Re-hearing that took place on 13, 14 and 19 December 2016 of an enquiry first heard on 21 and 22 March 2016: reasons for the findings and decision of the Disciplinary Panel of the British Horseracing Authority (BHA).
1. The matters the subject of the enquiry are
(a) Whether the horse DUBAWI PHANTOM which won a race at Uttoxeter on 29 June 2014 should be disqualified under Rule (A)74 Ground 4 of the Rules of Racing as it had previously run at an unrecognised meeting in Ireland (contrary to paragraph 13 of Schedule B(2) of the Rules); and
(b) Whether the trainer, Paul John Gilligan, had been in breach of Rule (A)29 of the Rules of Racing by entering DUBAWI PHANTOM in a race at Uttoxeter on 29 June 2014 when he knew the horse was not qualified as it had run at an unrecognised meeting in Ireland.
2. The members of the Disciplinary Panel which conducted the re-hearing are Patrick Milmo QC (chair), Lucinda Cavendish and Jeremy Barlow.
3. The BHA were represented by Tim Naylor, counsel. Mr Gilligan was present and represented by Mr Michael Keane.
The respective cases
4. The BHA’s case put broadly is that DUBAWI PHANTOM ran at a flapping meeting held at Dingle, Ireland on 10 August 2013, under the name AYRES ROCK, and in the same month under the same name at four other similar meetings in Ireland. And the horse also ran under the name AYRES ROCK on 27 April 2014 at a flapping meeting at Athenry in Ireland. The BHA contend that in the circumstances which will be described in detail later, Mr Gilligan must have known at all material times that AYRES ROCK was the same horse as DUBAWI PHANTOM.
5. Mr Gilligan’s case put simply is that AYRES ROCK is not the same horse as DUBAWI PHANTOM, albeit that it may have looked like DUBAWI PHANTOM. He maintains that he acquired DUBAWI PHANTOM in a barter deal in November 2013, put him out to grass for most of the winter and then brought him back into training in the spring 2014. AYRES ROCK, claims Mr Gilligan, was owned by Mr Joe McNamara whose hobby was pony racing and training horses for pony racing and who lived some distance from Mr Gilligan. Accordingly DUBAWI PHANTOM was qualified to be entered for the race at Uttoxeter on 29 June 2014.
Narrative and background
6. We will endeavour to describe some of the background which is not disputed. DUBAWI PHANTOM is a thoroughbred gelding, born in 2007, and raced as a 2yo and 3yo in England. Its highest rating was 104. In the early months of 2011 the horse raced in Dubai, and later that year it returned to England to be trained by John Ferguson who ran it over hurdles, obtaining its highest rating of 120. Its last race over hurdles when trained by Mr Ferguson was in August 2012. It seems probable that it then changed ownership, reappearing on the ‘all weather’ in February 2013 and thereafter running without distinction on English courses on six occasions. Its last appearance was on 1 July 2013 at Wolverhampton, when its rating had been reduced to 76. Thereafter the owner gave the trainer, Mr Alan McCabe, instructions to sell the horse which he did. Mr McCabe told Mr Stuart Williams, a former BHA investigator, that he could not recall where the horse went after it left his yard. The owner, Mr Buckingham, told Mr Williams that he had no idea where the horse went other than it went to Ireland.
