The Appeals Body, Mr Justice Peter Kelly (Chairman), Mr Anthony Byrne and Mr Robert Steele convened at the Offices of the Irish Horseracing Regulatory Board on Thursday, 17 October 2024 to consider the appeal of Luke W Comer, Trainer, against the severity of the sanction imposed by the Referrals Committee on Friday, 29 August 2024.

Following a referral to consider potential breaches of the Rules of Racing, the Referrals Committee found Mr Comer in breach of Rule 272(i) and imposed a suspension of Mr Comer’s licence for 12 months. 

At the appeal hearing, the Appeals Body considered submissions on behalf of Mr Comer by Remy Farrell and on behalf of the IHRB by Ms Christine Traynor, Head of Racing Regulation and Integrity.

Having considered the submissions, Justice Peter Kelly issued the following decision on behalf of the Referrals Committee on Tuesday, 5 November 2024:

Introduction

This is the appeal of Mr Luke W Comer (Junior) (Mr Comer) against the decision of a Referrals Committee dated 29 August 2024. On that occasion, the Referrals Committee found Mr Comer, following a guilty plea, to be in breach of Rule 272(i) of the Rules of Racing (the Rules). The penalty imposed was an immediate withdrawal of his Restricted Trainer's licence for a period of 12 months. The Referrals Committee indicated that it would not impose a fine if Mr Comer contributed €10,000 each year for two years to a horse welfare charity called Treo Eile, which he volunteered to do. The principal ground of appeal relied upon by Mr Comer on the question of his breach of the relevant Rule is that the Referrals Committee erred by making adverse findings against him which were outside the scope of what the Irish Horse Racing Regulatory Board (IHRB) had referred to it for determination or were outside the scope of the breaches alleged (and accepted) by Mr Comer. This ground is particularised under a number of different headings. On the question of penalty Mr Comer contends that it was disproportionate to the facts, did not take account of significant mitigating factors, and was out of kilter with sanctions imposed in other Rule 272 infringements. He contends that the Referrals Committee erred in principle in both its findings on liability and penalties. 

There is also a cross appeal brought by the IHRB limited to the question of penalty. It contends that a fine ought to have been imposed and that the whole of the sanction was too lenient in the circumstances of the case.

The factual background to this case and the identification of what precisely was alleged, and indeed not alleged, against Mr Comer arising from those facts is of great importance in understanding the issues.

Factual Background

Introduction

On the afternoon of Friday, 12 of March 2021, Dr Lynn Hillyer (Dr Hillyer), the Chief Veterinary Officer of the IHRB received a telephone call. The caller was a former employee of Mr Comer and indicated that he was concerned about the welfare of horses in the care and control of Mr Comer. Dr Hillyer, quite properly, immediately contacted the head of the investigations division of the Department of Agriculture, Food and the Marine (DAFM), to refer the matter to that Department. A meeting was arranged between the DAFM Senior Veterinary Inspector, Dr Hillyer, the phone caller, and another former employee of Mr Comer. The information provided by these former employees resulted in an unannounced inspection of premises the following day.

The Inspection

Shortly after noon on Saturday the 13 of March 2021, Dr Hillyer together with an Official from the DAFM attended at a premises called Ginnets Estate, Summerhill, County Meath. They entered the premises via a track from the main road which led through woodland. At the end of the track, the ground was uneven, mounded and grassed over in places, with tangles of briar and some plastic debris. Cut branches of pine or fir were piled on top of the mounds. On closer inspection, and without disturbing the branches, numerous horse bones were clearly visible - skulls, jaw bones, leg bones, vertebrae and pelvis.

There were a number of different horses of different ages, as evidenced by the range of size of bones and teeth in the mandibles, from foal to young horse to adult. Seven skulls were readily identified without disturbing the ground. While some bones were scattered, many were in their anatomical location, indicating degradation in situ. The bones were entirely clean of flesh and hide. There was no evidence of any of the horses having been euthanized by firearm, indicating that the horses had either died or been chemically euthanized. Turning from that site and walking back down the track, a second area of bones was identified to the right. They were similarly devoid of flesh, partially covered by growing and cut vegetation, and came from a number of horses.

During the course of this inspection, Mr Comer, his father, a Veterinary Surgeon called Seamus Foran and Mr Dermot Kelly, the Manager of the premises, were present.

