Results of Enquiries heard by the Disciplinary Panel on Thursday 30 April (K. Salter, L. Price, J. Gosden) and Thursday 7 May (B. Powell)

Published 2020/05/18

Thursday 30 April Kevin Salter

1. On 30th April 2020 a Remote Hearing of the independent Disciplinary Panel of the British Horseracing Authority (BHA) heard an Inquiry into first whether Kevin Salter, as owner, had committed a breach of Regulation 45 of the Regulations for Point to Point Steeplechases 2017/2018 in respect of the finding of Tetramisole in the blood sample taken from SPENCER MOON under Regulation 13(vi) after finishing first of six runners in the 15.30 Men’s Open at Llangeinor Pentyrch Point to Point at Pyle on 21st April 2018.

Second, whether as the result of the finding of the positive sample, SPENCER MOON should be disqualified from the race under Regulation 150.

It was conducted by the Chairman of the Judicial Panel sitting alone under the emergency measures procedure.

2. SPENCER MOON is a 2008 gelding owned at the relevant time by Mr Salter and kept/trained by Kieran Price. Kieran Price’s son, Luke Price plays a part in the care and training of the horses in the yard.

3. LGC, a BHA-approved laboratory, analysed the A sample and on May 18th 2018 confirmed the presence of tetramisole.

According to qualitative analysis by LGC, the estimated sample was 0.2-2ng/ml.

Hearing

4. Mr Salter has been provided with the papers and had been on notice of the hearing for some time.

Mr Howell, who has been conducting the matter on behalf of the British Horseracing Authority (BHA) was last in contact with Mr Salter on the evening of April 29th.

Mr Salter pointed out that he had driving commitments the next day and that he may have some difficulty phoning in or being in range at the arranged time of the hearing.

He was not against the matter proceeding without him but reiterated that he did not necessarily accept the conclusion of the sample testing and knew nothing of the day to day running of the yard.

Mr Howell had nevertheless underlined the importance of Mr Slater making contact at the appropriate time and taking part.

5. The hearing was listed for 10.15 with Mr Andrew Howell and Miss Megan Hurst (administrating the virtual hearing) present, but Mr Salter had not joined in.

Two attempts were made to phone him in the following 15 minutes, but on each occasion there was no reply and no facility for leaving a message.

Mr Howell applied for the matter to proceed.

Taking into consideration the type of case, its age, the knowledge of Mr Salter’s position and the fact that Mr Salter had made no attempt to explain his non-contact or to respond, I decided that I would proceed to hear the allegation in his absence.

6. At the conclusion of the presentation of the case for the Authority, Mr Howell noticed that there had been a missed call and again phoned Mr Salter’s number.

Contact was then made and Mr Salter was put in the picture.

The upshot was that Mr. Salter was content for matter to continue to conclusion.

The Prohibited Substance -Tetramisol

7. Tetramisole is capable of having a pharmacological effect on multiple mammalian body systems and therefore is a Prohibited Substance prohibited on race day under Appendix I (Prohibited Substances) of the Regulations.

It is a ‘wormer’ used in veterinary medicine for the control of roundworms.

In a horse, levamisole can metabolise into aminorex or pemoline, both of which have been shown to have a performance enhancing effect.

There are no veterinary preparations containing tetramisole licensed in the UK for use in horses.

There are numerous preparations of tetramisole licensed in the UK for use in cattle / sheep.

These are available as oral solutions or solutions for injection.

Although it is sold as a livestock wormer, levamisole has been administered to horses as a “pick-me-up” or an “immune stimulant”.

Following several positive findings for tetramisole / pemoline the BHA published a notice “Administration of Levamisole / Tetramisole to horses in training”.

This notice is available on the ‘BHA Notices Section’ of the Rules of Racing online microsite: ……. the BHA strongly advises against the use of Levamisole/Tetramisole in horses in training.

Any such use is advised to be under veterinary supervision, following a relevant diagnosis, and should include an extensive withdrawal period.’

Investigation 8. BHA investigators John Burgess (Investigating Officer), Robin Gow (Stable Inspecting Officer) and Bethan Cook (Veterinary Officer) made an unannounced visit to Kieran Price’s yard at Gilfach Glyd Farm, Ynysbwl, Pontypridd CF37 3LS on May 24th, 2018.

The Veterinary Officer took blood samples from all eight thoroughbreds present on the premises. Subsequent analysis of the relevant samples returned clear.

9. Kieran Price was notified of the confirmatory analysis relating to SPENCER MOON.

He denied he had administered, or had another administer, the substance to SPENCER MOON at any time prior to the Pyle race on 21 April 2018.

His only suggested theory for the confirmatory analysis was that tetramisole / levamisole must have been the wormer used on all of his horses prior to the start of the season meaning that the horse had somehow retained traces in its system.

On this basis he sought to blame the BHA for ineffective testing for not picking it up in the horse’s sample from earlier in the season (i.e. testing conducted at Yastadowen on 24 March).

10. Kieran Price mentioned that Luke Price gives all horses water using a drench prior to running and queried with him whether it had been used to administer the wormer, inferring possible contamination.

11. Whilst at the yard the Investigating Officer inspected the medication and an inventory was prepared.

The BHA Equine Health and Welfare team reviewed the medication inventory and identified no products reasonably believed to contain tetramisole.

Use of wormer

12. During the yard inspection, it was said by both Kieran and Luke Price that the wormer used by them was a cattle wormer purchased over the counter from their local farm suppliers.

Kieran and Luke Price were non-committal on the name of the exact substance.

No diary or record of purchase had been made.

13. Kieran Price advised that all horses would be wormed when coming back into work in approximately October (delayed in 2018 because of the wet weather).

He said it could be upwards 20 weeks between being wormed and making their seasonal debut.

