The Referrals Committee, Mr. Justice Frank Clarke (in the chair), Mr. N.B. Wachman and Mr. M.C. Hickey, convened at the offices of the Irish Horseracing Regulatory Board on 3rd November 2021 to consider the referral of Mr. Stephen Mahon following the fixture at Tipperary on 18th July 2021.
On the day, the Stewards received a report from Ms. Aveena O’Keeffe (IHRB Veterinary Assistant), in relation to the behaviour of Mr. Mahon in the Stableyard area and while a post-race sample was being taken from Stormey, trained by Mr. P.G. Kelly, for whom Mr. Mahon was an authorized representative on the day.
At the referral hearing, evidence was heard from Mr. Mahon, Ms. Emma Colgan (Stable Employee) and Ms. O’Keeffe and submissions were made on behalf of Mr. Mahon by Mr. Patrick Ward (Solicitor) and on behalf of the IHRB by Ms. Cliodhna Guy, Head of Licensing, Legal and Compliance
Having considered the evidence, Justice Frank Clarke delivered the following decision on behalf of the Referrals Committee.
“This hearing relates to an incident at Tipperary on 18th July 2021 and arose out of a decision made by the Stewards to require a sample to be taken from Stormey, who had finished third in the second race, trained by Mr. Kelly for whom Mr. Mahon was acting as an Authorised Representative on the day.
A number of matters have been referred to which, it is said, might amount to breaches of the rules. The first concerns that Mr. Mahon was not wearing a shirt at a particular stage. The second involves an incident concerning a beaker which was in use in the context of the taking of a sample from Stormey. And the third relates to what is said to be a reluctance on the part of Mr. Mahon to leave the stable when the sample was about to be taken in the context of the Covid regulations in force at the time. The fourth is a matter concerning the fact that Mr. Mahon, while having a snood around his neck at one point in time, did not have it over his mouth and nose as the Covid regulations required.
Evidence was heard from three persons, Ms. O’Keeffe of the IHRB, Ms. Colgan, the partner of Mr. Mahon and Mr. Mahon himself. There are some conflicts of evidence, but it is not in the committee’s view necessary to resolve all of them, but some of them do require to be resolved in order to reach a conclusion on the issues which arise.
Dealing with the facts first, it should be said that in the view of the committee, the issue concerning the shirt could not on any view amount to a breach of the rules. There may be a question of taste involved and there might be particular circumstances where a particularly egregious breach of dress in some circumstances might lead to a breach of rules, but the committee does not feel that gives rise to any breach of circumstances in this case.
So far as the other issues are concerned, it is common case that Ms. Colgan was not present so the only direct evidence which is available to this committee is of the other two witnesses. It is common case that Stormey was under the care of Ms. Colgan immediately after the race and when he was brought to the area where testing was to occur. It is also common case that, in accordance with common practice, the testing was to occur after the next race, being the third race on the day. However, at the relevant time Ms. Colgan had left the scene to attend to other duties and therefore it was Mr. Mahon that went into the stable beside the veterinary unit for the purposes of the test.
The procedure was described in evidence being that the beaker into which the sample is to go is in a plastic bag which is sterile. It is taken out of that plastic bag and put into a larger holder on a rod for the purposes of the actual sampling and the importance of it being kept sterile was stressed in the course of the evidence such that if anything occurs to prejudice that sterility it is necessary to get a new one and use it.
It is common case that Mr. Mahon asked to see inside the beaker. There is a conflict as to whether he wanted to see whether there were tablets there but he does say that he was under instructions from the trainer, Mr. Kelly, to see were there flies or other contaminants in the beaker. The evidence against him was that he asked twice and the way in which he asked was intimidating, although it was agreed that it was not threatening. The evidence against him also was that he declined to leave when the sample was about to be taken in circumstances where the relevant Covid regulations require that staff should not be present at the same time as veterinary staff. Mr. Mahon gave evidence that he was unable to see what was going on on the screen outside and this was the reason for his reluctance.
