The Appeals Body, Mr Justice Peter Kelly (Chairman), Mr Peter M. Allen and Mr Noel McCaffrey convened at the Offices of the Irish Horseracing Regulatory Board on Thursday, 28 March 2024 to consider the appeal of the Irish Horseracing Regulatory Board against the undue leniency of the cumulative sanctions imposed on Mr A.J. Martin by the Referrals Committee in relation to the breaches of Rule 96(a), Rule 148(i) and Rule 272(i), in particular in suspending the withdrawal of Mr Martin’s licence.

The Appeals Body also considered the appeal of Mr Martin against the severity of the €10,000 fine imposed by the Referrals Committee in relation to breaches of Rule 96(a), Rule 148(i) and Rule 272(i).  

At the appeal hearing, submissions were heard from Mr Louis Weston, barrister, on behalf of the Irish Horseracing Regulatory Board and Mr Stephen Lanigan-O’Keeffe S.C. on behalf of Mr Martin.

Having considered the submissions, Justice Peter Kelly gave the decision set out below on behalf of the Appeals Body.

“This is an appeal which is brought by the Irish Horseracing Regulatory Board, which I will refer to as the "Board".  It contends that the Referrals Committee was unduly lenient in suspending the withdrawal of Mr Martin's trainer's licence for a period of two years, subject to certain conditions.  Mr Martin has brought an appeal of his own, contending that a fine of €10,000 imposed on him was unduly harsh, but by letter of the 16 February 2024, he made it clear, and it has been reiterated again today by his counsel, that if the Board is not successful in its appeal, he will not proceed with his.

The background to the matter is as follows:  The 3.45pm race, the View Restaurant At Dundalk Stadium Handicap on 18 January 2023 at Dundalk, was won by a horse trained by Mr Martin called Firstman.  Following a post-race urine sample, the horse had an adverse analytical finding as to the presence of 3-hydroxylidocaine, which I will refer to as "lidocaine".  It is a local anaesthetic and is permitted inter alia for legitimate veterinary surgery.  But it is controlled in regulatory equine antidoping policy by a published international screening limit.  As was said by the Referrals Committee in the course of its decision and I read now from paragraphs 6 onwards: “Under Rule 20 subrule (v) the schedule of prohibited substances as issued by the IHRB lidocaine is listed as a prohibited substance.  Lidocaine is further a substance prohibited on raceday pursuant to Rule 96(a) of the rules. 

Following the positive screening an investigation was initiated by the Board which included the carrying out of an unannounced inspection sampling at Mr Martin's licensed premised on the 1 February 2023 by members of the IHRB veterinary team.  And, as the Referrals Committee says, the following details emerged: 

• A large number of veterinary medicinal products, including supplements, equine influenza vaccines, needles, syringes and vacutainers for taking blood samples were identified, many of which did not have an accompanying prescription or label.
• The medicines register was found not to be up to date, the last entry being August of 2022.
• Products including bottles of Bexco Sarablock obtained from the car of Mr Donncha Houlihan MVB the respondent's veterinary surgeon who was attending to various horses on the licensed premises that day.

In relation to Firstman, prescriptions were provided which showed that he had been administered veterinary medicinal products by two different veterinary surgeons on 17 January 2023, the day prior to the Dundalk race: 

• Prescriptions certified by veterinary surgeon Edele Grey of Greenmount Equine Hospital documented the intramuscular administration of 10 millilitre’s (mls) of Cartrophen;
• And the second prescription, certified by veterinary surgeon Donncha Houlihan of Greenmount Equine Hospital, documented the intramuscular administration of 10 mls of Cartophen and the administration by unspecified route of 10 mls of Sarablock; and
• A further intramuscular administration of 10 mls of Cartrophen on the 20 January 2023. None of the products identified as prescribed for Firstman or identified at the licensed premises of the respondent were reported to contain lidocaine.”

The Board notified Mr Martin on the 17 February 2023 that the Bexco Sarablock product, which was now withdrawn from the market by its distributors, had been reported as not to contain lidocaine.  All horses at the respondent's licenced premises, which were nine in number, were subject to blood and hair sampling by the Board.  No positive tests emerged from these samples.  No explanation for the presence of lidocaine was provided by Mr Martin prior to the commencement of disciplinary proceedings under the rules.