Second Inspection

On 15 of March 2021, Dr Hillyer assisted the DAFM Veterinary Inspector at an inspection of a premises at Brookville Lodge, Dunboyne, County Meath. The purpose of the inspection was to investigate an allegation of further horse remains being buried on that premises.

The inspection party again met with Mr Comer but no evidence of animal remains were visible on inspection of the surface of the fields and no excavations were carried out by the DAFM Veterinary Inspector.

Result

Equine remains had been identified in two locations on the Ginnets Estate (an unlicensed premises) but no such remains were found at Brookville Lodge, which was a licensed premises.

Following this, the matter was taken up by the DAFM and resulted in it deciding to commence a prosecution, the details of which we will turn to shortly. Before doing so, it is appropriate to provide some background information on Mr Comer, the premises where the horse remains were found, and the general background to the disclosures made to Dr Hillyer.

Mr Comer and Ginnets Estate

Mr Comer works in a large equine operation founded and run by his father, Luke Comer Sr. Mr Comer supervises and directs six stud farms located in Meath, Kildare and Wicklow. From time to time he had approximately one hundred mares, fifty to sixty yearlings and fifty to sixty foals under his care.

Mr Comer is a Director of Raven's Pass Limited which is a company incorporated in this state with its registered office in Leixlip. It is the registered owner of the Ginnets Estate property and has been since19 of September 2013. Ginnets Estate has been operated as a stud farm since 2015 but is not a licensed premises for the purposes of the Rules.

Ginnets Estate comprises approximately 600 acres, of which 250 acres are forestry, 325 acres are pasture, and the remainder accommodate stabling, a yard area and ancillary buildings.

Mr Comer took over responsibility for Ginnets Estate in 2017. He continued the employment of two individuals who were dismissed from their employment in February 2020. They were the persons who made contact with Dr Hillyer, which gave rise to the IHRB and DAFM investigations.

The areas where the equine remains were located are in the heart of 120 acres of forestry. There is a forestry track of approximately 500 metres, which is entered through a gate, which is normally kept closed.

The Prosecution

Following the finding of the skeletal remains, DAFM decided to institute criminal proceedings. Eight District Court summonses were issued in the name of the Minister for Agriculture, Food and the Marine. Two summonses were issued against Raven's Pass Limited and two against Mr Comer as a Director of that company. Four summonses were issued against him in his personal capacity.

All of the summonses related to alleged offences contrary to the European Union (Animal By-Products) Regulations 2014 S.I. No. 187/2014. These Regulations create strict liability offences for possessing and failing to dispose of certain animal by-products such as horse remains.

On 22 March 2024, the summonses were listed for hearing before District Judge Dunne at Navan District Court.

All of the charges were struck out against Mr Comer and Raven's Pass Limited on the basis of a guilty plea entered by the company through the agency of its Director, Mr Comer, in respect of the proceedings issued against it and his agreement to pay a sum of €20,000 to the ISPCA. No record of that plea of guilty is to be found in the orders made by the District Court. All eight summonses were struck out on the basis of the agreement to pay €20,000 to the ISPCA, a fact which is not recorded in any of the orders either.

Much publicity on both mainstream and social media ensued as a result of the hearing which took place in the District Court. We will have more to say about that later in this decision, but it is appropriate to record a number of notable facts concerning the prosecution and the hearing before the District Court at this stage.

Notable Facts

1. The IHRB was not a party to the proceedings in the District Court. Prosecutions were taken by the Minister for Agriculture, Food and the Marine.
2. Criminal charges to which pleas of guilty were entered were those against the company, Raven's Pass Limited. It was the legal entity which owned and operated the premises on which the horse carcasses were found. The strict liability offences to which it pleaded guilty involved a failure to collect, identify and transport Category 2 animal by-products without undue delay under conditions which prevent risks arising to public and animal health from the lands and having in possession Category 2 animal by-product material on the lands.
3. Charges against Mr Comer that he as a director, had consented, connived with or had permitted the offences to be committed by reason of neglect were not proceeded with and were struck out.
4. Charges against Mr Comer as a principal were not proceeded with.
5. At no stage was it ever alleged in the prosecution that either Mr Comer or Raven's Pass Limited was the owner of the horse carcasses or had owned the horses when they were alive. Indeed, it would not have been possible to make such a charge since the carcasses could not be identified.
6. At no stage was it alleged that Mr Comer had been guilty of any form of cruelty, neglect or lack of care in respect of the horses in question.

