The Appeals Body, Mr Justice Peter Kelly (Chairman), Mr Anthony Byrne and Mr Nick Wachman convened at the Offices of the Irish Horseracing Regulatory Board on Monday, 14 October 2024 to consider the appeal of John Joseph Hanlon, Trainer, against the severity of the sanction imposed by the Referrals Committee on Friday, 30 August 2024.
Following a referral to consider potential breaches of the Rules of Racing, the Referrals Committee found Mr Hanlon in breach of Rule 272(i) and imposed €2,000 fine and a suspension of 10 months, with the possibility of the last five months of that term being suspended conditionally. Mr Hanlon was also found in breach of Rule 148(iii) and fined €350 in respect of that breach.
At the appeal hearing, the Appeals Body considered submissions on behalf of Mr Hanlon by Stephen Lanigan-O’Keeffe and on behalf of the IHRB by Ms Christine Traynor, Head of Racing Regulation and Integrity. Evidence was also heard from Mr Edward O’Grady, Trainer.
Having considered the submissions, Justice Peter Kelly issued the following decision on behalf of the Referrals Committee on Wednesday, 23 October 2024:
Introduction
This is our decision on an appeal brought by John Joseph Hanlon (Mr Hanlon) against the severity of the penalties imposed upon him by a decision of a Referrals Committee delivered on the 5 September 2024. The principal sanction imposed was a withdrawal of Mr Hanlon's licence to train for a period of 10 months but with the possibility of the last five months of that term being suspended conditionally. In addition two fines of €2,000 and €350 respectively were imposed.
The Charges
Four charges were laid against Mr Hanlon by the Irish Horseracing Regulatory Board (IHRB). They alleged breaches of Rule 272(i) (acting in a manner prejudicial to the integrity, proper conduct, or good reputation of the sport), Rule 272(ii)(the provision of false or misleading information to investigating IHRB officials), Rule 273(xiii) (actions prejudicial to the interests of the IHRB, or likely to cause serious damage to horse racing in Ireland), and Rule 148(iii) (being responsible for the failure of a veterinary surgeon retained by the trainer to complete an entry in the passport of the deceased animal regarding the previous administration of a medical product prohibited in a food-producing animal). The facts which gave rise to the preferring of these charges are set out succinctly in the decision of the Referrals Committee and we reproduce them here.
The Facts
"On the afternoon of Friday, 14 June 2024, Mr Hanlon removed a deceased horse from a paddock at Ballygorteen, County Kilkenny, to a knackery in County Carlow. The carcass was contained on an open trailer, drawn by a horsebox, festooned with images identifying it as the property of Mr Hanlon. Although there had been some attempts by Mr Hanlon to conceal the carcass from public view by covering it with a tarpaulin prior to departure from the paddock, these had failed completely by the time the box and trailer combination reached Paulstown, County Kilkenny, at around 5pm, such that the carcass was completely uncovered and fully visible to members of the public.
This situation was noticed by a driver travelling immediately behind the combination at Paulstown. He commented adversely on the actions of Mr Hanlon, readily identifying him by means of the illustrations on the horsebox. He recorded the images on his phone, and these were subsequently circulated to a wide audience on social media. The adverse publicity then spread to the conventional media. Mr Hanlon's conduct thereby attracted significant public opprobrium and adverse comment, relating to both Mr Hanlon personally and to the racing industry generally. The IHRB therefore initiated an investigation on Sunday 16 June 2024."
The Admissions
At the hearing before the Referrals Committee, Senior Counsel on behalf of Mr Hanlon made several admissions regarding his conduct and the consequences thereof, together with a submission as to the possible duplication within the charges presented for consideration. In the light of those admissions, no further live evidence was required in addition to the material contained in the Investigation Report provided to the Referrals Committee prior to the hearing, save that it heard explanatory evidence from Dr Hillyer relating to the alleged breach of Rule 148(iii). The Referrals Committee also heard evidence from Mr Hanlon.
The Decision of the Referrals Committee on Liability
The Referrals Committee concluded in the light of the evidence and admissions by Mr Hanlon that he was in breach of Rule 272(i) by reason of the fact that he transported a deceased animal through Paulstown in a completely uncovered state, using a highly identifiable horsebox, which caused significant prejudice to the integrity, proper conduct and good reputation of the sport of horse racing. The Referrals Committee was satisfied that the prejudice caused by the conduct of Mr Hanlon was compounded by the wide dissemination on various social media platforms of the recording of those events and the ensuing adverse reaction and commentary. The Referrals Committee was satisfied that finding was proportionate to the evidence presented and that it was therefore unnecessary to consider the charge under Rule273(xiii).