Certain admissions were made by Mr Martin at the outset of the proceedings before the Referrals Committee, and they are set forth at paragraph 27 (1) and (2) of the determination.  It recites that Mr Martin at the outset of the proceedings accepted:

(1)  the AAF for the presence of lidocaine in the sample of Firstman and that the level of the prohibited substance was greater than the ISL and that a breach of Rule 96(a) arises; and,

(2) that a breach of Rule 148(iii)(b), namely failing to maintain a complete medicines register had occurred. 

It is appropriate to point out that the quantity of lidocaine that was present in Firstman was 20 times in excess of what is the permissible amount.

At paragraph 28 the Referrals Committee says:  "In light of the above admissions made by Mr Martin, the respondent's case is that he is seeking to establish that the prohibited substance was administered unknowingly and that he had taken all reasonable precautions to avoid a breach of this rule and applicable sanctions, if any, that might apply to the admitted breaches of Rules 96(a) and 148(iii)(b)."  And they went on to say that consideration will also be given to whether the respondent had breached any of rules 148(i), 272(i) and/or 273(i), which were not admitted.  He did not persuade the Referrals Committee of his contentions as set out there and that in turn gave rise to the findings of guilt and the imposition of the penalties which are in issue.

The Referrals Committee found him to be in breach of a number of rules:

• Under Rule 96(a) by admission as to the presence, but contested as to whether reasonable precautions were taken, that on raceday there was a lidocaine metabolite in the urine of Firstman following his run on the 3.45pm handicap at Dundalk,
• Under Rule 48(i) by determination that he had not been able to provide a satisfactory explanation for that adverse finding,
• Under Rule 272(i) by determination that the finding of fault on the part of the trainer in a Rule 96(a) case leads to a finding of conduct prejudicial to the integrity, proper conduct or good reputation of horseracing; and
• Under Rule 148(iii)(b) by determination, that Mr Martin had and had admitted that his medicines register had not been kept up to date since August of 2022.

In respect of those findings, sanctions were imposed.  And the sanctions are dealt with from paragraphs 65 onwards in the determination of the Referrals Committee.  I should say that before I look at those, the reasons for coming to the conclusions which it did on the question of liability is set out fully in the decision of the Referrals Committee and these are not contested in any way by Mr Martin.

On the questions of sanctions, the Referrals Committee said this:  "In considering the appropriate sanctions the committee has regard to the principle of proportionality and considers both aggravating and mitigating factors.  Submissions on sanction were made by both parties and these were considered by the committee together with the precedent cases referenced.  The committee took cognisance of the early admissions made by Mr Martin, which greatly truncated the case, his full cooperation with the disciplinary process and his obvious candour.  The personal circumstances of the respondent were well ventilated at the hearing, and it is sufficient to say that consequences of a significant sanction, in particular one that may involve the removal of his licence, is likely to have severe implications for his stable yard and may put it in jeopardy."

Equally, said the committee, it was aware that this was not the first occasion in recent years where the respondent has been in breach of the anti-doping rules of the Board.  The committee was made aware of the prior disciplinary record of the respondent, mainly the disqualification for corticosteroid findings for his horse Moonmeister in 2019, with an accompanying fine of €1,000 waived and the fine of €1,500 for Patsy's Honour in 2022 and €250 for his medicines register not being up to date.  While these were explained by the respondent, they nevertheless remain part of his record and are relevant for the purposes of sanctioning.  The Referrals Committee said it had the power vested in it pursuant to Rule 19A and 96(a) to impose sanctions for the established breaches of the rules.  And then it proceeded to apply those sanctions.  In relation to the breach of Rule 148(iii)(b), it determined the appropriate sanction to be a fine of €1,000.  And then in relation to the breaches of Rules 96(a) and 148(i) and 272(i) the Committee determined on a cumulative basis that the appropriate sanction is:

(1) the horse Firstman is no longer restricted from running from the date of this decision,

(2) the horse Firstman shall be disqualified from the Dundalk 3.45pm race, the View Restaurant At Dundalk Stadium Handicap on the 18 January 2023, the stake forfeit and the placings in the race shall be altered accordingly,

(3) Anthony J. Martin shall be fined €10,000; and,

(4) he shall have his trainer's licence withdrawn for a period of six months. However, such withdrawal of his licence is hereby suspended for a period of two years from the date of this decision, subject to him not breaching any antidoping rules, including inter alia Rules 96, 148, 272(i), 273(i) or howsoever renumbered or revised by any amendment to the Board's rules during this period.  Any breach so found will result in the automatic imposition of the six-month withdrawal of his trainer's licence.

