1. Between 26 and 29 November 2012, the Disciplinary Panel of the British Horseracing Authority (BHA) held an enquiry into an allegation that the licensed trainer, James Boyle, administered an alkalinising agent (generally known as ‘milkshaking’) to NEW DEN, a four year old gelding in his care, to affect its performance in a race it was due to run in at Lingfield on 6 April 2011. There were other charges of breaches of the Rules of Racing – that Boyle was in breach of the strict liability requirement of Rule (C)50 that a sample from his horse should not contain a prohibited substance; that he administered something other than normal feed and water on a race day; that his treatment record for NEW DEN was inaccurate; and that he misled BHA Investigators about the use of an alkalinising agent.
2. The BHA’s case was presented by Graeme McPherson QC; Boyle was represented by Rory Mac Neice.
3. NEW DEN was a four year old gelding at the time of the events in question in this enquiry and had been trained throughout his racing career by Boyle. He was owned by a partnership which included the breeder, Mike Watmore. He had sent all of the dam’s progeny to be trained by Boyle. NEW DEN had four races as a two year old, seven as a three year old, and seven as a four year old, ending on 30 March 2011. Nearly all were on all-weather surfaces and his form was modest. In December 2010 and January 2011, he achieved four placed finishes in a row, in class 5 or 6 races. He was then prepared in February and March 2011 for an ambitious attempt at the Triumph Hurdle at Cheltenham. A first outing over hurdles at Folkestone produced a last placed finish and he was pulled up in the Triumph Hurdle itself on 18 March 2011. He ran again on the all-weather at Wolverhampton on 30 March, in what was intended to be his last race, but he unseated his jockey, Nicky Mackay, at the start. Boyle was disappointed for his owners at this unhappy end to the gelding’s racing career and told them that he would enter it for one further race at Lingfield on 6 April and that he would not charge training costs from that point on.
4. NEW DEN was accordingly entered for a two mile handicap at Lingfield on 6 April. On that day, the BHA conducted unannounced pre-race testing of all horses entered in two of the races at Lingfield. For the first time, an i-STAT hand held analyser was used as a screening tool to detect raised TCO2 levels which can indicate that a horse had recently received an alkalinising agent such as sodium bicarbonate – so called ‘milkshaking’. The reading obtained for NEW DEN was well above the level which the BHA had determined (on the basis of testing by HFL carried out for it in 2010) to require further investigation.
5. A Stewards’ enquiry was held before NEW DEN’s race which was due off at 4;00pm. Richard Farmer, Boyle’s travelling head lad, represented the trainer who was en route to Ireland from Gatwick at the time. Farmer phoned the head lass, Louisa Allen, during the enquiry which ended with their decision to withdraw NEW DEN.
6. A blood sample was then taken from NEW DEN at the racecourse and dispatched to HFL in Newmarket for analysis. The A sample was tested by HFL using the internationally recognised apparatus – a Beckman EL-ISE – on 7 April. This produced an abnormal screening finding for TCO2, so that the laboratory was authorised to go ahead with a confirmatory analysis. A positive result was reported – 37.79mmol/l – which is above the internationally recognised threshold of 36mmol/l, and above the reportable limit of 37.07mmol/l which is allowed to cater for measurement uncertainties. Counter analysis of the B sample was then conducted. At 4:23pm on 7 April, the B sample was reported – again it was above threshold and above the reportable limit at 38.65mmol/l.
7. Boyle was spoken to by telephone on 7 April (he was still in Ireland) by the BHA’s Veterinary Adviser, Dr. Lynn Hillyer, to discuss the procedure for sample analysis that was happening on that day and to ask if he could explain why a high TCO2 reading had been generated. He gave her in outline basically the same explanation as that which he has given since in interviews with the BHA, in his Schedule (A)6 form outlining his defence and in evidence before this Panel. He said:
i) That NEW DEN had “tied up” during a canter on Tuesday 5 April and that his vet, Mike Byers, who was visiting the yard had prescribed some “tie-up powder”.
ii) His head lass had syringed a paste made with some of the powder into NEW DEN on the morning of the race, but that he had not known this.
iii) He had made a late decision to race the gelding at Lingfield after a conversation with Mr Watmore when he learnt that another member of the owning partnership was already travelling down from Birmingham.
