The strict test of the reasonable precautions defence where a prohibited substance is administered unintentionally

Where a horse tests positive for a prohibited substance it of course follows that it is disqualified. However, a Responsible Person can avoid a personal penalty if they can establish on the balance of probabilities that the substance was not administered intentionally (limb 1) and they had taken all reasonable precautions to avoid violating the rule against prohibited substances (limb 2)[1].

Ismail Mohammed sought to do so when the horse he was registered as trainer for, Amazour, tested positive for very low concentrations of ketamine after winning a race at Doncaster in September 2017. The case[2] is notable for its sensible approach to limb 1, but also as a warning to Responsible Persons for the strictness of the test at limb 2.

Although a Responsible Person must provide “substantial, cogent and persuasive”[3] evidence that the substance was not administered intentionally, the Panel once again rejected the BHA submission, as in the case of Philip Hobbs and Marco Botti, that a Trainer could not establish limb 1 where he or she could not establish the probable cause of the positive test. Practitioners in this area should be alert to the repetition of that submission by the BHA, which flies in the face of clear authority.

The Panel were satisfied that Mr Mohammed had provided substantial, cogent, and persuasive evidence that the ketamine in Amazour was administered unintentionally, namely:

• The very low levels of ketamine;
• The lack of any possible motivation for the administration of ketamine at such a level, to a horse that was favourite to win the race and did win it;
• The lack of any supporting evidence from the search of the yard or other investigations for the use of ketamine as a performance enhancing or inhibiting drug;
• The expert’s view that the most plausible cause for the level of ketamine was environmental exposure.

However, the Panel found that Mr Mohammed failed at limb 2:

• Although the BHA investigators were impressed with the assistant trainer with day to day management of the yard, Mr Mohammed held ultimate responsibility and was not personally aware of all the relevant details;
• There were some unrelated record keeping imperfections which the Panel found were sufficient to undermine the limb 2 argument, despite the BHA investigator’s positive comments about record keeping at the yard;
• One of the stable lasses suggested knowledge of breaches of the yard’s zero-tolerance policy on drugs and drink, at least outside of work.

A number of important points emerge. First the strictness of the test of all reasonable precautions and the importance for a Responsible Person of being personally abreast of the minutiae of a horse’s training and stabling. How workable the Panel’s application of that test is for Trainers with an international client base is perhaps open to question. Second it appears that there need not be any causative link between any perceived failure in precautions and the unintentional administration to scupper a Trainer’s successful reliance on limb 2. Third the importance of meticulous record keeping, and fourth the apparent strict liability for any failure in its staff’s adherence to its rules and procedures.

Given the rigorous application of limb 2, and the existing case law on limb 1, Responsible Persons will often face an uphill task in reliance on Rule (K)37. Expert legal advice at any early stage is, as always, highly advisable if not essential.

 

Jonathan Laidlaw QC represented Ismail Mohammed, instructed by Harry Stewart-Moore of Stewart-Moore Solicitors. Both Jonathan Laidlaw QC and Lewis MacDonald have appeared in a number of cases before the BHA.

[1] Under the current Rules, Rule (K)37

[2] http://judicialpanel.britishhorseracing.com/results/result/?id=1962

[3] Philip Hobbs

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