The Board submits that the withdrawal of the licence was justified on the facts and it's correct to say that that was not contested by Mr Martin's counsel here today.  It is accepted that the withdrawal of the licence was justified.  But, says the Board, there was no reason to suspend it at all and the suspension rendered it unduly lenient, having regard to the purpose of the sanction, the disciplinary record of Mr Martin and the sanctions which were applied in comparable cases.

Mr Martin submits that the appeal of the Board is in respect of undue leniency and that such an appeal is rare indeed, and he appears to be correct in that regard.  He draws comparisons with the entitlement given to the Director of Public Prosecutions to appeal against leniency of sentence.  He contends that the Board, as the prosecutor, is in a position akin to the Director of Public Prosecutions and he says that the jurisprudence that has developed on the power being exercised, namely a power of appeal against leniency, shows that an appellate tribunal affords a considerable margin of appreciation or discretion to a trial body.  Furthermore, he says that an appeal tribunal only interferes with penalty if it is shown to be a substantial departure from what would be regarded as the appropriate sentence, and in that regard he cites a number of authorities from the Court of Appeal beginning with DPP v. Byrne, which is the origin of that original phrase, and that has been reiterated in a number of cases, in particular by Ms Justice Kennedy, giving the judgment of the Court of Appeal in the case of DPP v. Bannerton, a decision given on the 21 of July 2022, and where at paragraph 29 she says: 

"The jurisprudence relating to undue leniency appeals is well settled at this point.  This Court will not intervene in the sentence imposed unless it is satisfied that the sentence constitutes a substantial departure from the appropriate sentence." 

And, likewise, in the case which was specifically mentioned by Mr Lanigan O'Keeffe, the DPP v. Traynor, again a decision of Ms Justice Kennedy, and there he called attention to the final paragraph but one in that judgment where she said: 

"While the decision to wholly suspend the sentence renders the sentence a very lenient one, the purpose of this suspension is to further the respondent's rehabilitation, which is in the interests of society.  The fact that the judge wholly suspended the sentence was a decision which fell at the very outer limits of the margin of appreciation afforded to a judge.  However, we are satisfied that the sentence falls within that margin of appreciation and, accordingly, we will not intervene." 

And he says that the same approach should be adopted by this body and we should only intervene in circumstances where there has been a substantial departure from what would be regarded as the appropriate sentence.

We agree with this line of argument and take the view that the Appeals Body, constituted here, should afford a margin of appreciation to the Referrals Committee and should only intervene in circumstances where it is demonstrated to our satisfaction that there has been a substantial departure from what would be regarded as the appropriate sentence.

There are a number of reasons in support of that view, not least of which is the fact that at this level, at appellate level, we do not have the opportunity of having witnesses appear in the normal way to give evidence before us and, consequently, are unable to make an assessment as to their veracity or as to the weight to be given to their testimony.  So, the approach that we take in relation to this appeal is the one as already described, that we will only intervene in circumstances where we are satisfied that there has been a substantial departure from what would be regarded as the appropriate sentence.

Both parties, in support of the contentions which they make, cited a variety of decisions on penalty in support of their respective positions.  And during the course of that discussion, I drew attention to what was said by Lord Justice Moses in Emeana v. Law Society [2013] EWHC 2130 and subsequently cited with approval by the Irish High Court on a number of occasions, (see Enright v. Law Society [2016] IEHC 151 and Herlihy v. Law Society [2017] IEHC 122).  Emeana was an application to strike solicitors off the roll of solicitors and Lord Justice Moses said this, and I quote: 

"This appeal took a familiar course.  The respondents were able to show cases of at least as great a gravity where fines were imposed and the appellant authority was able to refer to cases where it appeared the failures were no more severe, but at least suspension was ordered.  I did not find this process of assistance. Of course, the disciplinary tribunal must strive for consistency, but uniformity is not possible.  The sentences imposed are not designed as precedents." 

The essential principle in that case he identified as having been specified by the Master of the Rolls in the case of Bolton v. Law Society, namely that the profession of solicitor requires complete integrity, probity and trustworthiness.

