Reasons following a Disciplinary Panel Hearing (H. Morrison) heard on Tuesday 19 & Wednesday 20 December 2017
Press Release
16th January 2018
1. The Independent Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry on 19 and 20 December 2017 to consider whether the trainer Hughie Morrison was in breach of Rule (G)2.1 of the Rules of Racing on the grounds that nandrolone and its metabolite 5a-estrane-3B, 17 a-diol, a Prohibited Substance within the meaning of Rule (G)16, were found in a urine sample taken from the horse OUR LITTLE SISTER (IRE) (OLS) trained by Mr Morrison, following its run in the 6.45pm “The Betway Marathon Handicap Stakes (Class 6)” race at Wolverhampton on 14 January 2017;and whether OUR LITTLE SISTER (IRE) should be disqualified from the Races in which the Horse ran with a Prohibited Substance in its system pursuant to Rule (A)74.2 Ground 3.
2. In his Schedule (A)6 form, and in his statement dated 28 November 2017, Mr Morrison accepted that, as Rule (G)2.1 imposes strict liability on the Responsible Person, a breach had been made out; but contended in relation to Rule (G)11.4 that no penalty should be imposed because he could establish on the balance of probabilities that the substance was administered maliciously and that he had taken all reasonable precautions to prevent a prohibited substance getting into the Horse. Further, even if he failed in his reliance upon this "No penalty" provision, the Panel had to exercise its discretion to arrive at an appropriate sanction.
3. Mr Philip Evans QC for the BHA did not contest that the substance was injected, but submitted that because the administration was deliberate then Rule (G)11.4 could not apply. Maliciousness, if established, might go to mitigation, but the fact that the testing was random fundamentally undermined that contention. The position of the BHA was that it had carried out all reasonable enquires but was unable to ascertain the source of the Adverse Analytical Finding. The case for the BHA was that there was no evidence of malicious administration and that the perpetrator was either Mr Morrison or one of his staff.
4. It was accepted by both Mr Evans QC and Mr Graeme McPherson QC for Mr Morrison that the Prohibited Substance must have been given by injection. Though it is possible in theory to conceive of circumstances in which this could have been done by accident, the overwhelming probability, in the Panel’s view, is that whoever did this knew what they were doing.
Background
5. Nandrolone is an anabolic androgenic steroid with some androgenic properties. 5a-estrane-3B, 17 a-diol, is the major metabolite of nandrolone. The primary indications for use in humans are as an anabolic after debilitating illness, for the treatment of post menopausal osteoporosis in women and in the treatment of metastic breast carcinoma. The half-life in humans is six days.
6. Nandrolone is also a Class C controlled drug and a prescription only medicine. It is a Prohibited Substance under paragraph 1.2 of Schedule (G)1, of the Rules, and a horse must not be administered an anabolic steroid at any point in its life.
7. There are currently no veterinary formulations containing nandrolone that are licensed for use in horses in the UK. Nandrolone laurate is the active constituent of the veterinary medicine Laurabolin which is licensed for use in cats and dogs in the UK and is used to support chronic renal failure. Laurabolin is marketed in doses of 25mg/ml, equivalent to 15 mg/ml nandrolone, and is administered by intra-muscular injection.
8. Nandrolone is also licensed for use in humans, with one product licensed for use in the UK.
9. Nandrolone is a naturally occurring substance in male horses (other than geldings) but not females. There is a threshold level for the metabolite estranediol for male horses (other than geldings), but that does not apply in this case as the horse is a filly. An analysis of scientific literature has concluded that nandrolone could only have been produced endogenously by a female horse if pregnant, as they have been shown to excrete epinandrolone naturally in urine. On examination by Mr Morrison’s veterinary surgeon on 7 February, OLS was not found to be pregnant and no abnormalities were found in her reproductive tract.
10. OLS on 14 January finished last of eight runners at odds of 12/1. There were no concerns about the betting or the running. A random number generator system operated by the Stipendiary Steward selected her for testing. From an early stage it was suggested that the real reason for the collection of the sample was as a result of some form of intelligence. Having heard Mr Gregory Pearson the on duty Stipendiary Steward and considered other evidence in relation to the system and recording used by the BHA for random selection, we reject that contention.
