The Appeals Body, Mr. Justice Peter Kelly (Chair), Mr. John Murphy and Mr. Anthony Byrne convened at the Offices of the Irish Horseracing Regulatory Board on Monday 29^th May 2023 to consider the appeal of Mr. Ronan McNally against the sanctions imposed by the Referrals Committee by way of decision dated 31^st January 2023.

Following the decision of the Referrals Committee after a hearing on Monday 17^th to Thursday 20^th October 2022, Mr. McNally was declared a disqualified person under the Rules for a period of 12 years and ordered to contribute €50,000 towards the costs of the IHRB related to the inquiry. The Referrals Committee also disqualified Dreal Deal from races in Navan on 19^th Septeber 2020 and Limerick on the 10^th October 2020, and The Jam Man from a race in Limerick on 11^th September 2020 and directed that the prizemoney won by each horse be forfeited pursuant to Rule 275(i).

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

Having considered the evidence, the Appeals Body issued the following decision dated 21^st June 2023:

Introduction

Mr. Ronan McNally (the Appellant), appeals against findings made against him and sanctions imposed upon him by a Referral Committee (Mr. Justice Brian McGovern (Chair), Mr. N.B. Wachman and Mr. Peter M. Allen) (“the Committee”).  Multiple findings of rule breaches were made against the Appellant and he was declared a disqualified person under the Rules for a period of 12 years.  Two of his horses were also disqualified from a number of races and in the case of both horses the prize money was forfeited.  In addition, the Appellant was directed to contribute €50,000 towards the costs of the Respondent related to the enquiry. 

The hearing before the Committee involved seven other co-accused.  After a four day hearing findings were made against five of them in addition to the Appellant.  A separate sanctions hearing took one day before the Committee and gave rise to the sanctions under appeal.

The Appellant was represented by a solicitor and counsel during the four day hearing below, by a non legally qualified representative at the sanctions hearing and by different solicitor and counsel on the appeal hearing.

Background

The Appellant holds a Restricted Trainers’ License and has had some success as a trainer and a rider.  At all material times he was the owner of horses called Dreal Deal and the Jam Man.  Three other horses All Class, Full Noise and Petrol Head were in training in Mr David Dunne’s yard under lease agreements with the Appellant.  Mr David Dunne was a co-accused who had findings made against him by the Committee and was unsuccessful in his appeal against the sanction imposed.

 

The case made by the Respondent against the Appellant is summarised in the decision of the Committee.  It is this.  In 2020 three horses owned by the Appellant showed extraordinary improvements in their form and handicap rating over a very short period of time.  Investigations revealed that the upturn in form and handicap rating for the horses was dramatic and exceptional and occurred without any change in their training regime or other circumstances that would legitimately explain the dramatic and exceptional improvement in performance.  Two of the four horses, namely Dreal Deal and The Jam Man, were trained by the Appellant and the other two Full Noise and All Class were nominally trained by Mr Dunne and their true ownership was concealed by Mr Dunne and the Appellant.  The change in ability and handicap of the horses was accompanied by the betting market chasing those horses when they came good and, at least in the case of Dreal Deal, persons connected with the Appellant were able to bet against it when it was well down the field and bet on it to win when it won.  It was the Respondent’s case that by far the most likely explanation for what was seen from the performance of the three horses (Dreal Deal, Full Noise and The Jam Man), was that the Appellant and Mr Dunne were manipulating the handicapping of the horses and that they were doing so illicitly when judged against the obligations imposed on them under the Rules.  It was alleged that this manipulation was achieved by:

1. Racing the horses when not fit or when the horses were ill;
2. Sending the horses to course for schooling/conditioning and/or
3. Riding or arranging for them to be ridden improperly as against the Rules.

In the course of its decision, the Committee set out a summary of the evidence which it heard from both sides and the conclusions which it reached on that evidence together with the consideration of the submissions made to it.

It is not necessary for the purposes of this ruling to repeat in extenso all of the detailed material which is rehearsed in the decision of the Committee. Its findings are expressed in is decision in narrative form from page 2 onwards and in the findings on the individual charges. They can be summarized inter alia as follows:

1. On the basis of the evidence before it the Committee was satisfied that Dreal Deal and The Jam Man ran substantially better than their handicaps would have suggested in the races that led to their being referred to the Committee;
2. Those performances were exceptional as they occurred over such a short period of time;
3. The improvement in form could not be explained by training methods.

 

 

The Committee was satisfied that the changes in performance were brought about by breaches of the Rules relating to riding and training.

Other findings were made and conclusions reached which are reflected in the detailed charges which were sustained against the Appellant and which are set out in the schedule to this decision.  

The Committee in its decision set out the evidence which it heard and the contentions made, paying particular attention to assertions made by the Appellant by way of explanation.  One of those explanations was that The Jam Man suffered from Aspergillosis and that the horse was hitting form after that infection.  The Committee, on the basis of expert evidence tendered, found that none of the Appellant’s horses were suffering from Aspergillosis at any time relevant to the investigation.  The Committee also recorded that no records were produced to show the nature of the training carried out by the Appellant which would explain the dramatic improvement in the form of his horses.  He admitted to keeping no records of exercise or weighing of his horses and also admitted to carrying out an endoscopy but he kept no records of the procedure.  The Committee noted that an endoscopy is a procedure which should be carried out by a qualified veterinarian but that the Rules do not specifically prohibit trainers without veterinary qualifications from carrying out such a procedure.  No finding was made against the Appellant on this charge.