The Publicity

Following the disposal of the proceedings in the District Court, there was media reporting of the circumstances of the prosecution. We have been furnished with samples of it, both from mainstream media and social media. Mr Comer contends that there was what was described as a, “significant disconnect between the evidence and the result of the District Court proceeding and the reportage and media commentary in relation to it.”

Having regard to the material placed before us, we believe that he is justified in holding that view. This was undoubtedly damaging to Mr Comer, but also to the sport of horse racing. Mr Comer accepts the damaging nature of this publicity, and furthermore that because of his association with the events which gave rise to it, that he is in breach of Rule 272(i), of the Rules. He was, quite properly, charged by the IHRB of being in breach of that Rule and has accepted his guilt in that regard. He does not complain about that. His complaint is that the Referrals Committee found him guilty and proceeded to punish him for matters that he had never been accused of in either the District Court proceedings or the charges laid by the IHRB. A second complaint of Mr Comer is that some of the Referral Committee's findings are unsupported by the agreed evidence put before it and in some instances contradictory to the only evidence placed before it.

The Charging Decision

On 6 June 2024, the IHRB notified Mr Comer that it was charging him with breaches of Rule 272(i) and 273(xiii). The notification was in the form of a letter which in its first paragraph set forth the basis for the charges. It read:

"We refer to the above matter and following inspection and subsequent prosecution by the Department of Agriculture, Food and Marine (DAFM), against you (the licensee) where in a discovery was made of nine fully decomposed horse carcasses on your unlicensed property. (Ginnets Hill, Ginnets Summer hill, Count y Meath). As licensee you appeared in court in relation to the case and the matter was dealt with by the courts. The matter was subsequently scrutinized by the media and subject to public comment. Both your attendance as the licensee and the outcome arising from court, together with the media cover age, was referred to the IHRB Disciplinary Department for investigation and following examination of the issues, will now be submitted to a Referrals Committee for hearing.

Please be advised in respect of the aforementioned, the IHRB are charging you with the following breaches of the Rules of Racing and Irish National Hunt Steeplechase Rules (the Rules) in respect of your conduct, those Rules relating to preserving the good reputation of horse racing, upholding the integrity of the sport. “The letter then set forth the text of the two Rules and went on to say: "There is the need that the reputation of horse racing must be maintained as a priority, not just for the good of horse racing itself, but for the good of the people who rely upon horse racing as their livelihood. The way horses are looked after must be to the highest standards and it follows therefore, where there is a failure to meet the particular standard or that there is a threat to the integrity of industry (sic)”.

Enclosed with the letter was a two-page report from Dr Hillyer and a selection of the media articles containing critical commentary.

Dr Hillyer's report sets out the contact that was made with her, the inspection carried out on the 13 and 15 March 2021 and her decision to involve the Veterinary Investigations Division of DAFM.

Finally, the letter invited Mr Comer to provide written submissions by a specified date and advised as to his rights to appear and be represented at the contemplated Referrals Committee hearing.

An exchange of correspondence ensued during the course of which the IHRB wrote on 19 July 2024 in which it reiterated the case being made against Mr Comer.

The letter said:

"The case your client must meet is for breach of conduct rules. The specific breach relates to whether Mr Comer's attendance in court relating to welfare issues were likely to be prejudicial to the interests of the IHRB or which is likely to cause serious damage to the interests of horseracing bringing the sport into disrepute. Mr Comer's conduct and behaviour amounts to improper conduct within the meaning of the relevant Rules 272(i) and Rule 273(xiii). Mr Comer ought to have known that his actions were prejudicial and could cause damage to the sport.”

On 30 July 2024, the IHRB, in a five-page Charging Decision, notified Mr Comer of the particulars of the breaches being alleged against him. This document contains seven separate headings, the first of which is a summary. It speaks of an examination carried out by the IHRB in respect of alleged violations. It inter alia states as follows:

"This examination focused on allegations of horse welfare, including injuries to horses and detailing numerous deceased horses remains. The horses could not be and were never identified. Questions remain unanswered as regards all matters associated with the horses including ownership, their welfare prior to death, the cause of their death, and their disposal after death. This falls below the standards expected of anyone who has been granted a licence to train horses by the IHRB."

The document goes on to record that the incident gave rise to the prosecution and the media coverage which ensued. 

