Talking Horses: BHA moves to plug strict-liability rules raises hackles

Talking Horses: BHA moves to plug strict-liability rules raises hackles

T

he trade body representing Britain’s trainers said it was “very disappointed” after the British Horseracing Authority finally published plans to plug the hole left in its “strict liability” anti-doping rules by two high-profile cases in 2017.

Philip Hobbs and Hughie Morrison avoided serious sanctions in 2017 after horses in their yards returned positive tests for banned substances. A disciplinary panel imposed no penalty on Hobbs after Keep Moving tested positive for cetirizin, an antihistamine, in January 2017, a decision which was upheld following an appeal by the BHA.

Morrison was fined £1,000 after his filly Our Little Sister tested positive for the anabolic steroid nandrolone, a much more serious offence with an entry-point penalty of a two-year ban from racing. Morrison had previously offered a £10,000 reward to anyone able to clear his name.

Both cases cast a spotlight on the BHA’s strict liability approach to the regulation of banned substances, which deems a trainer responsible for any drug in a horse’s system, irrespective of how it came to be there, unless they can prove beyond doubt how it got there. While the source of the banned drug remained a mystery in both cases, the disciplinary panel decided the trainers could not be blamed for its presence and should receive a more lenient penalty.

This prompted Roderick Moore, the barrister who represented Hobbs, to suggest that while “the BHA hoped that the appeal board would hold that to escape a personal penalty, the trainer needs to prove exactly how the banned substance came to be in the horse”, the ruling “confirmed this is not what the rule says, merely what the BHA would like it to say”.

From 1 September this is precisely what the rule will say. In order to avoid a personal penalty – in addition, of course, to the automatic disqualification of their horse – a trainer “must establish the precise source of the positive finding and that they had taken all possible precautions”.

The BHA has also changed its rules to allow for the imposition of a suspended disqualification from the sport in serious cases, such as those involving steroids, where the trainer has taken all possible steps to prevent administration of a banned drug.

The burden of proof remains with the trainer and the National Trainers’ Federation feels this “reverses the principle of innocent until proven guilty”, pointing out that even a suspended disqualification could have an impact on their career.

“Yes, these are serious substances,” Rupert Arnold, the NTF’s chief executive, said “and it is important that trainers are encouraged to employ best practice and avoid these substances getting into a horse’s system at all opportunities. But at low-level culpability, where they are deemed to have taken all precautions, we think a suspended disqualification is a black mark against a trainer’s name, it’s on their record and it’s bound to have a reputational effect.”

The BHA faces the same balancing act as any other sporting regulator when it comes to doping offences, as it needs to protect participants from false or malicious accusations of wrong-doing without creating a “cheat’s charter” for dopers in the process. The authority said it believes its new rules will bring British racing “further into line with other sports and ensure clarity for all involved in anti-doping breaches”.

Arnold, though, argues that basic differences between racing and other sports should also be acknowledged. “It was clear immediately after [the Hobbs case] that they would seek to change the rules,” he says. “They want to bring it more in line with other sporting regulation.

“The difference is that with human athletes, it’s reasonable to expect them to know what’s gone into their system and to be very careful about that and monitoring it. But horses live in a different environment and it’s more difficult for trainers to be able to control everything a horse comes into contact with, and control access to that horse. It’s a different environment and context.

“We felt that under the existing system, the disciplinary panel were exercising their discretion in a reasonable way and looking at the circumstances and evidence in each case.”

For now, the NTF feels it has exhausted the consultation process and no immediate challenge to the new rule is likely. However, there will surely be a case to test it, and the panel’s willingness to use its discretion, at some point in the future.