The Committee accepted that the Appellant tried to achieve a position whereby Dreal Deal and The Jam Man could get to a stage where they could race to their true ability without that ability being seen or discovered by the betting public.  It so concluded on the basis of cogent evidence and accordingly proceeded to make the findings of Rule breaches against the Appellant.  He was not found guilty of all allegations made against him but those in respect of which a finding of guilt was recorded are set out in the schedule to this decision.

The Notice of Appeal

The Appellant, as was his entitlement, served Notice of Appeal in respect of the decision of the Committee.  Six grounds of appeal were set out in respect of the appeal against the findings of the Referrals Committee on guilt and three on the penalties imposed. 

The six were:

1. “The Committee erred in irredeemably prejudicing the Appellant.
2. By permitting the Regulator to prefer stale allegations, upon which the Regulator had long since acquiesced, and
3. By permitting the Regulator to simultaneous (sic) additionally prefer more recent allegations.
4. The Committee erred in giving manifestly improper weight to the prosecution’s handicap evidence, whilst giving no, or manifestly insufficient weight, to handicap evidence that contradicted the prosecution case.
5. The Committee erred in refusing to hear relevant expert evidence in respect of Aspergillus.
6. The Committee erred in basing findings on “personal data” from Paddy Power Bookmaker for which there appears to have been no lawful authority for the Data Controller to release, or for the Committee to receive. Alternatively, even if there was appropriate lawful authority the evidence in respect of the personal data was irrelevant and/or manifestly interpreted in a way that was contrary to the interests of justice.
7. The Committee erred in making findings that were inconsistent with the evidence.
8. The Committee erred in failing to give any or any adequate reasons for its findings.”

Case Management

At a pre appeal hearing case management session at which both sides were represented, Counsel for the Appellant indicated that he wished to consider the possibility of making an application for the admission of fresh evidence on the appeal.  That opportunity was given to him and in the event it was not utilised.  Directions were given concerning the exchange of written submissions and they were complied with.  We were told that three days were required in order to hear the appeal and that time was duly allotted to it.

The Appeal

The Appeal began on Monday, 29^th May at 10.30 a.m.   It took an extraordinary turn when, at the outset, Counsel for the Appellant raised an issue in respect of which no notice had been given either to the Respondent or indeed to this Body.  He contended that Mr. Weston who appeared throughout for the Respondent, had no entitlement to appear in the proceedings and that in fact for him to do so was a criminal offence pursuant to Section 136 of the Legal Services Regulation Act 2015.  It was most unsatisfactory that such a point should have been taken without the slightest notice of it being given to anyone.  A short adjournment was given to Mr. Weston so that he might consider the position and argument followed. 

Mr. Weston is, on his own admission, not a member of the Irish Bar.  He is a member of the Bar of England and Wales and had been practicing as such for many years and is also a part time Recorder in that jurisdiction.  Following argument, an ex tempore ruling was given to the effect that Mr. Weston was entitled to appear before us to represent the interests of the Respondent as he had done throughout these proceedings. That was based on his entitlement pursuant to the European Communities (Lawyers’ Establishment) Regulations 2003 which do not appear to have been repealed by the Act of 2015.

 

Following a short adjournment granted at the request of the Appellant’s Counsel he indicated that his submissions had been fully written out and he didn’t seek to add much to them, if indeed anything.  Short oral submissions were made by him and were responded to by Mr. Weston and in turn replied to by the Counsel for the Appellant.  The Appeal concluded at the end of the first of three days allotted to it.

SUBMISSIONS AND CONCLUSIONS

Standard and Burden of Proof

The first submission made by the Appellant concerned the burden and standard of proof.  He accepted that in these proceedings the Respondent bore the burden of proof to the civil standard i.e., on the balance of probabilities. That is expressly provided for in Rule 271.  However, he contended that that standard required “authoritative, clear and cogent“ evidence which was not an easy standard to meet and that the more serious the allegations or more serious the consequences then the more authoritative, clear and cogent the evidence needs to be.  It was said the Respondent fell short of what was required to meet the applicable standard of proof.

As is clear from its decision, the Committee considered the oral evidence before it, the video evidence and the documentary evidence.  It expressly stated “the standard of proof required by the Committee in respect of the allegations made is proof on the balance of probabilities.  While Counsel on behalf of one of the parties suggested that an “anxious scrutiny” test was appropriate where a finding might have severe consequences, the Committee is not satisfied that this is the correct test.  The Committee accepts that it must exercise the appropriate degree of care in reaching its conclusions which is proportionate to the gravity of the consequences for the parties.”

In our view the Committee was correct in rejecting an “anxious scrutiny” test.  It is our view that the Committee understood both the burden and standard of proof and correctly applied it throughout.  Its findings were explained and based upon different sources of related evidence, including admissions made by the Appellant and expert testimony.  On the basis of all of that material the Committee was well justified in reaching the findings of fact and coming to the conclusions which it did. There is no validity in this ground of appeal. Having disposed of this ground of appeal, which related to a matter that was raised before the Committee, it is necessary to deal with an objection made by the Respondent concerning many of the other issues raised for the first time on appeal.

