1. At the hearing held on 18th December 2012 to consider questions on penalty arising out of the Panel’s findings in this enquiry, Mr Mac Neice on behalf of Boyle developed a potentially far-reaching point about the Rule (A)27 decision. This concluded with the submission that the Panel should “reconsider” its finding of breach in this regard.
2. He pointed out, correctly, that the British Horseracing Authority (BHA) had not developed an alternative case against Boyle to the effect that Boyle was in breach of Rule (A)27 if the Panel found that the only alkalinising agents administered to NEW DEN were in the tie-up powder. He went on to say that Boyle had not had an opportunity of answering the allegation that he was in breach of Rule (A)27 because of the administration of tie-up powder and that if he were to be given that chance now, the case would in effect have to start again.
3. In the Panel’s view, the submissions ignored the fact that it was part of Boyle’s own case developed through the expert evidence of Mr Hepburn in particular, that the tie-up powder (together with the gelding’s inherently high TCO2 because of inflammatory airway disease) accounted for the above threshold readings found in the Lingfield samples. The Panel has concluded that Boyle was aware of the administration of the powder, which was very much an issue during the hearing of the enquiry. These matters are the established ingredients which rendered Boyle in breach of Rule (A)27.
4. The Panel offered Boyle an adjournment of the enquiry to allow for him and Mr Mac Neice to consult further with Mr Hepburn (who had not seen the Panel’s reasons at this point) but were informed that Boyle lacked the resources to take up that offer and fight the case further. So the Panel decided that it could and should deal on 18th December with the penalties to be imposed for the breaches it had found.
5. For completeness, the Panel records that it rejected also Mr Mac Neice’s submission that a reopened enquiry would have to investigate why the BHA had not brought charges of breach of Rule (A)27 against some other trainers in recent times. He cited the examples of enquiries concerning John Quinn, J O’Callaghan, and Mel Brittain between 2010 and 2012. This Panel could not see how that could conceivably be relevant. The internal thought processes of the BHA when deciding upon the breaches that were alleged in those cases cannot influence the question of whether Boyle was in breach of Rule (A)27 on the facts found in his case by the Panel.
6. Turning therefore to the penalties imposed for the breaches of the Rules held have been established: –
(1) Rule (A)27
The Guide to Procedures and Penalties recognises that breaches of this important Rule can cover a wide variety of circumstances of different seriousness. Thus the recommended entry point extends from a fine of £2000 all the way up to a disqualification of one year. The BHA contended that a substantial disqualification was called for. On behalf of Boyle, it was argued that there should be no additional penalty imposed beyond the fine appropriate for the breach of Rule (C)50, to make the approach consonant with the cases of Quinn, O’Callaghan, and Brittain referred to above.
In the Panel’s view, disqualification was plainly inappropriate. Boyle’s breach was not premeditated cheating. He was “taking a flyer” – i.e. a foolish risk in running the gelding when he knew that it had had a performance affecting substance. But taking such a risk was materially more blameworthy than the bare breach of Rule (C)50. The Panel therefore decided to exercise the intermediate power given by Rule (A)59 to place a restriction of two months upon entries for horses trained by Boyle. As well, a fine of £2000 was imposed. In deciding upon these penalties, the Panel took into account the fact that Boyle has had hanging over him for far too long a serious allegation of ‘milkshaking’ the gelding, which was not proved and which has had an effect on his training business and his health. There was an unexplained delay in prosecuting this case between June 2011 and February 2012.
(2) Rule (C)50
No separate penalty was required in the light of the way that the breach of Rule (A)27 has been dealt with.
(3) Rule (C)37
A fine of £1000 was imposed: this is the entry-level penalty which was appropriate because of the additional feature of this case that the performance affecting substance was administered on the day of the intended race.
(4) Rule (C)13
The entry-level penalty for inadequate medication record-keeping is £500, and the Panel determined that this was appropriate.