8. On 8 April, Dr Hillyer and the BHA Investigator, Stuart Williams, went to Boyle’s yard in Epsom and interviewed both him and Louisa Allen. Dr Hillyer also examined NEW DEN and found the gelding to be clinically normal. She carried out another i-STAT sampling which gave a reading of 41mmol/l. Dr Hillyer and Mr. Williams sought and were given permission to take NEW DEN into the BHA’s custody to allow for further observation and testing. The gelding was moved to the British Racing School at Newmarket on the same day.
9. However, no testing, whether to establish a baseline TCO2 reading or otherwise was done during the week or so that NEW DEN was in the BHA’s custody. Dr Hillyer explained that this was the result of a decision taken in a discussion with her superior, Professor Tim Morris, and with Paul Scotney. It was thought unnecessary.
10. In May 2011, the BHA interviewed Boyle’s vet, Mike Byers, to try to establish the contents of the tie-up powder and the circumstances of his provision of this for NEW DEN. Boyle himself was interviewed again in June 2011 when there was discussion about whether Boyle had milkshaked the gelding, which he denied.
11. In February 2012 (some eight months after that last interview), Boyle was notified of the charges brought against him by the BHA. The BHA scheduled the hearing of this enquiry to take place at the end of March 2012 but Boyle protested through his solicitor, Mr Mac Niece, that this did not give him adequate time to prepare to defend himself. An application was made to the Chairman of this Panel to resolve this. On 9 March, the Chairman adjourned the hearing set for the end of that month, agreeing that this posed an unfair risk to Boyle’s ability to prepare for the enquiry. Thereafter, a further delay until the hearing took place in November 2012 was necessary because Dr Hillyer was away on maternity leave from April 2012.
Issues for the most serious allegation
12. The alleged breach of Rule (A)27 was the most serious allegation that the Panel was required to decide. The BHA’s case was that Boyle must have ‘milkshaked’ NEW DEN (either personally or by arranging for one of his staff to do it) by putting a substantial amount of alkalinising agent into NEW DEN’s system by means of a nasogastric tube.
13. This was a charge of serious wrong doing – of seeking to cheat by doping NEW DEN for the Lingfield race. Such an allegation required compelling evidence before the Panel could decide, on the balance of probabilities, that Boyle was responsible for doing this.
14. The BHA’s case that Boyle ‘milkshaked’ the gelding depended basically on one proposition – that the TCO2 levels found upon analysis by HFL can only be explained by a dosing with an alkalinising agent such as sodium bicarbonate and that the dose is likely to have been in the region of 250-450 grams.
15. Before turning to examine this proposition the Panel first records its conclusion derived from the non-scientific evidence. This material, taken on its own, established that a ‘milkshaking’ of NEW DEN was a highly improbable thing for Boyle to have done or arranged to have done. However, it did not establish that it was impossible for this to have happened. The important features which led the Panel to this view were:
i) Boyle produced a number of impressive testimonials to his good character from a wide range of people. These show that he has a high reputation amongst those who have known him well for many years. He went into training after first qualifying and then practising as a veterinary surgeon. He spent three years as assistant to Paul Cole before taking a salaried trainer post at South Hatch Stables in Epsom ten years ago. He has earned the respect of fellow trainers and is due to become President of the NTF in 2014. His devotion to horses in his care was apparent. Both he and his wife, Pippa, put time, energy and money into re-homing horses that retire from racing: she runs a separate establishment that prepares horses for retirement into worthwhile lives after racing.
ii) If ‘milkshaking’ had been done, it must have been during the morning of 6 April at some time up to 12:24pm, which was when Boyle’s travelling head lad, Richard Farmer, accompanied by Sunny Singh were booked into Lingfield by the Security Staff there. That is because the readings obtained from the samples taken from NEW DEN at Lingfield later in the day could not have been what they were without administration of an alkalinising agent earlier that day.