7. There is no record of the horse AYRES ROCK participating in races at meetings carried on under the auspices of Irish Horse and Pony Racing prior to 28 July 2013 when it ran 2nd in a race at Omey Beach. It then ran again on 4 August 2013 at a meeting at Ballyconneely, and then on three further occasions in August at meetings at Dingle (10 August), Geesala (18 August) and Louisburgh (24 August). On each of these occasions the rider was Liam Gilligan, Paul Gilligan’s 12 year old son. Paul Gilligan attended the meetings at which his son was riding. At Dingle Christopher Gordon, Turf Club Head of Security was also there and was standing close by Mr Gilligan on the outside of the parade ring, when he heard the man leading round AYRES ROCK say to Mr Gilligan, “did you give him his instructions”. The race card for the races at Dingle on 10 August 2013 recorded AYRES ROCK as entered for a race in which it did not run. The owner was stated to be “Joe McNamara, Galway”. AYRES ROCK won its race. Liam was interviewed by the commentator after the race. He was asked, “had you ridden this filly [sic] before, Liam?”. He replied, “I was riding him mostly at home on the gallops. I hadn’t ridden him in a race though”. There is no record of AYRES ROCK running in 2013 at any other horse and pony racing meeting after 24 August. However AYRES ROCK did run once more on 27 April 2014 at a meeting at Athenry, which is close to where Mr Gilligan lives. Liam again rode; the horse was 2nd; Mr Gilligan was present. That appears to be the last time AYRES ROCK ran at a horse and pony racing meeting.
8. It is not disputed that an Irish Horse and Pony meeting is an unrecognised meeting within the meaning of that term as used in paragraph 13 of Schedule B(2) of the Rules.
9. On 8 May 2014 Mr Gilligan made a return to the Turf Club that DUBAWI PHANTOM was in training with him. On 16 May and 1 June 2014 the horse ran in hurdle races at Kilbeggan. On 29 June 2014 it ran in and won the Bet 365 Handicap Hurdle Race at Uttoxeter. It ran at Sligo on 13 July 2014. It was entered to run at Galway on 30 July 2014, but was withdrawn by order of the Stewards. It has not run since.
Racing careers never coinciding
10. On the issue whether DUBAWI PHANTOM and AYRES ROCK were the same horse Mr Naylor points out that their racing careers in 2013 and 2014 never coincided. DUBAWI PHANTOM was never even recorded as being in training at a time when AYRES ROCK was competing in horse and pony racing; and it was only after AYRES ROCK ceased to race that DUBAWI PHANTOM commenced hurdle racing in Ireland.
11. However, on the issue of identity the BHA relies principally on expert evidence as to what conclusions can be drawn from photographs and DVD footage taken of AYRES ROCK at Dingle on 10 August 2013, and of DUBAWI PHANTOM at Uttoxeter on 29 June 2014, and from the markings recorded in the passport of DUBAWI PHANTOM.
12. The expert evidence was given by Nick Bowen a veterinary officer of some 29 years experience employed by the BHA. He produced a statement dated 15 April 2015 in which he averred that the horse depicted in four photographs taken at Dingle had markings which were entirely consistent with the markings recorded in DUBAWI PHANTOM’s passport. He expressed the same opinion in respect of the markings apparent in the photographs of DUBAWI PHANTOM taken at Uttoxeter.
13. The markings were:
(a) On the head – “ a large white star with a conjoined stripe extending to a tapered point just above nostril level . . . . Within the star there are paired whorls, the whorl on the right side of the midline is higher than the whorl on the left side of the midline”
(b) On left fore leg: “whole colour [chestnut] left fore limb with a pigmented hoof”
(c) on right fore leg: “white to mid cannon, higher inside with a predominantly white hoof with some dark pigment on the inside”
(d) left hind leg: “white to one third cannon, higher outside with a non-pigmented hoof.”
(e) Right hind leg: “whole colour [chestnut] right hind limb with a pigmented hoof.”
14. Mr Bowen confirmed the contents of the statement save for the markings of right hind leg (e): he had seen another photograph taken at Dingle which showed that the right hind foot was not pigmented, which was how it appeared in photographs he had seen earlier. He also conceded that in a newer photograph – tab 19 photo 7 – there was some white hair on the coronary band at the front of the right hind foot.
15. Mr Bowen did not accept that there were any differences in the position of the whorls on the horse’s forehead shown in the photographs taken at Dingle and Uttoxeter. “In my opinion they are at the very least very similar, if not identical”. As for differences in the level of white on the right forelimb, he said there was none at all. As for colour differences in the photos taken at Dingle and Uttoxeter, Mr Bowen remarked that the appearance of a horse in a photograph depends on the time of year, the length of its coat, the sunlight, the type of camera that is being used, a myriad of other factors. “In terms of . . . trying to make the decision whether they are the same horse, any slight differentiation in colour between two sets of photographs is irrelevant. I mean clearly they are both chestnut and very similar.”