11. The "A" sample of the urine was sent for analysis to the LGC Laboratory. Nandrolone and its metabolite were detected, and the result was reported on 1 February. Subsequently Mr Morrison exercised his right to have the "B" sample analysed at the LCH Laboratory. The adverse analytic finding was confirmed in the second sample and reported on 1 March.
12. On 3 February 2017 BHA Investigating Officer Team Leader Tim Miller and Stable Inspector Robin Gow the Investigating Officer attended Mr Morrison’s licensed yard at Summerdown with a sampling team. They informed Mr Morrison of the adverse result by hand delivered letter, and proceeded to conduct the usual post adverse analytical finding investigations. Blood samples were taken from all 75 horses stabled in the yard with the exception of REMEMBER ME who had gone racing.
13. They were told that OLS and KISSY SUZUKI were stabled at Pangfield Farm approximately ten miles from Summerdown. Members of the BHA staff collected a blood sample from KISSY SUZUKI and blood and urine samples from OLS. The collected samples were subsequently analysed at LGC Laboratories, and all were reported as negative for nandrolone and 5a-estrane-3B. Additionally they were all reported as negative for any substance that is prohibited at all times.
14. In the course of the visit Mr Morrison was interviewed. He was offered the opportunity of legal advice and declined. He made a number of observations including:
An enquiry as to whether the sample was requested as a result of information.
To his knowledge he had never used any anabolic steroid on any of his horses and anabolic steroids had never been used under his instructions.
He described OLS as a little keen but relaxed and although she had stiff joints they had not been medicated.
He could not recall OLS as ever having any veterinary treatment, although on checking veterinary records he later clarified that OLS had received both Norodine and Dexadresson during July and August 2016. Neither Norodine nor Dexadresson contain nandrolone.
He stated that OLS was on a free lease from the breeder Christie Condon in Ireland, although there was no written agreement. He later referred to it as a gift for the period OLS was in training. He paid for the upkeep and kept the prize money.
OLS had spent some time away on a break at Pangfield Farm between April and July 2016 but he was informed by the manager that OLS was not treated at all and was not covered during her time there.
He stated that his yard was not secure and to make it so would be "pie in the sky". Their CCTV had been checked but the saved footage did not predate 14 January.
His pet dog was receiving Prednicare tablets for a spinal problem, and prior to April 2016 Metacam. Neither of these products contain nandrolone
His veterinary surgeon was Mr Jamie O’Gorman and he used the services of Donnington Grove Veterinary Group if Mr O’Gorman was unavailable or surgery was required. He confirmed that there was no other source of veterinary medication. Mr O’Gorman later confirmed that he had not administered nandrolone and had not ordered any product containing nandrolone since setting up independently in April 2014. Donnington Veterinary Group stated that they had not provided any veterinary care for OLS.
He confirmed the identities of his farrier, his equine dentist, his chiropractor and his physiotherapist. All four service providers confirmed that they did not administer any medication to Mr Morrison’s horses. Only the farrier, Mr Andrew Charles, had any dealing with OLS having re-plated her on 13 January prior to the race.
15. Mr Morrison identified three former employees who might hold a grudge against him or the yard.
He stated that a head lad was sacked in July 2016 for not being up to the job but was given a good severance package. BHA records show that the employee left on 26 August and took up employment with another licensed trainer in December 2016.
The second employee "was not sacked but walked out". Mr Morrison stated that "he wouldn’t trust him" given the way that he had treated three horses while working for him. Records show that employee leaving on 13 August 2016 and taking up further employment with a licensed trainer on 29 August.
Enquiries were made and there is no evidence of either former employee being present at any meeting where OLS raced after their departure in August 2016.
16. The third employee commenced his employment on 25 July 2016 and regularly looked after OLS until his departure on 15 January 2017 to work for another licensed trainer Henry Candy. Mr Morrison mentioned that there was a small issue involving pool money that the employee had not received and thought was due to him.
17. That employee subsequently provided an unsigned statement setting out that although it was his role to go racing with OLS, of the four occasions he only attended once on 2 January at Southwell. On the first two occasions he was on holiday and by 14 January he had handed in his notice. He would occasionally have ridden out OLS, he would not have administered any medication and his only connection with the feeding was when all the stable staff helped Barbara Studdart (the head person) with the distribution of prepared feed buckets as directed. He would never mix anything in with the feed for OLS and was not taking any medication himself.
