Result of an Enquiry (J. Butler) heard by the Disciplinary Panel on Thursday 29 November 2018
published on 06 December 2018
6th December 2018
1. On 29 November 2018 the independent Disciplinary Panel of the British Horseracing Authority (BHA) held an inquiry into whether John Butler, a licensed trainer, had been in breach of (1) Rule (A)31.2 of the Rules of Racing by deliberately misleading BHA Investigating Officers in the course of an interview on 20 November 2017 and (2) Rule (C)13.1 by failing to keep a clear and accurate record of any Treatment administered to NATIONAL ANTHEM a horse under his care and control.
2. The BHA’s case was presented by Andrew Howell, BHA Case Manager. Mr Butler was present and represented by Harry Stewart-Moore. No objection was taken against any member of the Panel.
3. Rule (A)31 of the Rules of Racing is headed “Conduct obstructing the proper administration or control of racing”, and 31.2 provides,
“A Person must not deliberately mislead or by an overt act endeavour to mislead the Authority, the Stewards, any employee of the Authority . . . either at any enquiry or in connection with the administration or control of racing.”
4. Rule (C)13 is headed “Duty to keep Treatment records”, and 13.1 states.
“A clear and accurate record of any Treatment administered to a horse under the care or control of a Licensed Trainer or Permitted Trainer must be kept by the trainer for a period of not less than one year”
Treatment is defined as “any medication or treatment containing a prohibited substance administered to a horse under the care and control of a Licensed Trainer. . . .”
5. Mr Butler admits that he has breached both of these Rules.
6. What the Panel has therefore to decide is the appropriate penalty. That requires us to summarise the relevant facts, which are set out below.
Summary of facts
7. NATIONAL ANTHEM was at the material time a 2yo colt that had been trained by Mr Butler since its purchase by the owners at the Doncaster breeze-up sales. Its first run was at Nottingham on 4 October 2017, where it finished 4th. It was then entered and declared to run in a maiden 2yo race at Redcar on 20 October 2017.
8. Early in the morning of 20 October 2017 the colt travelled to Redcar from Mr Butler’s stables at Newmarket. Accompanying the colt were Tim Phillips, the horsebox driver, and Nayeem Shaikh, a groom working for Mr Butler. Mr Butler did not go to Redcar. The 2yo race was first on the card, and though permission had been granted for NATIONAL ANTHEM to go down early it arrived late in the paddock and was one of the last to canter down to the start. Someway from the start it was noticed by both the starter and Mr Mark Glover, the vet on duty at the start, that the colt was obviously lame on its right front leg. They also saw a “massive swelling” of the front left leg and an open wound from which bloody fluid was discharging. Mr Glover’s impression was that the horse had previously suffered a puncture wound to the upper left foreleg which had become aggravated during the canter down causing the wound to open up which allowed the release and discharge of accumulated inflammatory fluid. As regards the right leg the condition appeared long standing. The starter ordered the colt to be withdrawn and it was transported back to the racecourse stables by box. There it was examined by Mr Tony Welsh, a BHA Veterinary Officer, whose conclusions were similar to those of Mr Glover. The Stewards held an enquiry attended by (amongst others) Mr Phillips and Mr Shaikh, who both stated that they had not noticed anything wrong with the horse, and John Egan, the jockey who rode him down to the start and sensed that it was lame. Mr Glover reported what he had seen, commenting, “I have never seen a horse arrive at the start in such a bad state in twenty-five years.” At the end of the enquiry the Stewards announced they would report the matter to the BHA.
9. Over three weeks later on 15 November 2017 Jon Dunn, a BHA Investigating Officer, who had been instructed to investigate the Redcar incident spoke to Mr Butler on the telephone and informed him he wished to interview him about the circumstances relating to the withdrawal of NATIONAL ANTHEM. It was later arranged that they would meet at Wolverhampton racecourse on 20 November 2017 before racing there commenced.
10. The interview duly took place on 20 November 2017 at Wolverhampton Racecourse. It commenced at 12.34pm and concluded at 1.25pm. It was recorded. In addition to Mr Dunn, another BHA Investigating Officer, John Burgess was present. At the outset Mr Dunn explained that the purpose of the interview was to gather information concerning the injury to NATIONAL ANTHEM which led to its withdrawal before the race at Redcar and to hear from Mr Butler everything about the horse prior to the race.
11. In the course of the interview Mr Butler made statements to the following effect:
On the morning of the Redcar race Mr Butler had fed the horse about 4 am. He noticed a minor cut high up on its near fore. It was only a very small minor cut, and he put nothing on it, just wiped it. It was not bleeding. It didn’t need stitches or anything. The horse had been OK the day before. Clearly it had happened overnight.
After its return from Redcar the horse was treated with antibiotics.
The only ailment the horse had suffered from was sore shins which required bandaging.
Between running at Nottingham on 4 October 2017 and the race at Redcar on 20 October 2017 the horse had been fine.
Prior to the race at Redcar Mr Butler had not noticed or suspected anything wrong [apart from sore shins] with the off foreleg of NATIONAL ANTHEM. He could not know if anything was wrong as the leg was always bandaged. After the horse’s return from Redcar the leg was scanned and x-rayed.
12. A few days after the interview Mr Dunn received from Mr Butler a photocopy of what appeared to be an invoice from Newmarket Equine Hospital (NEH) in respect of treatment of NATIONAL ANTHEM on a number of occasions in October 2017. (The actual dates were obscured). None of this appeared in Mr Butler’s medication records which he had brought to the interview on 20 November 2017. Accordingly, Mr Dunn asked Mr Butler that his vet provided the horse’s clinical history.