It then set out its key findings, saying:

“The findings in this case not only subjected Mr Luke W Comer to intense scrutiny, but also, given his role as a licensed trainer in horse racing, undermined public confidence in the sport. The attention drawn to the issue revealed a serious lapse in the integrity and respect of horses, as is expected of Mr Luke Comer, as a licensee."

It speaks of the evidence involving the discovery of deceased horses associated with him which raised significant concerns about compliance with laws and regulations governing the proper handling of animal remains. It speaks of Mr Comer's actions having displayed insufficient respect for the dignity of the deceased horses, that therefore his conduct did not meet the high standard expected within the industry.

It further speaks of his obligation to preserve the reputation of horse racing, and that the negative media attention caused by him had implications for horse racing, with respect to the disregard by trainers for horse welfare and the dignity of and proper disposal of horses. It then criticised him for his alleged inadequate response, denials and lack of responsibility.

A good deal of criticism was levelled at the IHRB in respect of the procedures followed by it in commencing disciplinary proceedings of the type in suit.

Comparisons were drawn between the way in which criminal proceedings and regulatory proceedings alleging professional misconduct are commenced. In all of them, the wrongdoing alleged is identified by reference to the relevant statutory or other provision and particulars furnished grounding that allegation.

It is said that the procedure which was and is normally followed by the IHRB is unsatisfactory and in the present case has given rise to confusion as to what precisely was the wrongdoing alleged against Mr Comer.

The regulation of horse racing may not be directly comparable to either statutory regulation of professions or criminal procedure. However, basic rules of fairness and natural justice apply to it just as much as they do in those other spheres. What is essential is that an individual against whom an allegation is made knows what that allegation is and the particulars being relied upon to support it. That can be done in a short and concise manner or, as in this case, by means of a more discursive document or series of documents. The more discursive the document the greater the possibility of confusion. However, once the essential element of giving due notice to the accused is satisfied, there can be no legitimate objection.

In the present case, we are satisfied that a combination of the original letter of the 6 June 2024 and the charging decision of the 30 July 2024 identify the Rule infringements alleged, and the particulars relied upon in support of them. Those particulars are to be gleaned by a fair reading of those documents which demonstrate that the allegations of the IHRB arose from the criminal prosecutions and the media coverage which followed. The IHRB is correct in saying that one has to have regard to the factual matrix against which the prosecutions were brought. Those facts involve the finding of the carcasses on land owned by a company of which Mr Comer, a licensed trainer, was a Director. It was never alleged that he was the owner of those horses, nor was there ever any evidence that he in fact was. Neither was he alleged to have actually known of the existence of the horse remains until they were discovered, nor was there any evidence that he did know. No allegations were made or evidence led as to the adequacy or otherwise of methods used to dispose of deceased horses. He was able to demonstrate that he had arrangements in place and had in fact paid for the proper disposal of his deceased horses over time. No allegations of any welfare breaches were made nor was any evidence led in that regard. It has to be said that there are some elements of the Charging Decision which might have been more clearly put and are somewhat confusing but when read as a whole together with the accompanying documents and the documentary evidence relied on by the IHRB, we do not believe that Mr Comer was in anyway disadvantaged. We are fortified in this view because when confronted with these charges and the material relied upon to support them, Mr Comer pleaded guilty to a breach of Rule 272(i) in a very precise way. He did so in the written submissions furnished to the Referrals Committee, resulting in no oral evidence having to be given in respect of the charges. Crucial to the way in which the matter proceeded before the Referrals Committee, are the terms of the plea of guilty to the breach of Rule 272.

The Plea

These are the terms of the plea of guilty offered by Mr Comer and accepted by the IHRB; “Mr Comer accepts that he breached Rule 272 by allowing fallen animals to remain on property controlled by him, which resulted in a public prosecution of the company which owns the property, Raven's Pass Limited. This brought about negative media cover age to (sic) sport of horse racing generally and Mr Comer personally.”

The precise terms of the written plea show that whatever confusion might have arisen from some of the wording in the Charging Decision, Mr Comer was able to discern the actual allegations made against him and indeed the evidence being relied to support them and pleaded guilty to them and nothing more.