16. Mr Bowen stated that his conclusion was that the horse depicted in the DVD and photographs taken at Dingle on 10 August 2013 is the same horse as that depicted in the DVD and photographs taken at Uttoxeter on 29 June 2014.
17. Mr Bowen rejected suggestions that in order to make a judgment as to whether DUBAWI PHANTOM is or could be the same horse as AYRES ROCK it was necessary to physically examine DUBAWI PHANTOM in the flesh. The photos were of sufficient clarity and quality to enable him to reach the conclusion that he had. If he was making a comparison between two existing horses Mr Bowen accepted that it may be desirable to examine them both. But in this case there was only one horse that could be examined, namely DUBAWI PHANTOM, and the task of deciding whether he was the same horse as one shown in the Dingle photographs could be effectively undertaken, without inspecting the horse in the flesh if there were clear photos and the passport available. (In this context we were referred to the decision in an appeal against the decision of the Referrals Committee of the Turf Club where the issue was whether a horse had run at an unregulated meeting. The Appeals Body was critical of identification, based on a comparison of photographs rather than direct inspection of all the animals at issue. This decision is neither binding, nor mandatory guidance. Whether identification by photographic comparison is sufficiently probative will depend on the material, particularly the clarity of the photos, in each case. It is necessary to add that if the second horse, if it ever existed, is not available for inspection reliance will have to be placed on photographs).
18. In response to further questioning by Mr Keane, Mr Bowen stated that he did not measure horses when identifying them: “measuring them is not part of the identification process”. Nor would he use teeth as a means of confirming the identity of the horse. Mr Bowen was asked to comment on a report of Ben Brain, a veterinary surgeon, in which he expressed the opinion that it was not possible for a vet to rely solely on third party photographic evidence to make a definite statement of identity. Mr Bowen pointed out that Mr Brain was sent only black and white photographs of “moderate quality”, whereas he (Mr Bowen) had [colour] photographs of “pretty high quality”. He (Mr Bowen) was able to say “that the horse at Uttoxeter was DUBAWI PHANTOM and the horse at Dingle was identical to the horse at Uttoxeter.
19. Mr Keane further questioned Mr Bowen about the age of the horse at Dingle, i.e. AYRES ROCK, which it was suggested was no older than 4 and significantly younger than DUBAWI PHANTOM who would have been 6½ in August 2013. That was on the basis of what was shown of AYRES ROCK’s teeth in a photo taken at Dingle. Mr Bowen’s estimation of the horse’s age from what could be seen of the horse’s teeth in the photos was between five and nine. He added that ageing horses on their teeth is an unreliable science, and that he did not consider that the photographs were good enough for anybody “to hang their hat on”.
Mr Gilligan’s expert
20. Mr Gilligan’s expert was called immediately after Mr Bowen had completed his evidence. He was Philip McManus, an experienced veterinary surgeon practising in Galway. He gave evidence in person, producing two reports, the first dated 23 February 2016, and the second 11 March 2016. In the first report the opening paragraphs are in these terms:
“This is to certify that I have examined all the photographs in connection with two horses at Dingle races and Uttoxeter races. I have read the comparisons and descriptions given by Mr Nick Bowen.
I have also clinically examined the Dubai Phantom [sic] at Paul Gilligan’s yard over the last few days. I agree completely that these horses are indistinguishable on photographs at these racecourses due to the similarity of the markings. These horses are essentially almost completely identical in photos at this range. In my opinion the only way to distinguish them is by DNA or by reading the microchips of each animal.”