Inadmissible Elements of the Appeal

The Respondent contends, and it cannot seriously be doubted, that it is not open to the Appellant to raise arguments outside those identified in the grounds included in the Notice of Appeal.  No application was made to seek to amend those grounds or to extend the time in which to do so. 

The second contention which was made is that it is not open to the Appellant to raise arguments of law which he might have done below but chose not to do so.

It referred us to the decision of the Appeals Body chaired by Mr. Justice Finnegan in the case of the Turf Club v Edward O’Connell (16^th July 2014 and 24^th July 2014) where it was held that appeals to this Body “should be analogous to that afforded by the Supreme Court in an appeal from the High Court whereby the oral evidence given at the first instance hearing is considered and reviewed in documentary form.  There is however the important and valuable provision that the Appeals Body on application by a party or of its own motion can direct oral evidence where that is required in the interests of justice.”

It follows that principles established in the jurisprudence of the Supreme Court on this topic fall to be considered and applied by this Body.

A number of decisions of the Supreme Court are relevant.  In Loch Swilly Shellfish Growers Cooperative Society Limited and Atlanfish Limited v. Bradley (2013) IESC16 O’Donnell J. (as he then was), writing for that Court said “there is a spectrum of cases in which a new issue is sought to be argued on appeal.  At one extreme lie cases such as those where argument of the point would necessarily involve new evidence, and with a consequent effect on the evidence already given (as in K.D. for example);  or where a party seeks to make an argument which was actually abandoned in the High Court ( as in Movie News); or, for example where a party sought to make an argument which was diametrically opposed to that which had been advanced in the High Court and on the basis of which the High Court case had been argued, and perhaps evidence adduced. In such cases leave would not be granted to argue a new point of appeal.”

In considering that approach Clarke, J. (as he then was) said in Koger Inc. and Anor. v.  O’Donnell and Others (2013) IESC 28, as follows “There are very real reasons both of principle and of practice why, not least in complex cases, parties should be required to carefully consider whatever case they wish to put forward to their best advantage and stick to it.  Trials are not a dry run.  Tactical decisions are made by all parties on a regular basis in the context of complex trials.  Doubtless, with the benefit of hindsight, many parties might wish to be allowed to revisit some of the tactical decisions which they took.  However, allowing parties to do so on appeal is a recipe both for procedural chaos and serious injustice.”

In Ambrose v Shevlin (2015) IESC10 the same judge said in relation to the same point (and having quoted the passage already cited from O’Donnell J. in the Loch Swilly case). “There are very real dangers in adopting a practise which is generous in permitting new grounds to be raised.  First, there is the overall desirability that parties be required to make their full case at trial.  An overly generous approach to permitting new grounds to be raised for the first time on appeal can only encourage either sloppiness or imprecision in the way in which cases are run, or, indeed, attempts to take tactical advantage by only bringing forward part of a claimant’s true case in the knowledge that there would be a good chance that, if it does not work at trial, a different tack can be adopted on appeal.  A culture of tolerance of parties who fail to bring forward their full case can only encourage such practises, leading to a significant risk of injustice across a whole range of cases and, indeed, causing difficulties for the administration of justice generally by a proliferation of unnecessary appeals and, in many cases, trials.  It must be emphasised that the possibility of an injustice to an individual party in a specific case may be more easily identifiable than the real and equally important risk of injustice to a whole range of parties to many cases, to which a policy of excessive tolerance might give rise.

In addition, there can be a very real risk of injustice to the opposing party if new grounds are permitted to be raised for the first time on appeal. Precisely how a case was won at trial may well have been influenced, in ways that might not be completely obvious, by the issues which seemed to be before the court.  All litigation (or at least almost all litigation) involves some degree of tactical decision by the advisers of both parties.  Such tactical decisions often involve weighing up the pros and cons of a particular course of action.  Those decisions are taken on the basis of the case as it reasonably appears to stand at the time the decision is taken.  The more easily a party can reinvent their case on appeal, the greater the risk that real prejudice would be caused.  Sometimes a party will be readily able to point to such prejudice.  For example, witnesses may not have been called precisely because an issue was not before the court.  Areas of evidence or lines of cross examination may not have been pursued.  Legal issues may not have been raised.  Many other examples could be given.  But it is, in my view, important for a court to keep in mind that the sort of prejudice of which I speak can be subtle and difficult to demonstrate but nonetheless real.  To all of that needs to be added the real risk that, in many cases, the only way of avoiding a risk of prejudice would be to direct a retrial.  Such a course of action inevitably delays the completion of the relevant litigation and exposes the parties to much greater cost. 

For all of those reasons, there are significant countervailing factors which lean heavily against allowing a point to be raised for the first time on appeal.”

Thus, it can be seen that whilst there is a jurisdiction to permit such a course to be followed, it falls to be exercised sparingly and, having regard to the observations of Clarke J., we ought to lean heavily against allowing a point to be raised for the first time on appeal.    

Science / Veterinary Evidence

Veterinary Evidence was adduced before the Committee from a number of experts.  The relevance of their testimony derived from the fact that the Appellant contended that the reason for his horses change in their performance was because they had Aspergillosis.  In the case of The Jam Man he said in his evidence (Day 2 - page 104/31) that his vet had told him that the Jam Man was suffering from Aspergillosis.  That is now resiled from and in the written submission the Appellant agrees with the view expressed by Dr. Ross in evidence that his horses did not have Aspergillosis.  Instead, the Appellant now argues that Dreal Deal and Jam Man had equine asthma as a result of aspergillus contamination in his hay. 

