Unfair burden of proof on trainers

Mike Deasy on a new rule placing burden of proof on trainers is still unfair

There are two branches of law in Britain, statute law created by politicians in parliament, and common law formed by judges in the courts.

The two branches work hand-in-hand but, if push comes to shove, it’s the judges and common law which takes precedence.

If there is any ambiguity on law passed by parliament, and there often is, then the courts provide interpretation on a case-by-case basis. But more importantly, judges can uphold challenges to statute law and the processes of parliament. They can rule that statute law is unenforceable, usually because it contravenes existing law or is deemed unfair.

Racing is having to grapple with a situation where the regulator, the BHA, created a rule which applied strict liability on trainers if a horse in their charge proved positive for a prohibited substance.

So, the rule is the “statute law” but in 2017 its application came under the scrutiny of an independent disciplinary panel who decided against imposing a penalty on trainer Philip Hobbs (pictured) despite a horse in his care testing positive for a banned substance.

The panel agreed with Hobbs that the drug had not been administered intentionally and that he had taken all reasonable precautions to prevent such a breach of the rules from taking place.

A similar case followed involving Hughie Morrison where he went to extensive lengths to, unsuccessfully, identify the culprit, including offering a reward.

The rule-makers at the BHA were left with a situation where their penalties for strict liability were falling foul of independent review because the trainers had taken all possible precautions and, it was felt, could not be held responsible for the malicious administration of prohibited substances.

In the BHA’s war on doping it was a frustrating turn of events and left it with an ineffective rule its armoury.

Now changes in the anti-doping rules have been announced by the BHA to simplify the circumstances under which responsible individuals can avoid penalties for positive tests for prohibited substances.

From 1 September, the responsible person, most likely the trainer, must establish the precise source of any positive finding and that they had taken all reasonable precautions to avoid sanction.

That might seem reasonable enough, but it still contains a stipulation that could prove impossible with which to comply.

As the National Trainers Federation said, the new ruling still means the strict liability provision remains weighted against handlers.

The BHA wanted the burden of proving the source of positive test to fall on the handler because “to place the burden on the regulator would make enforcing an effective anti-doping regime impossible, due to the access and resource implications”.

What resources a trainer has to ascertain who might have administered a banned substance is open to question.

The Federation said: “The NTF is pleased that the BHA took on board the need to remove penalties where malicious administration could be proved. However, strict liability reverses the principle of ‘innocent until proved guilty’ by putting the onus on the defendant to prove innocence – in this case by having to prove the precise source of the prohibited substance. This is notoriously difficult to do.

“Even the BHA says in its note to trainers that to place the burden of establishing the source of the positive sample on the regulator ‘would make enforcing an effective antidoping regime impossible, due to the access and resource implications’. The regulator has comparatively greater resources than most trainers.”

Whilst the BHA may want robust antidoping rules, there still seems to be an unfairness surrounding next month’s changes. It wouldn’t be a surprise if an independent disciplinary panel, called upon to consider a case under the rule, finds itself unable to support the stipulation that the trainer has to identify the perpetrator of the administration of a banned substance.

Any argument that the BHA’s approach echoes other sports’ war on drugs has to take into account that the athlete in question is not a willing accomplice and does not have the ability to testify at an enquiry.

Just like common law, you can have rules in place, but for the sake of justice, the circumstances need to be reviewed on a case-by-case basis, and if that means an independent panel is unable to sanction a suspension, so be it.

Beaten by a nose

Personalised facemasks are catching on and Weatherbys have launched masks in racing colours.

The Racing Hub placed its order, using the brand colours of its website.

In hindsight, it probably wasn’t a good idea to choose a red cap.

Under new management

If past experience is anything to go by, the BHA couldn’t have had a better candidate for the position of chief executive than Julie Harrington.

She’s been in charge of British Cycling for just under four years, had previously been a non-executive director of the BHA, worked for Northern Racecourses (since integrated into Arena Racing), held a senior position at the FA, and worked at Whitbread and British Airways.

She will now take over as BHA CEO from Nick Rust (pictured) in January.

Rust was never fully accepted by some of racing’s stakeholders, as he joined the BHA from a bookmaker. That aroused suspicions of poacher turned gamekeeper although evidence that racing suffered because of his former career is not readily available.

Indeed, such a background was a useful asset for racing’s governing body and it’s unfortunate that there were pockets of resistance to his tenure with some unnecessary sniping which did no one any good, particularly those who were taking the pot-shots.

It won’t be an easy ride for Harrington but there is hope that any adversaries of the existing boss take a look at her CV and move on from the agenda they had which met Rust’s appointment and which they maintained whilst he was in charge – their criticism was mostly wide of the mark.

♦ Julie Harrington appointment details in News Update http://wp.me/P8e3Dl-3WN

Thank heavens that’s over

Hopefully this is the last time these scribblings will refer to the contract between racing and ITV, not for close on three years anyway.

Nothing was written with more concern as negotiations between the two parties rumbled on. I say two parties, but ITV had to deal with three different interest groups, namely Racing Media Group, representing the Jockey Club and many other tracks, Ascot, and Arena Racing. At various stages differences between them and ITV looked like they could derail an agreement to extend a broadcasting contract.

Fortunately, a deal was done and racing stays with ITV until 2023. There was really nowhere else to go apart from oblivion.

It hasn’t come to that, and racing continues to have a partner that, as I have said before, does more to promote the sport and attract new followers than anyone else.

Racing is getting over £20m from the deal but in terms of promotional air-time, way more than that.