18. Further interviews were conducted with the staff by Mr Miller on 9 February. Ms Studdart provided details of OLS’s feed regime, which was measured out by her and stated that the only medication administered was Norodine in the summer of 2016. In the course of the investigation feed and other substances had been removed from the yard and analysed. No abnormalities were revealed and nothing was found to suggest contamination by nandrolone.
19. Corey Adamson, stable lad, had driven OLS to Wolverhampton without any stops. He described how Selveraj Rasiah had taken OLS to the stable, the horse was settled, he saddled her and Mr Rasiah led her up. He discovered after the race that OLS had been selected for sampling. He continued to pack up the tack while Mr Rasiah remained in the unit. Mr Rasiah confirmed that he had witnessed the procedure and that "it was the same as it always was" with the bottles being sealed and uniquely labelled. A review of the CCTV footage of the stabling area reveals that the only people entering the box or attending OLS either before or after the race were Selveraj Rasiah and Corey Adamson.
20. A hair analysis on a sample of mane collected on 8 March 2017 was conducted by Dr Mark Dunnett, a Consulting Equine toxicologist. In the course of the BHA investigation, Mr Morrison’s legal advisors informed the BHA on 27 March that Dr Dunnett’s analysis of OLS’s hair indicated the presence of the specific ester, nandrolone laurate, which is understood to be consistent with exposure to the product Laurabolin. It was further suggested that this indicated an exogenous administration of nandrolone, estimated to be between December 2016 and early January 2017.
21. The Schedule (A)6 response on behalf of Mr Morrison was served, in full, on 1 December. It included the expert evidence statements of Dr Dunnett and of Professor Thomas Tobin.
22. The evidence of Dr Dunnett was that mane hair of thoroughbred horses grows at a uniform rate of approximately 20mm per month. A grouping of fifty main hairs were taken and a representative sample selected. He separated the sample into six sequential 20mm segments to provide a retrospective month-by-month record. His analysis indicated the presence of nandrolone laurate in the third segment but no other. In his opinion, on balance, the presence of nandrolone laurate in the single segment was consistent with OLS being exposed to this drug approximately between 8 December 2016 and 8 January 2017; that is between three and two months before the hair sample was taken. This one month window was accepted by Dr Dunnett during his evidence as the most accurate formulation given the date when the hair samples were taken and his evidence about the rates of hair growth in thoroughbreds: his report had stated a more general window of mid December to mid January.
23. Professor Thomas Tobin of the Department of Toxicology and Cancer Biology of the University of Kentucky reviewed all the veterinary and scientific findings on behalf of Mr Morrison. In his view the only possible explanation for the presence of nandrolone laurate in the hair sample was the administration of a dose of commercially available intramuscular formulated nandrolone laurate such as Laurabolin.
24. After receiving these reports the BHA instructed Dr Stuart Paine to review the findings. He took issue with the following two of Professor Tobin’s answers to the questions posed. First the suggestion that if the recommended dose of 200 mg was administered then based on all the data available the substance would have been administered in the middle of the one month window provided by Dr Dunnett. Second, that the most likely dose would be a "normal" one in the region of 200mg/horse as indicated in a New Zealand advertising website. A "small" dose of 50 mg or less would not be consistent with Dr Dunnett’s hair analysis or the results found by LGC.
25. In Dr Paine’s view there were too many uncertainties for Professor Tobin to be able reliably to narrow the “Dunnett" window of the likely date of administration. This could only be done by administering known doses to the horse in question and by measuring the urine concentration of nandrolone over a range of time points for approximately a month.
26. Further enquires were then made in relation to OLS’s attendance at meetings during this period namely:
1 November Wolverhampton
15 November Lingfield
2 January Southwell
and were conducted on the basis that Mr Morrison had said that these were the only occasions when OLS would have left the yard.
27. The stable records show that with the exception of stable lad Mr Gain Singh on 2 January, none of the others named were present at the courses in question. Where possible CCTV footage was checked but nothing was revealed that could assist in relation to the possible administration of the substance. The only medication administered to other horses on those days by either BHA or racecourse veterinary surgeons was flunixin.