The report then noted three differences apparent on “close inspection”. The first of these was no pigmentation of DUBAWI PHANTOM’s right hind hoof. But it is now accepted that a photo of AYRES ROCK shows no pigmentation of this hoof. The second difference was a spot of white on the anterior cornet of the right hind limb of DUBAWI PHANTOM. But it is now also accepted that a spot of white can be seen in the Dingle photos. The third difference related to the left front hoof which Mr Bowen stated was pigmented in the Dingle photos and Mr McManus claimed on his inspection of DUBAWI PHANTOM was “broken pigmented”. When Mr Naylor in cross-examination suggested, “there isn’t any difference in pigmentation?” Mr McManus’s response was “Very little, if any”
21. Mr McManus’s second report written apparently after Mr McManus had met with Mr Gilligan’s “legal team” compared the markings found on a clinical examination of DUBAWI PHANTOM with those on his passport and with those apparent on the photographs taken at Dingle and Uttoxeter. The markings are listed under head markings and markings on the four legs. It is claimed that the horse in the Dingle photos has a large star and stripe on its head the precise area of which does not match the diagram of the passport of DUBAWI PHANTOM and some photos of the horse. Particular attention is given to the position of the whorls on the head of the horse at Dingle and the horse at Uttoxeter. It is said that if a line is drawn through the centre of these whorls extending to “meet line horizontal at centre eye level” the lines would meet 3” outside the left eye in respect of DUBAWI PHANTOM and inside left eye orbit in respect of the horse photographed at Dingle. This was one of the differences specifically recorded in this second report. The others were: white anterior cornet on right hind limb of DUBAWI PHANTOM; difference in level of white on limb of DUBAWI PHANTOM; and colour of DUBAWI PHANTOM i.e. liver chestnut.
22. Additional differences were claimed by Mr McManus in the course of his oral evidence, namely, the height and build of DUBAWI PHANTOM was considerably larger than AYRES ROCK, and the age of the latter assessed on what could be seen of his teeth, namely about four; Some two years younger than DUBAWI PHANTOM.
Analysis of expert evidence
23. The evidence of the experts is obviously of crucial importance in relation to the issues that arise in this case but is not necessarily conclusive. In summary Mr Bowen’s position is that by virtue of the similarity of the idiosyncratic markings on the head and legs of the horse that ran at Dingle and the horse that ran at Uttoxeter he has no doubt that they are the same horse. Mr McManus’s opinion is that there are sufficient differences not only in the markings but in the height, shape and colour of the horses as to make it at the very least improbable that AYRES ROCK is the same horse as DUBAWI PHANTOM. In our assessment the evidence of Mr Bowen is more convincing and to be preferred. It will have been noted that most, if not all, of Mr McManus’s “differences” were not mentioned in his first report, and one was raised for the first time when he gave evidence. Further Mr McManus was at times confused, muddled and inconsistent. There could be no better example than his answers to questions in cross-examination about whether he had been sent by Mr McNamara photos of AYRES ROCK. His initial response was “As far as I remember he didn’t send me any”. But he soon conceded, having been referred to his evidence at the first enquiry, that he must have been sent some, but they were not relevant. This led to this question from Mr Naylor: “Therefore you examined these photographs, did you?” Mr McManus’s answer was, “I looked at them but, as I said to you, they weren’t very clear. You couldn’t really see anything but a horse”. He repeated this evidence a few moments later: “. . . what I’m stating now is what I remember. I’m sorry but I didn’t remember if he [McNamara] had sent it but I certainly knew they were not relevant and they weren’t useful to anything. I couldn’t see them clearly”. Another subject covered in the course of cross-examination was the number of photographs he had of AYRES ROCK at Dingle when he wrote his first report. His answer was “I haven’t a clue”, notwithstanding that he had “certified” in the report that he had seen all the photographs in connection with two horses at Dingle races and Uttoxeter races. He also confirmed in the report that he had “read the comparisons and descriptions” given by Mr Bowen, but in evidence this was downgraded to taking a “fleeting look” at Mr Bowen’s comparisons. As regards the colour of DUBAWI PHANTOM, upon which Mr McManus placed strong reliance, at one stage describing the horse as “very dark liver chestnut”, we did note that in some of the Dingle photographs the horse appeared to be a light chestnut whereas the horse at Uttoxeter seemed of a darker hue. However, having seen other photos taken at Dingle when the whole or part of the body of the horse was in the shade we accept the view of Mr Bowen that photos are not a reliable basis for judging the colour of a horse. As for the height and shape of DUBAWI PHANTOM it became apparent that Mr McManus regarded this as a strong point as he was under the impression that the horse called AYRES ROCK had been running at Dingle in a pony race. That was not so. The race was an “Open Horse Race”.