He also stated that the horses would receive the wormer before commencing several weeks of conditioning work.

The use of Tetramisole and/or Levamisole for anything other than a wormer was expressly denied on several occasions by both Kieran and Luke Price.

14. It was claimed (by both) that the only horse to have received any wormer since all were treated in October was RAMBLE ON.

This horse was said to have been given an unknown wormer approximately two days before the BHA’s visit (May 22nd 2018) as it was the first to be turned away.

Luke Price confirmed he had purchased and administered the wormer, he said it would have been the same cattle wormer as used on all horses, but he could not recall the name of the product.

He also said there would not have been any packaging or other method of identifying the product in the yard.

15. A sample was taken from RAMBLE ON during the yard visit on 24th May, but it was negative for any prohibited substances.

Medication records:

16. Kieran and Luke Price both stated that neither of them kept any sort of medication record/record of treatment.

Both also stated that they work from a white board with regards what each horse is doing that week and what, if any, medication it has received.

It was regularly wiped clear.

17. Luke Price showed the Investigating Officer a shipping container on site.

The shipping container appeared to act as a general store and housed medication that was said to be kept on the yard as well as a variety of tack, hard feed, rugs, racing plates, machinery and tools.

The Investigating Officer observed that the medication was not secured.

18. Additionally, the Investigating Officer noted that there was an old feed bag being used for general waste.

In it were several empty phenylbutazone sachets though neither Luke nor Kieran Price could advise how old these were or which horse they were used on.

There were also empty packets and bottles of Engemycin.

19. Kieran Price was provided with a copy of the BHA published guidance note on the administration of levamisole/tetramisole. Enquiries with Kevin SALTER (owner)

20. The Prices explained that Kevin Salter was a long-distance lorry driver and was currently away.

It was agreed they would inform him of the positive by phone.

During the call, the Investigating Officer spoke with Mr Salter.

The Investigating Officer explained the B sample procedure and that the deadline for a decision to analyse was May 30th , 2018. 21.

The Investigating Officer telephoned Mr Salter directly on May 25th.

Mr Salter said that he could not understand how his horse had tested positive for a Prohibited Substance and asked for the name of the relevant substance.

He stated that he would not see the horse during the week and was not involved in its training, feeding regime or day to day care.

Further enquiries

22. On the same day, May 25th, the Investigating Officer received a telephone call from Kieran Price.

Kieran Price explained that he had been in contact with DEFRA and had been researching the relevant substance.

He suggested that the positive finding in respect of SPENCER MOON may have been caused by the drench referred to during the yard inspection and/or by the fault of an unnamed person he employed for a short time earlier in the season.

There had been no mention of additional staff on the Prices’ yard during the yard inspection. Kieran Price retracted his statement regarding the administration of a wormer to SPENCER MOON at the start of the season stating that the horse had not received a wormer.

23. The Investigating Officer called Kieran Price on June 7th. Luke Price also contributed to the phone call.

Kieran Price said he was now of the opinion there were two possible explanations for the positives.

Firstly, he said he had a friend called Giles, and thinks Giles wormed their cattle with a pour on wormer and that SPENCER MOON was then turned out in the same field.

Kieran Price thinks they may have rubbed against the cattle and come into contact with the levamisole wormer.

Giles was not available for interview as he was on holiday in Australia.

No invoice from Giles to verify his attendance at the yard was handed over to the BHA despite requests.

Recorded Interview with Kieran and Luke Price

24. Kieran Price was interviewed at his home address, Gilfach Glyd Farm, Mill Road, Ynysybwl on December 6th, 2018.

The interview was recorded and Kieran Price reiterated much of what he had already stated to the Investigating Officer during the yard visit in May.

He remained of the opinion that the adverse analytical finding was the result of cattle being administered a wormer in April and subsequently coming into contact with SPENCER MOON when turned out.

Specifically, Mr Price added that he gives his horses a cattle wormer that comes from a local farm supplier called Hays and Brecon or Hays & Y who provided a cash sale.

There is no record of sale.

Also, he did take some precautions to avoid cross contamination of medication.

25. Luke Price was interviewed separately, and the interview was recorded.

Again, his account reflected much of what was said in May. and he agreed that the cattle having been administered a wormer in April was the likely source of the adverse analytical finding.

Second adverse analytical finding from the yard 26.

On June 7th, 2018 a second horse from Kieran and Luke Price’s yard tested positive for the same substance, tetramisole.

The horse, LEAGUE OF HIS OWN, was said by Kieran Price to have been turned out in the same field as SPENCER MOON with the cattle.

The BHA has dealt with the SPENCER MOON and LEAGUE OF HIS OWN matters separately because the horses have different owners, although Kieran Price trains and keeps both horses.

27. Two other horses were also turned out with SPENCER MOON and LEAGUE OF HIS OWN.

One of the horses, SWEET LADY JANE, was sampled during the BHA’s yard visit, that sample screened negative for prohibited substances

The Regulation

28. Regulation 45 provides that: Where any horse has been entered to run under the Regulations and has been subject to examination under Regulation 13(vi) and the result of an analysis of any sample is positive, the BHA shall impose a fine upon the owner of the horse in question.

However, the BHA may waive the fine if the owner satisfies them that the substance was not administered intentionally by them or by any other person whatsoever, whether connected with the owner or not, and that they have taken all reasonable precautions to avoid a breach of this Regulation.

29. Regulation 45 imposes a liability on the owner of the horse, rather than its trainer or registered keeper.

It is expressly stated in the Regulation that: ...it is intended to impose an absolute and strict liability on the owner to ensure that prohibitive substances are not administered by anyone whether in any way connected with the owner or not.

The BHA's case

30. Mr. Salter’s ownership is established by the signing of SPENCER MOON’s 2017/2018 Hunter Certificate.

In addition, any owner entering a horse in a point-to-point steeple chase must sign a declaration agreeing to be bound by the Point to Point Regulations currently in force.