iii) Louisa Allen described how she had given the tie-up powder provided for NEW DEN firstly in the evening of 5 April in his feed (which she said he did not eat up) and then early in the morning of 6 April by syringe. This powder had been given to her on 5 April by Mike Byers when he visited the yard to see another horse and she mentioned that NEW DEN had tied up after cantering that morning. He also prescribed bute but this was not given to NEW DEN. If it had been it would have shown up in the analysis of samples taken at Lingfield. It was not suggested by the BHA that the prescription of tie-up powders by Mr Byers was a concoction. It was probably implicit in their case that Allen was not telling the truth that they challenged that she had administered the powder, at least so far as the dose on the morning of 6 April was concerned. But their case was that, whether or not she administered the morning dose by syringe on 6 April, there must also have been, at some unspecified time that day, a ‘milkshaking’ of NEW DEN. The Panel had no doubt that Mr Byers, an independent-minded professional man, did prescribe both the tie-up powder and bute. (Whether the powders administered might explain the TCO2 readings is another matter considered below when the Panel looks at the scientific evidence). Did Allen give the powders to the gelding? Despite some initial doubts about the feasibility of using syringes to put the tie-up powder in solution into NEW DEN, the Panel did not in the end see reason to doubt that it was possible. For the timing reason given in (v) below, the Panel could not understand why Allen or Boyle might have been ‘milkshaking’ the gelding early on the morning of 6 April. So it was decided that her account that she syringed the powder into NEW DEN at that time was correct. It would be extremely odd if this was followed by, or even more bizarrely preceded by, a larger alkalinising agent administration in the form of a ‘milkshake’.
iv) There were some heating engineers working at the yard on 6 April to repair a boiler. Mr. Colin Bell was one of them, and he told the Panel that his van was parked near NEW DEN’s stable and that he spent most of the morning in and around the yard while his men were working. Mr. Bell spent some of his time with Boyle (who had trained for him). The presence of an outsider horseracing enthusiast around NEW DEN’s stable for a substantial part of the morning would have made ‘milkshaking’ a high risk activity.
v) There was some important evidence from Mr. Watmore, the owner, who impressed as a reliable witness, even though the precise timing of some events was understandably hazy for him. He told of a mid-morning telephone call with Boyle on the day of the Lingfield race. Boyle told him that he was reluctant to run NEW DEN because of the tying-up problem of the day before, but was persuaded to change his mind when told that one of the owners in the syndicate (perhaps two) was already on the way from Birmingham to watch the race. The significance of this is that there can have been no point in ‘milkshaking’ NEW DEN before that. For it to have been done afterwards, the window of opportunity was very small. Mr Bell was wandering around the yard. Having decide to run NEW DEN if he could, Boyle had the gelding trotted up to check it was sound, and shortly thereafter the gelding was loaded into a horsebox for the trip to Lingfield. There was no evidence from Farmer or Singh who both went in the horsebox to Lingfield. While it may have been theoretically feasible for NEW DEN to have been ‘milkshaked’ in the horsebox, there was no basis for concluding that this had happened.
vi) Finally, the whole of the circumstances of the preparation for the Lingfield race made the ‘milkshaking’ allegation very odd. The gelding was due to be retired after the race. Boyle was covering the training costs himself for the final run. There was no pressure to succeed from the owners, and no indication that Boyle was intending to gamble on a win. It was going to be little more than a day out.
The scientific evidence for the ‘milkshaking’ allegation
16. When approaching this part of the case, the Panel recognised that, however unlikely ‘milkshaking’ might have seemed on the basis of what has been set out so far in this decision, if the scientific evidence compelled a different view, then that would be the eventual conclusion.
17. Firstly, the Panel records some background. The threshold of 36mmol/l for available carbon dioxide in plasma in the BHA’s Rules of Racing is the same as that established by Article 6 of the International Agreement on Breeding, Racing and Wagering published by the International Federation of Horseracing Authorities. The threshold was established predominantly upon the basis of a study carried out in Australia of over 500 horses in 1999. Before the BHA is prepared to treat any sampling result over the 36mmol/l threshold as a breach of the Rules, it makes a further allowance of 1.07mmol/l to allow for measurement uncertainties. Therefore, only if a result exceeds 37.07mmol/l will action potentially be taken.
18. The Panel heard evidence from three experts. Firstly, Dr Hillyer set out the BHA’s analysis in a statement prepared in June 2011 which she confirmed in evidence. On Boyle’s behalf Richard Hepburn prepared a report and gave evidence. He is a veterinary surgeon who is a recognised specialist in Equine Internal Medicine. His report was met by Dr John Vine, an analytical chemist, who, until his retirement in July 2012, had for many years been Laboratory Director of Racing Analytical Services Ltd., Melbourne, Australia. As Director, he had been working at the forefront of regulatory efforts to control ‘milkshaking’ in Australian racing and has been the author of a substantial number of scientific papers that have analyse the basis for and implications of TCO2 testing.