Insofar as the alleged breach of Rule 272(ii) was concerned, the Referrals Committee was satisfied that Mr Hanlon had misled IHRB officials in the early stages of the investigation on the question of who had attempted to secure the covering of the deceased animal prior to departure, who was driving the horsebox and when the tarpaulin had been recovered after the incident. However, it decided that these matters should be considered as factors relating to the sanction to be imposed in relation to the established breach of Rule 272(i), rather than being the subject of a separate breach of Rule272(ii).
Insofar as the breach of Rule 148(iii) was concerned, Mr Hanlon was found guilty on the basis that although a veterinary surgeon had failed to make the appropriate entries in a horse passport, the trainer remained responsible under the Rule for checking and ensuring its proper completion.
None of these factual matters are in dispute having regard to the nature of the appeal which has been brought by Mr Hanlon.
The Referrals Committee then turned its attention to the question of penalty, and that is the issue which we are called upon to consider.
New Evidence
At the opening of the appeal hearing, an application was made by counsel for Mr Hanlon for leave to call evidence which had not been placed before the Referrals Committee. The evidence was that of Mr Edward O'Grady, a licenced trainer since 1972. We were told that he was upset at the penalty that had been imposed on Mr Hanlon and approached his legal team. He had flown back from London on the morning of the appeal hearing in order to seek to give evidence as to his views on the topic.
We drew Counsel's attention to the decision of the Appeals Body in the case of Comer v. IHRB, on the topic of the admission of fresh evidence on appeal. He accepted that the first of the three conditions identified by Finlay C J in Murphy v. Minister for Defence (1991) 2IR161 had not been met. That requires that the evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial. Nonetheless, he urged us to hear the evidence because of an allegedly wider discretion conferred on an Appeals Body under the Rules of Racing. Whilst not deciding that issue, we nonetheless agreed to hear the evidence on a "de bene esse" basis. In the event the evidence of Mr O'Grady consisted mostly of his opinions and had little if anything of relevance to say on the issues before us.
Jurisdiction
In its decision of the 28 of March 2024 in the case of A J Martin the Appeals Body accepted that in dealing with appeals against penalty, the jurisdiction of the Court of Appeal on that topic ought, in general, to be followed. That jurisprudence is to the effect that this Body should only intervene in circumstances where the penalty imposed constitutes a substantial departure from what would be regarded as the appropriate penalty, since such a departure would amount to an error in principle. A margin of discretion or appreciation has to be given to the Referrals Committee in fashioning an appropriate penalty. The Appeals Body should only intervene in circumstances where it is demonstrated that an error in principle has been made.
In the same case five matters were identified which should be taken into account in deciding on the question of penalty. They are:
- The preservation of the integrity, proper conduct and good reputation of horse racing;
- The prevention of conduct or behaviour prejudicial to those
- The punishment of the wrongdoer;
- The discouragement of others who might be tempted to emulate the behaviour of the wrongdoer;
- The fashioning of a penalty which is proportionate and appropriate in all the circumstances and those circumstances include a consideration of mitigating and aggravating That is the approach which we take in reviewing the penalty imposed by the Referrals Committee.
The Findings of the Referrals Committee
On the basis of the evidence and admissions made by Mr Hanlon, the Referrals Committee concluded that he had been grossly negligent in the supervision of the transport of the horse carcass on the day in question and that consequently a breach of Rule 272(i) involving high culpability on his part, was established. In coming to that conclusion, it identified at least seven factors, which are set out in detail in its decision, but which do not require repetition here, since no issue is taken with that finding. The Referrals Committee also dealt with the consequences of Mr Hanlon's negligence which it described as significant and avoidable. They included a substantial level of critical public commentary undermining communal confidence in the sport at a time of particular sensitivity for racing and the horse industry generally following on as it did a broadcast by RTÉ relating to serious equine welfare issues, albeit in a much broader Irish and European context and involving live animals.
Penalty
Having weighed the submissions and considered all of the facts and the consequences of Mr Hanlon's default, the Referrals Committee came to the conclusion that the appropriate sanction was the withdrawal of his licence for a period of 10 months. The Referrals Committee expressly found that his culpability could not be adequately dealt with by means of a financial penalty. It also considered that level of sanction was justified by the requirement to be as consistent as possible in sanctioning breaches of Rule 272(i) and that others previously penalised in this manner in broadly similar circumstances would be justifiably aggrieved if a different approach was adopted in Mr Hanlon's case.
