The Appeals Body (Division 1), Mr. Justice Nial Fennelly, (in the chair), Ms. Justice Leonie Reynolds and Mr. John Powell convened via Zoom on Tuesday, 9^th February 2021 to consider the appeal of Mr. Charles Byrnes (Trainer) against the severity of the penalty imposed by the Referrals Committee on 7^th January 2021.

The Referrals Committee found that Mr. Byrnes was in breach of Rule 96(a) and ordered the withdrawal of his licence for a period of six months and imposed a fine of €1,000.  

The grounds of appeal lodged by Mr. Byrnes were that the sanction imposed was unduly severe and disproportionate.

Submissions were made by Mr. Frank Crean, BL, instructed by Mr. Patrick Kennedy, on behalf of Mr. Byrnes and by Ms. Caoimhe Daly, BL, instructed by Ms. Cliodhna Guy, on behalf of the Irish Horseracing Regulatory Board.

Having considered the submissions, the Appeals Body reserved their judgement on 9^th February 2021 and issued a written judgment today, 18^th February, which is attached to this press release.

Having considered the evidence, the Appeals Body dismissed the appeal and reaffirmed the decision on penalty of the Referrals Committee and awarded costs of €1,500 to the IHRB and ordered that the appeal deposit of €500 be forfeited.

The case was presented by Mr. Frank Crean, BL, instructed by Mr. Patrick Kennedy, on behalf of Mr. Byrnes and by Ms. Caoimhe Daly, BL, instructed by Ms. Cliodhna Guy, on behalf of the IHRB.

 

For further information, please contact:

Niall Cronin, Communications Manager

Phone: 086 - 7907676                            

Date Of Suspension – 4^th March 2021 to  3^rd September 2021

 

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APPEALS BODY

 

IN THE MATTER OF AN APPEAL BY CHARLES BYRNES

From

DECISION OF IHRB REFERRALS COMMITTEE

DATED 18 January 2021

ADJUDICATION OF APPEALS BODY, consisting of Mr Justice Nial Fennelly (retired), Ms Justice Leonie Reynolds and Mr John Powell

DATED     18th     FEBRUARY 2021

 

 

1. The Appeals Body, acting pursuant to Rule 19C of the Rules of Racing and Irish National Hunt Steeplechase Rules (Hereinafter “the Rules”) has heard, on 9^th February 2021, the appeal of Mr Charles Byrnes, Racehorse Trainer, (hereinafter “Mr Byrnes”) against the decision of the Referrals Committee dated 18 January 2021. The hearing was conducted remotely on “Zoom.” This is the adjudication of the Appeals Body on the appeal.
   
   
2. The gelding, Viking Hoard, trained by Mr Byrnes, ran at Tramore on 18^th October 2018 in the Waterford and Tramore Racecourse on Facebook Handicap Hurdle. He ran, as the Referrals Committee put it “conspicuously badly.” Its account, which is not contested, continued:
   
   

“[The horse] received a reminder from the rider immediately after jumping the first hurdle. It became rapidly detached from the rest of the field and was pulled up before the seventh hurdle.”

Mr Byrnes found the way he ran to be “embarrassing.”

3. It transpired, following laboratory examination of urine samples, that the gelding had been administered the sedative, acepromazine (ACP), based on the finding of its metabolite, hydroxyethyl promazine sulphoxide (HEPS) in very high concentration. A horse running with a high concentration of ACP is, due to his sedated state, a potential danger to himself, his rider and other horses and riders. He will also have little or no chance of running well. ACP is a prohibited substance.
   
   
4. Having been alerted by the British Horseracing Authority (BHA), the Board investigated the pattern of pre-race betting. The odds on Viking Hoard  drifted from a morning price of 4/1 to a starting price of 8/1. There was evidence from commercial betting exchanges, which allow for widespread betting against horses winning races, that a bet of €34,889 had been placed that Viking Hoard would lose. The amount won by the “lay better” would be €3,200.
   
   
5. This combination of facts leads inexorably to the conclusion that Viking Hoard had, to use a colloquial expression, been “nobbled.” The person who placed the bet on an international exchange at such unfavourable odds must have had a high degree of confidence that the horse would lose. The inference is compelling that the gambler in question knew that the horse had been sedated and could not run properly.
   