24. As already stated the evidence of the experts on identity is not necessarily conclusive. We must consider the remainder of the evidence, particularly that put forward by and on behalf of Mr Gilligan, to assess whether it displaces any conclusions that might otherwise be reached on the basis of the expert evidence, bearing in mind of course that the burden of proving any allegations made against Mr Gilligan is on the BHA.
The evidence of Mr Gordon
25. One other witness was called by the BHA, namely Christopher Gordon, Turf Club Head of Security, whom we have already mentioned in paragraph 7 above. In addition to stating what he heard the man leading AYRES ROCK in the parade ring (apparently Mr McNamara) say to Mr Gilligan about instructions, he explained that he made notes of that horse’s markings on his race card as they were so pronounced and he had some suspicions. He said that every horse running at a flapping meeting would be microchipped, but the organisers do not cooperate with the Turf Club and would not disclose the results of any microchip scanning carried out at a flapping meeting. Mr Gordon agreed with Mr Keane that there had been an official inspection of Mr Gilligan’s yard 9 days after Dingle and DUBAWI PHANTOM was not there.
The ‘defence’ evidence
26. In addition to Mr McManus, Mr Gilligan and Mr McNamara, the alleged owner of AYRES ROCK gave oral evidence.
27. Mr Gilligan did not produce a written statement. He first of all stated that he was a small trainer and he and his family attended Dingle races in August 2013. He was not involved in horse and pony racing but he did bring over in his lorry a pony who might have run in the 15 hand race, although not entered. His interest in pony racing was because his son, Liam, then aged 12 was riding. And he had two rides at the meeting. Though a licensed trainer he understood he could help his son with his riding. He was always concerned about Liam’s safety, and he understood the question from the man leading round AYRES ROCK about whether he had given his son instructions was seeking confirmation that he had told Liam to ride safely. He knew about the arrangement for AYRES ROCK to be brought over from Clifden, (where the owner Mr McNamara lived) to his gallops to be ridden by Liam before the Dingle race as he wanted Liam to be confident that he could manage the horse. But he was not there at the time. He was aware that at Dingle winners had their microchip tested. 9 days after the Dingle race there was an official inspection of his whole yard.
Mr Gilligan explained how he had acquired DUBAWI PHANTOM. In November 2013 he happened to meet a neighbour, Finbar Ryan, at a local filling station who told him that he had a thoroughbred gelding to sell as he was not suitable for him. (Mr Ryan has made a statement that he had bought the horse at Tallow horse fair for €600). Mr Gilligan went to see the horse and eventually a deal was made whereby the thoroughbred was swapped for a hunter Mr Gilligan owned. Mr Gilligan, when the horse was delivered, acquired its passport, and then only found out its name, and was able to ascertain its racing record. The horse was immediately sent away to be looked after by one of Mr Gilligan’s owners, Tony Kilkenny, and was returned to Mr Gilligan’s yard on 27 February 2014 (confirmed by the evidence of Mr Kilkenny whose evidence at the first enquiry, it was agreed, should stand as his evidence at this enquiry). Mr Gilligan asserted that the first he heard of the allegation that DUBAWI PHANTOM had run as AYRES ROCK at Dingle on 10 August 2013 was at the enquiry at Galway on 30 July 2014.