The written submission went on to point out that Mr Comer did not know, nor could he reasonably have known, that the animal remains were located in the areas for reasons further developed in the submission. He then, having accepted a breach of Rule 272 submitted that the Referrals Committee ought not to examine a breach of Rule 273(xiii) in accordance with the way in which a Referrals Committee had decided a case of Gordon Elliott of the 5 of March 2021.

The Hearing before the Referrals Committee

The Hearing took place on 29 of August 2024, and the decision under appeal was delivered ex tempore that day.

No oral evidence was called at the Hearing because of Mr Comer's guilty plea, but there was an agreed book of material placed before the Referrals Committee, which is the same as that furnished to us.

The Hearing consisted of oral submission by both sides dealing with the evidence tendered, and legal argument.

As the evidence tendered before the Referrals Committee was entirely in documentary form, we are in as good a position as the Referrals Committee to make an assessment of it.

The evidence from the IHRB can be summarised as consisting of Dr Hillyer's report and media articles concerning Mr Comer and the discovery of the equine remains on the property. When we speak of media articles or reports, we include the social media material which was included. There was also photographic evidence relating to the property and the discovery of the horse carcasses. A consideration of this evidentiary material demonstrates that (as is clear from a fair reading of the Charging Decision) the case made by the IHRB was that by being prosecuted and pleading guilty before the District Court with the consequent adverse publicity, Mr Comer was in breach of the Rules.

There was no allegation on evidence that Mr Comer had ever been the owner, or the person charged with responsibility for the horses when alive, or that he knew or ought to have known that there were horse remains on his property. Neither was there any allegation that he did not have an appropriate system in place to dispose of horse remains in an appropriate way or of any breach by him of any welfare obligations to the horses.

Mr Comer's documentary evidence can be summarised as demonstrating the remote location where the remains were found and the density of the surrounding forest. He also produced evidence demonstrating the appropriate disposal of deceased horses on his property and he exhibited statements given by Dr Hillyer and Mr Devlin in relation to the District Court prosecution confirming that there were no animal welfare issues involved. He also produced statements from two veterinary surgeons and his yard manager as to the high standards observed concerning the welfare of horses.

The system of disposal of horse carcasses was documented by reference to an arrangement with the Ward Union Hunt and testimonials in that regard.

The legal submissions made to the Referrals Committee by both sides dealt with a variety of issues, including the charge laid against Mr Comer and his plea to it, an identification of what he was and was not charged with, a commentary on the evidence, the media and social media reportage, the personal circumstances of Mr Comer and penalty.

The Referrals Committee Decision

The decision expressly stated that it was only necessary to deal with the background to the case in summary form, given the agreed approach of the parties, that the breach of the Rules was accepted and consequently it was the question of an appropriate sanction that fell to be considered. There was then an accurate summary of the events giving rise to the inspection of the Ginnets Estate premises, horse remains being found there, the prosecution brought against Mr Comer, his cooperation with the DAFM, his plea and the fact that no convictions were recorded and all charges struck out on payment of the €20,000 to the ISPCA.

It then recited the two charges under Rules 272 and 273. It recorded that Mr Comer accepted that the remains were found on the estate, that he had responsibility for that, but denied in the strongest possible terms that he was responsible for bringing the remains onto the estate. The Referrals Committee recorded that he maintained that he always ensured that fallen animals were properly disposed of and produced evidence from the Ward Union Hunt in that regard. It also recited that Mr Comer pointed out that no other issues were raised regarding horse welfare.

It recorded that Mr Comer was deeply remorseful that the event occurred as it had damaged him, his family business and impacted on the interests of horse racing in Ireland for which he has a great passion. It noted that Mr Comer's working life is devoted to working within horse racing in Ireland and that he had accepted responsibility for the finding of skeletal remains on his property and the ensuing investigation and that a sanction had to be imposed as a result of the breach of the Rules.

The Referrals Committee then indicated that as a breach of the Rules was established without objection it had to apply a proportionate penalty taking into account the aggravating and mitigating factors. It recorded that the IHRB asked for the imposition of a suspension of one year and a fine on each charge. Mr Comer had made a suggestion in relation to a donation to an animal welfare charity but opposed any suspension being applied.

