Result of an Enquiry (J. Scott) heard by the Disciplinary Panel on Thursday 24 May 2018
published on 05 June 2018
5th June 2018
1. On the 24 May 2018 the Independent Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry to consider whether the trainer Jeremy Scott was in breach of Rule (G)2.1 of the Rules of Racing by virtue of the fact that hydrocortisone, a Prohibited Substance pursuant to Rule (G)16, was found in a urine sample taken from BEST BOY BARNEY (IRE) following its run in the ROA/Racing Post Owners Jackpot Handicap Steeple Chase at Wincanton on 5 April 2017. Additionally, the Panel was asked to consider whether BEST BOY BARNEY (IRE) should be disqualified from the above race pursuant to Rule (A)74.2 Ground 3 of the Rules of Racing.
2. The BHA was represented by Andrew Howell. Mr Scott attended the hearing in person and was represented by Ms Dawn Bacchus of the National Trainers Federation. No objection was taken to the constitution of the Panel.
3. With the assistance of Ms Bacchus, Mr Scott had submitted a Schedule (A)6 form together with a detailed written statement. In addition, a further supplementary statement was submitted at a later date by Mr Scott which, essentially, addressed the issue of potential cross-contamination having occurred in the racecourse stables at Wincanton. At the hearing the Panel was greatly assisted by a lucid presentation of the case for the BHA by Mr Howell. Mr Scott gave evidence to the Panel and Ms Bacchus was also helpful in the clear presentation of Mr Scott’s case.
4. At the outset it is important to note that in his Schedule (A)6 form Mr Scott admitted to being in breach of Rule (G)2.1 and that admission was repeated in the accompanying written statement referred to above.
5. On the 5 April 2017 BEST BOY BARNEY (IRE) ran in the ROA/Racing Post Owners Jackpot Handicap Steeple Chase (Class 4), a race over 3 miles, 1 furlong and 30 yards at Wincanton and finished third, beaten 12¾ lengths by the winner. The horse’s starting price was 7-1. Pursuant to Rule (B)6.1.4 the Stewards requested that the horse be examined post-race and that a urine sample be taken. The sample taken was divided into two. On the 11 May 2017 analysis was completed by LGC, a BHA approved laboratory. The analysis results revealed the presence of hydrocortisone at a level of 2.1 micrograms per millilitre of urine. Mr Scott did not ask for the second sample to be analysed.
6. Mr David Sykes, the Director of Equine Health and Welfare at the BHA, has provided a useful statement in relation to hydrocortisone. He asserts that it is a naturally occurring corticosteroid with both glucocorticoid and mineralcorticoid activity. It is endogenous in horses and it is used in veterinary medicine as an anti-inflammatory and may be administered topically, intravenously, inter-articular or intramuscularly. It is used in human medicine as a replacement therapy for adrenal insufficiency, and for its anti-inflammatory and immunosuppressant properties. Hydrocortisone is not licensed for use in horses in the UK, but it may be prescribed by a veterinary surgeon under the “cascade” legislation. There are no veterinary preparations containing hydrocortisone that are licensed for use in the UK.
7. Since hydrocortisone is a naturally occurring corticosteroid there is a permitted international raceday threshold of 1 microgram of hydrocortisone per millilitre of urine.
8. As a result of a finding of hydrocortisone in the sample taken from BEST BOY BARNEY (IRE) on 5 April 2017, an unannounced visit was paid to Mr Scott’s yard on 17 May 2017 by Jonathan Dunn, a BHA Investigating Officer. Mr Dunn was accompanied by Mr John Burgess (a BHA Investigating Officer), Dr Jane Harry (Veterinary Officer) and Mr Vince McKevitt (Equine Welfare and Integrity Officer). The latter two were in attendance in order to obtain blood and urine samples from BEST BOY BARNEY (IRE). Mr Scott agreed that those samples could be taken. The samples were duly taken.
9. Mrs Scott, Mr Scott’s wife, undertook to provide a copy of the stable medication records. Whilst that was being done Mr Dunn and Mr Burgess spoke with Mr Scott. Mr Scott said that BEST BOY BARNEY (IRE) was an easy horse to deal with and that it had had no problems. He added that the horse had always been kept in the same stable and the horse SEEANYTHINGYOULIKE (IRE) had been in the only adjacent stable for at least 3 months. Mr Scott stated that BEST BOY BARNEY (IRE) was fed Lay Off Cubes, Power Cubes and Alfalfa. It was established that BEST BOY BARNEY (IRE) had recently been ridden in exercise by Danielle Stewart and that Katie Low usually mucked out the horse’s stable.