28. In cross-examination Mr Gilligan confirmed that as far as he was concerned DUBAWI PHANTOM and AYRES ROCK were two different horses. He was probably present at other [flapping] meetings in August 2013 where his son was riding including Omey Reach and Ballyconneely. He was also present at Athenry at the meeting on 27 April 2014. He did not arrange Liam’s rides. That would be done by Mr McNamara or his daughter. The reason why he took his horse box to Dingle was because he brought a pony called Patsy Shine who might have run in a pony race though it had not been entered. Liam did ride a horse called Buddy Holly for Mr McNamara on 4 August 2013. AYRES ROCK was the only horse ridden by Liam which had been brought to his stables (to be galloped). He denied that this had been invented on account of what Liam had said at Dingle in the post-race interview. Mr Gilligan was asked whether he made inquiries about the results from the checking of the microchip of AYRES ROCK after it had won at Dingle. He first responded that it was not for him to do this, to obtain or produce the microchip number. Later he claimed that he would have asked Mr McNamara to make the request and Mr McNamara said that he would. He had heard that they (the horse and pony racing authorities) had refused to disclose the microchip number. Mr Gilligan agreed that AYRES ROCK and DUBAWI PHANTOM were “remarkably similar horses”, but he had never said to anyone that AYRES ROCK was almost identical to a horse that he had at home,
29. Joe McNamara was the author of a statement in the case bundle (tab 8 p.137) and he gave oral evidence. He said that he was involved in pony racing and had four ponies in training. He said that he was the owner of AYRES ROCK which he had purchased for €700 in 2013. He had no idea whom he had bought it from. There was no passport which was not unusual as trainers often did not want the record of the horse to be known. He had been told that the horse had run as a two year old and was probably 3 or 4 when he bought him. He was not big, about 15 hands. He had been brought to and tried out on Mr Gilligan’s gallop as Liam was just breaking into riding horses at races (previously only ponies) and his daughter wanted Liam to get the feel of the horse. The trip to Mr Gilligan’s yard from where he lived was about 70 miles each way. Mr McNamara said that he brought the horse down to Dingle, saddled him and gave instructions to Liam. As he was leading AYRES ROCK around he did ask Mr Gilligan, “did you give him (meaning Liam) any instructions”, as he thought he (Mr Gilligan) had said don’t do this and don’t do that. The horse would have had a microchip. He had never seen a horse being scanned (for the microchip number), but he could make an objection and force a horse to be scanned. The following season AYRES ROCK had leg trouble so after one run he sold him on to Mathew Noonan, and he hasn’t seen him since. Mr Noonan was an elusive person and he had tried (unsuccessfully) to phone him.
30. In cross-examination Mr McNamara said that he had not asked, and no one had asked him to get the microchip number of AYRES ROCK. He was referred to his written statement (tab 9 p. 137) in which he had stated that he purchased AYRES ROCK at the end of August 2012, and he did not seek to change that date. He said that the horse was not entered for any race in 2012 as he had a leg problem. Mr Gilligan did not train the horse. It came out of the race (at Athenry on 27 April 2014) badly and so was sold to Martin Needham, who was hoping to race him again. Mr McNamara said he did not remember writing the statement at p.137.
31. In answer to questions from the Panel, Mr McNamara said that AYRES ROCK had an implanted microchip when he got him. He also said that there were no documents relating to the sale to Mr Needham, and no veterinary reports concerning the condition of the horse after the race at Athenry.
32. During the course of Mr McNamara’s evidence there was an incident during the course of the luncheon adjournment. It was witnessed by Danielle Sharkey, solicitor for the BHA, who prepared a written statement in which she averred that she had heard Mr McNamara (in the witness waiting room) answer his phone and speak to a woman who started to give him instructions as to what he should say in the course of his evidence. Ms Sharkey then walked into the room and told Mr McNamara to end the call, which he did, and she then said this was a very serious matter “because Mr Gilligan or his legal representative have just caused for a call to be made to you in an attempt to try and interfere with your evidence.” Mr McNamara was questioned about this by Mr Naylor in the course of cross-examination. He said that he didn’t recall what was said or hear anything that was said. He had not discussed with Mr Gilligan what he was going to say. Though the BHA obtained the number from which the call was made, the Panel was given no information about who might have access to the phone with that number and there was no sufficient evidence to draw an inference that either Mr Gilligan or Mr Keane were responsible for causing the call to be made. The Panel decided that in the circumstances in the consideration of the evidence and the credibility of witnesses they would take no account of this incident.