28. Mr Morrison’s witness statement dated 28 November set out a detailed account of how his yard operated. Matters raised and placed in evidence included:
his family connection with racing
his training philosophy and his criticism of the use of steroids
the fact of no positive test for prohibited substances in 21 years
OLS showed moderate promise to come second in her second race. She was ridden twice by their apprentice C. Bennett claiming 7 lb. She was given a break for a "turn out rest" to Pangfield Farm from April to July. In five subsequent races she was ridden either by apprentices or Amateurs.
As a result of the opinions of Professor Tobin and Dr Dunnett he concluded that the only place that OLS could have been injected apart from his yard, was Southwell on 2 January where he had been taken by Mr Singh.
The unlikelihood of anyone gaining access to the yard undetected.
The Thames Valley Police were unable to help without any witnesses or CCTV evidence, so he decided to offer a reward of £10,000. This offer received widespread publicity.
An owner, Anita Pressdee responded, travelled to Summerdown and gave an account centered on her two fillies in training with a Ms Imogen Pickard in Herefordshire. The name of one was “OUR LITTLE SENORITA”. As the relationship was breaking down in the Autumn, she alleged that Ms Pickard threatened her by saying that she could stop her other horse (OLS supposedly) from running. Ms Pickard’s partner Jonathan Flook confirmed at the time that Ms Pickard was perfectly capable of carrying out the threat. They also learnt that Ms Pickard knew Richard Price the trainer. Their investigations revealed that Mr Price attended Southwell with a Mr Richard Morse (who on the record was described as SG – ie stable girl).
Although the BHA had said that there was nothing of interest on the Southwell CCTV, this mistake was corrected shortly afterwards the position being that CCTV for 2 January was not recoverable.
29. As a result of liaison with Mr Morrison’s legal representatives, the BHA interviewed both Ms Pickard and Mr Flook. They strongly disputed the assertions, including the claim that Ms Pickard would do something ‘to your other horse’ if crossed and denied any connection with Mr Morrison or his yard. They set out their perspective of the relationship and made observations regarding Ms Pressdee’s erratic behaviour. Nothing emerged from this avenue to assist the BHA in relation as to how the substance was administered.
30. Careful scrutiny in the course of the hearing was given to the examination of the scientific evidence and the positioning of “the window” for administration. An attempt to narrow that window and tie the likely time of administration to the date of the filly’s trip to race at Southwell on 2 January 2017 was made by Mr Morrison in reliance on the evidence of the senior toxicologist and vet, Prof. Thomas Tobin. That evidence did not persuade the Panel, essentially for the reasons advanced by the expert called by the BHA, Dr Stuart Paine.
31. The Panel was left with the window identified by Dr Dunnett – approximately 8 December 2016 to 8 January 2017 – and his evidence that the administration was more likely (though this is not scientifically certain) to have fallen somewhere around the midpoint of that period, because nandrolone was found only in one of the 10mm segments of the filly’s mane hair: there was nothing found in the segments either side of the 20-30mm segment in which he detected nandrolone. Furthermore, there is likely to have been a single administration, or no more than 2 or 3 within a day or so of each other. The midpoint of the window eventually spoken to by Dr Dunnett falls just before Christmas 2016, when the filly was at all times housed at Mr Morrison’s yard.
The Issues
32. The accepted finding that the nandrolone was administered intentionally raised an initial question about Mr Morrison’s reliance upon the “no penalty” provision in Rule (G)11.4. On its face, the first condition it states is that he should demonstrate that the prohibited substance was not administered intentionally. Mr McPherson QC for Mr Morrison argued that the Panel should not accept the literal meaning of the words but should give them what he called a “purposive construction”. He highlighted what he said was the unfairness of on the one hand exempting from penalty a trainer who demonstrates accidental administration for which he bears no fault, and on the other hand exposing to penalty a trainer who is the victim of an intentional administration which occurs without his fault. The Panel recognised that there was some force in these arguments.