10. At the direction of Mrs Scott, Mr Dunn and Mr Burgess were shown the medication stores and feed room and photographs were taken. Mrs Scott was asked about the precautions taken to prevent cross-contamination of medication between horses. She said that medication would be administered straight into a horse’s mouth whenever possible. If the medication had to be mixed with food then that would take place in the horse’s feed manger in its stable and the manger would be thoroughly washed once the course of medication had finished. A stable inspection took place and further photographs were taken.
11. Mr Dunn and Mr Burgess spoke to Danielle Stewart who said she had heard of hydrocortisone but she said she was not using any medication that could contain that substance. When Katie Low was questioned she said that she had not heard of hydrocortisone and was not using any medication that could contain that substance.
12. Having made the above enquiries Mr Dunn and Mr Burgess interviewed Mr Scott on 17 May 2017. In summary Mr Scott said:-
a) BEST BOY BARNEY (IRE) had been bought as a 3-year-old and he did not think the horse had ever left his premises;
b) The horse was sound and he could not recall it suffering any injuries or illnesses in the 6 months prior to the interview.
c) The only veterinary treatment that Mr Scott could recall the horse having was a wind operation;
d) He could not recall any of his horses being administered with hydrocortisone in the 3 months prior to the interview. In particular he was not aware of SEEANYTHINGYOULIKE (IRE) being administered with medication which contained hydrocortisone;
e) The only members of his staff who had regular contact with BEST BOY BARNEY (IRE) were Danielle Stewart and Katie Low, although other staff members may come into contact with the horse on occasion;
f) Mr Gordon Edwards (farrier), Mr Philip Browne (veterinary surgeon), Mr Toby Lee (dentist) and Ms Sarah Weatherlake (physiotherapist) would all have had contact with the horse;
g) Other than Mr Browne, Mr Scott did not believe that any service provider had given any medication to the horse. It was agreed that Mr Dunn would provide Mr Scott with a list of the names of human medication containing hydrocortisone in order to facilitate Mr Scott’s enquiries of all members of his staff in relation to medication which they might be taking;
h) Mr Scott could not think of any other individuals who would have hands-on contact with the horse;
i) Other than some wormers, which were kept in the house, Mr Scott confirmed that Mr Dunn and Mr Burgess had seen all the medication which was kept in the stable;
j) Mr Scott confirmed Mrs Scott’s version of how medications would be administered – see paragraph 10 above;
k) Mr Scott said that all medication records had been seen and that they were a complete record;
l) Mr Scott said that feed samples were routinely kept and that haylage produced on the farm was fed to the horses. The implication was that its provenance was therefore known and could be vouched for;
m) Danielle Stewart took BEST BOY BARNEY (IRE) to Wincanton on her own on 5 April 2017 and he would have had only his normal food and water on the day of the race;
n) Mr Scott had noticed no change recently in the temperament and well-being of BEST BOY BARNEY (IRE) and could offer no explanation for the positive test result.
13. Further enquiries were made after the conclusion of the visit on 17 May 2017. The BHA has helpfully indicated that Mr Scott has cooperated fully with the investigation.
14. The urine sample taken on 17 May 2017 revealed a hydrocortisone of .22 micrograms per millilitre. This is slightly higher than the average concentration taken from non-raceday samples but about 1/10th of the concentration revealed by the 5 April 2017 sample.
15. On the 22 May 2017 the clinical records of BEST BOY BARNEY (IRE) were received by Mr Dunn.
16. On 30 May 2017 Mr Scott telephoned Mr Dunn to inform him that enquiries had r
revealed that his farriers were not using anything containing hydrocortisone, that Ms Weatherlake (physiotherapist) had not seen the horse in the lead up to the race and that Mr Gary Lever (the Owner) had attended Wincanton but he was not taking anything which contained hydrocortisone.
17. In the written statement which accompanied Mr Scott’s Schedule (A)6 response, Mr Scott indicated that his enquiries revealed that no member of his staff and none of his service providers had been using any medication containing hydrocortisone.
18. There have been no other instances of a horse trained by Mr Scott testing positive for hydrocortisone. Mr Scott has been training racehorses since April 2007 (and point-to-pointers before that) and his past record is clean and exemplary.
19. A complicating factor in this case has arisen as a result of the supplementary written statement submitted by Mr Scott. In that document Mr Scott observed that there had been a number of meetings during the winter period at Wincanton and raised the possibility of unintentional/accidental cross-contamination through contact at the racecourse with a person using a “cream containing that medication”. That medication being, of course, hydrocortisone. Mr Dunn sensibly made enquiries at Wincanton and spoke to Mr Barry Johnson (Clerk of the Course) and Mr Richard Linley (Senior Inspector of Courses) in January 2018, some 9 months after the positive sample was taken from BEST BOY BARNEY (IRE).