13. On 30 November 2017 Mr Dunn received from Mr Butler an email and an attachment setting out the treatments administered to NATIONAL ANTHEM by vets of NEH from April to November 2017. In his email Mr Butler stated in somewhat guarded or economical terms that NATIONAL ANTHEM “got a cut on his left fore elbow a few days before his run” for which he received medical treatment, and that his “right fore joint” had been scanned which showed some damage. The email ended, “I did not think running NATIONAL ANTHEM on that day was the wrong decision, because the horse had received the required medical treatment for the cut and was sound and healthy. My intentions were not to mislead information [sic] to the BHA veterinary investigation officers, which I did. I sincerely apologise for this.”
14. Following further investigations and discussions with the NEH vets (Mr Stuart Williamson and Mr Robert Suffern) who normally looked after Mr Butler’s stable Mr Dunn established that the sequence of relevant events as regards veterinary treatment of NATIONAL ANTHEM between 16 and 20 October 2017 was as follows:
16 October: Mr Southern attended the horse and observed a wound on the left forearm which he stapled and for which he prescribed antibiotics.
18 October: Mr Southern attended, noticed that the wound had swollen and was possibly infected, and injected a stronger antibiotic.
19 October: Mr Southern and Mr Williamson both attended. They observed further swelling of the left upper leg and injected further antibiotics. Mr Williamson noticed swelling to the right front tendon. The tendon was scanned which revealed an “area of disruption” to the sesamoid area. Mr Butler was told this gave rise to some concern.
20 October: Mr Williamson attended the horse after its return from Redcar. There was a further injection of antibiotics and a sachet of phenylbutazone prescribed.
15. Mr Butler had not been advised by the vets not to run the horse at Redcar.
16. None of the treatments described in paragraph 14 above were entered in any treatment records relating to NATIONAL ANTHEM.
17. A further interview between Mr Dunn and Mr Butler (with Mr Burgess present) took place at Mr Butler’s house at his stables at Newmarket on 16 January 2018. Mr Butler was asked again about what happened to NATIONAL ANTHEM in the days preceding the race at Redcar on 20 October 2017, and he gave an account which basically accorded with the sequence of events outlined in paragraph 14 above. Mr Butler repeatedly asserted that he considered the horse was fit to run at Redcar despite the infected cut and damage to the right foreleg revealed by the scan, and that he was never advised by the vets not to run the horse.
18. Mr Butler admitted that he had lied at the first interview. He put forward varying explanations: that the withdrawal of a horse because of a cut was not a “serious issue”; that he “just said the wrong thing at the time and just stuck by it”; that it wouldn’t look good for his CV to state that he ran a horse with a cut; and that the BHA were always on to him and “the easiest thing is to tell [the BHA investigators] something and just get [them] off [the] case straightaway”.
19. As for the absence of entries in the horse’s medication records, Mr Butler reiterated what he had said when first approached by Mr Dunn about this that he believed that the administration of antibiotics did not have to be recorded. He also claimed that he left it to the vets to make the necessary entries in the record, though he accepted that ultimately it was the responsibility of the trainer to ensure that treatments to the horses he trained were properly recorded.
20. The BHA Guide to Procedures and Penalties recommends for breaches of Rule (A)31.2 a fine within the range £1,000-£5,000, with an entry point of £2,000, or suspension/withdrawal/disqualification for a period between 1 month and 3 years with entry point of 3 months. For a breach of Rule (C)13.1 the recommended penalty is a fine within the range £250 –£2,000 with an entry point of £500.
21. On behalf of Mr Butler, Mr Stewart-Moore submitted that a fine was the appropriate penalty. Mr Butler had made full admissions within days of making the misleading statements to the Investigating Officer, and it was clear that at the material time he was under various pressures which he talked about in his second interview. There was produced a testimonial from the NEH vet Mr Williamson who stated that Mr Butler is a very responsible trainer when it comes to safeguarding the welfare of horses in his care. Mr Williamson also stated that he generally tried to record all recordable treatments in the yard’s treatment records “in order to be helpful” although it was not his responsibility to see they were kept up to date. Mr Stewart-Moore finally referred us to a decision of the Disciplinary Panel in November 2011 concerning a jockey who had given to a Stipendiary Steward a false account of his reasons for arriving late at the racecourse. The Panel had imposed a substantial fine.
The Panel’s considerations
22. Only limited credit can be given for Mr Butler’s admissions. Once the veterinary records of treatment were produced, as they had to be, Mr Butler had no other option than to admit that he had lied to Mr Dunn. On the other hand there were aggravating factors: the lies told at the first interview were premeditated, as Mr Butler knew beforehand what was the purpose of the interview; they were continually repeated and emphasised; and their motive, as eventually admitted by Mr Butler, was to stop any further investigation into why he had endeavoured to run an injured and unfit horse in a race at Redcar. We do not consider that the case of the jockey giving false explanations for his late arrival is an applicable guide to the appropriate penalty in this case. In our view the level of dishonesty involved for the purpose of preventing further investigation into possible misconduct is such as to warrant a more severe sanction than a fine. In our view a period of suspension is appropriate which cannot be less than the entry point of 3 months.
As regards the breach of Rule (C)13.1 we must take account of the lamentable state of Mr Butler’s medication records which at best appear to consist of a few illegible scribbled notes and in the case of NATIONAL ANTHEM of no entries at all.Trainers should appreciate that proper medication records are the first line of enquiry whenever a query arises as to what a horse has ingested, and compliance with the Rule is of importance.A fine above the recommended entry point is warranted.
For the breach of Rule (A)31.2 Mr Butler’s licence is suspended for a period of three months. The suspension will commence on 6 December 2018.For the breach of Rule (C)13.1 Mr Butler is fined £1,000.