   
6. While the contemporaneous occcurrence of those two facts is highly disquieting and has very serious implications for the integrity of racing, it has to be said at once that Mr Byrnes has denied having any hand, act or part or having any knowledge either of the doping of the horse or in respect of the placing of the bets. The Board has acknowledged that it has been unable to produce any evidence tending to incriminate Mr Byrnes in either respect. Thus, the Board properly acknowledged before the Referrals Committee that it could not proffer any charge against Mr Byrnes under Rule 272 which concerns any conduct which is prejudicial to the “integrity, proper conduct or good reputation of horseracing…”
   
   
7. In these circumstances, the finding of the Referrals Committee was based on the general responsibility of the trainer for all matters concerning the welfare, training and running of horses under his care. Rule 148 in particular, is relevant. It is necessary, in these circumstances, to outline the facts concerning the transport of Viking Hoard from Mr Byrnes’ training establishment in Limerick to Tramore Racecourse on the day of the race and his care and supervision while at Tramore prior to the race.
   
   
8. The evidence of Mr Byrnes before the Referrals Committee was that he travelled in the company of his son, Cathal, who drove the horsebox, to Tramore from his training establishment in Limerick. They did not stop on the way. They aimed to arrive some two hours before the race, which was scheduled for 2:35 pm. There was some evidence from Mr Declan Buckley of IHRB that there was a record at the racecourse yard of their arrival at 1:15 pm. In general terms, it was accepted that Mr Byrnes and his son arrived some one and a half to two hours before the race. Mr Byrnes said that he signed in.
   
   
   
9. Cathal Byrnes took the horse to a box in the racecourse stable yard. According to the evidence, there were two periods during which they both left the horse unattended. Firstly, Cathal Byrnes had brought some rugs for a member of the staff at Tramore and went to deliver them. Secondly, both the Byrnes went for lunch together, availing of luncheon vouchers provided for owners. The evidence regarding the periods during which the Byrnes left the horse unsupervised is very vague. The Referrals Committee said that Mr Byrnes had “estimated that the gelding was left unattended for a total of between 20 and 25 minutes..” The imprecise quality of this evidence can be seen from Mr Byrnes descriptions of the two periods. Of the first, relating to the rugs, he said: “I’d say [it was] about ten minutes.” Of the second (luncheon) period, he said:
   
   “So we went in and we had a bit of hot food and I’d say we were no more than 10 or 15 minutes there and Cathal I’d say probably went to the horse at that stage. I’m not sure where I went but I went down after him, I can’t really remember.”
   
   
10. No serious or indeed any attempt was made to be more precise. Cathal Byrnes did not give evidence. Mr Byrnes did not say that he had stayed with or looked after the horse himself while Cathal was delivering the rugs.
    
    
    
11. The evidence was that Mr Byrnes and Cathal Byrnes signed in about 1.05. Taking the evidence at its best from the point of view of the Byrnes, they were both absent and the horse was left unattended for some 25 minutes between that time and the time, some time around 2 pm when the horse was led out to parade for the race.
    
    
12. The manner in which the horse performed in the race has been summarised at paragraph 2 above. The jockey reported to the trainer that the horse had “never got going at all.”
    
    
13. The horse was taken to the Veterinary Sampling Unit by Mr Cathal Byrnes, at the request of the Stewards. Viking Hoard was examined by the IHRB Veterinary Officer, Mr A Tyrell, M.R.C.V.S., who found him to be post-race normal but to have a “low heart rate.” Mr Tyrell took a urine sample for analysis at 3.05 pm. The sample was transmitted to LGC Testing Laboratory in Fordham, Cambridgeshire, United Kingdom.
    
    
    
14. LGC Laboratory firstly informed the IHRB of a screening finding in the sample for acepromazine (ACP) and its metabolite on 31^st October 2018. The IHRB authorised confirmatory analysis. LGC certified, by email to IHRB, on 13 November, that the urine sample was positive for the ACP metabolite hydroxyethyl promazine sulphoxide (HEPS). At the request of the trainer, the B sample was analysed at a French Laboratory which confirmed the LGC finding.
    
    
15. The IHRB notified Mr Byrnes of the adverse analytical finding on 30 November 2018 during an unannounced inspection by IHRB Veterinary Officer Nicola O’Connor and IHRB Deputy Head of Security Declan Buckley. Mr Byrnes’ Medicines Register, which was produced, did not record any administration of ACP to Viking Hoard.
16. Apart from complaining about delay in notification, Mr Byrnes did not ask any question regarding the sedative found to be present in the horse. At subsequent interviews in the course of the investigation, he denied any knowledge of the administration of ACP to the horse.
    
    
17. The Referrals Committee had the benefit of a report from and the evidence of Dr Lynn Hillyer, Head of Anti-Doping/Chief Veterinary Officer of the IHRB.
    
