The Appeals Body, Mr. Justice Peter Kelly (Chair), Mr. John Murphy and Mr. Anthony Byrne convened at the Offices of the Irish Horseracing Regulatory Board on Wednesday 19^th April 2023 to consider the appeal of Mr. David Dunne against the sanctions imposed by the Referrals Committee by way of decision dated 31^st January 2023.

Following the decision of the Referrals Committee after a hearing on Monday 17^th to Thursday 20^th October 2020, Mr. Dunne was fined €5,000 and his training licence was suspended for a period of two years, with the last 18 months suspended for a period of two years for breaches of Rules 272, 272(ii) and 273(xiii). The Referrals Committee also directed that prizemoney won by All Class, Full Noise and Petrol Head in 36 races listed by the Committee be forfeited and they be disqualified pursuant to Rule 275(i).

At the Appeal Hearing, evidence was heard from Mr. Dunne.

Having considered the evidence, the Appeals Body issued the following decision dated 26^th April 2023:

Introduction:

This is the appeal of Mr. David Dunne (Appellant) against sanctions imposed upon him by the Referrals Committee (Mr. Justice Brian McGovern, Mr. Nicholas B. Wachman and Mr. Peter M. Allen) on 13^th January 2023.

The penalties in question were a suspension of the appellants licence for a period of two years but with the last eighteen months of such suspension being suspended for a period of two years.  A fine of €5,000.00 was also imposed, together with a direction that any prize money won by three named horses (All Class, Full Noise, Petrol Head) in any of thirty-six races be forfeited and that those horses be disqualified from those races.  The appellant appeals solely against the severity of those sanctions.

Background:

The Referrals Committee conducted a four-day hearing (17^th – 20^th October 2022) against the appellant and seven other persons concerning a variety of alleged rule infringements.  Four such breaches of the Rules of the Racing and Irish National Hunt Steeplechase Rules (the “Rules of Racing”) were alleged against the appellant.

They were:

 

272. An allegation that the appellant, as a trainer licenced by the IHRB, conducted the training and running of his horses in a manner prejudicial to the integrity of proper conduct and good reputation of horseracing contrary to Rule 272.The Referrals Committee was not satisfied that this charge had been proved and accordingly it was dismissed.

 

1. An allegation that the appellant supplied misleading information and / or false information to an Official at a Stewards Enquiry on 27^th March 2021 at Navan. The Referrals Committee was satisfied that this allegation was proved.

 

1. An allegation that contrary to Rule 273 (xiii) the appellant through the following conduct as a licensed trainer caused serious damage to the interest of horseracing in Ireland: -
2. Campaigned All Class and / Full Noise with the object of manipulating official handicap rating;

 

2. Achieved improvement in form of Full Noise at a level previously unfamiliar to experienced and long serving handicapping officials;

 

3. Conspired with Mr. McNally (a fellow respondent) to conceal his ownership of All Class and / or Full Noise;

 

4. Treated the Rules of Racing in a cavalier manner.

 

The Referrals Committee was satisfied that only charge number 3 was proved against the appellant. All others were dismissed.

 

1. An allegation that the appellant was in breach of Rule 121(vii) by failing to lodge the correct ownership details with the Registry Office in Horse Racing Ireland before entering and/or running All Class, Full Noise and Petrol Head in 36 races which were specified in the schedule of breaches furnished to him.The appellant admitted the charge in respect of 17 of the 36 races but the Referrals Committee found that those allegations not admitted had been proved. 

 

It was in respect of these findings that the sanctions the subject of this appeal were ordered. 

The Appeal:

In his notice of appeal the appellant furnished three grounds of appeal.

 

He alleged that the Referrals Committee “erred in imposing a ban for six months which could end my career”.

 

The appellant also alleged that the Referrals Committee “erred in imposing the fine … for deceiving the public of the true ownership of the horse.”

The appellant also alleges that the Referrals Committee erred by “imposing the prize money be forfeited when I was not charged in relation to deceiving the true ability of the horses, the horses ran on the merits and therefore any prize money won was won legitimately and won on their true ability.”

Although the appellant was advised at the preliminary hearing of his entitlement to be represented at the appeal and to make a written submission in advance, he indicated that he did not wish to be represented or to make such submissions.  Notwithstanding that, approximately a half an hour before the hearing commenced he provided a written submission on foot of his notice of appeal.  It has been considered by the Appeals Body despite its late arrival.

At the preliminary hearing, counsel for the IHRB indicated that it would provide the Appeals Body and the appellant with a short written submission and it did so within the time directed.  They have also been considered by the Appeals Body.

