1.1 The Disciplinary Panel of the British Horseracing Authority (BHA) met on 10th June 2013 to consider the case of Ian McInnes, a licensed trainer. The Panel was comprised of Matthew Lohn (Chair), Hopper Cavendish and Edward Dorrell. The Panel enquired into the following topics of enquiry:-
(a) Is McInnes in breach of Rule 188 of the Orders and Rules of Racing (2007) in that he declared COMMANDO SCOTT (IRE) to run in the races set out below when, by virtue of the fact that COMMANDO SCOTT (IRE) had undergone a biaxial neurectomy to his right hind plantar digital nerve on 29 July 2008, COMMANDO SCOTT (IRE) was not qualified to start for such races under the Orders and Rules of Racing:
(i) Musselburgh 1 May 2009 The ISS Facilities Services Handicap Stakes
(ii) York 15 May 2009 The sportingbet.com Stakes
(iii) Doncaster 6 June 2009 The 32Red Awarded Best Casino Again Handicap
(iv) Carlisle 24 June 2009 The Lloyd Motor Group Carlisle Bell
(v) Wolverhampton 7 July 2009 The CE Property Services Group Handicap Stakes
(vi) Pontefract 17 July 2009 The “Better Late Than Never” Handicap Stakes
(vii) Pontefract 5 August 2009 The Matty Brown Veterans Handicap Stakes
(viii) Wolverhampton 10 August 2009 The Stay At The Wolverhampton Holiday Inn Handicap Stakes
(ix) Thirsk 5 September 2009 The Waterholmes Handicap Stakes
(b) Is McInnes in breach of Rule 51(i) of the Orders and Rules of Racing (2007) in that he failed to conduct his business of training racehorses with reasonable care and skill by virtue of the fact that:
(i) COMMANDO SCOTT (IRE) had undergone a biaxial neurectomy to his right hind on 29 July 2008;
(ii) COMMANDO SCOTT (IRE) was thus prohibited under the Orders and Rules of Racing (2007) from being declared to run in races; and
(iii) McInnes declared COMMANDO SCOTT (IRE) to run on nine occasions after the horse had undergone a neurectomy on 29 July 2008.
(c) Is McInnes in breach of Rule (A)31.2 of the current Rules of Racing in that he deliberately misled Investigating Officers of the BHA:
(i) on 14 and 15 November 2011 when he denied knowing the whereabouts of COMMANDO SCOTT (IRE);
(ii) explicitly lied about his knowledge of the horse having undergone the neurectomy procedure to its right hind on 29 July 2008; and
(iii) by making arrangements to have the horse removed from his yard to avoid the BHA having access to COMMANDO SCOTT (IRE) for the purposes of examination.
1.2 At the outset of the hearing, Counsel instructed on behalf of McInnes admitted the breaches of the Rules. Notwithstanding this admission, two matters remained in contention as between McInnes and the BHA, namely:
1.2.1 the extent of McInnes’ knowledge of the surgical procedure and whether he ran COMMANDO SCOTT (IRE) aware that this was in breach of the Rules of Racing; and,
1.2.2 whether McInnes had recklessly disregarded the welfare of COMMANDO SCOTT (IRE).
1.3 The Committee heard submissions from both parties regarding these issues.
2.1 The background to this case involved a gelding, COMMANDO SCOTT (IRE), which ran in the name of Mrs Ann Morris and was in training with McInnes from 5 September 2005 until 22 September 2009.
2.2 The case was first brought to the BHA’s attention by Declan Carroll, a licensed trainer. Carroll telephoned Stable Inspecting Officer (‘SIO’) Mr Mark Beecroft on 16 August 2011 to inform him of a text message that he received which read “Just heard about your scam with Milburn you have til [sic] Monday noon to drop the case or bha will know about Commando Scott and cash coming in from Ireland”.
2.3 The mobile telephone number that sent the text was not recognised by or known to Carroll and the BHA was unable to identify who sent the text. Carroll explained to the SIO that he was in the middle of a legal dispute to recover money owed to him by registered owner Mr John Milburn.