    
18. Dr Hillyer explained that ACP is a licenced sedative in the group derived from phenothiazine. It is used routinely, though on prescription only, in veterinary practice, when a horse needs to be sedated, for example, when it is to be clipped. The metabolite (here HEPS) is the means by which the presence of the parent drug is detected. ACP is available in tablet, gel or injectable form.
    
    
19. ACP is a medication, controlled by a screening limit. The international screening limit for the metabolite of ACP is 10 nanograms per ml. The laboratory estimated that the metabolite presence in the urine sample from Viking Hoard was 1000 nanograms, i.e., 100 time the screening limit. Dr Hillyer commented, in her evidence, that the horse was seen to be struggling in the film footage shown, adding that it was “a testament to the horse that he was actually moving at all.” This observation gave context to the effect the ACP was having on him. She also commented that the slow heart rate found post-race suggested that it was exerting a clinical effect on him immediately post-race.
    
    
    
20. Dr Hillyer was extremely concerned that HEPS was present in sufficient concentration to exceed the international screening limit. She also said that the presence of both the parent drug and the metabolite in the same sample taken from Viking Hoard was a strong indication that the ACP was administered to the horse on the day of the race. ACP is highly metabolised and is excreted in urine. The sedative activity starts within 15-30 minutes and lasts for up to 6-7 hours. Without knowledge of the form in which the ACP was administered (oral, injection or gel) Dr Hillyer could not be precise as to the time it took to have an effect. However, she considered that, with a normal dose, it could be two to ten hours following administration. In the case of injection or gel there would be rapid onset. The rapidity of onset would depend on the dose. Taking the various elements of the situation into account, Dr Hillyer was of the opinion that the drug had been administered a matter of hours before the race.
    
    
    
21. The manufacturer’s data sheet indicates that: “Horses should not normally be ridden within 36 hours.” Dr Hillyer concluded that, at the concentration which had been found, the drug, ACP, not only affects the horse’s performance and the integrity of the race but also poses a significant risk to the health, safety and welfare of both horse and jockey and of others in the race.
    
    
22. Dr Hillyer pointed out that ACP with its metabolite, HEPS, was a prohibited substance on race day under Rule 20(v) of the Rules read with Regulation 14 and that, under Rule 87 (vii) a horse is not qualified to race if it has received anything other than food or water on the day of the race.
    
    
23. It is next necessary to refer to the evidence of betting patterns on Viking Hoard, its relevance and significance. The Referrals Committee decision stated as follows:
    
    

“At the commencement of the hearing, Mr Kennedy [solicitor for Mr Byrnes] requested clarification as to the parameters of the hearing, with reference to the report concerning betting patterns. Ms Guy [solicitor for the Board] referred to the absence of an invocation of Rule 272 by the IHRB but submitted that the Committee was entitled to consider the betting patterns aspect in considering the specific provisions invoked by the IHRB……... The Committee confined itself to consideration of these provisions and to the consequences of the adverse analytical report. This Decision expressly refers to any aspect of the evidence, including betting patterns, which was considered by the Committee to be relevant to the conclusion as to the consequences of the adverse analytical finding.”
 

24. The context for the consideration of the betting evidence by the Appeals Body is necessarily limited. Mr Byrnes has consistently denied any involvement in or even any knowledge of the betting activity in question. The Board accepts that it can proffer no evidence of Mr Byrnes’ involvement in any of the relevant betting activity. This does not, however, entirely dispose of the potential relevance of betting to the events of 18^th October 2018.
    