First Criticism
Mr Hanlon contends that the Referrals Committee made an error in principle in rejecting the view that his breach of Rule272(i) could be met by the imposition of a financial penalty.
We reject this criticism. There was no error on the part of the Referrals Committee in deciding that Mr. Hanlon's conduct passed the threshold of attracting only a financial penalty. We specifically endorse the views of the Referrals Committee when it said:
“It is by now well-established that the time for a lenient or tolerant approach to the treatment of deceased sport horses is long gone. The details of this case required more than the imposition of a purely financial sanction. The deterrence of preventable carelessness and lax standards by licensed trainers in matters capable of affecting the public standing of the sport is essential. Licensees are participants in a sport which receives significant public funding, and must also be cognisant of the deep affection that many people have for horses. The public are therefore entitled to hold legitimate expectations and concerns as to the humane and respectful treatment of both live and dead sport horses, and the IHRB must respond appropriately to those expectations and concerns by the meaningful enforcement of reasonable standards of conduct by licensed participants in the sport.”
Second Criticism
The second criticism which is made of the Referrals Committee is that in identifying a headline sanction of a 10-monthwithdrawal of Mr Hanlon's licence to train it was unduly harsh and failed to adequately take account of the differences between this and other similar cases dealing with post mortem equine events.
The Referrals Committee clearly had in mind such cases when it indicated that it was endeavouring to be as consistent as possible in sanctioning breaches of the relevant Rule so that others previously penalised would not be justifiably aggrieved by a different approach being adopted in this case.
There are two cases involving post mortem treatment of horses. They were decided by differently constituted Referrals Committee’s. The first case was that of Mr Gordon Elliott which was decided on the 5 of March 2021 and the second was that of Mr Robert James decided on the 10 of March 2021. Both resulted in 12-month withdrawals. In Mr Elliott’s case six months of the withdrawal was suspended and in Mr. James's case 8 months was suspended. The Referrals Committee clearly had these cases in mind in fixing the headline sanction of 10 months withdrawal in the present case.
Having considered all of the evidence and arguments we have come to the conclusion that the Referrals Committee ought to have fixed a shorter headline sanction of six months in this case in order to take account of a major difference between Mr Hanlon's conduct and that of Messrs. Elliot and James. In their cases, the lack of respect demonstrated to the carcass of the deceased animal in each case was deliberate and wilful. Mr Hanlon's was not. He was negligent albeit to a high degree. We do not think that the reduction of the headline penalty from one of 12 months withdrawal of licence to 10 months adequately addresses that major difference. It also has to be borne in mind that the negligence of Mr Hanlon occurred in a single activity of relatively short duration. We are not to be taken as holding that negligence as distinct from a deliberate act might not attract a 10 or even 12-month withdrawal of licence in appropriate circumstances. Had there been continuing acts of negligence here, then the 10-month figure might well be justified. However, that was not the case and so we are of opinion that the headline figure of six months withdrawal is the correct one.
The Referrals Committee went on to consider mitigating factors which gave rise to it deciding that one half of the 10-month withdrawal ought to be suspended provided that certain conditions are met by Mr Hanlon. No criticism can be made of the Referrals Committee in its approach to this issue and we affirm its decision and adopt the same approach in that regard.
Fines
As to the two monetary penalties which were imposed, we see no reason to interfere with them as they were correct and proportionate.
Result
- In respect of Mr Hanlon's breach of Rule 272(i) Mr Hanlon's licence to train is to be withdrawn for a period of six months commencing on the 1 of December 2024 (this date has already been fixed by the Referrals Committee).
- The Referrals Committee may (in accordance with its decision) consider an application to conditionally suspend the last three months of the six-month withdrawal As determined by the Referrals Committee such a suspension will only be justified if it is satisfied that the conditions identified at paragraph 17 of its determination are met. The times specified in paragraph 17 are to be suitably adjusted by reference to the shorter period of licence withdrawal provided for by this decision.
- The fine of €2,000 in respect of the breach of Rule 272(i), is affirmed
- The fine of €350 in respect of the breach of Rule 148(iii) is likewise affirmed
The appeal was presented by Mr Stephen Lanigan-O’Keeffe SC and Mr Niall Flynn BL, instructed by Whelan Law Solicitors, of Cashel, Co Tipperary on behalf of Mr Hanlon. The IHRB was represented by Ms Christine Traynor BL, IHRB Head of Racing Regulation and Integrity.