31. There was no reason to doubt the accuracy of the analysis by the laboratory

32. The proper inference is that the source of the adverse analytical finding is a result of the use of wormers in Kieran Price’s yard.

The BHA basis this on a number of factors, including an admission that wormers are used by Kieran and Luke Price on livestock, including equine, at the premises that SPENCER MOON is kept, and a vagueness when pressed as to worming practice.

33. In relation to the imposition of the fine and the first condition under Regulation 45, the Panel was invited to accept that on the balance of probabilities and on the basis of the evidence to hand, intentional administration is unlikely.

With regard to the additional second factor, however, the submission was that practices in relation to medicines in the yard were less than satisfactory and this requirement could not be met by the Prices.

Conclusion and Penalty

34. I am satisfied on the evidence that the analysis is reliable.

As Regulation 45 imposes, and is intended to impose, an absolute and strict liability on the owner to ensure that prohibitive substances are not administered by anyone,

Mr Salter is liable for the activities in the Prices’ yard.

This applies even though he does not oversee matters or attend regularly.

Mr Salter is responsible for delegating his responsibilities as owner to a responsible third party and to ensure that they take all reasonable precautions to ensure compliance with the Regulations.

Mr Salter has failed to do so and remains ultimately culpable for the action or one or both of the Prices’

35. Although I accept that the substance was not administered intentionally, looking at the overall picture the procedures in the yard, as well as the turning out, were insufficiently rigorous or thought through, leading to contamination.

It is also significant that within a two-week span, a second horse from the yard, LEAGUE OF HIS OWN, also testing positive for the same substance.

A fine is inevitable.

36. I have considered both aggravating and mitigating features and given the circumstances, age of the matter and these difficult times, am able to take a somewhat lenient view.

The financial penalty will be one of £100 to be paid within six months.

37. Disqualification under Regulation 150 automatically flows and such prize money that was received must be returned and redistributed appropriately.

Luke Price

1. On 30th April 2020 a Remote Hearing of the independent Disciplinary Panel of the British Horseracing Authority (BHA) heard an Inquiry into first whether Mr. Luke Price, as owner, had committed a breach of Regulation 45 of the Regulations for Point to Point Steeplechases 2017/2018 in respect of the finding of Tetramisole in the blood sample taken from LEAGUE OF HIS OWN under Regulation 13(vi) after finishing first of eight runners in the 14.35 Confined at Tredegar Farmer’s Point to Point at Lower Machen on 13th May 2018.

Second, whether as the result of the finding of the positive sample, LEAGUE OF HIS OWN should be disqualified from the race under Regulation 150.

2. LEAGUE OF HIS OWN is a 2009 gelding.

Although the Horse was registered in the ownership of Mr. Salter, between May 11th – 26th 2018 for the purpose of the Rules of Racing, it remained in the legal ownership of Mr Luke Price, which is confirmed by the Hunter Certificate.

It was kept and trained at the relevant time at the yard of Mr Kieran Price, the father of Luke.

3. Mr. Luke Price appeared in person via his phone, and Andrew Howell presented the case for the Authority.

At the commencement of the hearing Mr Price confirmed that he was in breach.

History

4. A post-race blood sample was taken from LEAGUE OF HIS OWN at 14:50 on May 13th.

It was analysed in the BHA-approved laboratory LGC, and on May 17th the presence of tetramisole was confirmed.

According to qualitative analysis by LGC the estimated concentration of tetramisole in the sample was 4.8-5.2ng/ml.

Subsequently Luke PRICE exercised his right, under Appendix Q (Report of a Prohibited Substance) of the Regulations, to have the B sample analysed by a different BHA approved laboratory, Laboratoire des Courses Hippiques (LCH).

LCH confirmed the presence of tetramisole in the B sample on June 18th.

Tetramisole / Levamisole

5. Tetramisole is capable of having a pharmacological effect on multiple mammalian body systems and therefore is a Prohibited Substance prohibited on race day under Appendix I (Prohibited Substances) of the Regulations.

It is a ‘wormer’ used in veterinary medicine for the control of roundworms.

In a horse, levamisole can metabolise into aminorex or pemoline, both of which have been shown to have a performance enhancing effect.

There are no veterinary preparations containing tetramisole licensed in the UK for use in horses.

There are numerous preparations of tetramisole licensed in the UK for use in cattle / sheep.

These are available as oral solutions or solutions for injection.

Although it is sold as a livestock wormer, levamisole has been administered to horses as a “pick-me-up” or an “immune stimulant”.

Following several positive findings for tetramisole / pemoline the BHA published a notice “Administration of Levamisole / Tetramisole to horses in training”.

This notice is available on the ‘BHA Notices Section’ of the Rules of Racing online microsite: ……. the BHA strongly advises against the use of Levamisole/Tetramisole in horses in training.

Any such use is advised to be under veterinary supervision, following a relevant diagnosis, and should include an extensive withdrawal period.’

Investigation

6. On May 29th, 2018, the Investigating Officer (IO) Mr John Burgess, having received notice of the positive result, called Kieran Price to let him know that LEAGUE OF HIS OWN had screened for tetramisole.

Kieran Price was notified early because LEAGUE OF HIS OWN had been declared to run on June 1st. Kieran Price stated that LEAGUE OF HIS OWN had been tested at Hackwood Park Point to Point on March 11th, 2018 and tested clear.

Kieran Price questioned the accuracy of the test.

7. The IO called Kieran Price to confirm the adverse analytical finding for LEAGUE OF HIS OWN on June 7th.

Luke Price also contributed to the phone call.

Kieran Price said he was of the opinion there were two possible explanations for the adverse analytical finding.