    
25. The relevant evidence is summarised at paragraphs 12 to 15 of the decision of the Referrals Committee as follows:
    
    
26. Mr Buckley dealt with the betting pattern aspect of the case. The IHRB had received alerts from the British Horseracing Authority (BHA) relating to betting patterns on Viking Hoard. These were in turn based on information received from commercial betting exchanges which allow for widespread betting against horses winning races. This information indicated that the there was a substantial lay bet on the Tramore race, with a potential liability of €34,889 if the gelding won. This sum was risked to win €3,200. This represented 50% of the relevant exchange market. The Committee was satisfied that this risk/reward ratio demonstrated substantial confidence on the part of the layer, both on this and on previous occasions.
27. The gelding ran at Sedgefield on 2 October 2018 when it finished fourth. It was suggested during the hearing that samples were taken on that occasion, which showed nothing untoward. The official BHA Stewards Report of that meeting (available online) in fact makes no reference to such testing. The gelding drifted from 3/1 that morning to 10/1 at starting. The risk on that occasion was €30,279, against a return of €12,000. This represented 71% of the relevant exchange market. Another runner from Mr Byrnes’ stable at that meeting was successfully laid against a substantial risk on the exchanges, when it pulled up after the saddle slipped. This event was duly reported by the rider to the Stewards and is recorded in their Report.
28. Prior to Sedgefield, the gelding ran at Galway on 30 July 2018. On that occasion, the morning price was 4/1, drifting to 8/1 at starting. The risk on the race at Galway was €55,000, against a return of €12,000. This represented 50% of the relevant exchange market. The official IHRB Daily Report of that meeting (also available online) confirms that the gelding was examined by the IHRB Veterinary Officer at the request of the Stewards. It was found to be post-race normal and samples were also taken for analysis. The Committee presumed that nothing adverse arose from subsequent analysis of those samples.
29. Mr Buckley added that all three of these lay bets had been traced through the Betfair exchange to the same account number. These lay bets were initially placed with a limited liability company, which placed them in turn with Betfair, on what appeared to be a combined basis with other such bets. The Committee was surprised to hear that such a mechanism is possible, as it could hinder identification of the possible beneficiaries of lay betting. Mr Buckley identified an individual known to be associated with the combined account. He is based in a distant part of the world and was said to be associated with match fixing and associated betting in connection with other sports. There is no evidence to connect Mr Byrnes with these betting patterns, but they are part of the full and relevant context to the events of 18 October 2018 at Tramore and informed the subsequent investigation into those events.”
    
    
    
30. The Committee noted that the applicable standard of proof is the balance of probabilities. This is provided by Rule 271 and applies also to this Appeals Body. It also referred to the more exacting standard required in cases where fraud is alleged ( see Banco Ambrosiano SPA -v- Ansbacher & Co. Ltd [1987] I.L.R.M. 669). It is unnecessary, in the present case, to consider any standard other than that of balance of probabilities. No allegation of fraud is advanced against Mr Byrnes. There is, in reality no issue of sufficiency of proof. The facts are not contested.
    
    
31. The conclusions of the Referrals Committee may be summarised as follows:
    
    
    1. Viking Hoard had received a substance other than food and water on the day of the Tramore race and must therefore be formally disqualified from the race based on a breach of the provisions of Rule 87(vii)(d);
       
       
    2. the same result followed from a breach of Rule 96(a) consequent on the presence of a prohibited substance at the level detected in the post-race urine sample.
       
       
    3. The Committee was satisfied that Mr Byrnes was liable to sanction arising out of these matters based on Rule 148, which provides that the trainer is responsible for all matters concerning the welfare, training and running of horses under their care, unless a satisfactory explanation is forthcoming.
       
       
32. The Committee carefully examined the facts surrounding the care of the horse during the time when it was most likely that ACP was administered, namely “in the hours immediately prior to the race.” In summary, the Committee stated:
    
    
    
    1. “It is most likely…..that ACP was administered to Viking Hoard in the hours immediately prior to the race. During the time of possible administration, the gelding was under the direct care and control of Mr Byrnes and his son, either in transit to the racecourse or in the stable yard. The gelding was admittedly left unsupervised for a significant portion of the time that it was in the yard.”
       
       
    2. “..the Committee found that only two scenarios were reasonably likely as to the administration of ACP close in time to the race. Firstly, ACP was administered during that time by or with the knowledge of the trainer. Secondly, and in the alternative, ACP was administered during that time by a person with authorised access to the stable yard during a period when the gelding was left unattended.”
       
    3. Since the Board did not advance any charge under Rule 272 against Mr Byrnes, the Committee found that it was not required to choose between these alternatives,. i.e., the first alternative did not arise.
       
       
    4. Considering the evidence in the manner most favourable to Mr Byrnes the Committee concluded that the horse “was “nobbled” by an unidentified third party at a time when the gelding was left unaccompanied by him or his son.” Although it was not alleged that Mr Byrnes was involved directly in the administration of ACP, the Committee concluded that “his neglect in supervising the gelding facilitated what was clearly organised pre-race doping of his charge.” It expressed the view that “The deliberate doping of Viking Hoard close to race time in this case could not conceivably have been a casual or opportunistic event.”
       
       
    5. The Committee held Mr Byrnes, as the trainer, “responsible for the matters set out in Rule 148 [as] the primary custodian and supervisor of the racehorse. The trainer alone has the degree of access to and control of the animal necessary to ensure an effective first line of defence against interference by third parties, particularly on a race day.”
       
       
33. Having reached these conclusions regarding the responsibility or fault of Mr Byrnes the Committee proceeded to address the question of the appropriate sanction.
    