A full oral hearing took place on 19^th April 2023 with every opportunity being given to the appellant to make whatever case he wished pertinent to the appeal.  Some of his submissions appeared to touch upon the findings made against him and he had to be reminded that he had taken no appeal against those findings but, rather, his appeal was confined only to the question of sanctions.

In essence his complaint was that he felt he had been unfairly dealt with in circumstances where the named person in his view had broken the same Rules of Racing but had not been investigated or charged.  He also made submissions as to his personal circumstances and the effects that the sanctions would have upon him, his partner and child. 

The IHRB contends that the appeal is without merit and that it is irrelevant that a third party named by the appellant was not charged or sanctioned.  It makes the point that the sole issue was whether the sanction imposed was reasonable and not whether someone else could have been charged.  It also contends the appellant did not win any races legitimately as he suggests, because he had concealed, in breach of the Rules of Racing, the true ownership of the horses, had misled the Stewards and conspired with a fellow respondent (Mr. McNally) to conceal the ownership of the horses.

Decision:

As has been said by the Appeals Body on occasions in the past, the Rules of Racing are enacted for the purpose of maintaining the integrity, proper conduct and the good reputation of horse racing and with a view to prevent conduct or behaviour prejudicial to the same.

The first finding against the appellant was that he supplied misleading information and / or false information to an official at a Stewards Enquiry on 27^th March 2021 at Navan.  The Rules of Racing require that trainers and owners of horses must be honest and accurate in their dealings with Stewards.  In the appellant’s case, he was not straight forward, accurate or honest when he told the Stewards that All Class was owned by his uncle when, in fact, he knew that it was owned by Mr. McNally.  In the course of the hearing of this appeal Mr. Dunne, in response to questions, acknowledged that it was a serious matter.  We are of like view.

The finding by the Referrals Committee that the appellant conspired with Mr. McNally to conceal his ownership of All Class and/or Full Noise in breach of Rule 273(xiii) is also considered by us to be a serious matter.  Again, during the course of the hearing and in response to questions put to him, the appellant conceded that to be so. We have to bear in mind this conspiracy was designed to conceal the true facts and amounted to a significant deception of the racing public and the IHRB.

As is clear from the determination of the Referrals Committee as to penalty, it was in respect of the breaches of Rule 272(ii) and Rule 273(xii) that the suspension of the Training Licence and the fine of €5,000 was imposed.

In the view of this Appeals Body, it cannot be said that the Referrals Committee was wrong in principle, unreasonable or disproportionate in imposing a suspension of the appellant’s training licence for two years with the last eighteen months suspended for a period of two years.  Neither can it be said that the imposition of a fine of €5,000 was wrong in principle, unreasonable or disproportionate.  These were serious breaches on the part of the appellant and must attract a significant penalty.  Such conduct cannot be regarded as amounting to a minor infringement.  The question of whether some other individual may have broken the Rules of Racing has no bearing on whether or not the appellant did so or the sanction that should be imposed for such breaches.

In these circumstances the appellant’s appeal in respect of the suspension of his licence and the imposition of the fine of €5,000 is dismissed.

The sanction concerning the forfeiture of prize money and disqualification of the horse in question was imposed in respect of the breach of Rule 121(vii).

Rule 275(i) is to the effect that any horse which has been the subject of fraudulent practice may at the discretion of the Referrals Committee or the Appeals Body be disqualified from a race.  The Referrals Committee had a discretion on whether or not to impose the sanction.  In circumstances where the appellant and another respondent sought to conceal the true position with a consequent misleading of the IHRB and the racing public it is the view of this Appeals Body that the sanction imposed was justified and not unreasonable.  Consequently, the appeal in respect of this sanction is also dismissed. 

In conclusion, for the reasons stated above, we are of the opinion that in respect of these serious matters there is no basis for disturbing the sanctions imposed by the Referrals Committee.  Consequently, this appeal is dismissed in its entirety.

Costs:

The Referrals Committee made no order as to costs in respect of the appellant.  The IHRB seek costs against him in respect of the appeal should he fail.  He has failed to disturb the sanctions imposed by the Referrals Committee and we are of opinion that the normal rule of costs following the event should apply.  However, in view of his personal circumstances we are of opinion that although liable for such costs, they should be limited to a sum of €2,000  Furthermore, because of the appellants circumstances we direct that no steps be taken to enforce this Costs Order for a period of eighteen months from today’s date.

Disposal:

The appeal is dismissed in its entirety with an order for costs for favour of the IHRB limited to the sum of €2,000 with a stay on enforcement of such costs for a period of eighteen months from today’s date.

The appeal was presented by Mr. Louis Weston, B.L., instructed by Ms Clíodhna Guy, Head of Legal, Licensing and Compliance.