2.4 Carroll told the SIO that he had become aware that COMMANDO SCOTT (IRE) had been the subject of a neurectomy operation some time at the end of 2010 to early 2011, whilst the gelding was ‘at rest’ and he had therefore refused to take the gelding back into training at his yard. The subject was brought to his attention by one of the owners in his yard, Mr Milburn, during the time that the Howard Johnson case was receiving press coverage.
2.5 Given the nature of the information disclosed by Carroll to the SIO, Carroll was requested to attend a formal interview with BHA Investigating Officers. The request was made on 3 October 2011 and Carroll was interviewed at his licensed premises on 5 October 2011.
2.6 Carroll was questioned about his knowledge of COMMANDO SCOTT (IRE)’s veterinary history but asserted that the gelding had not undergone the procedure whilst it was in training with him, and that until he had discussed the matter with Mr Milburn, he did not have any knowledge of the prior operation.
2.7 Carroll explained that he had been asked to take the gelding back into training after its period at the livery yard where it was at rest, but flatly refused. After being asked by Mr William Morris, the owner’s husband, to recommend another trainer to put COMMANDO SCOTT (IRE) with, he also refused.
2.8 After the interview and other initial enquiries the Investigating Officer, Mr John Burgess, contacted a number of local veterinary practices to ascertain where COMMANDO SCOTT (IRE) had undergone the neurectomy procedure.
2.9 Mr Burgess wrote to four separate veterinary practices, three replied stating that they held no clinical records for the gelding, but one vet, Mr James Crabtree from Equine Reproductive Services, responded by letter dated 27 November 2011 confirming that the practice had not performed a neurectomy but had referred COMMANDO SCOTT (IRE) to the Newmarket Equine Hospital (formally Greenwood, Ellis and Partners) where a neurectomy was performed on 29 July 2008.
2.10 It was identified from the gelding’s training history that it was in training with McInnes at the time that the procedure had been carried out. Mr Crabtree told the Investigating Officers that although he could not remember the exact conversation with connections of the gelding pre-neurectomy, he would have advised the trainer that a de-nerved horse would be unable to race under the Rules again.
2.11 Initial contact was made with McInnes by telephone on 14 November 2011 by Mr Burgess. The general nature of the investigation was explained to McInnes. He was directly asked of his knowledge relating to any surgical procedure COMMANDO SCOTT (IRE) may have undergone. McInnes explicitly denied any knowledge of or involvement in a neurectomy either before or after the gelding was in training with him. He further stated that COMMANDO SCOTT (IRE) had not had any surgery at all whilst in training with him, but that the horse had suffered from various ‘niggles’, one of which caused him to miss the whole of the 2008 flat season. McInnes explained that resting COMMANDO SCOTT (IRE) for that season was done on veterinary advice, although he did not elaborate as to what the advice or ‘niggle’ was.
2.12 The following day, 15 November 2011, Mr Burgess and Mr Jon Dunn, another Investigating Officer, met with McInnes at the Owners & Trainers bar at Southwell. Although it was not a formally recorded interview, McInnes was aware of the nature of the Investigating Officers’ enquiries and that they were part of a formal investigation. Notes were also made of the conversation and responses. McInnes repeated his denial of the knowledge of the neurectomy procedure.
2.13 Following confirmation of the procedure from the vets, McInnes was requested to attend a formal tape recorded interview. McInnes was interviewed on 20 January 2012.
2.14 In interview, McInnes admitted that he had lied to the Investigating Officers in the telephone call on 14 November 2011 and again at Southwell on 15 November 2011. Throughout the course of the interview, the true extent of McInnes’ misleading of the Investigating Officers became apparent.
2.15 In actual fact, McInnes had actively made arrangements to have COMMANDO SCOTT (IRE) removed from the yard after becoming aware of the BHA investigation and the possibility that the BHA would wish to inspect the yard to find the gelding to prove that it had undergone a neurectomy operation.