33. The Panel concluded, however, that it was not possible to conduct a wholesale rewriting of a carefully drafted provision. It is possible to divine a regulatory purpose behind restricting the “no penalty” provision to cases of accidental administration only, even if there might not be universal agreement about this within the industry. Therefore, the attempt to invoke the “no penalty” provision fell at its first hurdle, because the administration of the prohibited substance was undoubtedly deliberate.
34. This conclusion meant that the Panel must impose a penalty – Rule (G)11.3 so provides. The Guide to Procedures and Penalties says, at page 56, that in the case of a substance prohibited at all times, the trainer should be disqualified for a period of between one and 10 years, with an entry point of 2 years. Importantly, however, the Panel retains discretion to depart from this and impose a penalty which is outside the range (page 45 of the Guide). The Panel concluded that this was the appropriate course on the facts of this case, for reasons given below.
35. It is relevant to note that, when making findings relevant for the exercise of this discretion, the Panel had to reach its decisions on the balance of probabilities. This was not an exercise in which the overall burden of proof fell exclusively on one party or the other, as it clearly does when conducting the exercise required by Rule (G)11.4.
36. The central and continuing question is – who did it? The BHA submitted that it must have been done by Mr Morrison or somebody at his direction. Mr Morrison, on the other hand, denied his involvement and argued that it must have been done maliciously by someone intending to bring his downfall.
37. A lynchpin of the BHA’s argument was that the sampling of OLS at Wolverhampton was random and that there was no tip-off to the BHA. It was contended by Mr Morrison that the testing was not random and must have been prompted by intelligence. That was clearly, in our view, not the case. The BHA went on to argue, consistently with the factual position with which the Panel agreed, that the absence of a tip-off made it was inherently improbable that a malicious third-party was responsible. Anybody wanting to create trouble for Mr Morrison, it was suggested, would seek to do so by trying to get the filly tested after injecting it. Hence, the only probable culprit was the trainer, who had the filly in his care and control over the likely window of the administration of the injection.
38. Mr Morrison’s riposte, confirmed in oral evidence, was that he had not done it; he did not direct anybody to do it; he was not complicit in it being done; and that there were other possibilities that might explain how it was done. Over the months since the news of the positive sample became known, he has canvassed a variety of possible culprits – one or more of three disgruntled former employees; a hostile neighbour; local “travellers”; a trainer in Herefordshire who had got it into her head that OLS was owned by one of her owners with whom she was in dispute; and most particularly someone or other who gained access to the filly when she was at Southwell to race on 2 January 2017. This last possibility became the most persistent and believable in Mr Morrison’s mind, encouraged by the fact that Southwell’s CCTV footage was no longer available for that day when it was eventually sought at the end of March 2017.
Decision
39. The Panel decided, on the balance of probabilities, that Mr Morrison was innocent of any involvement in the administration of the nandrolone laurate to OLS. These are the factors that led the Panel to this conclusion:-
Although it seems most likely that the administration happened shortly before Christmas 2016, when the filly was always housed at his yard, that of itself does not establish his complicity, though it undoubtedly raises a serious case to answer.
There was no evidence in this case of systematic use of nandrolone or any other “prohibited at all times” substances either for this filly or any other horse in the yard. On the contrary, there was positive evidence that Mr Morrison is a “low medication” trainer, with a genuine hostility towards the use of anabolic steroids in racehorses. In over 20 years in training, he has never had a horse which has failed a drug test.
The purpose behind the trainer giving a single dose of nandrolone for this filly in December 2016 is impossible to fathom, if it was done. She had no injury at the time which the steroid might have helped. The performance-enhancing effect of a single dose would have been negligible at best. And even if he mistakenly thought that it might make a difference to performance, what gain was to be had from this? The January races provided the lowest levels of prize money available in racing. There was no hint that some form of betting coup was in mind. The Panel was persuaded that Mr Morrison himself bets only in nominal sums. OLS was a poor racehorse which he was using, not with the expectation of winning performances, but largely to give opportunities to amateurs and claimers. Though motive or its absence does not determine whether a particular event occurred, they are useful guides in the decision-making process.
It is inherently probable that others at the yard or others who visited from time to time, such as his vet or his farrier, would have at least known that something odd was being attempted by Mr Morrison, if that indeed was the case. An impressive array of evidence from yard personnel and from service providers to the yard was assembled both by Mr Morrison’s legal team and the BHA. This all speaks with one voice – nobody has any knowledge of how the administration occurred and nobody suggests Mr Morrison’s involvement. The Panel did not believe that this evidence was false and part of a conspiracy to protect Mr Morrison.