Firstly, he said he had a friend called Giles who worms all their cattle and trims their feet.

He used a pour on wormer and that LEAGUE OF HIS OWN was then turned out in the same field. Kieran Price thinks they may have rubbed against the cattle and come into contact with the levamisole wormer.

Giles was not available for interview as he was on holiday in Australia.

No invoice from Giles was produced to the BHA to evidence his work conducted at the yard.

8. Kieran Price’s second theory was that somebody must have broken into his yard and ‘got at’ his horses, though no further reasoning for suspecting this was offered to the IO. Kieran Price confirmed that he did not have CCTV on at his yard.

9. On June 12th, 2018, Luke PRICE requested the B sample from LEAGUE OF HIS OWN to be tested.

Recorded Interview with Kieran Price (keeper / trainer)

10. Kieran Price was interviewed at his home address, Gilfach Glyd Farm, Mill Road, Ynysybwl on December 6th, 2018, the interview was recorded.

He reiterated much of what he had already stated to the Investigating Officer during the yard visit in May when the IO was inquiring about an adverse analytical finding returned by a different horse on the yard (SPENCER MOON).

11. During interview, Kieran Price stated that in April 2018 there were three or four horses turned out in the top field with the calves, including LEAGUE OF HIS OWN.

The calves had been administered Lavacide Pour-On wormer, which contains tetramisole.

He stated that he believed cross contamination could have occurred between the calves and the horses although conceded that he did not have invoices to evidence the fact of purchase.

Of the four horses apparently turned out with the calves, two had tested positive for tetramisole (LEAGUE OF HIS OWN and SPENCER MOON).

12. Kieran Price discussed the use of a drench on the yard, which had been cited as previously being used to administer wormers on the yard.

He stated that the drench had not been used on the cattle or sheep in over a year and a half and so it was an unlikely cause of contamination.

He did, however, state that the drench looked stained from whatever wormer had been used in it.

13. The IO asked Kieran Price if he had any policies in place at his yard to prevent cross contamination.

Kieran Price stated that he implements withdrawal periods when administering substances, he tries to avoid using substances such as phenylbutazone and he dips shared chifney bits into Virkon

Recorded interview with Luke PRICE (Owner)

14. Luke Price was interviewed separately, and the interview was recorded.

He reiterated much of what had been said prior to the recorded interview and agreed with his father that the likely source of the adverse analytical finding was contact with the cattle, stating ‘we are leaning towards... they’ve [LEAGUE OF HIS OWN and SPENCER MOON] had it off the cattle which we do have up in the fields, and they would’ve had contact with them’.

Luke Price explained that he and Kieran Price had now discovered that Giles, who worms their cows, had administered a pour on wormer and the cows were in the same field as the horses that had been turned out.

15. Luke Price stated that there’s no ‘rule’ on when, where or under what circumstances the horses are turned out. He added that the horses will generally be taken out when the weather gets better.

The Prices do not keep a record of which horses are turned out.

16. Luke PRICE explained that the horses would not be wormed at the time of year of the adverse analytical finding, unless it was the end of their season. RAMBLE ON was provided as an example of a horse wormed in May, after its season had finished. RAMBLE ON was tested by the BHA during a yard visit and returned a negative test for prohibited substances despite apparently being wormed two days prior to the BHA’s visit.

17. Luke PRICE confirmed that he is ‘hands-on all day’ at the yard.

He explained that he collects the horses, feeds them, rides them and ‘literally everything’.

He confirmed that he was the legal owner of LEAGUE OF HIS OWN.

He stated that he considered the drench to be a very unlikely source of the adverse analytical finding.

He explained that the drench is used pre-race on all horses to squirt water.

He considered it possible in theory for somebody to have got at the horse, however conceded that he would not be able to prove this to the case.

Second adverse analytical finding from the yard 18.

On May 18th SPENCER MOON, kept and trained by Kieran and Luke Price, tested positive for the same substance, tetramisole. SPENCER MOON was said by Kieran Price to have been turned out in the same field as LEAGUE OF HIS OWN with the cattle (paragraph 14, above).

The BHA has dealt with the LEAGUE OF HIS OWN and SPENCER MOON matters separately because the horses have different owners, although Kieran Price trains and keeps both horses.

The Regulation 19.

Regulation 45 imposes a liability on the owner of the horse, rather than its trainer or registered keeper.

A penalty must be imposed in respect of breach, unless the owner can establish that the conditions stipulated by Regulation 45 apply.

Otherwise it is expressly stated in the Regulation that it: ...is intended to impose an absolute and strict liability on the owner to ensure that prohibitive substances are not administered by anyone whether in any way connected with the owner or not.'

20. Regulation 45 further provides that: However, the BHA may waive the fine if the owner satisfies them that the substance was not administered intentionally by them or by any other person whatsoever, whether connected with the owner or not, and that they have taken all reasonable precautions to avoid a breach of this Regulation.'

Case for the BHA

21. The BHA’s case is that the source of the adverse analytical finding is a result of the use of cattle wormers in the Price’s yard.

The BHA basis this on a number of factors, including an acceptance that these wormers were being used on the yard at the time of the adverse analytical finding and uncertainty in the evidence provided by Kieran and Luke Price regarding the general use of wormers on the yard, including when wormers are used, what wormers are used and precautions relating to cross contamination during worming.

22. Luke Price, as the legal owner of LEAGE OF HIS OWN, is therefore in breach of Regulation 45 by virtue of the A and B samples testing positive for tetramisole.

23. With regard to any waving of the fine, the BHA acknowledged that there is insufficient evidence to suggest that tetramisole, or a substance containing tetramisole, was intentionally administered to LEAGUE OF HIS OWN.

The lack of invoices, wormer products that had been in recent use and absence of knowledge of administration dates and procedures at the yard are of concern to the BHA.