Analysis of evidence
33. However, any analysis of the evidence of Mr Gilligan and to a lesser extent that of Mr McNamara stretches credibility beyond breaking point.
34. Let us start with Mr Gilligan. He is an experienced racehorse trainer, albeit operating on a small scale. He was apparently prepared to acquire a potential racehorse which had recently been traded at a horse fair without inspecting the horse’s passport, or knowing its name or what if any had been its racing record. That in itself is unlikely. Add to that that the horse, DUBAWI PHANTOM, was well bred, was in 2013 only 6, had a reasonable racing record, easily accessible, with two wins over hurdles and a current flat rating of 76, it is implausible that within about 4 months of arriving in Ireland it was being bought and sold at the bottom end of the horse market. And what is impossible to believe is that when Mr Gilligan first saw DUBAWI PHANTOM he did not immediately notice that the horse was remarkably similar to the one his son Liam had been riding at various flapping meetings in August, but three months previous, meetings which he, Mr Gilligan, had attended. If there was any truth in Mr Gilligan’s account of how he acquired DUBAWI PHANTOM one would have expected him to make immediate inquiries to verify the identity of the horse Liam had been riding, called AYRES ROCK. On the accounts given by Mr Gilligan, in November 2013 until after April 2014 AYRES ROCK was stabled with and being trained by Mr McNamara and checks could have been easily undertaken. Then from March 2014 DUBAWI PHANTOM was in Mr Gilligan’s stable being trained to race. On 27 April 2014 in the presence of Mr Gilligan the “indistinguishable” (Mr McManus’s word) AYRES ROCK was racing at a local flapping meeting at Athenry, ridden by Liam Gilligan. If AYRES ROCK was a different horse Mr Gilligan would surely have taken steps to ensure that this could be proved. Liam has not been called as a witness nor has he provided a statement. It is perhaps understandable that his father did not want to involve his young son in this matter. But given that he rode AYRES ROCK in races on four occasions, and is likely to have ridden DUBAWI PHANTOM in the course of training, we wonder what were his thoughts about the remarkable similarities between the two horses? We have also to comment that what he said on the tannoy at Dingle on 10 August 2013 (“I was riding him mostly at home on the gallops”) is not satisfactorily explained by evidence (even if it be true which the BHA do not accept) that once the horse had been taken over from Clifden to be exercised and ridden by Liam on Mr Gilligan’s gallops. The language used by Liam was not appropriate to describe a one-off event. The final point concerns Mr Gilligan’s inactivity and indifference in relation to establishing the true identity of the horse running under the name AYRES ROCK by ascertaining the results of microchip scanning undertaken at flapping meetings where he had run. Mr Gilligan’s initial attitude seemed to be this was not a matter for him, but he later said that he had asked Mr McNamara to make these inquiries. Mr McNamara’s evidence was that he had never been asked, and on this point we accept his evidence. What conclusions can be drawn? The fact that Mr Gilligan did not take steps that might have proved the true identity of AYRES ROCK does not prove and is not evidence from which it can be inferred that AYRES ROCK was DUBAWI PHANTOM. But it does reflect significantly on the credibility of his account that these were two different horses and that is what he believed. If that was so, in our view Mr Gilligan would have taken every possible measure to obtain the results of scanning checks of the microchip implanted in AYRES ROCK conducted at flapping meetings. On our findings he did nothing.
