Howard Johnson
THE DISCIPLINARY PANEL OF THE BRITISH HORSERACING AUTHORITY (BHA) MET ON 21ST & 22ND JULY AND 2ND AUGUST 2011 TO CONSIDER THE CASE OF HOWARD JOHNSON, A LICENSED TRAINER.
TOPICS FOR INQUIRY
The Panel inquired into the following topics:
Neurectomy Charges
1. In breach of Rule 188 of the Orders and Rules of Racing 2007 Howard Johnson declared STRIKING ARTICLE (IRE) to run in the races set out below when, by virtue of the fact that STRIKING ARTICLE (IRE) had undergone a palmar neurectomy to his left fore limb on 8 April 2008, STRIKING ARTICLE (IRE) was not qualified to start for such races under the Orders and Rules of Racing 2007:
(a) Hexham 11 October 2008: The Eldon Square Always There Beginners’ Chase
(b) Aintree 25 October 2008: The Intercasion.co.uk Molyneaux Novices’ Chase
(c) Wetherby 27 December 2008: The Skyvegas.com Novices’ Chase
(d) Musselburgh 20 February 2009: The Turftv Novices’ Chase
(e) Wetherby 14 March 2009: The Bramham Hall for conferences & banquets Novices’ Chase
(f) Sedgefield 17 April 2009: The Totesport 0800 221 221 Novices’ Chase.
2. In breach of Rule (C)37 of the Rules of Racing 2009 Howard Johnson declared STRIKING ARTICLE (IRE) to run in the races set out below when, by virtue of the fact that STRIKING ARTICLE (IRE) had undergone a palmar neurectomy to his left fore limb on 8 April 2008, STRIKING ARTICLE (IRE) was not qualified to start for such races under the Rules of Racing 2009:
(a) Wetherby 14 October 2009: The Skybet.com supporting spinal research Bobby Renton Handicap Chase
(b) Musselburgh 7 February 2010: The Totexacta Claiming Chase.
3. In breach of Rule 51(i) of the Orders and Rules of Racing 2007 (and subsequent to 7 September 2009, in breach of Rule (C)22 of the Rules of Racing 2009) Howard Johnson failed to conduct his business of training racehorses with reasonable care and skill by virtue of the fact that
(a) STRIKING ARTICLE (IRE) had undergone a palmar neurectomy to his left fore on 8 April 2008,
(b) STRIKING ARTICLE (IRE) was thus prohibited under the Orders and Rules of Racing 2007 and Rules of Racing 2009 from being declared to run in races,
(c) Howard Johnson was wholly unaware of the relevant Rule and thus declared STRIKING ARTICLE (IRE) to run on 8 occasions after the horse had undergone a neurectomy on 8 April 2008.
Anabolic Steroid Charges
4. On 16 July 2008
(a) Howard Johnson caused or allowed to be administered Laurabolin (Laurabolin®, Intervet), a Prohibited Substance, to WHISKY MAGIC (FR), a horse under his care; and/or
(b) Laurabolin, a Prohibited Substance, was administered to WHISKY MAGIC (FR), a horse under the care of Howard Johnson.
As a consequence thereof Howard Johnson committed a breach of Rule 239 of the Orders and Rules of Racing 2007.
5. On 29 April 2009
(a) Howard Johnson caused or allowed to be administered laurabolin, a Prohibited Substance, to MINTAKA PASS (IRE), a horse under his care, and/or
(b) Laurabolin, a Prohibited Substance, was administered to MINTAKA PASS (IRE), a horse under the care of Howard Johnson.
As a consequence thereof Howard Johnson committed a breach of Rule 239 of the Orders and Rules of Racing 2007.
6. On 30 October 2009
(a) Howard Johnson caused or allowed to be administered laurabolin, a Prohibited Substance, to MONTOYA’S SON (IRE), and/or
(b) Laurabolin, a Prohibited Substance, was administered to MONTOYA’S SON (IRE), a horse under the care of Howard Johnson.
As a consequence thereof, Howard Johnson committed a breach of Rule (C)50 of the Rules of Racing 2009 and/or Rule (C)55 of the Rules of Racing 2009.
7. By causing or allowing laurabolin, a Prohibited Substance, to be administered to WHISKY MAGIC (FR), a horse under his care, on 16 July 2008, Howard Johnson breached Rule 220(iii) of the Orders and Rules of Racing 2007 by acting in a manner that was prejudicial to the integrity, proper conduct and/or good reputation of horseracing in Great Britain.