19. Mr Hepburn raised essentially three points of contention. These were:
i) He felt the likeliest explanation for NEW DEN’s sample readings was that compensated respiratory acidosis had occurred due to chronic inflammatory airway disease.
ii) He postulated that NEW DEN could be one of the 0.15% (i.e. 3 in 2000) of horses which have a natural above threshold TCO2 level and that the BHA’s failure to conduct baseline testing while the gelding was in their custody from 8 April meant that this possibility could not be excluded.
iii) Thirdly, he suggested that the administration of the tie-up powders might explain the above threshold readings.
20. The first two points may be dealt with shortly.
21. As regards the possibility that compensated respiratory acidosis due to chronic inflammatory airway disease might explain NEW DEN’s readings:-
i) Mr Hepburn said that something like 25% of racehorses had inflammatory airway disease in varying degrees of severity. But care must be taken not to be misled by the description of this as a disease – it is as Mr Hepburn observed a performance limiting condition.
ii) The short answer to the argument is that the important academic studies that underlie and justify the International threshold of 36mmol/l were conducted in controlled conditions with horses which will have included among their number animals with inflammatory airway disease, so that any variation in natural TCO2 levels because of the disease is already implicit in the setting of the 36mmol/l threshold.
iii) There was in any event little reliable evidence that NEW DEN was suffering from the condition. He raced regularly in 2011 and was in training throughout up to the time of the Lingfield race. Though Mr Byers said he had diagnosed small airway disease (an earlier label for inflammatory airway disease), there was no record of this or of any treatment in his practice notes. He was unable to give any clue about when such a diagnosis was made. Even if NEW DEN had some such condition, it was so mild that it never threw up any clinical symptoms. It was noteworthy that Dr Hillyer’s examination on 8 April, for instance, showed no abnormalities.
iv) Mr Hepburn’s reliance on what he said was a normal pH reading found with the i-STAT at Lingfield on 6 April as a diagnostic indication of inflammatory airway disease, did not survive his cross-examination. The figures which he relied upon to indicate a ”normal” reading (from a paper by Nappert in 2001) were disowned as being reliable by the authors. The pH reading obtained for NEW DEN was in fact outside some accepted ranges in earlier studies and at the upper end of the range in other studies.
22. Mr Hepburn’s second point was in reality an attack upon the reliability of worldwide racing’s use of the 36mmol/l threshold. His figure of 0.15% of horses (i.e. 3 in 2000) having a natural above threshold reading was derived from a paper that lacked scientific rigour and which based that calculation on an Australian study of the mid 1990s which would have included many horses which already had higher than normal readings because of the administration of alkalinising agents. The more reliable figures to justify the 36mmol/l threshold were given by Dr Vine. At the time of the Auer paper in 2000 (of which Dr Vine was a co-author) the chance of a false positive was calculated to be less than 1 in 13,400 (i.e. exceeding 36 mmol/l) and there was less than a 1 in 641,000 chance of a natural reading above 37.2mmol/l. Later work described in a paper of which Hibbert is the lead author in 2011 calculates that the chance of a horse having a natural TCO2 above 37mmol/l is less than 1 in 2,000,000. The present level used by racing authorities worldwide seems to this Panel to be robust, particularly when one bears in mind that the actionable threshold used by the BHA is presently 37.07mmol/l. These are comfortable margins that make it possible to exclude any realistic chance that NEW DEN had natural TCO2 levels above threshold. Finally, Mr Hepburn’s suggestion that studies of Australian race horses might not justify findings about horses in Britain did not withstand analysis. The Scarth study of 2000 of horses here produced results closely similar to the Australian results.