Nevertheless, the BHA invited the Disciplinary Panel to accept that on the balance of probabilities and on the basis of the evidence to hand, intentional administration is unlikely.

24. In relation to the second condition, however, the BHA’s position is that Luke Price has failed to take all reasonable precautions to avoid a breach of Regulation 45.

By his own admission, he was involved in the care of LEAGUE OF HIS OWN.

Luke Price, as owner, is expected to take reasonable steps himself or to ensure that the person with whom he shared his responsibilities for the care of the horse took all reasonable precautions to ensure compliance with the Regulations.

Luke Price's position

25. In addressing the Chairman, he stated he was, and continues, to work hard with his father to make a success of the yard, and to work their way up in the Point to Point world all of which is difficult.

They are not as familiar as they should be with all the regulations and continue to learn as they go along. Looking back, he understands the problem and the cause which he did not at the time, and this was why he asked for the B sample.

They accepted the advice, have changed procedures and this and will not happen again. Conclusion

26. It is apparent that some medicinal practices in the yard were open to problems and criticism. Better record keeping ensures tracing and compliance keeping, and better precautions avoid the sort of preventable cross-contamination that appears to have occurred in these cases.

27. It is the responsibility of the owner to ensure that clear risk is eliminated and in this case the contamination means that Luke Price has failed to take all reasonable precautions to avoid a breach of Regulation 45 either by way of his own care for LEAGUE OF HIS OWN, and/or by failing to delegate the care to a sufficiently responsible third party.

Given that SPENCER MOON had tested positive, the need for a B sample on LEAGUE OF HIS OWN was given insufficient thought.

28. I have considered both the aggravating and mitigating features in this case and taken into account the overall picture which included the application from the BHA for Mr Price to bear the £500 cost for the second sample, the age of the case and the present prevailing circumstances.

The financial penalty for the breach of Regulation 45 is £150, and further in my discretion Mr Price must pay £250 towards the cost of the B sample; these sums to be payable within six months.

29. LEAGUE OF HIS OWN should be disqualified from the respective race under Regulation 150 and such prize money that was received must be returned and redistributed appropriately.

John Gosden

1. On 30th April 2020 a Remote Hearing of the independent Disciplinary Panel of the British Horseracing Authority (BHA) heard an inquiry into whether John Gosden, licensed trainer and the Responsible Person, had committed a breach of Rule (G)2.1 of the Rules of Racing (the presence of a Prohibited Substance in a Horse’s Sample) due to the presence of phenylbutazone and pxypohenbutazone [‘Bute’] in a post-race sample taken from FABULIST at Newcastle Racecourse on 15th December 2018.

Further, whether, as its post-race sample tested positive for Prohibited Substances, FABULIST should be disqualified from the relevant race under Rule (A)74.2.

The hearing was conducted by the Chairman of the Judicial Panel sitting alone and by agreement under the emergency measures procedure

2. Mr Gosden appeared on his own behalf, the owner (Mr B. Nielson) was content not to be present. Charlotte Davison presented the case for the Authority. At the commencement of the hearing Mr Gosden confirmed that he was in breach.

History

3. FABULIST, was a 2016 filly trained at the relevant time by John Gosden.

On 15 December 2018 FABULIST ran in the 15:15 The Ladbrokes Home of the Odds Boost EBF Novice Stakes (Class 5) (the “Race”) at Newcastle.

Starting at evens and as favourite, the horse finished fifth of twelve runners.

There was no suggestion of any irregularities in the running or in the betting.

4. The BHA-approved laboratory LGC analysed the A sample, and on January 7th 2019 confirmed the presence of phenylbutazone and oxyphenbutazone.

According to the qualitative analysis by LGC the estimated concentrations in the A sample were: 256-380ng/ml phenylbutazone and 656-984ng/ml oxyphenbutazone.

The B sample was sent to Laboratoire des Courses Hippiques (“LCH”) and the presence of the substances was confirmed.

The Prohibited Substance: Phenylbutazone and oxyphenbutazone

5. Phenylbutazone and oxyphenbutazone are capable of having a pharmacological effect on multiple mammalian body systems and therefore under Schedule (G)1 (Prohibited Substances) paragraph 7 they are Prohibited Substances prohibited on raceday.

Phenylbutazone is a non- steroidal anti-inflammatory that is used to reduce fever and for pain relief.

There are numerous UK-licensed veterinary formulations which contain phenylbutazone for use in horses, such as Equipalazone oral powder.

There are no UK-licensed formulations for use in humans.

6. Phenylbutazone is a prescription-only medication which is widely used by racehorse trainers.

It is prescribed for treatment of musculoskeletal disorders in horses such as osteoarthritic lameness, laminitis, bursitis, carpitis and post-operative soft-tissue reaction.

The suggested dosage is 8.8mg/kg on day one followed by 2.2-4.4mg/kg per day.

The BHA published detection time for Equipalazone oral power is 168 hours (seven days).

Investigation Yard inspection

7. On 23rd January 2019 BHA investigators Nathan Taylor and Mark Beecroft made an unannounced visit to Mr Gosden’s yard at Clarehaven Stables, Bury Road, Newmarket, Suffolk CB8 7BY.

During the inspection various precautions designed to avoid contamination in the yard were noted.

For example, there was signage warning staff not to urinate in the stables.

The medication room contained a list of all of the horses entered in upcoming races as well as medication labelled for each horse individually, and each horse had its own feeding vessel which was given its own numbering referring to the individual horse.

8. Assistant Trainer, Mr Barry O’Dowd, explained that Equipalazone would be administered via syringe straight into the horse’s mouth and that the person administering the drug would wear gloves.

The Equipalazone is kept in a locked cupboard in the main office.