Further, if he had been involved himself in the administration, it would have been, as he said in his evidence, “professional suicide” for him to create the risk of discovery by sending OLS to race twice at Southwell on 2 and 26 January and at Wolverhampton on 14 January, when she could be tested. (And tested she was on 14 January).
Mr Morrison himself was not engaged in an elaborate charade to protest his personal innocence through expensive legal and scientific investigations. Experience teaches that the vehemence with which a person protests innocence can be an uncertain guide to that fact; but the view taken here was that he has been in a state of genuine agitation and high stress from the outset of the investigation that indicates his innocence.
40. The conclusion, after careful consideration, was that he was not involved. The administration of the nandrolone was done by person or persons unknown, for unknown reasons. It may have been done to target Mr Morrison, but even that remains speculative.
41. It should be noted that the Panel was not persuaded in its decision by the strength of the alternative possibilities for how the administration of the nandrolone laurate happened. While it is impossible to discount most of these possibilities, none of them impressed as the most likely alternative. One of Mr Morrison’s suggested possibilities, however, was positively discounted – the involvement of a fellow trainer – for reasons described below.
42. Much of the hearing was taken up with a forensic attack developed by Mr McPherson QC on behalf of Mr Morrison and by Mr Morrison himself in his evidence upon the adequacy and even the good faith of the BHA’s investigations in this case. On the whole, this attack failed in the Panel’s view. One particularly regrettable example was the raising of the possibility that another trainer, Ms Pickard, and/or her former partner Mr Flook, might have been responsible for the nandrolone injection. An allegation that she and/or they were responsible was not made in Mr Morrison’s Schedule (A)6 document, where he is required to set out the nature of his case, despite the fact that he and his team had full access to records of interviews conducted both by his own legal team and later the BHA. The story of Ms Pickard’s supposed involvement is ludicrous. It should not have been raised.
43. It also emerged in cross-examination of Mr Morrison that a private investigator engaged by him (independently of his lawyers) has been in touch with Ms Pickard by e-mail two weeks before the hearing on 4 December, and dangled the prospect of the £10,000 reward offered by Mr Morrison in front of her in exchange for a revision of the detailed denials by her of involvement in her June 2017 interview by the BHA. Mr Morrison professed ignorance of how the private investigator had acted on his behalf. The Panel was unconvinced by this, particularly because Mr Morrison has not revealed the content of his exchanges with his private investigator. This episode shows a disturbing lack of judgement on Mr Morrison’s part, which the Panel eventually attributed to his state of stress and agitation. It was a distraction from the relevant issues, but is dealt with here because of its potential effect on Ms Pickard.
44. In developing criticisms of the BHA’s investigation, Mr McPherson QC did not explain how this could be relevant for the exercise upon which the Panel was engaged. He did say at one stage that the deficiencies he alleged somehow disabled the BHA from contesting his argument that the “no penalty” Rule (G)11.4.1 applied here. That was plainly illogical in the Panel’s view. He also suggested more generally that the BHA’s failings deprived Mr Morrison of avenues of investigation. Even if the criticisms were factually sound (which the Panel held they were not, save in one respect), the Panel still did not feel that they could influence the decision required, whether about the Rule (G)11.4.1 argument or about the penalty that the Panel felt was called for in exercising its discretion.
45. With one possible exception, Mr Morrison’s criticisms of the BHA’s conduct were misplaced. The exception is the matter of taking hair samples. This was not done on the day of the BHA’s unannounced visit to Mr Morrison’s yard following news of the positive test for nandrolone. If it had been, and if it had been tested promptly, it is likely that results similar to those obtained by Dr Dunnett which narrowed the window for administration would have been available earlier, with the result that CCTV from Southwell of events on 2 January 2017 might still have been obtained. This was no longer available by the end of March 2017 when Dr Dunnett’s work commissioned by Mr Morrison was revealed to the BHA.