23. But it is a variant of Mr Hepburn’s third point which has left the Panel insufficiently persuaded that NEW DEN’s sample readings must have been produced by ‘milkshaking’. The Panel’s doubt arises in this way:
i) Recent BHA studies have shown a reliable correlation between readings obtained with the screening tool, the i-STAT, and readings subsequently obtained from analysis of samples using the regulatory apparatus, the Beckman E-LISE. The BHA uses a reading of 42 on the i-STAT as a rule of thumb equivalent of 36mmol/l on the Beckman E-LISE, to trigger further sampling for testing on the regulatory apparatus. While Dr Vine rightly cautioned about treating the match as precise, it nevertheless raised an important question in the Panel’s mind when it considered the i-STAT reading of 41 obtained by Dr Hillyer on 8 April. By this time, it seemed probable that the effect of whatever had been given to NEW DEN on 6 April had dissipated. While Dr Hillyer was quite right to point out that we do not know what if any alkalinising agents may have been administered from the morning of 6 April until her test on 8 April, the Panel could see no reason why any may have been given.
ii) That reading of 41 on the i-STAT can track across to give a rule of thumb figure to be expected from a Beckman E-LISE analysis of 35.14mmol/l. Though this is below the threshold of 36mmol/l, it is at the upper end of the normal spectrum and requires explanation. That explanation might have been provided if baseline testing had been performed during the period of the BHA’s period of custody of NEW DEN. It is standard practice in the USA for regulators to conduct that testing and Dr Vine said that it was routine to do so in Australia also. His report says that “it may have been helpful” to collect and analyse further samples from NEW DEN using the Beckman E-LISE. This Panel is left with the view that it may have been more than merely helpful to do this given the i-STAT result obtained on 8 April. It cannot be said with the necessary confidence that such further testing was unnecessary.
iii) The basis of the submission to the contrary on behalf of the BHA was that the actual results obtained for NEW DEN were so high (37.79 and 38.65 mmol/l) that any doubt raised by the 8 April i-STAT result was eradicated. It was said that, even assuming a possible high natural TCO2 level for NEW DEN, the process of homeostasis would prevent the levels actually reached from being reached by just the administration of the tie-up powder, because this cannot have had a sufficient quantity of alkaliniser in it to overwhelm the homeostatic response and raise the level to that found. That may be so, but there is uncertainty involved in the amount of alkalinisers in the powders provided by Mr Byers and what their effect might have been. The powder was a home preparation, of which he provided details. These indicated that a maximum of about 140 grams can have been in the dose given by syringe by Louisa Allen on 6 April. But even this assumes that the powder was an even mixture of the ingredients Mr Byers gave. It may not have been – he scooped it out of a tub he had in his car and gave a couple of bags to Allen. The Panel did not feel that the scientific studies such as those of Greenhaff, of Lloyd and Rose (1996) and of Watkins (1998) provide a sufficiently sure basis to exclude the possibility that the dose administered by Allen could not have raised the TCO2 of NEW DEN to the levels found.
24. For these reasons the Panel was not persuaded that the results of the sampling of NEW DEN on 6 April are consistent only with ‘milkshaking’. That, however, does not conclude the case in relation to Rule (A)27. There can be no doubt that the tie-up powder contained material that falls within the definition of a Prohibited Substance. The next question raised by the Rule is whether Boyle administered this with the intention of affecting the performance of the gelding in a race or with knowledge that its performance in a race could be affected.
25. The Panel decided that, contrary to his and Allen’s evidence, Boyle did know that Allen had given tie-up powder to the gelding. She said that she had obtained this from Mr Byers without his (Boyle’s) knowledge the day before, that she administered it both that evening and the next morning without Boyle knowing this, and that she did not tell him that she had done this even when she found out that the gelding had departed for Lingfield to race. She said that she administered it in ignorance of the fact that the gelding was to race that day. She had worked for Boyle as a trusted employee for many years, and was clearly capable. The Panel found her account inherently implausible. She attributed her failure to inform the trainer at so many obvious points to emotional upset she was suffering as a result of a family matter, and to what she described as chaos and mayhem on the days in question. Having heard the witnesses, the Panel was simply unable to accept that there was anything unusual or particularly busy about events in the yard on these days. There was no chaos and no mayhem. There was no need in truth to inform the trainer that she had given the powder to NEW DEN, because he was aware from her that it had been prescribed.
