Results of Enquiries (J. Candlish, M. Moubarak) heard by the Disciplinary Panel on Thursday 9 November 2017
published on 14 November 2017
14 November 2017
1. On 9 November 2017 the Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry to consider whether Ms Jennie Candlish, a licensed trainer, is in breach of Rule (C)12 of the Rules of Racing in that she failed to carry out her responsibilities in relation to checking the identify of CANDLELIGHT STORY following the mare being a non-runner at Uttoxeter on 30 July 2017 because the microchip was unreadable, and the markings on the passport did not match the horse on the course.
2. The relevant Rule is (C)12 which is in the following terms:
12.1 A Licensed Trainer or Permitted Trainer must check the identity of any horse which comes under his care or control from the markings shown in the horse’s passport.
12.2 A Licensed or Permitted Trainer must report immediately any discrepancies in the markings in the horse’s passport to the Racing Calendar Office.
12.3 The identity check must be carried out when the trainer receives the passport or as soon as reasonably practicable afterwards.
3. The BHA was represented by Ms Lauren Robinson. Ms Candlish had indicated that she did not intend to appear at the hearing and she was represented by her assistant trainer Mr Alan O’Keeffe. Both parties indicated that they had no objection to the Panel members.
4. From the information before us and from that provided by Mr O’Keeffe the background to the situation is as follows:-
i) CANDLELIGHT STORY is a mare foaled on 7 March 2010. At page 6 of the BHA bundle is a copy of the markings in the passport of CANDLELIGHT STORY which was prepared by Bourton Vale Equine Clinic on 2 April 2010.
ii) CANDLELIGHT STORY was sent to Ms Candlish as a 4 year old but returned to her owner as she was not strong enough. The mare was returned to Ms Candlish in May 2017 and was entered and declared to run in the Junior Brewers Mares’ Novices’ Hurdle Race at Uttoxeter on 30 July 2017. CANDLELIGHT STORY had been at Mr O’Keeffe’s pre-training yard since February 2017. When CANDLELIGHT STORY arrived at the racecourse in the care of Mr O’Keeffe the BHA Veterinary Officer Katie Byam-Cook could not identify her as the microchip which had been inserted shortly after foaling could not be read. In addition Ms Byam-Cook concluded that the markings shown on the passport did not correspond to the markings on the horse which was presented to her. At page 7 of the BHA bundle is a copy of the markings found by Ms Byam-Cook at the racecourse on 30 July 2017.
iii) The matter was referred to the Stewards who interviewed both Ms Byam-Cook and Mr O’Keeffe. At the enquiry Ms Byam-Cook stated that the markings on the passport for CANDLELIGHT STORY did not match those on the horse which had been presented to her and as a result the Stewards ordered that the horse be withdrawn from the race.
5. At this stage it should be made clear that a DNA sample was taken at the racecourse which subsequently confirmed that the horse presented at the racecourse was CANDLELIGHT STORY.
6. The markings in the passport presented to Ms Byam-Cook by Mr O’Keeffe at the racecourse were described as follows:- “On the passport I have here I just have a forehead whorl marked, tracheal whorl and a white stripe front of the hoof for right hind”. Ms Byam-Cook summarised the markings on the horse in front of her as “She has a white star, two whorls on the forehead. She has got white heels on her right hind just above the coronary band. A small white stripe on front of her right hind and bilateral neck whorls, tracheal whorls, mandibular whorls. None of this is marked on the passport.” At the hearing it became clear that the important marking was the white star on CANDLELIGHT STORY’s forehead. In the original passport what is described is “Whorl to left of mid line above eye level” but in the form completed by Ms Byam-Cook the description is “Forehead star with whorl within. Forehead whorl, bilateral mandibular whorls”. The markings on the original passport show a marking to the left of the centre line of the forehead whereas the markings on Ms Byam-Cook’s report show a forehead star with a whorl within this on the head and also a further forehead whorl above the star.
7. When Mr O’Keeffe was questioned about this at the enquiry he said “You know there is no white star, the clear marking is the white star and it should be on the passport and is not there, erm, so I can’t disagree with anything the vet said”. Later in the enquiry he acknowledged that it was his responsibility to check the passport and markings and went onto say “At the end of the day, like, you can get markings that are not on a passport you know. So obviously I never chipped her, that is the only thing we never actually done, which which probably is where we, might’ve shoulda done, was try to chip her then to make sure that, because the markings didn’t mark, that it was the horse. But that’s the only thing we haven’t done”.