Mr. O’Dowd said that once it is established that a horse needs treatment, he would give a dose of the drug to a single person responsible for the specific barn where the horse is located.

Treatment records

9. During the visit the Investigating Officer took copies of the treatment records which are required to be kept under Rule (C)13.

There were various entries for Equipalazone during the period used on the yard.

In relation to FABULST’s barn, three other horses had been administered Equipalazone.

The most recent listed treatment of Equipalazone was to two horses on 27 October 2018. 10.

The clinical records for FABULIST were obtained from Newmarket Equine Hospital (“NEH”) but did not show any administration of Equipalazone to FABULIST during this period.

Medication / feed, supplements and additives

11. Amongst the yard medication stock was Equipalazone oral powder (68x1g sachets).

No products in the feed, supplements and additives inventory were identified as containing phenylbutazone.

Interview with Mr Gosden

12. Mr Gosden participated in a recorded interview on 31st January 2019.

He confirmed that only the assistant trainer and himself would give permission for a horse to have phenylbutazone which came from an always-locked medication cupboard.

13. When asked whether Mr Gosden knew of any reason for FABULIST testing positive for phenylbutazone and oxyphenbutazone, he explained that it was a “mystery to us on the yard” and they had a “tight method of administration” and that FABULIST had “of course never had that in her life”.

He said FABULIST had been in the same stable for some time and that “she hadn’t moved around or been under anyone else’s jurisdiction”.

14. In terms of cross contamination procedures, Mr GOSDEN stated that medication would never be given with the feed.

Any powder would be mixed in a syringe and given orally by the head person so to avoid contamination.

All feed buckets were numbered according to the horse.

Only when the feed is in the manger would any supplement be added.

No prohibited substances would be administered in this way.

The decision to administer phenylbutazone would be made by either himself or the assistant trainers.

Every time a horse is administered a substance it would be written in the NTF medication book, which would then be reviewed at the end of every week.

15. On the day of the race Mr Gosden explained that FABULIST travelled up to Newcastle by herself but travelled back with two other horses from a different yard.

Pharmacological report

16. Dr Stuart Paine, the pharmacological expert instructed by the BHA, was asked whether or not the reported levels would suggest that the substance was more likely administered or a result of environmental contamination.

His view was that the ratio level of oxyphenbutazone to phenylbutazone found in the sample taken from FABULIST indicates that only phenylbutazone entered its system (i.e. it had not already been metabolised).

Dr Paine states therefore that the Adverse Analytical Finding is unlikely to be from the ingestion of urine from another horse.

The Rules

17. Rule (G)2.1 states: it is each Responsible Person’s person duty to ensure that no Prohibited Substance is present in a Horse’s body. Responsible Persons are responsible for any Prohibited Substance found to be present in a Horse’s Sample.

It is not necessary that intent, fault or knowing use be demonstrated to establish an equine anti-doping rule violation under Rule 2.1.

Rule (G)11.3.1:

The Authority will impose a penalty on the Responsible Person unless the conditions for imposing no penalty on the Responsible Person in Rule (G)11.1 are met.

Namely: a The Prohibited Substance was not administered intentionally; and b. The Responsible Person had taken all reasonable precautions to avoid contravening the Rules.

The case for the BHA

18. The presence of a substances prohibited on a raceday, phenylbutazone and oxyphenbutazone, in a post-race sample taken from FABULIST following the Race caused Mr Gosden to be in breach of Rule (G)2.1 19.

Mr Gosden is unable to bring himself within condition (a) of Rule (G)11 and is liable to a financial penalty.

Mr Gosden's position

20. In his brief address to the Chairman, Mr Gosden accepted that the rule was clear and strict, and that he had to take the consequences for FABULIST’s positive test and shoulder the responsibility.

He wished additionally to point to the efforts that had been taken in the Yard to ensure that staff understood what was required in relation to medication and possible contamination, as was noted during the unannounced visit by the investigating officers.

He took a robust approach in maintaining high standards and proper procedures in all aspects of the running of his Yard.

Conclusion and penalties

21. In considering the mandatory and appropriate financial penalty I have taken into account the overall picture and such mitigating factors that exist.

In the circumstances of both the case, the current times, and the co-operation given, I have concluded that I can take a lenient view and depart downwards from the entry point.

The appropriate penalty will be a fine of £750 to be paid within six months.

22. In addition, under Rule (A)74, FABULIST must be disqualified from the Race.

Thursday 7 May Brendan Powell

1. On May 7th 2020 a Remote Hearing of the independent Disciplinary Panel of the British Horseracing Authority (BHA), consisting of the Chairman sitting alone, heard an Inquiry into whether Mr. Brendan Powell, at the relevant time a registered trainer, was in breach of Rule (A)30 of the Rules of Racing (Conduct prejudicial to horseracing) by acting in a manner prejudicial to the integrity, proper conduct or good reputation of horseracing in Great Britain in that he: i. between 26 October 2017 and 9 November 2017 failed to inform the owner of a horse in his training was injured and required surgery; ii. allowed surgery to be carried out on 9 November 2017 without the owner’s knowledge or consent; iii. between 9 November 2017 and 23 December 2017 failed to inform the owner that his horse had undergone surgery and misled him about the horse’s condition; iv. entered the horse into races on 15 November 2017, 7 December 2017 and on 21 December 2017 despite knowing that the horse would be unfit to race.

2. Mr Powell appeared on his own behalf. Mr Andrew Howell presented the case for the Authority. At the commencement of the hearing Mr Powell confirmed that he was in breach of Rule (A)30 History

3. Mr Powell was, at the relevant time, a BHA-licensed trainer.

His licence lapsed on 31 January 2019 and he has not subsequently applied to renew it.

Until late December 2017, Mr Powell was responsible for the training of two of the owner’s horses.

Both were stabled at Mr Powell’s yard at Upper Lambourn.