20. Mr Johnson states that after each meeting a “Level 1” clean occurs to all stables which were occupied at the meeting. This consists of the dirty bedding being removed and replaced with clean bedding and the stable being fogged with Virkon. The Panel notes, according to BHAGI 7.2 guidance, that only bedding that is visibly wet or dirty need be removed, the remainder of the used bedding is left in situ. A chemical disinfectant is used to clean the stables in between race meetings.
21. Mr Johnson went on to say that during the summer months the stables are subjected to a “Level 2” clean which involves a pressure wash, treatment with Virkon, bedded and treated with Virkon again. Mr Johnson said that due to the racecourse stables being of wooden construction it is not possible to carry out a “Level 2” clean in the winter as the stables would not dry out in time for the next meeting. Unfortunately, the winter period is when the majority of meetings at Wincanton take place.
22. In summary, the Panel were told that Mr Linley was aware of the cleaning practices observed at Wincanton and had expressed no objection and he also indicated that the increase in fixtures in recent years “hadn’t helped this situation”. Guidance as to cleaning procedures is to be found in BHAGI 7.2 (referred to above) and in relation to “Level 2” cleaning the guidance states:-
“3.(b) Level 2
Racecourse stables must be thoroughly cleaned, removing all bedding and steam cleaning or pressure hosing all surfaces, and chemically disinfected
…….. that will guarantee a maximum elapsed period (during which there is racing) of three months between each treatment of any stable ……”
Exceptionally, alternative programmes of cleaning and disinfection may be agreed with the Inspector of Courses and the Director of Equine Health and Welfare. The Panel were told of no such agreed alternative programme, although Mr Linley had expressed no dissatisfaction with the cleaning regime.
23. The BHA enquiries established that there was no evidence of any medication using hydrocortisone being administered in the racecourse stables for the period 14 October 2016 to 5 April 2017. Also, none of the horses which had been housed in Box 41 (BEST BOY BARNEY (IRE)’s box) had been tested during the period under review.
24. When Mr Dunn spoke to Mr Johnson it was established that Mr Johnson thought the BHAGI 7.2 guidance for “Level 2” cleaning was that it should occur every 6 months. Unfortunately, Mr Johnson was clearly in error in relation to his understanding of the guidance. The evidence showed that “Level 2” cleans had occurred only in the September of 2016 and the 10 October 2017. The Panel notes with dismay that there was a 13 month gap between “Level 2” cleans and, by 5 April 2017, there had been no “Level 2” clean for about 6 – 7 months. There had been 13 meetings during this latter period.
25. The opinion of Dr Sykes (BHA Director of Equine Health and Welfare) was that the cleaning process at Wincanton was adequate. He goes on to say that the procedures at Wincanton, as described by Mr Johnson, appear sufficient to minimise the risk of contamination if implemented accurately. Dr Sykes asserts that if the stable was in the same condition as it was when Mr Dunn visited Wincanton in January 2018 (9 months after the 5 April 2017 it must be noted) and if the cleaning procedures were properly implemented “then contamination at the racecourse remains a possibility” but not a probability.
26. The BHA is unable to identify a source of the hydrocortisone that was in the sample taken from BEST BOY BARNEY (IRE) or to establish how it was ingested by the horse. There is of course no duty upon the BHA to identify the source or means of ingestion. The Panel finds that Mr Scott is in breach of Rule (G)2.1 as he is the Responsible Person in relation to the finding of the prohibited substance in BEST BOY BARNEY (IRE). As a consequence of this breach BEST BOY BARNEY (IRE) must be disqualified under Rule (A)74 from the race in question. The revised placings are BETTER DAYS first, CUCKLINGTON second, BUTLERGROVE KING (IRE) third and ARCTIC LADY (IRE) fourth.
27. Mr Scott is subject to a penalty unless he can bring himself within the conditions set out in Rule (G)11.4 which are:-
"11.4.1 The Prohibited 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
11.4.2 The Responsible Person had taken all reasonable precautions to avoid violating Rule 2.1 or 2.2."
It is submitted by the BHA that a penalty should be imposed, whilst Mr Scott, for his part, urges the Panel to impose no penalty.In considering this aspect of the case the Panel has very much in mind that the burden of proof is upon Mr Scott to bring himself within Rule (G)11.4.The standard of proof is the balance of probabilities.The Panel also reminds itself that in order to discharge this burden, substantial, cogent and persuasive evidence is required.