    
    1. Firstly, although it is a mere formality in the circumstances, the Committee noted that, since it was satisfied that Viking Hoard had received a substance other than food and water on the day of the Tramore race, the horse must be formally disqualified from the race based on a breach of the provisions of Rule 87(vii)(d). The same consequence followed from a breach of Rule 96(a) consequent on the presence of a prohibited substance at the level detected in the post-race urine sample.
       
       
    2. The Committee next noted that, in the case of a trainer, Rule 96 provides, in the case of a relevant breach, for a fine and/or withdrawal of the licence for such period as the Committee considers appropriate.
       
       
    3. Having considered the submissions of each party, the Committee concluded that Mr Byrnes had been “seriously negligent” in the supervision of Viking Hoard of the day of the Tramore race. The absence of CCTV coverage did not affect the trainer’s responsibility. It did not accept that the alleged “custom or practice” of trainers leaving horses unsupervised for short times afforded serious mitigation in the case. While, as a matter of practicality, animals might be left unattended for very short periods, there had, in this case, been two separate instances when the horse was left unattended. These were avoidable, as two persons were available to share supervision duties. The Committee did not accept that they were short. Insofar as the Committee accepted that a third party had planned and executed the doping, it followed that Mr Byrnes’ mode of operation permitted such a strategy.
       
       
    4. The Committee, as noted above, considered Mr Byrnes to have been “seriously negligent in the supervision of Viking Hoard on the day of the Tramore Race.” Having commented in some detail on the disturbing actual and potential consequences of Mr Byrnes’ failure of supervision, the Committee considered that Mr Byrnes had “indulged in an unacceptable level of risk-taking in the supervision of his charge on a race day, resulting in…significant damage…”
       
       
34. Apart from the formality of disqualification of the horse, the Committee imposed a sanction of 6 months withdrawal of Mr Byrnes’ licence to train together with a fine of €1000. It added that the fine was being set at the minimum level specified in the Rules in the light of the financial consequences for Mr Byrnes of the primary sanction of withdrawal of his licence. It also ordered that Mr Byrnes discharge the costs to the IHRB of the costs of the analysis of the B sample.
    
    
35. Mr Byrnes has appealed against the decision of the Referral Committee. While the appeal relates principally to the severity of the sanctions imposed on Mr Byrnes, there is some element of challenge to the principal findings. The grounds of Appeal have been reduced in the written submissions presented on behalf of Mr Byrnes to the following two questions:
    
    
    1. Was Mr. Byrnes “seriously negligent” in his supervision of Viking Hoard on 18 October 2018, bearing in mind the relevant provisions of the Rules of Racing and any relevant custom or practice? And
       
       
    2. Was the penalty imposed by the Referrals Committee, based on the proven facts, unduly harsh and disproportionate to the misconduct found proved against Mr. Byrnes?
       
       
36. Mr Byrnes was represented by solicitor and counsel. The written submissions contain the following relevant statement:`

“Mr. Byrnes accepts that he is strictly responsible, in accordance with the rule 148 (i) of the Rules of Racing “for everything connected with the welfare, training and running of all Horses” under his care and that he is liable to be sanctioned pursuant to rule 96. He submits that the Appeals Body must, however, impose a sanction that is proportionate to his culpable acts and omissions and his personal circumstances. He submits, with great respect to the Referrals Committee, that the withdrawal of his licence was unduly severe and disproportionate to the facts found proved against him.”

33. Counsel for Mr Byrnes developed the grounds of appeal in argument. He challenged the conclusions that Mr Byrnes had been seriously negligent in leaving the horse unattended and that his mode of operation facilitated the interference by an unknown third party with the horse. He contested the Committee’s failure to accept what Mr Byrnes had put forward by way of evidence that there was an accepted custom and practice whereby horses were left unattended for short periods. Counsel also questioned the existence or the consistency of notices published by the Board relating to this issue. The written submissions recalled Mr Byrnes’ own evidence to the following effect:
    
    

“Well, I know the rule says that all horses are supposed to be attended at all times at the races. I know what the rule says. But I think the reality is that every horse in the yard is left unattended for small periods. And I think Mr. Buckley and Mr. O’Meara are agreed – agreed with me at the meeting I had with them in the Woodlands when I brought that up to them, they both agreed that that was the case.”

34. Counsel also contended that Mr Byrnes had established a system whereby he authorised his son, Cathal, to perform the duty of supervision of horses on his behalf. Counsel accepted that the system had broken down on this occasion.
    
    
35. On the issue of penalty, Counsel submitted that the sanction imposed must be proportionate to the gravity of the misconduct having due regard to the circumstances of the respondent.While the consequences of the conduct may be considered, they are of lesser importance. When considering the appropriate sanction to impose, the sentencing body’s primary function is to ensure that no person who is unfit to hold a licence to train racehorses should be permitted to hold such a licence.
    