26. The Panel attached significance to the fact that Mr Byers prescribed bute as well as the tie-up powder on 5 April, yet this was not given to the gelding. Allen explained that she decided not to give it because she knew that potential new owners were coming to see NEW DEN in a few days. The Panel did not accept this explanation. The reason for not administering bute was that she and of course Boyle knew that the horse was entered to run on 6 April. She would not have taken a decision on her own to withhold a medication prescribed by Mr Byers. This was done, the Panel decided, in consultation with Boyle. Boyle decided not to give bute because there was still a chance that the horse might run, even though he thought that was unlikely as a result of the gelding’s stiffness following exercise on 5 April. When his intention was revised after his telephone call with Mr Watmore on 6 April, he decided to take the risk of running even though he knew that the horse had had a preparation provided by Mr Byers. Boyle did not know the precise contents of the tie-up powder, but he knew that it was something that could affect performance in a race: after all the very purpose of the tie-up powder was to affect performance. He was, in essence, taking a bit of a flyer in sending the horse to Lingfield in these circumstances. He did so in the knowledge that it had had a substance which could affect performance.
27. A further reason for concluding that Boyle knew of the administration of the tie-up powder was that he called Allen from Ireland on the morning of 7 April and got her to make alterations to the Yard Book which was the somewhat casual record kept by Allen as the medication book. It has not been possible to identify everything that he got her to delete, but he did get her to write in at least the words Equistro Azodine as a description of the tie-up powder. Boyle said that he got this information from Mr Byers in a telephone call that morning on a line with a very bad connection – Mr Byers was by this time on holiday in South Africa. But the significance of the alterations that he was dictating to Allen are that they demonstrate knowledge on his part of the tie-up powder administration, and a desire to improve the Yard’s record of this in advance of the BHA investigation he knew to be imminent.
28. While this breach of Rule (A)27 is plainly less serious than a breach by ‘milkshaking’, it is nonetheless a breach.
The other breaches
29. The other four Rule breaches can be dealt with briefly, because there was little real separate argument in relation to them.
30. Rule (C)50 is a strict liability provision. A trainer is liable if his horse tests positive for a Prohibited Substance whether he can identify the source of that substance or not, and whether or not he knows that a Prohibited Substance has been administered. If it had been established on behalf of Boyle that the TCO2 readings were entirely attributable to the gelding’s natural levels, this may have afforded a defence. But this was not established. Boyle was in breach because NEW DEN had available carbon dioxide in plasma above the prescribed threshold.
31. The breach of Rule (C)37 and associated provisions was admitted, for the obvious reason that it was Boyle’s case that NEW DEN was given a substance other than normal feed and water on the race day.
32. There was a breach also of Rule (C)13 consisting of a failure to keep a proper record of the treatment of NEW DEN with the tie-up powder. The Yard Book lacked all the details required by the Rule.
33. Finally, there was the allegation of attempting to mislead the BHA contrary to Rule (A)31 by seeking to attribute the positive sample taken from NEW DEN at Lingfield to the administration of the tie-up powder. As the Panel has decided that Boyle did not milkshake the gelding and that the question whether the readings obtained from the Lingfield sample are attributable to the tie-up powder remains the only other possibility because of the lack of baseline testing, Boyle was not in breach as alleged.
Allegation proved. This is a strict liability Rule and there was no challenge to the sample analysis for the gelding which showed TCO2 above the 36 mmol/l threshold.
Penalty: No separate penalty
Rules (C)37, (B)20 and Schedule (B)3 part 7.1
Allegation admitted and found proved in any event.
Penalty: £1,000 fine
Rule (C) 13
Allegation proved. The yard book did not contain the required details of the administration of the “tie-up” powders given to NEW DEN on 5 and 6 April 2011
Penalty: £500 fine
Allegation proved, but in the following sense only. The Panel found that Boyle did NOT “milkshake” the horse as the BHA alleged by putting a substantial quantity of alkalising agent into the gelding, whether by nasogastric tube or otherwise. It was, however, concluded that Boyle was aware of the administration of “tie-up” powders to the horse on 5 and 6 April and that when he took a final decision to race the horse during the morning of 6 April, he was doing so in the knowledge that the powders administered could affect the gelding’s racing performance. The Panel concluded that the administration of those tie-up powders might explain the sample results obtained, in the absence of further testing to establish a baseline TCO2 reading for the gelding. This ought to have been undertaken, at least in the light of the I-STAT reading of 41 obtained on 8 April.
Penalty: Restriction of entries for 2 months and £2,000 fine
Allegation not proved.
Total penalty: £3,500 fine and restriction of entries for 2 months.