It is the next part of the decision of the Referrals Committee to which Mr Comer takes particular exception. This is what it said:

"In terms of the outcome of having considered all of the evidence before us, we say this: Clearly the discovery of horse carcasses is unacceptable and offends good training practice and damages the integrity of racing. We understand that the failings are of some vintage and are in the context of a large farm and may have been contributed to by others working on the property at the time. Nonetheless, the trainer is ultimately responsible, as we think Mr Comer knows and acknowledges. In particular, out of a cohort of some seventy horses or so on the premises, we find it hard to understand how Mr Comer would not notice many horses were missing and then discovered in the inspection. Overall, we find that there was significant carelessness regarding this matter. This does involve horse welfare and proper disposal of carcasses. Even on the basis of Mr Comer's case that there was no malign intention, this offending was by way of significant omissions, which breaches trainers’ obligations. Such conduct seriously damages the good reputation and racing and undermines public confidence in horse welfare standards within the industry.

So, we consider this is a significant breach of Rule 272(i). Sanction under that Rule we think is sufficient to deal with all of the off ending and we don't need to consider the other Rule 273(xiii), which overlaps. We consider that a fine is insufficient to deal with this charge and withdrawal of licence and suspension from holding a licence for a period is the only proper outcome to reflect the seriousness of the charge. Had Mr Comer not shown remorse and accepted the charge, the sanction would have been greater. But having considered his position and the mitigation he has offered and the testimonials which we have considered, we consider that an immediate withdrawal and suspension from holding a licence for one year is appropriate. After the expiry of that period, it will be for the Licensing Committee to consider any future application.

In addition, on a positive note, we are content not to impose a fine if Mr Comer contributes €10,000 each year for two years to Treo Eile, a horse welfare charity, as he has volunteered."

(Extracted from the transcript of the decision)

Analysis

We have carefully considered this part of the decision of the Referrals Committee in the light of case made by the IHRB against Mr Comer and the evidence placed before it. The evidence is precisely the same as that placed before us and is all documentary in nature. The Referrals Committee says that out of a cohort of some 70 horses or so on the premises, it found it hard to understand how Mr Comer could not notice many horses were missing and then discovered in the inspection. It follows from this that the Referrals Committee must have concluded that the dead horses, when alive, belonged to, or were under the control of Mr Comer. There is no evidential basis to support that contention, nor was it ever alleged by the IHRB. The identity and ownership of the horses was at all times unknown. The Referrals Committee then made a finding of, " significant carelessness regarding this matter”. We are unable to find any evidence to support that finding, nor did the IHRB accuse Mr Comer of acting in a careless manner.

The Referrals Committee then went on to say:

"This does involve horse welfare and proper disposal of carcasses".

Again, there was no evidence led, or allegation made that Mr Comer was guilty of any breach of horse welfare or that he had improperly disposed of carcasses. Such a finding presupposes that Mr Comer either owned or was responsible for the dead horses.

In fact, on the evidence, both from two veterinary surgeons and an employee, Mr Comer operated his premises with no welfare issues and both Dr Hillyer and Mr Devlin identified no horse welfare issues either. Insofar as the disposal of dead horses were concerned, there was a proper system of disposal in place.

The Referrals Committee then went on to say that even on the basis of Mr Comer's case that there was no malign intention, the offending was by way of significant omissions, which breaches trainers’ obligations. We can find no evidence in support of that.

These findings were outside the scope of the case alleged against Mr Comer by the IHRB and the evidence in support of that case. We now turn to a consideration of the consequences of our findings in this regard.

Consequences

Ms Traynor, on behalf of the IHRB, has urged us to view these findings of the Referrals Committee to which exception is taken as being the equivalent of obiter dicta in a judgment deciding a legal question. She contends that the statements do not go to the heart of the decision and are by way of comment.

We are unable to view these findings of the Referrals Committee in that light. It appears to us that they play an important part in its decision. However, having regard to the way in which the decision of the Referrals Committee is structured, these findings were directed at the question of penalty rather than liability.

Whilst Mr Comer has invited us to set aside the determination of the Referrals Committee on liability and penalty, his counsel readily acknowledged a difficulty in setting aside the liability finding given his guilty plea. The finding of a breach of Rule 272(i) must stand having regard to that guilty plea but it must be understood in the context of the charge levelled and the evidence led which did not include the matters referred to by the Referrals Committee on which we have made the above findings. It is therefore a finding of guilt on a much more limited basis than that found by the Referrals Committee.