The owner resided abroad.

4. Between late October 2017 and 23 December 2017, the owner and Mr Powell were in regular contact regarding the horse’s training and general condition.

At no point during this period did Mr Powell inform his owner that his horse had sustained an injury to its knee, that it required surgery or, indeed, that it had undergone surgery.

He instead repeatedly represented that the horse was well and in training as usual.

5. On 6th December 2017, Mr Powell suggested for the first time that there was a problem with the horse, raising the issue of elevated muscle enzyme and white blood cell readings.

However, when then asked directly by the owner whether anything was wrong, Mr Powell insisted, “You would be the first to know!!”.

He suggested only that the horse [w]asn’t moving great a couple of weeks ago” but had “worked and schooled perfectly since”.

6. The owner made a complaint to the BHA in April 2018.

This was based on become aware for the first time, having received a veterinary invoice on 18th December 2017, that his horse had undergone arthroscopy surgery to its knee on 9th November 2017.

He reported that Mr Powell had not informed him that the horse was injured and required surgery.

He stated that, to the contrary, Mr Powell had repeatedly assured him between October and December 2017 that the horse was well and undergoing its usual training, mentioning only a minor issue in schooling and, on 6th December 2017, an elevated white blood cell count.

7. The owner further stated that on 12th November 2017 (i.e. 3 days after the surgery), Mr Powell had sent him a video of a horse jumping fences.

He reported being told by Mr Powell that it was his horse in the video and that the video had been filmed that morning.

Further, that during this period, Mr Powell told him about various races into which there would be entries.

8. On learning of his horse’s condition, the owner removed both of his horses from Mr Powell’s care on 23 December 2017.

Investigation Veterinary records

9. The BHA has obtained relevant veterinary records from Woodlands Equine Services. A veterinarian first attended Mr Powell’s yard to x-ray the horse on 26th October 2017.

The arthroscopy (knee surgery) was carried out at the Woodlands practice on 9th November 2017. The signed surgical consent form of 8th November does not bear the owner’s signature.

The horse was discharged back to the yard the following day.

The post- operative discharge notes, dated 10th November 2017, direct as follows: “Give one sachet twice a day for 3 days.

Stitches to be removed after 2 weeks.

Box rest for 3 weeks and then hand walk for 4-6 weeks 10 mins twice a day, increasing 5 mins every week.

Re asses [sic] after 6 weeks.”

The horse was seen by the veterinarian on 23rd November 2017 for the removal of its stitches.

10. A letter from Woodlands dated 5th January 2018 sets out further details of the procedure carried out.

It confirms that the surgery uncovered multiple bone fragments, ligament damage and extensive damage to the cartilage.

The letter re-states the post-operative rest protocol (as above) and advises:

“Considering the extent of the damage to the joint structures a guarded to fair prognosis for the return to athletic training should be given at this time. The further prognosis should be made after hand walking rehabilitation is completed.”

Entries into races

11. Mr Powell accepts that he made three entries in the period between the surgery on 9th November 2017 and the horse’s removal from his yard on 23rd December 2017:

i. 15th November 2017: at Exeter;

ii. 7th December 2017: at Wincanton;

iii. 21st December 2017: at Exeter.

12. The horse was not declared for, and therefore did not run in, any of these three races.

Unnannounced yard inspection

13. Jonathan Dunn (Investigating Officer) and Robin Gow (Stable Inspector) attended Mr Powell’s yard at Upper Lambourn on 12th June 2018.

Mr Powell was asked to produce a copy of any diary, notes or other work records to show the horse’s movements and work over the preceding months.

He denied having any such record.

14. Mr Powell did provide a set of medication records, covering the period 26th October 2017 to 24th January 2018 showing three courses:

i. 10-14 November 2017: Phenylbutazone (entered as “Bute”);

ii. 12-14 November 2017: Trimediazine (entered as “Tri med”);

iii. 12 December 2017: Phenylbutazone (entered as “Bute”).

15. Mr Powell did not respond when he was asked about the entries in November and December 2017.

He accepted having sent a video of a horse jumping fences to the owner but denied that it depicted her being exercised immediately post-surgery.

He provided no further explanation as to when it had been filmed or why he had sent it to his owner.

He agreed to take part in a recorded interview at a later date, once he had sought legal advice.

Attempts to interview Mr Powell

16. In the 8 months following the unannounced yard inspection, BHA investigators attempted on over 20 occasions to arrange a recorded interview.

He provided a variety of health, travel and other reasons for failing to commit to an interview.

17. After a written warning, an Exclusion Order applying to all BHA-licensed premises was made on 15th April 2019.

Following the resumption of cooperation, the Order was lifted in May 2019.

Interview with Mr Powell

18. A recorded interview took place on 2nd May 2019.

He explained that after joining his yard the horse had won races in late 2016 and in February 2017.

After a summer break, the horse’s schooling recommenced in September 2017.

One morning, it came back from the gallops “not quite right”.

The horse appeared to recover within a few days, but the issue then returned.

19. Mr Powell accepted that he did not inform his owner about the vet’s x-ray revealing “something wrong” with the knee and continued to send him text messages about entering races.

He stated that, at that point, he “didn’t feel that [...] she was as bad as she was”. 20.

He recounted that the horse was later x-rayed again at Woodlands’ practice and this identified “a little bit of floating bone in there”, which needed to be removed.

He stated that the operation took place the following day and the veterinarian did “more with her than I thought he was going to do”.

He stated that, going into the surgery, he believed that the veterinarian “was going to go and basically have a look at it” and that “he was just going to investigate it and if there was a chip [...] in there he would take it out”.

21. At that stage, he had still told his owner “nothing”.

He eventually told him that the horse was lame but not until “quite a while afterwards”.

