be disqualified from the attheraces.com City of Ripon Stakes at Ripon on 16 August 2016 in which he finished 1st, and from the Totepool Live info Download The App Handicap Stakes at Beverley on 27 August 2016 in which he finished 4th. It has been customary for the Disciplinary Panel when directing a disqualification of a winning or placed horse to announce the revised placings. This Panel felt bound to consider whether it has power to revise the placings as on a first reading of part of Rule (A)74.2 Ground 3 (“on a disqualification . . .following analysis of a stored sample . . . there will be no alteration in the placing of any other horse in the race”) there would appear to be an express prohibition of a revision of the placings. However, we are satisfied that this part of the Rule is not applicable as there has not been an analysis of a “stored sample” within the meaning of that term in the Rules. The analysis has been of a Raceday sample which is something different. As to the existence of the power of the Panel to revise the placings upon disqualification following analysis of a raceday sample, there does not seem to be an express provision in the Rules. However, it is plain in our view that such a power must be inferred. That accords with common sense. Moreover, there are references to the alteration of placings by “the Authority or the Stewards” where there has been a disqualification for a riding offence, and the Disciplinary Panel must have similar powers. Furthermore, the existence of the prohibition in respect of “a stored sample” can be said to indicate a power to revise the placings in other instances of disqualification; otherwise the express prohibition would not be necessary.
12. We will accordingly announce the revised placings as follows:
Attheraces.com city of Ripon Stakes run at Ripon on 16 August 2016: CAPE OF GLORY (IRE) first, FINAL second, PURE FANTASY third, GREEN HOWARD fourth and SILVERY MOON (IRE) fifth.
Totepool Live info Download The App Handicap Stakes run at Beverley on 27 August 2016: HARAZ (IRE) fourth, SPEED COMPANY (IRE) fifth and HIS KYLLACHY (IRE) sixth
1. On 28 July 2017 the Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry into whether the jockey, Pat Cosgrave, was in breach of Rule (D)66 of the Rules of Racing by reason of the result of a breath test carried out on him at Wolverhampton Racecourse on 26 December 2016 which showed the presence of alcohol at the level of 23mgs in 100 ml of breath. The highest permitted level is 17mgs in 100ml.
2. Mr Cosgrave admitted the breach. He asked that the matter be dealt with in his absence, and the BHA raised no objection.
3. The BHA’s case was presented by Mr Andrew Howell.
4. Mr Cosgrave was booked to ride a horse in the Betway Middle Handicap Stakes at Wolverhampton on 26 December 2016. At the racecourse he was required to undergo an alcohol detection test. The reading after the second test indicated the presence of alcohol at the levels described in paragraph 1.
5. At the subsequent Stewards’ enquiry Mr Cosgrave stated that he had drunk several glasses of wine on Christmas Eve and Christmas day. He was in bed by 10 pm on Christmas day, but claimed the alcohol had obviously not left his system in time.
6. The Stewards suspended Mr Cosgrave from riding at the meeting and referred the matter to the BHA.
7. The 2017 Guide (to Procedures and Penalties) makes no recommendations as to penalties for alcohol offences at the “lower level”, i.e. 20-38 mgs per 100ml. The 2015 issue of the Guide recommended a caution at this level.
8. Mr Cosgrave has made a previous appearance before the Disciplinary Panel in respect of an excess alcohol breach of the Rules. The offence was committed at York on 13 July 2013 and the level was 36mgs in 100ml. On 8 August 2013 the Panel imposed a caution with a warning that a second breach within 24 months would lead in all probability to a lengthy suspension.
9. That was nearly 3½ years before this breach. In the circumstances and having regard to the low level of alcohol and at a time when its consumption could not be regarded as unreasonable or irresponsible we will limit the penalty to a further caution. But we must draw Mr Cosgrave’s attention to the probabilities of a more serious outcome if there is a recurrence of a similar breach in the next two years.