Before turning to the question of sanction, we should say that we entirely agree with the Referrals Committee and the approach which it took concerning the Rule 273(xiii) alleged infringement. There is considerable overlap between the two Rules and the Referrals Committee was right in taking the view that it did not need to consider it in the light of a guilty plea in respect of Rule 272(i). In any event, there is no cross appeal on the part of the IHRB seeking to disturb that decision of the Referrals Committee.

Penalty

We are of the view that in fashioning the penalty which it did, the Referrals Committee improperly took into account the matters addressed in its decision to which exception has been correctly taken.

Had the IHRB alleged that Mr Comer was guilty of those matters and produced evidence in support of the allegations, then the penalty fixed by the Referrals Committee could not be criticised. But it did not do so.

We are satisfied that there was an error in principle made by the Referrals Committee in fixing the penalty since it took into account wrongdoing which had been neither alleged nor supported with evidence. We therefore allow the appeal and set aside that part of the decision of the Referrals Committee. The breach of Rule 272(i) by Mr Comer is substantially less serious than that found by the Referrals Committee.

We must now fashion a penalty which takes into account;

1. The preservation of the integrity, proper conduct and good reputation of horse racing;
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;

We must fix a penalty which is proportionate and appropriate in all the circumstances and those circumstances include a consideration of mitigating and aggravating factors.

Taking all these factors into account, we are of opinion that a financial penalty simpliciter would be insufficient. We are of the view that a headline penalty of withdrawal of Mr Comer's licence for a period of three months is appropriate. We then have to consider aggravating and mitigating factors. We are unable to discern any aggravating factors, but there are numerous mitigating factors. Mr Comer cooperated fully with the searches of the premises. Having been charged with the offences in the District Court under the relevant regulations, there was a plea of guilty which was satisfactory to the prosecutor, The Minister for Agriculture. This resulted in the District Judge striking out the proceedings. Mr Comer made a substantial contribution to the ISPCA. He at all times accepted that the fact that he appeared in the District Court in such circumstances giving rise to the attendant adverse publicity constituted conduct or behaviour on his part which was in breach of Rule 272(i).

When charged by the IHRB he again pleaded guilty, thus shortening considerably the cost and expense of a hearing before the Referrals Committee.

In addition, as is correctly said by the Referrals Committee, Mr Comer, "is deeply remorseful that this event occurred, as it has damaged himself, his family business and impacted on the interests of horse racing in Ireland, for which he has a gr eat passion."

In these circumstances, we are satisfied that it would be unjust and disproportionate for the withdrawal of Mr Comer's licence to take effect and so we suspend it for a period of 12 months. If during that 12 months Mr Comer is guilty of a breach of any of the Rules then the withdrawal of his licence will take effect.

The Referrals Committee indicated that it would not impose a fine if Mr Comer made a contribution of €10,000 each year to a horse welfare charity.

The Rules provide for, inter alia, the imposition of a fine in respect of a Rule breach. We are of the opinion that if a monetary penalty is appropriate that is the sanction that ought to be applied. We do not think it desirable that a regulatory body should, in enforcing its regime, go outside what is provided for in the Rules by way of sanction.

We believe that in addition to suspended withdrawal of the licence it is appropriate that a monetary penalty be fixed by way of fine and accordingly we impose a fine of €15,000 on Mr Comer payable to the IHRB.

Result

1. In the light of Mr Comer's plea of guilty, the decision of the Referrals Committee that he was in breach of Rule 272(i) is affirmed. However, that finding must be understood in the light of what is said in this decision.
2. The decision of the Referrals Committee on penalty is set aside. In lieu thereof, the following is ordered.

(i) Mr Comer's Restricted Trainer's licence should be withdrawn for a period of 3 months, commencing on the 1st of December 2024. He is in addition fined a sum of €15,000.

(ii) The withdrawal of his licence will be suspended in full on condition that he (a) pays the €15,000 fine before 1 of December 2024 and (b) that for a period of 12 months commencing on the 1st of December 2024 is not guilty of any breach or breaches of the Rules.

3. In the light of our finding it follows that the IHRB cross appeal seeking to have the penalty imposed by the Referrals Committee increased is dismissed.

The appeal was presented by Mr Remy Farrell SC and Mr David Geoghegan BL instructed by Mr Andrew Turner, Hamilton Turner Solicitors and Mr Ronan Cunningham, Hamilton Turner Solicitors on behalf of Mr Comer. The IHRB was represented by Ms Christine Traynor BL, IHRB Head of Racing Regulation and Integrity.