46. There may have been good reason why the BHA did not take hair samples at the outset, but the Panel was not persuaded by the suggestion proffered by Mr Miller, a BHA Investigating Officer, that it may have been because of the lack of adequate and internationally agreed testing regimes and facilities. To be fair, this was not his direct area of responsibility and the Panel did not pursue this issue with him. Even if he was right about this, the Panel did not think that this should necessarily stop the BHA from collecting hair samples in steroid cases at least. For one thing they could be collected and preserved against the day when a testing regime has been internationally agreed. Further the Panel could not see why hair sampling and testing (in the way Dr Dunnett organized) could not be a legitimate tool of investigation for the BHA at the outset, in the same way as interviews and blood/urine sampling have become. The BHA did not challenge the reliability of Dr Dunnett’s work.
47. Otherwise, the Panel felt that the criticisms of the BHA’s conduct of the investigation were based upon a fundamental misconception. This misconception was implicit in an answer given by Mr Morrison towards the close of his evidence. He had declared himself a firm supporter of the new zero-tolerance regime for drugs such as anabolic steroids. He then said – “Since the new regime came in, it has been effective. But the BHA has not raised their game to protect me and my staff. They could have done a better job”.
48. In the Panel’s view, it was no part of the BHA’s duty to protect Mr Morrison. He was, legitimately enough, the principal suspect for the administration of nandrolone. Though the Panel has eventually concluded that he was innocent, the BHA properly ran the case that he was responsible. The BHA’s duty to Mr Morrison was a duty to act fairly, and everything the Panel has seen indicates that they did so.
Penalty
49. In the light of the finding that Mr Morrison was not involved in the administration, would it be right to disqualify him, given the overall picture and residual discretion available? The Guide does indeed give that recommendation, and the Panel can see why a trainer might suffer that sanction simply because the use of “prohibited at all times” drugs like steroids occurs on his watch as the Responsible Person. There might be cases where a Panel is left in real doubt as to whether the trainer was involved in this. Then, it might be said, a discretion to impose a penalty of disqualification is justified unless the trainer positively satisfies the Panel that he was not involved. But that is not this case.
50. It should be added, in fairness to the BHA, that the Panel was told of the content of pre-hearing correspondence between the BHA and Mr Morrison’s legal team, in which the BHA said that it would not seek a disqualification if the Panel concluded that Mr Morrison was not complicit. That seems to the Panel to reflect a fair approach which, crucially, the Rules permit. The Rules establish strict liability for positive samples (by Rule (G)2.1), and Mr Morrison recognizes that by admitting the breach. But unlike the rules which govern many sports where humans are subject to drug rules, racing does not impose automatic fixed penalties for such breaches. It leaves a residual discretion to the decision making body – the Panel.
51. The Panel decided on the proper test that Mr Morrison was not involved. Each case is fact specific. There is no suggestion that his security precautions and practices were so lax that he bears responsibility in that sense. On the contrary, the evidence showed his security practices were adequate and found to be adequate from time to time by BHA stable inspections. Our conclusion in this case is that disqualification and the withdrawal of the license is not appropriate.
52. What if any penalty is then called for? Mr McPherson QC accepted that if his reliance on Rule (G)11.4 did not succeed, then a financial penalty akin to that imposed on trainers in the case of positives for substances banned only on raceday was appropriate. The entry point in such cases is £1,000. The Panel did indeed consider whether in the light of its findings it should impose just a nominal penalty on Mr Morrison of, say, £1. But on reflection it was felt that it was right to impose the entry level penalty referred to of £1,000.
53. Though this may be an area ripe for reconsideration, the Panel can see that there is a reason to impose fines of that size, even in cases where trainers may demonstrate a lack of fault. Such fines can act as a practical encouragement to try to explain exactly how positive samples have been produced.
54. Two further consequences flow from the return of a positive nandrolone sample by OLS. There was no dispute about these. Firstly, the filly is disqualified pursuant to Rule (A)74.2 from all races after the administration of the nandrolone laurate. This therefore applies to both races at Southwell on 2 and 26 January 2017 and to the Wolverhampton race on 14 January 2017. Secondly, pursuant to Rule (G)11.6.2, the filly has to be suspended from racing for 14 months and is also subject to a 12 month mandatory stand down period. These periods run concurrently from the date when the positive sample was provided, namely from 14 January 2017.