We note that the Appellant did not call Mr. Smith the vet who apparently led him to believe that his horses had Aspergillosis.  However, he did provide a letter from Mr. Smith which spoke to an Aspergillus infection.  This phrase was the subject of comment by veterinarians who did give evidence and the Appellant seeks in effect to amend Dr. Smith’s letter by saying “Dr. Smith is a highly respected hard working veterinarian.  Just like every other busy professional, busy veterinarians cannot reasonably be expected to get ‘ Terms of Art’ exactly right all of the time.”  The Appellant cannot seek to amend or put a gloss on the contents of that letter in circumstances where he did not call Dr. Smith below and indeed abandoned his mooted application to adduce fresh evidence before us.

The Appellant called Mr. Sharpe on his behalf but he had never seen The Jam Man and when he saw Dreal Deal there was nothing wrong with the horse (see day 4 page 12/13).

We are of the opinion that the Committee was quite entitled to find on the evidence that whilst aspergillus is quite common and might be found in any yard, aspergillosis in horses is extremely rare.  That was the evidence of Dr. Sarah Ross and was not disputed by any expert witness. Consequently the Committee was fully justified in accepting her evidence on that point.  It was also justified in concluding that whilst there was evidence to show aspergillus in hay samples taken from the Appellant’s yard there was no evidence adduced to show that any of his horses were suffering from Aspergillosis at any time relevant to the investigation.  The case now sought to be made is different. It is now contended that the aspergillus in the hay caused equine asthma thus leading to the horses’ underperformance. It is said therefore that it is highly probable that any improved performance in the horses was due to recovery from that complaint.  This appears to us to be a highly speculative proposition, particularly with regard to the only scientific evidence called by the Appellant namely from Mr. Sharpe.  As already pointed out he had never seen the Jam Man and on the one occasion when he saw Dreal Deal there was nothing wrong with the horse.  The evidence (day 4 page 15 Line 14 – 17) makes it clear that aspergillus in the hay can cause respiratory function issues.  That is to state a mere possibility.  In addition, in the only other horse tested at the yard had no respiratory findings, thereby giving rise to agreement on the part of Mr. Sharpe in his testimony that that fact does not concur with the hypothesiswhich he was attempting to establish. Furthermore, he accepted that the horses’ posited medical conditions had no more than a potential effect upon them.  

A consideration of all of this leads us to believe the Committee was quite right in reaching the conclusions which it did on the basis of the case made to it and furthermore that the different case which is now sought to be advanced on this appeal is speculative and without merit.  That is apart altogether from a consideration of whether it is appropriate to entertain this different case on appeal. It is not. This is a classic case of an attempt to abandon the failed case made below and re-inventing it. That is not permissible.

 

Admissibility of Betting Evidence

The Appellant now, for the first time, challenges the admissibility of betting evidence which was admitted before the Committee without the slightest objection on his part.  He now seeks to contend that such evidence was unlawfully obtained and for that reason was inadmissible.   He contends that the Respondent failed to set out the basis upon which the betting evidence was acquired and seeks to make an elaborate argument that it was obtained in breach of the provisions of the General Data Protection Regulation (GDPR).  He alleges that there was an unauthorised transfer of data from betting companies and that such was unlawful and in breach of privacy rights. 

The betting evidence adduced by the Respondent dealt with evidence of bets placed by two of the Appellant’s fellow accused.  No betting evidence was obtained from the Appellant.  The Respondents served a statement from Paddy Power BetFair in which it was explained how the data came to be shared with the Respondent.  That made it clear that it was by consent and was pursuant to a Memorandum of Understanding between the parties.  Neither of the two co-accused of the Appellant made any complaint about the sharing of their data.  Neither was there any challenge made to Paddy Power Betfair as to the appropriateness or propriety of its sharing data with the Respondent. 

What the Appellant now seeks to do on this appeal is to assert for the first time that the unchallenged evidence that the sharing was consensual should be reopened, that the privacy rights of his fellow accused (neither of whom made any objection) should prevent that evidence being shared with the Respondent, and that the evidence should not have been admitted having regard in particular to the GDPR.

By reference to the jurisprudence of the Supreme Court already referred to, we are quite satisfied that this is not one of the exceptional cases where this argument should be permitted to be raised for the first time on appeal.  It runs entirely counter to what took place before the Committee where the evidence was admitted without objection.  Accordingly, we are of opinion that the Appellant is precluded from endeavouring to make this case on appeal.

Without deciding the question, we are, in any event, of opinion that even if we permitted this case to be made, it is difficult to see how it could be made successfully in the circumstances which we have outlined.

Handicapping Evidence

Handicappers have a specialised role within the horseracing industry.  They set handicaps under the relevant Rules of Racing.  Their evidence and opinions are expressly admissible in evidence having regard to the provisions of Rule 212 C (c) (v).  In this case evidence was given by three handicappers who were of opinion that the changes in performance of both Dreal Deal and The Jam Man were exceptional and unexplained. They had extensive experience.  Mr. O’Gorman considered The Jam Man and Dreal Deal. Mr. Bird considered those horses on the flat. Mr. Shaw considered Dreal Deal in National Hunt racing.