2.16 McInnes confirmed that he had received COMMANDO SCOTT (IRE) from a livery yard ahead of the 2008 flat season, but that the gelding experienced persistent lameness. As a result, Mr Crabtree examined the gelding and recommended a lengthy period of box rest, which proved unsuccessful. It was then that the gelding was referred to Veterinary Surgeon, Mr Ian Wright, of the Newmarket Equine Hospital.
2.17 McInnes confirmed that it was more than likely that he would have taken the gelding to Newmarket himself for the gelding to have the surgery.
2.18 During the course of the interview, McInnes admitted to knowing that the gelding had gone for surgery, but stated that he was not aware of the intricacies of the procedure. McInnes stated that there may have been the possibility that the vet explained the procedure and the prohibition under the Rules, but he could not remember and so it may have “passed me by”.
2.19 COMMANDO SCOTT (IRE) returned to McInnes after being discharged from the Newmarket Equire Hospital to recuperate. Upon returning to the yard the gelding was ‘sound’ and McInnes began to train the gelding with a view to having it race fit.
2.20 McInnes then declared and ran COMMANDO SCOTT (IRE) on 9 occasions:
(a) Musselburgh 1 May 2009 The ISS Facilities Services Handicap Stakes
(b) York 15 May 2009 The sportingbet.com Stakes
(c) Doncaster 6 June 2009 The 32Red Awarded Best Casino Group Again Handicap
(d) Carlisle 24 June 2009 The Lloyd Motor Group Carlisle Bell
(e) Wolverhampton 7 July 2009 The CE Property Services Group Handicap Stakes
(f) Pontefract 17 July 2009 The “Better Late Than Never” Handicap Stakes
(g) Pontefract 5 August 2009 The Matty Brown Veterans Handicap Stakes
(h) Wolverhampton 10 August 2009 The Stay At The Wolverhampton Holiday Inn Handicap Stakes
(i) Thirsk 5 September 2009 The Waterholmes Handicap Stakes
3. Issues for the Panel
3.1 The Panel received submissions from Counsel on behalf of the BHA and Counsel on behalf of McInnes in respect of the issues in contention. McInnes did not give evidence to the Panel.
3.2 With reference to the issue of knowledge, Counsel for the BHA drew the Panel’s attention to the correspondence and attendance notes recorded by the veterinary surgeons involved with this matter.
3.3 In particular, the Panel noted an email sent from Mr Crabtree, the local veterinary surgeon, to Mr Wright the receiving veterinary surgeon at Newmarket Equine Hospital, noting that he had “reminded the owner and all involved regarding the prohibition of the neurectomy procedure in racing”. The Panel was also shown a telephone attendance note made by Mr Wright, the treating surgeon, setting out that he had counselled the owner and trainer regarding the neurectomy being a banned procedure.
3.4 The Panel noted McInnes’ position, as set out in interview with the Investigating Officer, was that he didn’t understand what a neurectomy was and that he did not understand what this meant. McInnes told the Investigating Officer that it was only once he had read the publicity surrounding the Howard Johnson case in the Racing Post that he “put two and two together” and thought that may be what had been done to the gelding.
3.5 The Panel did not accept McInnes’ version of events as given in interview and put forward by his Counsel at the Hearing. The veterinary surgeons had clearly recorded the advice they had given to both the owner and trainer in respect of the procedure and its implications for horses that were racing. The veterinary surgeons could not recall giving the advice when interviewed by the BHA but were confident of their contemporaneous notes and that the advice had in fact been given. In the light of this evidence the Panel concluded that both owner and trainer knew the background and details of the neurectomy procedure and its consequences for the eligibility of COMMANDO SCOTT (IRE) to race.
3.6 In reaching this view the Panel was also mindful that COMMANDO SCOTT (IRE) was one of the best horses in Mr McInnes’ yard. The Panel considered it inconceivable that the trainer would have taken a horse to Newmarket after four and a half months of box rest for an operation of last resort without knowing exactly what that operation involved and the consequences for the gelding.
3.7 In respect of the welfare issue, the BHA asserted that McInnes had recklessly disregarded the welfare of COMMANDO SCOTT (IRE) and running this gelding post neurectomy was intrinsically not in the best interest of the horse.