35. Turning to the evidence of Mr McNamara, on the BHA case he was an accomplice with Mr Gilligan in what might be described as a rigging conspiracy. And if, as we have found, Mr Gilligan’s account does not ‘stack up’, that must inevitably tarnish the credibility of Mr McNamara’s story. Put briefly it was that he purchased AYRES ROCK in 2012 or 2013 from he does not know whom, raced him at pony meetings in August 2013 and once in April 2014, and then sold him to a person he was able to identify, as he had gone wrong with tendon trouble. He could produce no supporting documents for the purchase and sale transactions, or any statement from the person who allegedly bought the horse. There was no record of AYRES ROCK having raced at any kind of meeting prior to 28 July 2013, and in his last race on 27 April 2014 in the course of, or after which he went wrong, he was second. There were no veterinary records or invoices to support or confirm the injury. There was not a scrap of evidence as to what had happened to AYRES ROCK after he was allegedly sold by Mr McNamara, though there were vague suggestions that he had been or might have been put down. Like Mr Gilligan, Mr McNamara took no steps to obtain the results of microchip scanning checks carried out at meetings at which AYRES ROCK had run. We cannot accept Mr McNamara’s evidence as true or even possibly true.
36. Our conclusion is that the evidence of Mr Gilligan and his witnesses neither displaces nor indeed raises any doubts about the reliability of the evidence given by Mr Bowen. That evidence proves the identity of the horse that ran at Dingle and other flapping meetings in July and August 2013, and April 2014. The evidence that Mr Gilligan had knowledge that DUBAWI PHANTOM had been running at unrecognised meetings is overwhelming.
37. Accordingly our findings are as follows:
(a) That DUBAWI PHANTOM ran under the name AYERS ROCK at an unrecognised meeting at Dingle in Ireland on 10 August 2013 and at other unrecognised meetings in Ireland;
(b) That in consequence DUBAWI PHANTOM was not qualified to be entered to run in the Bet 365 Handicap Hurdle race at Uttoxeter on 29 June 2014;
(c) That by reason of the foregoing DUBAWI PHANTOM should be disqualified under Rule (A)74 of the Rules of Racing;
(d) That the trainer Paul Gilligan knew that DUBAWI PHANTOM was not qualified to be entered or to run in the said race at Uttoxeter;
(e) That accordingly Mr Gilligan was in breach of Rule (A)29.1 of the Rules of Racing
The BHA booklet “Guide to Procedures and Penalties 2016” recommends for breaches of Rule (A)29 an entry point in respect of a fine of £1,000 and for disqualification/exclusion an entry point of 3 months and a range of 1 month – 3 years.
Mr Naylor has argued for a penalty in the upper range, given, he said, there were aggravating factors which included the manner in which Mr Gilligan, through his representative, has conducted his case, which included attacking the conduct or truthfulness of witnesses and the authorities in Ireland and here. Certainly there were no admissions made by Mr Gilligan and limited, if any, cooperation with the investigators. And had there been these factors they could have been put forward as mitigating features. On the other hand we feel that some caution should be exercised before treating the manner in which a respondent conducts his defence of challenging the allegations as amounting to aggravation.
Mr Naylor also invited us to take into account as meriting a more severe penalty the incident which we have detailed in paragraph 32 of our Reasons. We do not think that we can take this course. If the BHA wish to pursue this matter, it should be fully investigated, and if considered appropriate be the subject of a separate inquiry at which the BHA and Mr Gilligan could call witnesses and make representations.
Mr Keane on behalf of Mr Gilligan pointed out that this matter had been hanging over his client for over 3 ½ years and seriously affected his business for the last 2 ½ years. He also submitted that the infringement was at the lower end of the scale.
We have learnt that at the first enquiry the penalty imposed was disqualification for 6 months which is an indication that the breach was not regarded as a trivial, and with that approach we are in agreement. This is of course a rehearing, but given that the original hearing was abortive through no fault of Mr Gilligan, we do not think it would be right or justified to increase the period of disqualification. But nor do we think there are any new mitigating factors which would make it appropriate and fair to reduce the period of disqualification.
Accordingly we impose the penalty of disqualification for a period of 6 months from 19 December 2016 until 18 June 2017 inclusive.
We also order that there be returned to Weatherbys or the BHA that proportion of the prize money that was received by the owners of DUBAWI PHANTOM for winning at Uttoxeter on 29 June 2014.