8. At the hearing before the Panel Mr O’Keeffe said that he had told Ms Candlish about the discrepancy in the markings in June 2017 and he acknowledged that at that point Ms Candlish should have reported the discrepancy in terms of Rule (C)12.2.
9. There are two documents of relevance in this case. The first is the form NC2 signed by Ms Candlish on 4 May 2017 a copy of which is at page 3 of the BHA bundle. At section E a trainer has the option of confirming the identity of a horse or alternatively making a new markings declaration. Ms Candlish chose to sign the confirmation of identity which is in the following terms:- “I confirm that I have checked the markings contained in the Passport ………. and am satisfied that these accurately reflect the markings of the horse and that a microchip barcode approved by the Stud Book Authority of Great Britain and Ireland is present within the passport”. The second is the form (A)6 completed by Ms Cavendish. In that she stated “We did check the passport and Alan O’Keeffe will present his account of how this was done and as to why we conclude that we are not guilty of the Rule 12.1”
10. In his oral evidence Mr O’Keeffe said that CANDLELIGHT STORY had been in the yard for a short time as a 4 year old and that had been at his pre-training yard for a period of 3 months before she was transferred to Ms Candlish. He said that he had checked the passport at his yard and while he acknowledged that there was a discrepancy in relation to the white star he said that there were five other markings which were in the correct place and that for that reason his view was that he had carried out an appropriate check. In relation to the white star he said it was possible for the white star to only emerge later and accepted that that discrepancy should have been notified. In answer to questions from the Panel he accepted that his position was that because the other markings were correctly shown in the passport he disregarded the missing white star. He went onto suggest that it could be the case that the horse had not been born with the white star and that this had only appeared sometime later however he said that he had no veterinary evidence to substantiate that. The reason he was asked about this was that at the enquiry Ms Byam-Cook was asked about the likelihood of a vet missing the white star and her reply was “I think it would be unlikely you could not see a forehead star. They’re born with that”. He was asked why he had not pointed out the discrepancy to Ms Byam-Cook at the racecourse before any attempt had been made to read the microchip and he maintained his position that he had no doubt about the identity of the horse as the majority of the markings were correct.
11. We have considered the evidence before us in relation to the markings in the passport carefully and have considered the information contained in the original passport, Ms Byam-Cook’s report, the report of the Stewards enquiry and Mr O’Keeffe’s evidence. Our conclusion is that Ms Candlish did not carry out an adequate check of the markings at the time when she signed the declaration on 4 May 2017. We accept that Ms Candlish’s practice was to delegate responsibility for checking passports to Mr O’Keeffe and as already stated Mr O’Keeffe’s evidence, which we accept, was that he did not tell Ms Candlish of the discrepancy about the white star until June 2017. Mr O’Keeffe had however had CANDLELIGHT STORY at his pre-training yard from February 2017 until she was transferred to Ms Candlish in May and it is clear from his evidence that he was aware that there was a discrepancy.
12. We cannot accept Mr O’Keeffe’s assertion that simply because five of the other markings recorded in the passport coincided with the horse which he took into pre-training in February 2017 that that was sufficient for him to say that the markings in the passport accurately reflected the markings on the horse. He was unable to say when he first became aware of the white star but given that he had the horse in his possession for a period of months before it was transferred to Ms Candlish we are of the view that he must have been aware of the discrepancy during that time. Mr O’Keeffe cannot be criticised for not taking any action about the discrepancy at that time as there was no requirement for any check to be made in his yard. His view was that he was already familiar with the horse, the majority of the markings were consistent and he had the fall back of the micro chip if required. He should however have told Ms Candlish when the horse was transferred to her yard.
13. To show compliance with Rule (C)12.1 Ms Candlish has to establish that a check was made at the time the horse was transferred to her yard in May. In the view of the Panel there is no evidence of that. Mr O’Keeffe, while he had noticed the discrepancy, which he did not think was material, did not bring it to Ms Candlish’s attention until June and there is no evidence to suggest that Mr O’Keeffe or anyone else was instructed by Ms Candlish to carry out a check at the time the horse was transferred to her yard. It is possible that either Ms Candlish carried out a check herself or delegated this to another member of her team but as we have not had the benefit of hearing directly from Ms Candlish we cannot speculate as to other possible explanations.