That evidence was clearly admissible.  An attempt is now made on this appeal to refer to the winning of the Epsom Derby in 2020 by a horse called Serpentine.  The case is sought to be made that Serpentine produced a shock result with the horse demonstrating what is called “astonishingly improved performance.” The horse Serpentine and its performance was not the subject of any evidence before the Committee, nor was it put to any of the handicappers.  It is a new matter which is sought to be raised on appeal. That cannot be done for the reasons already given. 

It is of note that no contrary handicap evidence was called on the part of the Appellant below. Nor was any sought to be admitted on this appeal despite an opportunity having been given to him to apply to do so.

We are of opinion that the evidence of the handicappers was properly admitted. It was not the subject of any contrary evidence since none was called. The Committee was entitled to come to the conclusions which it did concerning that testimony. 

It is also worthwhile reiterating that at no stage were records produced by the Appellant to demonstrate that the nature of the training carried out by him would or could explain the dramatic improvement in the form of his horses.  He admitted to keeping no records of exercise or weighing of his horses.

Alleged inadequacy of Reasons  

There is no doubt but bodies such as the Committee and indeed this Body on appeal are obliged to give reasons for their decisions.  There is a wealth of jurisprudence on this topic and it all points to:

1. The necessity to give reasons.
2. Reasons must be such as to enable any person affected by the decision to know, at least in general terms, why the decision was made.
3. Any person affected by the decision is entitled to have enough information to consider whether they could or should avail themselves of any appeal or invoke a remedy in judicial review.

The jurisprudence also makes it clear that the application of that general approach varies greatly from case to case.  The type of reasons that are necessary depend, inter alia, on the type of decision being made and the legal requirements that have to be met in order for a sustainable decision of that type to be reached.  (See Connolly v An Bord Pleanála (2021) 2IR 752.) 

 

Criticism is made of the Committee and it is said that the decision it arrived at is not grounded in any or any adequate or appropriate reasoning.  It is said that there is no proper attempt to evaluate the competing testimonies and no explanation as to how on the balance of probabilities “convictions” were reached let alone justified.  A further criticism is made because it is said that the Committee did not discuss duplicity.  That can hardly be surprising since that issue was never raised before the Committee. Nor was it a point so obviously in need of discussion that it is even to be found in the Notice of Appeal.  It was not mentioned at all until the written submissions on the appeal were received.

Similar criticisms were made of the Committee in relation to the decision on sanction which we will come to in due course. 

We are of the opinion that there is no basis for this criticism.  It is our view that the decision of the Committee adequately demonstrates why it came to the conclusions which it did. It furthermore provided sufficient information to the Appellant to enable him to decide to appeal and to formulate grounds of appeal. Indeed he got enough information to enable him to attempt to construct arguments on appeal in respect of matter that never featured as being in controversy before the Committee. We reject this criticism levelled at the Committee’s decision in suit. 

THE SPECIFIC CHARGES

The Appellant, in the final part of his appeal against the findings of guilt, isolated each of the charges in respect to which he had been found guilty and criticised them seriatim. We will deal with them in similar fashion. The Appellant was acquitted on Charge 1.

Charge 2

The Appellant was found guilty of a breach of Rule 148 (v)(f).  It provides that a trainer should be responsible for the proper schooling of his horses for all types of starts and should make every effort to ensure that his horses do not cause undue difficulty or delay at the start of Races. 

The Appellant appears to complain that this Rule does not require a trainer to properly school a horse for exiting a stall and also that the charge is stale.  Neither issue was raised before the Committee, nor are they mentioned in the Notice of Appeal. They ought not to be entertained on appeal but nonetheless, we will deal with the issues raised.

On the clear construction of the Rule a trainer is responsible for the proper schooling of his horses for all types of starts.  So, a trainer must train a horse to start when the gates open in a flat race and be ready for the flag in a national hunt race.  The Appellant had no records of any schooling and there was ample evidence in respect of both Dreal Deal and the Jam Man from Messrs. O’ Keeffe, O’Brien, Enright and indeed the Appellant himself of the substandard starts.

 

As to the contention that this charge is stale, we are of the opinion that it is without merit.  There is no time bar for the bringing of these charges and they were in any event brought in a reasonable time after the conclusion of the investigation.

There is no merit in the Appellant’s contentions.

Charge 3

This charge alleged that the Appellant, as trainer of Dreal Deal and or the Jam Man, failed to report in accordance with Rules 213 (ii) and (iii) matters which might have affected the running of the horses during races and/or matters which subsequently came to his notice and might have had a bearing on their past/or future running.

The point made by the Appellant appears to be that the Rules are not breached if something is potentially visible to the Stewards or anyone else. This was not raised before the Committee or in the Notice of Appeal and is a new and impermissible case.

Quite apart from that, we are satisfied that this ground of appeal is baseless since Rule 213 (ii) and (iii) make it clear that there is an obligation on the trainer to report the matter specified and a failure to do so leaves the person responsible liable to a sanction (see Rule 213 (iv)).  The wording of Rules 213 (ii) and (iii) is in mandatory terms (“shall report” in (ii) and “must be reported” in (iii)) and is not modified or qualified in any way.

Once again the issue of staleness is raised by the Appellant but again that is of no substance for the reasons already stated on the previous charge.