8. By causing or allowing laurabolin, a Prohibited Substance, to be administered to MINTAKA PASS (IRE), a horse under his care, on 29 April 2009, Howard Johnson breached Rule 220(iii) of the Orders and Rules of Racing 2007 by acting in a manner that was prejudicial to the integrity, proper conduct and/or good reputation of horseracing in Great Britain.
9. By causing or allowing laurabolin, a Prohibited Substance, to be administered to MONTOYA’S SON (IRE), a horse under his care, on 13 October 2009, Howard Johnson breached Rule (A)30 of the Rules of Racing 2009 by acting in a manner that was prejudicial to the integrity, proper conduct and/or good reputation of horseracing in Great Britain.
ADMISSIONS
At the outset of the hearing Johnson admitted being in breach of Rule 188 of the Orders and Rules of Racing 2007 and being in breach of Rule (C)37 of the Rules of Racing 2009 in that he declared STRIKING ARTICLE (IRE) to run in the races set out in Topics for Inquiry 1 and 2 in circumstances where the gelding was not qualified to start as a consequence of the neurectomy to his near-fore limb on 8 April 2008. Johnson’s position was that the declarations were made in circumstances where he was not aware of the prohibition under the Rules.
Johnson further admitted being in breach of Rule 51(i) of the Orders and Rules of Racing 2007 and subsequent to 7 September 2009 being in breach of Rule (C)22 of the Rules of Racing 2009 in that he accepted that, by being unaware of the Rules of Racing that prohibited the declaration of horses to run in races that had been subject to a neurectomy procedure, he did not fulfil the requirement that he conduct his business of training racehorses with reasonable skill and care.
Johnson made no admissions in respect of the Anabolic Steroid Charges.
BACKGROUND FACTS
Johnson is a licensed trainer for the purposes of the Rules of Racing and has held a licence since 1989.
NEURECTOMY CHARGES
The Neurectomy Charges arise from the conduct of Johnson in respect of a chestnut gelding, STRIKING ARTICLE (IRE), which was in training with Johnson from 1 November 2007 until 7 February 2010. The gelding was in the registered ownership of Andrea and Graham Wylie and had cost them £150,000.
On 8 April 2008 a palmar neurectomy was performed on the gelding’s near-fore limb by James Emson, one of Johnson’s veterinary surgeons. Subsequent to the operation the gelding was returned to training and ran in a further 8 races. STRIKING ARTICLE (IRE)’s final race was at Musselburgh on 7 February 2010 where the gelding was pulled up lame, 5 fences from home. The gelding received immediate veterinary attention on the course and was found to have ruptured its near-fore superficial digital flexor tendon. Johnson, who was not present at Musselburgh, elected to have the gelding euthanised and, in consequence, the gelding was destroyed on the course.
At the request of the BHA, a post mortem examination of the gelding was carried out by the veterinary surgeon John Keen of the Royal School of Veterinary Studies at the University of Edinburgh. The post mortem revealed that the gelding had been the subject of a neurectomy procedure – otherwise known as a denerving – on its near-fore limb. On 28 May 2010 Johnson was contacted by a BHA Investigating Officer to discuss STRIKING ARTICLE (IRE). During the phone call Johnson admitted that he had STRIKING ARTICLE (IRE) ‘denerved’ whilst in training with him due to repeated lameness issues. Johnson expressed ignorance of the Rules of Racing regarding the neurectomy procedure and the prohibition in the Rules (at Rule 182(x) and, Schedule (B) 3, para 11 in the 2007 and 2009 Rules respectively) in respect of running a horse after it has undergone a neurectomy procedure.
Although admissions were made at the outset of the hearing as to the strict breaches of the Rules as set out in the Topics for Inquiry, there was dispute as to the nature of the background facts and consequence of the neurectomy. As a result the Panel heard evidence from two of the treating veterinary surgeons who looked after the gelding.
The Panel heard evidence from David Peat, the then Senior Partner of Castle Veterinary Surgeons, who had looked after Johnson’s horses for over 20 years. Mr Peat gave evidence that the gelding had an extremely severe ulcerated corn in its near-fore heel that was threatening to compromise the pedal bone. The lameness had started in January and by April Mr Peat said that options were running out for the gelding; it was confined to almost constant box rest because of the lameness.