He did not reveal the full extent of the horse’s injury nor that it had been operated on.

He accepted that during this time he continued to tell his owner about potential races and in fact entered into some.

22. In the course of the interview he became upset and explained that, during the period in question, he was suffering from depression and that he had put himself under pressure; “I wanted to do it all myself and I couldn’t”.

He stated that he “can’t tell people bad news” and had also failed to update other owners for several weeks, despite there not being anything wrong with their horses.

23. Mr Powell stated that he sent all his owners videos of their horses schooling.

He could not specifically recall sending a video of the horse but stated that he “probably did”.

He accepted his owner’s account of this happening, stating that he is “an honest man”.

Mr Powell insisted that it was not a video filmed post-surgery, stating that he “wouldn’t do that to any horse [...] I would’ve preferred to have put one down than do that”.

He stated that, immediately post-surgery, the horse “never left the box” and, thereafter, was “only being led out round the yard”.

He denied that she would have been capable of schooling so soon after such a procedure.

24. Mr Powell denied that there was any financial motive for not mentioning the horse’s injury.

He stated that he would have earned a similar amount whether she was in training or on rest in his yard.

He stated, “I admit I was wrong in what I did, totally wrong [...] I just shouldn’t have done it. [...] whatever happens I’ll take whatever punishment I get for it.

It shouldn’t have happened.”

Review of video

25. Neither the identity of the horse nor its sex could be ascertained from the undated video alone.

The video showing “a bay horse in ridden exercise on an all-weather surface, clearing two obstacles at canter”.

The expert expressed the view that “it is unlikely that a horse which had undergone a surgery as detailed in the veterinary report should be in ridden exercise within 3 days’.

in these circumstances the BHA was not pursuing any welfare-related charges against Mr Powell in relation to the video.

The Rule 26.

Rule (A)30 states: A Person must not act in any manner which the Authority considers to be prejudicial to the integrity, proper conduct or good reputation of horseracing in Great Britain.

The BHA's Case 27.

At no time did Mr Powell give any indication of injury and is in breach of Rule (A)30 – as amplified in Schedule 4 - in that:

i. He should have made his owner aware of his horse’s condition from the outset, and he should have advised his owner that the horse required surgery under general anaesthetic; and

ii. He should have sought his consent for the surgery to be carried out; and

iii. misled his owner about her once she had had surgery and continued to mislead in a series of texts as to her condition; and

iv. entered her into three races knowing that she was not fit to run in a further effort to mislead the owner

28. The sending of the video by Mr Powell, accompanied by the comment that it had been filmed that morning, constituted a further effort on his part to mislead the owner about the horse’s condition.

29. The above acts and omissions by Mr Powell, fell below expectations and the Code of Conduct; and taken both individually and cumulatively, amount to Mr Powell having acted in a manner prejudicial to the integrity, proper conduct or good reputation of horseracing in Great Britain.

Mr. Powell's position 30. In his remarks to the Chairman, Mr Powell made it clear that he was not proud of his behaviour which went against all his principles; and that all that he could do was to apologise.

He had hit financial and health problems, found it difficult to talk to people and everything ‘was on top’.

After the first lie he found impossible to revert to the truth and continued with the deception.

He had lost his reputation and lost his friend.

He has had serious heart problems and hopes to have bypass surgery.

Conclusion 31.

This behaviour is aggravated by the extent to which Mr Powell went in order to continue to present a false picture.

Further, it took more effort than necessary in order to obtain an interview.

Mitigating factors are frankness during interview, and remorse.

32. This was a clear and continuing breach of the essential relationship between trainer and owner.

Despite his various problems, a serious view must be taken of Mr Powell’s actions.

33. It is accepted by Mr Howell for the Authority that Mr Powell is not an integrity risk, and he is now resident in the Republic.

Suspension or disqualification have to be considered but, in my view, that threshold has not been reached.

Taking all the circumstances into account, particularly the fact that the welfare of the horse was not compromised and noting the prevailing pandemic situation, the penalty will be financial.

The facts of the case, however, make it necessary to move up from the entry point set out in the BHA Guide to Procedures and Penalties 2018.

34. There will be a fine of £2500 payable within six months.

In addition, there will be a period of ineligibility from returning to British racing and holding a Trainer’s Licence for a period of 12 months.

Notes to Editors:

1. The Panel for the Enquiries was: His Honour Brian Barker C.B.E. QC (Chair).

2. There have been a number of temporary changes to the way the Judicial Panel operates in light of the current situation and resulting difficulties arising from the corona virus, including the deferral of any fines.

More information is available here.

3. Tetramisole is a “dewormer” used in veterinary medicine for the control of roundworms. Levamisole, an almost identical product (an ‘isomer’), is used more frequently in the UK as it is a more effective dewormer.

The term “tetramisole” refers to tetramisole, levamisole or a mixture of the two.

In the UK, there are no veterinary preparations which contain tetramisole that are licensed for use in horses, however, there are numerous preparations that are licensed for use in cattle and sheep.

These are available as oral solutions or solutions for injection.

If administered to horses, levamisole may metabolise to aminorex and/or pemoline, both of which have been shown to have performance enhancing effects.

4. Phenylbutazone is a non-steroidal anti-inflammatory.

It is licensed for oral administration to horses in the UK, and a detection time of 168 hours (7 days) has been published by the BHA.

Phenylbutazone is a Prohibited Substance on Raceday as defined in Schedule 1 of Manual G of the Rules of Racing, meaning that it is permitted for use in training but it must not be present in a horse's system on raceday.

Oxyphenbutazone is a metabolite of phenylbutazone and also a prohibited substance.

Please note, the BHA Judicial Panel is an independent body which encompasses the Disciplinary Panel, Appeal Board and Licensing Committee.

It receives administrative support from the BHA via the Judicial Panel Secretary.