The appeal concerning Charge 3 is dismissed.

Charges 4 & 5 

Charge 4 involved an allegation that the Appellant failed to ensure that his horses ran on their merits and/or that he used the racecourse as a training ground by running horses insufficiently schooled in order to obtain handicap marks not reflective of their ability in advance of their handicap run. 

Charge 5 alleged that the Appellant as the rider of the Jam Man on 3^rd July 2020 at Navan deliberately permitted the horse to run other than on his merits in that he deliberately prevented the horse from exiting the stalls in a timely manner, thereby causing the horse to run off the pace of that race.

 

The Appellant argues that these charges are duplicitous. The argument concerning duplicity was not made before the Committee nor is it in the Notice for Appeal.  Accordingly, we do not need to consider it. 

That said, it should be noted that the Respondent is entitled to charge multiple breaches of the Rules which arise from the same facts.  The charges are not duplicitous because Charge 4 related to Mr. McNally’s conduct as trainer and Charge 5 to his conduct as jockey.

The case is not comparable to the Gordon Elliott decision relied upon by the Appellant.

In that case there were two charges of causing prejudice to the reputation of racing whereas the Appellant here is only charged once with that offence relating to his conduct as a trainer in the way in which he ran his yard (see Charge 6).  The other charges all relate to specific incidents save that Charge 9 relates to the overarching purpose of corrupt and fraudulent behaviour.

Accordingly, we dismiss this ground of appeal also.

Charges 6 & 9

No grounds of appeal are raised in respect of these. 

Charges 7, 8 & 10

Charge 7 relates to an allegation of not having horses ready when they went to course so that they did not perform to their ability.  Charges 8 & 10 relate to the Appellant passing inside information to one of his co -accused.  In Charge 8 that is alleged to be a corrupt and fraudulent practice whereas in Charge 10 it is alleged that it is passing inside information. 

It is now alleged that these charges are too vague and are duplicitous.  Again, none of this was raised before the Committee and cannot therefore be raised on appeal.

In any event we are of the opinion that the charges are neither too vague nor duplicitous.  Indeed, a consideration of the evidence given by the Appellant demonstrated no difficulty on his part in understanding them.  There is no doubt that the Appellant passed inside information to one of his co-accused (Ciaran Fennessy) as is apparent from the testimony given both by the Appellant and Mr. Fennessy.  This ground of appeal is dismissed.

Charge 11

It is contended that as this charge was not admitted the Appellant ought not to have been found guilty.  It is difficult to understand the reasoning behind that contention.  The case was found to be proved and rightly so.

 

Conclusion

We are of opinion that none of the arguments sought to be made seeking to have the findings against the Appellant overturned have any merit for the reasons stated.  There was ample evidence for the Committee to come to the conclusions which it did.  It clearly gave a great deal of consideration to the evidence and submissions made to it and reached a conclusion justified on the evidence and admissions made.

It is very regrettable that so much of this appeal was taken up seeking to raise new issues which could have been raised at the hearing before the Committee but were not.  We hope that such a course will not be repeated in future appeals.  Hearings before the Committee are not in the nature of dress rehearsals or dry runs.  It is not appropriate that issues which could be raised before the Committee are not but are held in reserve for an appeal in the event of tactics engaged in at first instance not proving fruitful. That is unacceptable and will not be viewed sympathetically.

SANCTION

We turn now to the question of sanction.  The Appellant’s Notice of Appeal raised three grounds in support of his appeal against sanction.  They were:

1. “The Referrals Committee erred in imposing sanctions that were disproportionate to the facts and circumstances of the case and especially disproportionate by way of comparison, to the sanctions imposed on the other persons before the Referrals Committee.

2. The Referrals Committee erred in imposing a global sanction to cover all charges rather than a specific sanction in respect of each charge.

3. The Referrals Committee erred in failing to give any adequate reasons for the sanction imposed.”

Before considering these grounds it is important to recall the views expressed by the Committee when imposing the sanctions.  It said this; “the Committee regards the findings against Mr. McNally as very serious.  The offences strike at the integrity of the sport and the objective of having a level playing field for all who send horses out to race.   They also involved a deception of the public especially the betting public.  The Committee has taken into account the submissions made on his behalf and past record and the effect that severe sanctions would have on him”. 

Those observations have to be seen in the light of the evidence which demonstrates that the Appellant was the originator of the corrupt and fraudulent scheme, that he passed inside information for the purpose of betting, that he stopped Jam Man and instructed Mr. O’Brien to stop Dreal Deal, that he misled the racing public by concealing ownership arrangements of his horses and matters which affected the running of his horses. 

 

We endorse the views expressed by the Committee as to the very serious nature of these offences and that they strike at the integrity of the sport involving, as they did, a deception of the public especially the betting public.  The only thing that can be said in favour of the Appellant, and we give him full credit for it, is that there never was even the slightest suggestion of any improper use of drugs in facilitating this venture.

We find that there is nothing unlawful per se in imposing a global sanction such as was done in the present case.  Perhaps it might have been better practice to impose individual penalties in respect of each charge.  However, even having done so, the totality of those penalties would have to be looked at so as to ensure that their totality was not disproportionate to the offences.  In such a circumstance a total penalty of the type imposed could not be regarded as unreasonable or disproportionate in our view. 