In the case of the racing fraternity, the essential principle is that which was identified by the Appeals Committee, chaired by my predecessor as President of the High Court Mr Justice Finnegan, in the case which is cited to us, namely that of E. Joseph Logan, an appeal which was decided in 2013 and where the Appeals Body there said the rules of racing are enacted with a view to preserving the integrity, proper conduct and good reputation of horseracing.  Under Rule 147(ii), as part of an overall scheme designed to that end, it is considered important that the Turf Club and the general public should be aware of, in that case, by whom a horse is being trained.  And he subsequently went on then to say that the rules of racing are promulgated for the purpose of maintaining the integrity and proper conduct and preserving the good reputation of horseracing and to prevent conduct or behaviour prejudicial to same.

Decisions in other cases may be of some value in assessing a trend or norm, but they are not determinative. The crucial issue in every case is the appropriateness of the penalty in all of the relevant circumstances, having regard to the essential need to preserve the integrity, proper conduct and good reputation of horseracing.  On the question of penalty, regard must be had to the following: 

(1) the preservation of the integrity, proper conduct and good reputation of horseracing;

(2) the prevention of conduct or behaviour prejudicial to those;

(3) the punishment of the wrongdoer;

(4) the discouragement of others who might be tempted to emulate the behaviour of the wrongdoer; and

(5) the fashioning of a penalty which is proportionate and appropriate in all the circumstances and those circumstances include a consideration of mitigating and aggravating circumstances.

In this case, the Board contends, and I now turn to the written submissions which were further articulated by Mr Weston in the course of his submission, that in imposing any sanction on Mr Martin the Referrals Committee ought to have had regard to a number of matters. The welfare of the horse as a prime consideration is derived from Rule 148 (i) and the obligation of a person applying for a trainer’s licence to be able to show competence and capability for the welfare of horses under their charge derives from the Logan decision, which I’ve cited. The competitiveness of racing demands protection, and allowing a horse to circumvent that protective effect of pain by running with a powerful painkiller is antithetical to competition.  The sport of racing on the island of Ireland, he says, should be seen to be regulated properly and effectively, so that those involved in and around the sport have confidence in its proper regulation.  He goes on to say that as a general principle of sports law, a sanction should be a deterrent against future misfeasance by the perpetrator, but also by others involved in the sport.  A sanction should also involve a punitive element to sanction the offender for misfeasance under the rules and in the case of aggravating and mitigating factors, he said it was an aggravating feature of the offending by Mr Martin that he had a poor disciplinary record generally and particularly so for antidoping offences and failures to maintain a medicines register.  And he says the fact that those previous offences existed was a substantially aggravating one and demonstrative of an indifference to the rules or an inability to abide by them.  And he also points out that whilst Mr Martin accepted the fact of the adverse analytical finding, he contested responsibility for it.

And he then sets out a number of things which he says the Referrals Committee ought to have had regard to, and he there repeats that there were a series of offences in other cases leading to the withdrawal of a licence.  He is referring here now to the other cases, I have already mentioned them, but he points out that they ought to have had regard to them and, in the case of Mr Hogan, there was a series of offences leading to the withdrawal of a licence and he goes on to recite the case of Mr McCluskey and submits that, as a result, the Referrals Committee fell into error and imposed an unduly lenient sanction.

And at paragraph 14, he says the committee did not give any or  sufficient weight to the majority of the factors required to be considered in setting a sanction, that it gave no explanation at all for suspending the withdrawal, and the only factor it highlighted as a consequence was the risk to the yard, and that that risk will always attract to any trainer whose licence is at jeopardy; such a consequence can never, of itself, justify a suspension of penalty and the risk here, he says, was one that only “may” risk his yard, to use the exact wording of the Referrals Committee.  And he says it didn’t consider the similarities of sanction in the comparable cases and did not at all consider a partial suspension.  That's a short summary of what is contained in the written submissions and which was further elaborated upon by Mr Weston.

Mr Lanigan O’Keeffe draws attention to what he says in relation to the previous convictions was something less than what on paper might appear to be their seriousness, the fact that there are strict liability offences involved, and he stresses the fact that this was a very experienced Referrals Committee, which fully considered and reserved its decision on the matter and then came to the conclusion which it did.  There is no doubt about it, but that on the face of it the Referrals Committee did not consider any question of a partial suspension, and that the reason which it gave for the suspension at all seems to be particularly focused on the personal circumstances of the respondent.