In assessing the relevant conflicts of evidence, the committee has had regard to the fact that it appears to the committee from the transcript of the events on the day in the Stewards Room that Mr. Mahon was agitated about the question of why Stormey had been selected for sampling. All in racing would be aware that sampling happens as a matter of course in respect of winners but also in respect of other horses where the Stewards so decide and it is clear that rules do permit the Stewards to select other horses for sampling should they think appropriate, but the committee takes the view that Mr. Mahon was clearly agitated about the fact that Stormey had been selected on that occasion.
Secondly, it’s clear from Mr. Mahon’s own evidence that he was under considerable stress at the time arising out of other regulatory matters involving him and he was also under medication which he was not used. He did apologise in the sense of saying that he would apologise if he came over as being intimidating, although it must be made clear that in so doing he did not agree that he had acted in any way which was in any way intimidatory.
Having considered the evidence and taken those factors into account the committee is satisfied that Mr. Mahon acted in an intimidatory manner towards an Official in the course of her duties, contrary to Rule 272(iii), in that he persisted to see inside a beaker in an intimidatory matter in circumstances where the Official concerned could objectively and reasonably understand that it implied that she was not doing her job properly.
While not intimidating in itself and not therefore in itself a breach of the rules in the view of the committee, we find the account of the racing Official as to what happened about the viewing outside is a more creditable account, not least because the issue was not raised by Mr. Mahon in the Stewards Room on the day. There was no suggestion of an inability at that stage to see the events which occurred inside because of glare on the screen, and also there was no evidence to suggest that before he was asked to go outside that Mr. Mahon had noticed any problem with the screen, that so even on the evidence given today. Therefore, it would not provide for a logical reason for a reluctance to leave the room unless he was aware in advance that it would be difficult to see on the screen. As indicated, we do not feel that that in itself is a breach of the rules, but it does provide support, in the committee’s view, to the evidence tendered against Mr. Mahon on that account in relation to those events.
Finally, the committee is not persuaded that the evidence supports a breach of the Covid regulations so far as the mask is concerned. Understandably, the evidence was confined to one particular point in time where it does appear to be accepted that Mr. Mahon’s snood was not over his face and nose but whether that was so for any prolonged period of time is not clear and it does appear that he remedied the matter when it was brought to his attention and also did ultimately leave the room when requested to do so. So, the committee does not feel there was any breach of rules by reference to the Covid regulations and therefore the committee confines itself to the single finding that there was a breach, in the manner previously described, of Rule 272(iii).
In the committee’s view, it is important that everybody involved in racing understand the need for racing Official’s going about their business on a raceday to be able to do so in an atmosphere that doesn’t convey any element of intimidation or the like. Everyone has a hard job to do but they also have a hard job to do and they are entitled to do it in circumstances where proper respect is shown to them. And therefore any offence of this type has to be regarded as potentially of some degree of seriousness. However, there are a number of factors which the committee feels need to be taken into account.
The first is, that objectively speaking, the particular circumstances of this case would in the committee’s view be towards the lower end of the range. It’s not an offence of threatening behaviour and the only other recent case involving a breach of this rule was undoubtedly of a much more serious nature than the offence in this case and therefore the starting point has to be that this is a less serious offence.
Secondly, it is correct, I think as noted by the committee in its ruling on the question whether there was a breach of the rules, that Mr. Mahon was undoubtedly under stress at the time and indeed the committee took that factor into account in its assessment of the facts and that he was under medication which at least had the potential to affect his conduct. That is a mitigating factor as is the fact that he has no previous breaches of the particular rule we are concerned, being Rule 272(iii).
In those circumstances, the committee feels that the appropriate penalty is to impose a fine of €500 and the committee directed a contribution of €250 towards costs to the IHRB.
The case was presented by Bébhinn Murphy BL on behalf of the Irish Horseracing Regulatory Board CLG and Mr. Mahon was represented by Mr. Patrick Ward of Patrick Ward and Company Solicitors, Dublin.