Contention is made that the Appellant is a first time offender.  That is not accurate.

We see nothing wrong in principle with the sanctions that were imposed by the Committee.  However, on appeal much has been made of the length of the period of being a Disqualified Person and the fact that it precludes the Appellant from attending a racecourse at all for the next twelve years.  He has a young son who has shown promise as a rider and it is said that this total ban on the Appellant attending at a racecourse will impact adversely on his son.  The imposition of a sanction on any wrong doer very often has implications for other persons particularly for family.  That is not in itself a reason for a sanction not to be imposed.  The effects of the sanction imposed on the Appellant here are contained in Rule 276 which renders a disqualified person not eligible to:

1. act as Steward or Official at any recognised meeting.
2. act as Authorised Agent, Authorised Representative, Authorised Riders’ Agent or Jockeys’ Valet under these Rules.
3. subscribe for, or enter or own, or train, or run, or ride a horse at any race in any Recognised Meeting:
4. be a member or trustee of a Recognised Club or shareholder or director of a Recognised Company, or to enter into or remain a party to any partnerships, leases, syndicates, contingency or other agreements under these Rules.
5. enter any Racecourse, Stand or Enclosure:
6. be employed in any capacity by a Trainer, unless permission to do so has been granted by the Directors of the IHRB.

It is clear that, under the current rule, the Appellant will indeed be prohibited from any racecourse, stand or enclosure for the duration of him being a Disqualified Person.  That rule is however about to be changed with effect from 1^st July 2023.  Henceforth the prohibition which is contained under subrule (v) will be altered so as to preclude entry into a racecourse, stand or enclosure other than those areas to which the general public is permitted access.  There will then be a new subrule (vi) which will preclude entry to any licensed premises to engage in providing services.  The prohibition which is contained at present in subrule (vi) will also be changed to prohibit employment in any capacity by a trainer unless an application to employ the individual had been approved by the Licensing Committee which may be subject to such conditions as a Licensing Committee at its discretion might impose.

This new rule will lighten the burden to some extent of the twelve-year suspension. 

In his closing, Counsel for the Appellant asked that the entire suspension be itself suspended so as to provide an opportunity for rehabilitation in the case of the Appellant.  He expressed the deep regret of his client and urged on us that a suspension of the sanction on terms would have a rehabilitative effect. 

We are unable to accede to that argument.  The administration of what would in effect be a slap on the wrist for wrongdoing of the type demonstrated here and carried on over a long period of time would be completely disproportionate.  It would not do justice to the maintenance of the integrity of the sport and the objective of providing what was described by the Committee as a level playing field for all who send horses out to race.  The findings made against the Appellant and upheld on this appeal we regard as very serious.  The penalty imposed by the Committee is undoubtedly a severe one and rightly so.  Despite there not being any error in principle in the approach of the Committee we are however minded to modify the penalty imposed to a limited extent.  We do so in order to provide an opportunity and motivation to the Appellant to mend his ways.  We are therefore going to suspend the final four years of his suspension on condition that during the next twelve years he is not found to be in breach of any of the Rules of Racing.

The order that we make therefore is to affirm the decision of the Committee to declare him a disqualified person under the rules for a period of twelve years.  However, we direct that the final four years of that period be suspended.  If during the next twelve years, the Appellant is found guilty of any breach of the Rules of Racing that four-year suspension will be reactivated without any further order. 

In every other respect we affirm the decision of the Committee.

No appeal was taken against the Costs Order made by that Committee, so it also stands.

An application for the costs of the appeal was made by the Respondent. We see no reason to refuse such costs. An estimate of those costs should be provided to the Appellant’s Solicitor.

In default of agreement on the quantum we will fix the appropriate sum to be paid.

 

 

 

Disposal

The appeal against the findings of being in breach of the Rules is dismissed. The appeal against sanction is also dismissed save for a modification of the length of term of disqualification by suspending the last four years of the twelve-year term for twelve years. Any breach of the Rules by the Appellant during the next twelve years will automatically trigger the activation of the suspended four years at the conclusion of the eight-year term.

All other orders made by the Committee are affirmed. The Respondent is entitled to the costs of the appeal with quantum to be fixed by this Body in default of agreement.

 

SCHEDULE 1

The Committee found Mr McNally to have breached the Rules charged as follows:

Charge 2

Rule 148(v)(f). It is alleged that Mr. McNally failed to properly school both Dreal Deal and/or The Jam Man for exiting starting stalls in preparation for their maiden flat races.

Charge 3

Rule 213(iv). It is alleged that Mr. McNally, as trainer of Dreal Deal and/or The Jam Man failed to report, in accordance with Rule 213(ii) and Rule 213(iii) matters which might have affected the running of these horses during races and/or matters which subsequently came to his notice and might have had a bearing on their past and/or future running.

In the case of Dreal Deal these breaches occurred at the following venues and dates:

Limerick, 7 December,2019, 28 December,2019, Clonmel 24 March,2020, Gowran Park 17 June,2020, Curragh 10 July,2020, and Cork 8 August,2020.

In the case of The Jam Man these breaches occurred at the following venues and dates:

Gowran Park 17 June,2020, and Navan 3 July 2020.