    CONCLUSION OF APPEALS BODY
36. While Mr Byrnes appeal has been presented as principally relating to the severity of the penalty imposed on him by the Referrals Committee, he appears in some respects to complain of the substantive findings. The suggestion of error by the Committee in finding Mr Byrnes to have been “seriously negligent” and that that his mode of operation facilitated the interference by an unknown third party with the horse seem to relate to the substantive finding of fault. In the circumstances, the Appeals Body will address these issues in the course of its ruling on the appeal.
    
    
37. The facts can be very simply stated and are not contested in any significant respects. Mr Byrnes, accompanied by his son and assistant, Cathal, travelled with the horse box carrying the gelding, Viking Hoard, from his training establishment in County Limerick to Tramore, County Waterford. Cathal drove. They did not stop on the way. They arrived at Tramore Racecourse at about 1 pm to 1.15 pm and signed in at the racecourse stables. Viking Hoard had been declared to run in the Waterford and Tramore Racecourse on Facebook Handicap Hurdle, scheduled to be run at 2:35 pm.
    
    
38. Cathal Byrnes had brought some rugs to be delivered to a member of the staff at Tramore and went to deliver them. Mr Byrnes estimates that this took some ten minutes. However long or short this time, Mr Byrnes accepts that Viking Hoard was left unattended. There was no reason for this. Mr Byrnes could easily have attended the horse and has given no reason, either to the Referrals Committee, or this Appeals Body for not doing so.
    
    
39. Mr Byrnes and his son, Cathal, went to have lunch at the racecourse, availing of vouchers provided for owners. The horse was left unattended in his stable. Mr Byrnes estimated that this absence lasted some ten or fifteen minutes. Again, no reason was offered as to why either Mr Byrnes himself or Cathal could not have attended the horse during this period.
    
    
40. Thus, it is accepted that the horse was left unattended for two periods, estimated by Mr Byrnes to have added up to a total of between 20 and 25 minutes. No steps were taken to ensure that the horse was attended during these periods. Mr Cathal Byrnes was not called to give evidence.
    
    
41. The relevant provisions of the Rules are as follows:
    
    
    1. Rule 148(i) provides that the trainer “shall be responsible (except where otherwise provided elsewhere in these Rules) for everything connected with the welfare, training and running of all Horses under the care of that Trainer and shall be liable to any sanction available to the Stewards, the Referrals Committee……or the Appeals Body as the case may be unless the Trainer provides a satisfactory explanation.”
       
       
    2. Regulation 9 is specifically and directly relevant to the issues on this appeal. Under the heading, SECURITY OF RACECORSE STABLES, it provides :
       
       “The Stewards view with concern the fact that horses are left unattended in Racecourse stable yard areas. It cannot be emphasised too strongly that this is an obvious security risk and Trainers are urged to take the necessary steps to ensure that horses are under the supervision of reliable staff at all times.
       It is the primary responsibility of Trainers to ensure that horses in their charge are not left unattended while in the Racecourse stable area.” (emphasis added).
       
       
42. In these circumstances, the Appeals Body must consider the evidence and, in particular, certain contentions advanced by Mr Byrnes and on his behalf suggesting that the obligation enshrined in Regulation 9 should be considered in a less strict way than is suggested by its wording. In evidence, Mr Byrnes fully accepted that he knew that the “rule says that all horses are supposed to be attended at all times at the races..” However, he suggested: “the reality is that every horse in the yard is left unattended for small periods.”
    
    
43. The Appeals Body needs to respond to three contentions advanced on behalf of Mr Byrnes on this appeal which seek to diminish the strictness of the obligation of the trainer of a horse to ensure that horses under his care are not left unattended in the racecourse stable yard areas:
    
    
    1. Firstly, he contended that there was an established custom and practice whereby horses are left unattended for what he called “small periods.” The Appeals Body does not accept this argument. Even Mr Byrnes gave no cogent evidence to prove the existence of such a custom or practice. He did not attempt a definition of the “small periods” of which he spoke. In this case, they amounted, even on his own evidence, to some 20 to 25 minutes. In the context of the obligation imposed by Rule 9, that is not a “small period.” As Regulation 9 says this is an “obvious security risk.” Mr Byrnes agreed, in response to a question from the Referrals Committee that, within the period of his  presence at the racecourse, a third party would have been able to get at the horse without being noticed. Finally, the Appeals Body would comment that there could not be a “custom or practice” that would so run counter to the wording of the Rules as entirely to undermine it.
       