28. Mr Howell, for the BHA, argues that Mr Scott has failed to discharge the burden under both limbs of Rule (G)11.4. He accepts there are a number of possible sources of the prohibited substance but submits that none of them are probable sources. He lists the possibilities as:-
i) Natural production; but he notes that the reading here of 2.1mg/ml is very high and much higher than the 17 May 2017 reading;
ii) Contamination at the racecourse – either human or equine;
iii) Contamination at the stable yard – either human or equine;
iv) Insufficient withdrawal time from a previous administration of the prohibited substance;
v) The administration of Adrenocorticotrophic Hormone (ACTH).
29. Helpful as those submissions are though, the Panel takes the view that the evidence must be looked at as a whole. In so doing, and bearing in mind the burden of proof, we draw attention to the following points:-
a) Mr Scott gave evidence and was questioned by Ms Bacchus and Mr Howell. The Panel found him to be a helpful and palpably honest witness.
b) He said that no horse in the yard had been administered with any medication containing hydrocortisone in the previous 3 months. This assertion was not challenged by the BHA.
c) Mr Scott said that BEST BOY BARNEY (IRE) had not been administered with hydrocortisone at all whilst under his care.
d) The stable medical records revealed that no possible source of the prohibited substance could be detected within the records. The records were inspected by the BHA Equine Health and Welfare Department.
e) The clinical records of BEST BOY BARNEY (IRE) were inspected by the BHA Equine Health and Welfare Department and no possible source of the prohibited substance was found.
f) An inventory of all feed and supplements was prepared by the Investigating Officers and no possible source of the prohibited substance was found.
g) No member of Mr Scott’s staff, nor any member of the stable service providers, had been taking medicines containing the prohibited substance.
h) The horse in question was sound and had no need of hydrocortisone.
i) Dr Sykes indicated that there was no record of administration of ACTH to BEST BOY BARNEY (IRE) or to any other horse in the stable in the medication records provided.
j) The stable inspection by the BHA Investigating Officers, together with photographs taken, revealed no relevant evidence.
k) The situation at Wincanton racecourse is of interest. We have dealt with the cleaning regime in paras 19 – 21 (above). Standing alone, this evidence raises only a possibility (according to Dr Sykes) of contamination at the racecourse. This falls short of discharging Mr Scott’s burden but is part of the evidence as a whole.
30. When all the above matters are taken into account the Panel takes the view that Mr Scott has discharged the burden upon him imposed by Rule (G)11.4.1 in relation to intentional administration.
31. The second limb of reasonable precautions now falls to be considered. Mr Howell submits that all reasonable precautions were not taken by Mr Scott and relies upon the stable medical records in support of that contention. He points out, with some force, that the medical records are incomplete. In particular, he cites many examples where the administrator of the medicine is not identified in the records as is required by the Rules at (C)13.2.8. These clear deficiencies were acknowledged by Mr Scott. There is also an example of a record of medication having been entered out of date sequence which, again, was acknowledged by Mr Scott. Mr Howell submitted that this may offer an insight into other administrations of medicines not being entered at all. In our view the entering of the administration of a medicine out of date sequence, and clearly out of sequence on the record, is just as consistent with honesty as it is with other administrators not being entered at all. There has been no attempt to falsify the record or to insert the entry into date sequence or to mislead in any other way. The maintenance of the medical records at the stable leaves something to be desired at the very least, but we remind ourselves that the reasonable precautions to be taken are to ensure that there is no violation of Rule (G)2.1 and not to ensure no violation of the Rules relating to the keeping of medical records. As has already been said there is no evidence that any horse at the stable, any members of staff or any service provider had any connection at all with hydrocortisone.
32. In relation to the systems in place at the stable, Mr Scott provided evidence by way of his Schedule (A)6 response, written statement and his evidence before the Panel. Much of this has already been referred to but in addition he told the Panel all staff were briefed upon the administration of medicines but that usually only Mrs Scott, the Head Groom and the yardman administered medicines. The medicine cupboard was padlocked and there are hand washing facilities at the yard and rubber gloves are used for dispensing medicines which are thrown away after one use. He said the horses’ bits are always dipped after exercise before being put onto the next horse. Mr Scott also indicated that all new staff are inducted and advised as to the use of personal drugs/medicine and he rightly asserted that he was “entirely at their whim” since he cannot make checks with their doctor. In the view of the Panel it is significant that no horse from Mr Scott’s yard has ever been tested positive for hydrocortisone and in all regards he has an excellent record over a long period.
33. We conclude, having regard to all the matters discussed in paras 31 and 32 (above), that Mr Scott has established on the balance of probabilities that he took all reasonable precautions to avoid a breach of Rule (G)2.1. Accordingly, no penalty is imposed.
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