Charge 4

Rule 212. It is alleged that Mr. McNally failed to ensure that his horses ran on their merits and/or that he used the racecourse as a training ground by running horses insufficiently schooled, in order to obtain handicap marks not reflective of their ability in advance of their handicap run. The evidence is to be found in a pattern of running of his horses in a number of races already referred to in this report.

The Committee finds that he used the racecourse as a training ground when The Jam Man was ridden by Mr. McNally himself at Navan on 3 July 2020, and Dreal Deal was ridden by Mr. O’Brien at the same venue on that date.

Charge 5

Rule 212A(i). It is alleged that Mr. McNally, as the rider of The Jam Man on 3 July 2020 at Navan deliberately permitted the horse to run other than on his merits, in that he deliberately prevented the horse from exiting the stalls in a timely manner, thereby causing the horse to run off the pace of that race.

Charge 6

Rule 272. It is alleged that Mr. McNally, as a restricted trainer licensed by the IHRB, from 28 September,2019 to the present, has conducted the training and running of his horses in a manner which is prejudicial to the integrity, proper conduct and good reputation of horseracing.

Charge 7

Rule 273(vi). It is alleged that Mr. McNally deterred and/or prevented and/or conspired to deter and/or prevent both Dreal Deal and/or The Jam Man from running to their maximum ability in their maiden flat races.

Charge 8

Rule 273(viii). It is alleged that Mr. McNally conspired with Mr. Ciarán Fennessy to engage in a corrupt and fraudulent practice in relation to the passing of inside information for betting purposes and/or concealing the true ability of horses in order to obtain handicap marks not reflective of their ability.

Charge 9

Rule 273(xiii). It is alleged that Mr. McNally, through the following conduct as a licensed trainer caused serious damage to the interests of horseracing in Ireland:

2. Using the racecourse as a training ground and schooling in public with the objective of acquiring a lenient official handicap rating for his horses;
3. Achieving a pattern of improvement in form of horses at a level previously unfamiliar to experienced and long-serving handicapping officials;
4. Passing information about the condition and wellbeing of Dreal Deal to allow others profit from betting on the horse with a betting organisation;
5. Concealing his ownership of horses in other training yards and organising the manipulation of official handicap ratings for All Class and Full Noise and subsequent improvement in form, and/or
6. Treating the Rules of Racing in a cavalier manner as described above but also in terms of disregarding the need to report a series of issues under Rule 213 relevant to the proper conduct and management of horseracing.

Charge 10

Rule 273(xiv)5. It is alleged that Mr. McNally conveyed information to Mr. Ciarán Fennessy, not in the public domain, about the condition or wellbeing of Dreal Deal (which may have negatively affected its likely performance) in races at Clonmel on 4 March and/or 24 March,2020, in circumstances where he knew or ought reasonably to have known that such information may be used for the purposes of backing the horse to lose with a betting organisation.

Charge 11

Rule 121(vii). It is alleged that Mr. McNally failed to lodge the correct ownership details with the Registry Office in Horse Racing Ireland before entering and/or running All Class, Full Noise, and Petrol Head in respect of the following races:

All Class- trained by Patrick Griffin:

1. 27 March,2019 Limerick
2. 28 March,2019 Leopardstown
3. 11 January,2020 Fairyhouse
4. 26 January,2020 Navan
5. 2 March,2020 Leopardstown
6. 17 March,2020 Wexford
7. 22 March,2020 Downpatrick
8. 24 March,2020 Clonmel
9. 15 June,2020 Roscommon
10. 7 July,2020 Killarney
11. 14July,2020 Tipperary

All Class- trained by David Peter Dunne:

1. 6 November,2020 Curragh
2. 10 December,2020 Tramore
3. 20 January,2021 Dundalk
4. 5 February,2021 Dundalk
5. 5 March,2021 Dundalk
6. 27 March,2021 Navan
7. 8 April,2021 Gowran Park
8. 9 April,2021 Wexford
9. 24 April,2021 Limerick
10. 4 May,2021 Gowran Park
11. 11 May,2021 Roscommon
12. 11 July,2021 Sligo
13. 2 August,2021 Cork

Full Noise- trained by David Peter Dunne

1. 13 October,2020 Punchestown
2. 31 October,2020 Down Royal
3. 17 November,2020 Limerick
4. 1 December,2020 Limerick
5. 3 January,2021 Fairyhouse
6. 28 January,2021 Gowran Park
7. 5 March,2021 Fairyhouse
8. 9 April,2021 Wexford
9. 30 May,2021 Punchestown
10. 31 May,2021 Punchestown

Petrol Head- trained by David Peter Dunne

1. 8 December,2020 Punchestown
2. 28 December,2020 Leopardstown
3. 29 January,2021 Navan
4. 21 February,2021 Navan
5. 27 March,2021 Navan
6. 7 May,2021 Cork
7. 11 May,2021 Killarney
8. 18 May,2021 Sligo
9. 19 May,2021 Cork
10. 1 June,2021 Tipperary
11. 4 July,2021 Limerick
12. 12 July, 2021 Limerick
13. 31 July,2021 Galway

 

The appeal was presented on behalf of Mr. McNally by Seamus Lannon, B.L., instructed by Joe Rice & Co. Solicitors, Belfast. The IHRB was represented by Mr. Louis Weston, Barrister, Outer Temple, London, instructed by Ms Clíodhna Guy, IHRB Head of Legal, Licensing and Compliance.