       
    2. Secondly, his counsel contended that Mr Byrnes had a system of authorisation in place whereby he delegated to his son, Cathal, the obligation to attend the horse on his behalf, while accepting that it had broken down on this occasion. The Appeals Body does not accept this contention. Of course, such a system of authorisation is perfectly possible and, if properly operated, would be in conformity with the Rule. Regulation 9 speaks of taking “the necessary steps to ensure that horses are under the supervision of reliable staff at all times.” That simply did not take place at Tramore. Mr Byrnes’ own evidence directly contradicts his contention. He accompanied his son, Cathal, to lunch thus ensuring that the horse was left unattended. If Cathal Byrnes had attended the horse while his father went for lunch, no issue would have arisen.
       
       
    3. Thirdly, counsel for Mr Byrnes claimed that notices published in the Irish Racing Calendar designed to draw attention to the obligation not to leave horses unattended did not predate the events of 18^thOctober 2018. When this matter was raised at the hearing of the appeal, it was challenged by counsel for the Board. The Appeals Body asked the Board to provide copies of any such prior notices both to Mr Byrnes’ solicitor and to the Appeals Body itself. This has been done. The Board has produced evidence in the form of copies of extracts from the Irish Racing Calendar for a number of dates. It suffices to refer to an instance dated 4^th January 2018. Under the heading, Security Notice, there appears a number of statements concerning “authorised persons……entering the Racecourse Stable Yard on the day of a racemeeting……” At paragraph (h) the notice in effect reiterates the wording of Regulation 9 as follows: “Trainers must ensure that horses in their charge are not left unattended in the Stable Yard area.” An identical notice appeared in  Irish Racing Calendar for 14^th December 2017. These are merely examples. It is, in any event, not credible for Mr Byrnes to rely on the alleged non-existence of this notice. He fully accepted that he was aware of the obligation to ensure that the horse was not left unattended. He said: “I know what the Rule says.”
       
       
44. The Referrals Committee found Mr Byrnes to have been “seriously negligent” in his supervision of Viking Hoard. This constituted the Committee’s judgment on the facts. The word, ‘negligent’ is not used in the sense of the law of negligence. It meant that the Committee considered Mr Byrnes to have been careless to a serious degree in leaving the horse entirely unattended for such significant periods of time. This gave rise to what the Regulation describes as “an obvious security risk.” As already noted, Mr Byrnes accepted, when it was put to him by a member of the Referrals Committee, that some unknown third party would be able to get to the horse without being noticed. For the same reason, it was reasonable for the Committee to reach the conclusion that, although it was not alleged that Mr Byrnes was involved directly in administering ACP to the horse, “his neglect in supervising the gelding facilitated what was clearly organised pre-race doping of his charge.” The Appeals Body does not agree with the submission that this conclusion was unsupported by evidence.
    
    
45. The Appeals Body then turns to the question of penalty. The Committee’s decision was as follows: “The Committee therefore imposed a sanction of 6 months withdrawal of Mr Byrnes’ licence to train, together with a fine of €1000. The fine was levied at the minimum level specified by the Rules in anticipation of the financial consequences for Mr Byrnes of the primary sanction of withdrawal of his licence. The Committee also ordered that Mr Byrnes discharge to the IHRB the costs of analysis of the B sample.” As already noted, it also disqualified the horse from the race, which was, of course, a pure formality.
    
    
46. Rule 19C confers a wide range of particular powers on the Appeals Body in addition to and not in substitution for any power conferred by any other Rule. These include the power to suspend licences of trainers and to impose fines not exceeding €20,000. In particular the Rule confers a broad power on the Appeals Body “to increase decrease or waive any penalty that may have been imposed by………. the Referrals Committee…..” The Referrals Committee referred in its decision to a case in which the Appeals Body considered the penalty of a fine to be unduly lenient: it replaced it with the suspension of the trainer’s licence.
    
    
47. The serious aspect of the entire matter arises from the fact that Viking Hoard was indisputably doped with ACP by some person or persons unknown, who gained access to the horse in his stable at the racecourse, with the intention of ensuring that he was not going to win the race. The combination of the doping evidence with the evidence that the horse was laid to lose on a betting market brings into sharp focus the expression, “obvious security risk” in Regulation 9.
    
    
48. At the same time, the Appeals Body proceeds, as it must, on the basis that no charge has been brought against Mr Byrnes of being involved either in the doping or the betting activity. Such a charge would have entailed “acts….prejudicial to the integrity, proper conduct or good reputation of horseracing…” contrary to Rule 272 or breaches of Rule 96. Any such charges would be at a different level of seriousness.
    