That's a short summary of what was contended by either side and it now falls to us to form a view as to whether or not there was, in this case, a departure, to use the exact wording which is drawn from the case law, a departure of a substantial nature from what would be regarded as the appropriate sentence.  We've had the opportunity of discussing this and considering both the written and the oral submissions and the transcript of what took place before the Referrals Committee and a detailed consideration of its conclusions.  And in particular it appears to us there are a number of matters that require particular examination.  First of all, was sufficient weight given to the previous infractions of Mr Martin, in particular those relating to the question of doping?  And was the committee correct to suspend the withdrawal of the licence in whole or in part solely, it would appear, on the basis of the circumstances which are set out in its decision, and which appear to relate to the evidence which was given by Mr Martin as to the effect that the sanctions would have upon him and upon his yard?  We come to the conclusion that insofar as the consideration of a question of a partial suspension was concerned, it does not appear to have been considered at all by the Referrals Committee.

We do afford the Referrals Committee a substantial margin of appreciation and the crucial question is did it go outside it and fall into error?  And we have reached the unanimous conclusion that it did, and we come to that conclusion for a number of reasons.  First, we do not believe that it gave sufficient regard or attach sufficient weight to the previous record.  Secondly, we do not believe that it fashioned a penalty which was appropriate or sufficient to preserve the integrity, proper conduct and good reputation of horseracing, particularly having regard to that previous record.  Neither do we believe that it was an appropriate measure to either discourage other persons or to provide a punishment of Mr Martin in respect of these infractions, particularly having regard to his previous record.  We're not convinced that the personal circumstances which are the subject of the testimony which he gave and which are particularly mentioned at paragraph 67 of the Referrals Committee decision, are sufficient to warrant a full suspension of the penalty.  It seems to us that the consequences for Mr Martin are not much different from the consequences that flow from a withdrawal of a trainer's licence of anybody else.  It is true that that always has adverse consequences, not merely for the individual, but for other people as well, and that is so with any punishment, whether it be applied in the criminal law or even a civil punishment.  They do have consequences and those consequences, unless there are some extraordinary features, are just simply part and parcel of the punishment and we are unable to discern any extraordinary features being present here.

We also consider that the Referrals Committee fell into error in not considering whether it was appropriate to suspend a part of the withdrawal of the licence.  We are satisfied that, first of all, the penalty of withdrawal of the licence for a period of six months was appropriate and indeed it's correct to say that there has been no contention on the part of Mr Martin, through his counsel, that that was not so.  But we are convinced that the suspending of that in its totality was altogether too lenient and inappropriate, applying the yardstick that has already been identified.  And we believe that having regard to the justice of the case, an appropriate penalty would be that that should be suspended for a period of three months, in other words not suspended in its totality, so that the withdrawal of the licence would be for a period of six months, but with three months of that suspended on the same conditions as were specified by the Referrals Committee.  And, in those circumstances, having so concluded, we allow the appeal to the extent that I have indicated and we substitute, in lieu of the complete suspension of the withdrawal of the licence, a suspension for a period of three months, with the other three months having to take effect and the suspended part is subject to the same conditions as were specified by the Referrals Committee.

The suspension shall become effective on the 15 May 2024.”

Appeal of Mr A. J. Martin against the fine imposed by the Referrals Committee

Decision of the Appeals Body

“We are of the view that that fine cannot be regarded as being in any way harsh and we take the view that there is no basis for reducing it.  However, in view of the fact that the trainer's licence will now be withdrawn for a period of three months, we are going to put a stay on the recovery of that fine, so that it cannot be recovered prior to the 1 January 2025.  So, that would provide an opportunity for Mr Martin to see out the suspension and get back into business.  So, not payable until after the 1 January 2025.”

 

The appeal was presented by Mr Louis Weston, barrister, instructed by Ms Clíodhna Guy, IHRB Head of Licensing, Legal and Compliance. Mr Martin was represented by Mr Stephen Lanigan-O’Keeffe S.C., instructed by Mr Kevin Power of Maurice Power Solicitors, Kilmallock, Co Limerick.