14. The conclusion of the Panel is that Ms Candlish completed Form NC2 on 4 May when no check had been made and for that reason the breach of Rule (C)12.1 is established. This situation may have arisen due to a misunderstanding between Ms Candlish and Mr O’Keeffe however Ms Candlish should not have completed Form NC2 without either having made the check herself or having satisfied herself that the required check had taken place.
15. Ms Candlish has admitted that she was in breach of Rule (C)12.2 in that there was a failure to report the discrepancy and she is clearly right to do so given that Mr O’Keeffe made her aware of the discrepancy in June.
16. In relation to penalty the BHA in their case summary indicated that their view was that the breach warranted entry point penalties. We see no reason to deviate from entry point penalties in this case as there are no aggravating factors.
17. For that reason the penalty for breach of Rule (C)12.1 will be fine of £300 and for the breach of Rule (C)12.2 a fine of £100 making a total penalty of £400.
1. On 9 November 2017 the Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry into whether the trainer Mohammed Moubarak was in breach of Rule (G)2.6 of the Rules of Racing in that on 15 September 2017 when ZAAKI ran at Doncaster at a time when a member of Mr Moubarak’s staff was in possession of a prohibited substance in the racecourse stables.
2. Mr Moubarak admitted the breach and asked that the matter be dealt with in his absence and the BHA raised no objection to that course being adopted.
3. There was no objection from either of the parties to the members of the Panel in this case. The case for the BHA was presented by Ms L. Robinson and Mr Moubarak was not legally represented.
4. Rule (G)2.6 states that no person shall possess any Prohibited Substance or Prohibited Method unless he can demonstrate acceptable justification for the Possession. Rule (G)2.6.1 states that Possession shall mean Possession on a racecourse of any Prohibited Substance or Prohibited Method prohibited on Raceday only. This was not a case of possession of a prohibited substance which is prohibited at all times.
5. The background to this case is not in dispute and is as follows:-
On 15 September 2017 Mr Moubarak had entered ZAAKI to run at Doncaster. At 12.15 pm a routine search was conducted by Shaun Mitchell, a BHA official, of the kit bag belonging to Mr Tariq Moubarak who was Mr Moubarak’s representative at the course. During the search Mr Mitchell found a container marked “Ice-O-Gel”. The Veterinary Officer, Mr Tony Welsh, was informed and the container was retained. The matter was referred to the Stewards who convened an enquiry.
6. The substance Ice-O-Gel is made by Hawthorne Products and its two main constituents are camphor and menthol and its intended use is as a “tightener and freeze that aids in the treatment of tendon and ligament problems”. Mr Welsh made clear that as Ice-O-Gel contained a substance which might affect a horse’s performance it was not permissible on the day of the race and was a prohibited substance as defined in the Rules of Racing.
7. During the enquiry Tariq Moubarak confirmed that he had brought the container of Ice-O-Gel into the racecourse stables and said that his intention was to apply it to the horse’s legs after the race. He said that he had not used any of the substance prior to racing. At the enquiry Mr Welsh accepted that what Tariq Moubarak had said about the substance was correct and went onto say that Ice-O-Gel is very strong smelling and that there was no way in which the substance could have been applied to ZAAKI that day otherwise the smell would have been obvious when the horse had its microchip read on arrival at the racecourse.
8. Following the initial enquiry the Doncaster Stewards allowed ZAAKI to run in the race and ordered that post race samples be taken. They referred the matter to the BHA Head Office.
9. In a letter which accompanied his form (A) 6 Mr Moubarak apologised for what had happened and said that since the date of the incident he had reviewed procedures at his stables and had spoken personally to all of his staff to remind them that no prohibited substances should be taken in any kit bags to the races on a race day. He said that he would remind staff of this on a regular basis in order to prevent a recurrence.
10. Having regard to Mr Moubarak’s admission along with the other evidence presented the Panel finds that Mr Moubarak was in breach of Rule (G)2.6.
11. The Guide to Procedures and Penalties in relation to a breach of Rule (G)2.6 indicates an entry level fine of £1,000 with a range of £750 to £1,500. The BHA suggested that a fine equivalent to the entry level was appropriate in this case. The Panel have taken account of Mr Moubarak’s immediate acceptance of the breach and what he says he has done to prevent a recurrence. In view of the strong odour which emanates from Ice-O-Gel it is accepted that there was never any intention to apply Ice-O-Gel to ZAAKI prior to the race.
12. The Panel’s conclusion is that in all the circumstances of this case the appropriate fine is one of £750.