    
49. It remains the case that Mr Byrnes has committed a serious breach of the Rules regarding the supervision of the horse in his care which gave rise to what the Rule describes as an “obvious security risk.” That risk would presumably include any form of physical interference with the horse in question, including doping. Mr Byrnes’ acknowledgement of the Rule requiring that “horses are supposed to be attended at all times” means that he must be fixed with responsibility for running risks of that sort. There is not, it is true, any evidence that he was aware of the fact that Viking Hoard had been the subject of heavy betting.
    
    
50. The Referrals Committee found the “actual and potential consequences of the failure to supervise [the horse]..disturbing.” The “gelding was a danger to all nearby persons and animals.” Any person betting on Viking Hoard was dishonestly deprived a  fair run for his money. The Committee considered that Mr Byrnes had indulged in an “unacceptable level of risk-taking..” It felt that a “purely financial sanction on the trainer would be insufficient and inappropriate on the facts of the case.”

 

51. Mr Byrnes submits that the penalty imposed by the Referrals Committee was unduly severe and disproportionate. It is submitted that the function of the Appeals Body is to ensure that no person who is unfit to hold a trainer’s licence is permitted to hold such a licence: Emphasis was laid on the absence of involvement in or knowledge either of the doping or of betting on the horse. Extensive submissions were made to the effect that the consequences of Mr Byrnes’ actions should not be a primary consideration: the focus should be on the culpability of Mr Byrnes’s conduct. Reference was made to Mr Byrnes’ personal and financial circumstances and his success as an experienced and capable trainer for 26 years. It was said that the loss of his trainer’s licence would be ruinous for him, that his employees would have to be let go and that the horses currently under his charge would have to be sent elsewhere.
    
    
52. The focus of the Appeals Body’s deliberations must be on the blameworthiness of Mr Byrnes’ conduct. In the judgement of the Appeals Body, Mr Byrnes failure to ensure any attendance on Viking Hoard at Tramore Racecourse stables for two significant periods prior to the race on 18^th October was, in the language of the Referrals Body, “seriously negligent.” Given Mr Byrnes’s explicit acceptance of his knowledge of his duty, his behaviour was inexcusable. He simply made no attempt to ensure that the horse was attended, in particular, while he and his son went for lunch. It would have been perfectly simple for one to attend the horse while the other had lunch. Mr Byrnes cannot have been unaware of what the Rule says is the “obvious risk.”
    
    
53. Whilst the Appeals Body accepts that there is no evidence that he was aware of the extraordinary and suspicious betting activity on Viking Hoard, it simply cannot ignore the very serious consequences which flowed from his misconduct and dereliction of duty as follows:
    1. the very real and significant risk posed to the health, safety and welfare of the horse, jockey and indeed all participants in the race,
       
       
    2. the financial loss to the affected punters, and
       
       
    3. the consequential reputational damage to the integrity of the racing industry.

53. The Appeals Body notes that the Referrals Committee sought to reach a fair and proportionate sanction having regard to the nature of the misconduct in this matter. Whilst the Appeals Body has given serious consideration to the exercise of its powers to increase the period of withdrawal of the trainer’s licence, due to the gravity of the misconduct, it is cognisant of the fact that these matters, culminating in this appeal, have been a source of considerable stress for Mr. Byrnes for a protracted period of time. That factor, undoubtedly contributed to by pandemic-related difficulties, is of itself punitive in nature. The Appeals Body does, however, take this opportunity to stress that such a lenient view might not be taken in the future. For these reasons, the Appeals Body reaffirms the decision on penalty of the Referrals Committee to order the withdrawal of Mr Byrnes’ licence for the period of six months as well as the fine of €1,000. It holds that the six-month period of time of the withdrawal of licence will, in substitution for the decision of the Referrals Committee made pursuant to Rule 19A, take effect fourteen days from the date of this decision of the Appeals Body.
    
    
54. Lastly, the Appeals Body is required to rule on the request made by the Board that Mr Byrnes be required to pay the Boards’ costs and expenses in connection with this appeal and that his deposit be forfeited. Rule 267 provides that “Costs and expenses incurred by the IHRB in connection with any Appeal…………………shall be paid by such person or persons in such proportions as the…………. Appeals Body may direct.” It also provides that “any deposit which may have been paid may be forfeited as part of the award of costs and expenses.” Counsel for the Board requested the Appeals Body at the hearing of the appeal to make a direction pursuant to this provision. The amount of the costs was estimated at €2000 and Mr Byrnes made a deposit of  at €500.
    
    

The Appeals Body has decided to accede to this application. It will award costs and expenses to the Board in those sums to be paid by Mr Byrnes, to include the amount of his deposit