3.8 The BHA submitted that McInnes could not credibly assert that he was genuinely concerned for the welfare of COMMANDO SCOTT (IRE). If, as asserted, McInnes did not know what the procedure was, then that disregarded the gelding’s welfare. Likewise – if McInnes knew of the procedure (as found by the Panel) then running the gelding was equally disregarding of its welfare.
3.9 The treating veterinary surgeon had been clear in his attendance note as to the post-operative risks for this gelding; there was no excuse for McInnes pretending he did not know of them.
3.10 In addition, the Panel received expert evidence from a BHA Veterinary Officer, Mr Nick Bowen, as to the potential problems faced by horses post neurectomy including unexpectedly breaking down in races and the risks from undetected solar penetration pursuant to the desensitization.
3.11 Counsel on behalf of McInnes sought to make reference to parts of the world where horses are allowed to race post neurectomy but the Panel dismissed these as not relevant; the Rules of Racing that apply in Great Britain are those made and promulgated by the BHA and local practice from other parts of the racing world do not interfere with the primacy of this governance framework. There is no room for doubt in the Rules of Racing – there is an absolute ban on horses running post neurectomy.
3.12 The Panel concluded that McInnes knew the gelding should not be ridden in races post the operation and that in continuing to do so, he disregarded the welfare of the gelding and indeed the safety of the jockey who was called upon to ride the gelding and, more widely, those horses and jockeys alongside which COMMANDO SCOTT (IRE) raced after the operation.
The Panel considered the question of penalty.
4.1 In respect of the breach of Rule (A)31.2, the Panel noted the entry point and range as set out in the Guide to Procedures and Penalties 2013. The Panel noted that McInnes had admitted the breach for which he had been charged but balanced any credit that he could have received from this in the light of McInnes’ previous conduct, in that he misled Investigating Officers on two separate occasions and did not set the record straight until January 2012 and, even then, had maintained his position regarding knowledge of the neurectomy up until the hearing of this matter.
4.2 In the light of these serious issues, the Panel determined the appropriate penalty was to disqualify McInnes for 6 months.
4.3 In respect of the breaches of Rule 51(i) and Rule 188, the Guide to Procedures and Penalties at the time of the offence and the current 2013 version offer no assistance to the Panel in respect of the penalty that should be imposed. The Panel considered this matter from first principles, reminding themselves that this was an extremely serious offence, where McInnes had fallen woefully short of the standard expected of a licensed trainer. He had disregarded the welfare of the gelding and had deliberately ignored the strictures of the Rules of Racing in continuing to declare and run COMMANDO SCOTT (IRE) in races when he was expressly prohibited from doing so by virtue of the neurectomy operation. His behaviour seriously undermined the trust placed in trainers to look after horses in their care and to abide by the Rules of Racing.
4.4 The Panel determined that a significant period of disqualification was required to mark the severity of this offence and therefore determined that McInnes should be disqualified for a period of 3 years from Saturday 22 June 2013 until 21 June 2016 inclusive; his behaviour was such that he should forfeit the right to train racehorses.
4.5 The Panel determined that this penalty should run concurrently with the 6 month penalty for the breach of Rule (A)31.2 and that McInnes should be given a further 72 hours (until Monday 24 June 2013) for owners to remove those horses in his care to another licensed trainer.
4.6 Lastly – the Panel wishes to note two issues – firstly that it has not considered the question of disqualification of COMMANDO SCOTT (IRE) in those races where it was placed post the neurectomy operation. The Panel is mindful that, Mr Morris, the owner’s husband, was too unwell to attend the hearing and that a degree of uncertainty existed prior to the hearing as to the true facts of this case. The Panel will consider any application in due course should the BHA wish to pursue this issue further.
4.7 Secondly, the Panel was mindful that the mischief that has occurred in this case would not have been so easily perpetrated if the fact of the neurectomy had been recorded in the gelding’s passport. For the future the Panel believes consideration should be given by the BHA to requiring veterinary surgeons to record the fact of a neurectomy in a horse’s passport so this issue may be more visible and easily tracked.