Remedial farriery had not managed to improve the condition and the gelding was suffering considerable pain. Mr Peat explained that the aim of the treatment was to alleviate the gelding’s pain and “return it to soundness”. Johnson asked for a neurectomy to be performed having discussed the options with Mr Peat. Mr Peat said in evidence he had never known a neurectomy to be carried out on a racehorse before.
Mr Peat believed that a neurectomy and consequent denerving, resulting in a reduction of feeling in the heel, would alleviate the pain and encourage growth in the affected area. Mr Peat gave evidence that he did not realise at the time he discussed the procedure with Johnson that a neurectomy would automatically prohibit a horse from running under Rules. He did not raise with Johnson whether STRIKING ARTICLE (IRE) could or should race again. Mr Peat accepted that in general terms he had considered that the gelding would have been raced again.
There was a conflict in the evidence before the Panel at to what Johnson was advised regarding the return of feeling to the heel. Mr Peat in his statement noted that “there would be a greater risk for the rider of a neurectomised horse as opposed to the rider of a horse with full feeling in all limbs”.
At the time Mr Peat was interviewed by the Investigating Officer, John Burgess, he noted that although some sensation would return to the gelding’s limb “…it’s always got some numbness to it.” Mr Peat said he would have advised Johnson of the potential for the return of “some” feeling in the limb. Johnson disagreed with this evidence. He told the Panel that Mr Peat had informed him that the gelding would get “all the function back” and “the nerve would come back” within three to six months. The Panel preferred Mr Peat’s evidence on this issue; he was consistent in his evidence when interviewed, when providing a statement and before the Panel. The Panel concluded that Johnson was informed that the gelding would probably be left with impaired sensation in its near-fore limb following the operation.
Johnson admitted in evidence that, following the neurectomy, he allowed the gelding to race again in direct contravention to the Rules. He explained that the test he performed on the gelding to determine if sensitivity had returned after the operation was to press two fingers into the horse’s hoof to see if the gelding would flinch. No evidence was adduced by Johnson of a veterinary assessment being undertaken to determine whether any sensation had returned to the neurectomised heel.
The Panel believed Johnson felt under a great deal of pressure to get the gelding racing again. When interviewed by Mr Burgess as part of the investigation, Johnson gave the following explanation when questioned as to what was his understanding of the denerving operation:
“..Well when you de-nerve something like say in the foot he said the horse would become sound, and I just wanted the horse to run.…you have to try every corner to get a horse to win a race.”
The Panel received expert evidence from David Ellis from the Newmarket Equine Hospital. He explained that a neurectomy removes sensation from the painful area, masking the signs of pain but not curing any pathology which gives rise to the pain. Following a palmar neurectomy, such as undergone by STRIKING ARTICLE (IRE), Mr Ellis explained that the gelding was at risk that an injury, such as a fracture of the heel or navicular region or a penetration or infection, would go undetected. As to the welfare aspects of equine care, Mr Ellis noted that it cannot be in the best interests of a racehorse’s welfare that in order for it to be sound enough to be trained and raced it has to have an operation to permanently desensitise the area which is giving rise to pain and lameness. The Panel accepted this evidence.
ANABOLIC STEROID CHARGES
The Panel considered charges in relation to three horses in Johnson’s care. The background to these charges arose in relation to a sample that had been taken from MONTOYA’S SON (IRE) following a run at Kelso on 6 December 2009. The sample was found to have traces of nandrolone albeit at a level too low for it to be treated as a ‘positive’ sample. But in consequence, a decision was taken to conduct an unannounced inspection at Johnson’s training premises and carry out an in-training testing exercise.
On 19 January 2010 the unannounced inspection took place. Blood samples from all horses that were present in training with Johnson at the time of the visit – in excess of 100 – were sent for analysis. There were no concerns over the results of any of the blood tests.
During the inspection, Johnson was asked to provide the yard’s medical records. It transpired that the original records had been destroyed in a fire at Johnson’s home on 27 December 2009. Instead, the diary kept and maintained by Ray White, Johnson’s Head Lad, was examined. This was found to contain several entries that suggested that anabolic steroids had been administered to a number of horses.
The BHA subsequently obtained veterinary records for the relevant horses from Castle Veterinary Practice. Those records showed that MINTAKA PASS (IRE), WHISKY MAGIC (FR) and MONTOYA’S SON (IRE) had been administered nandrolone laurate whose trade name is Laurabolin, which is an anabolic steroid.
Johnson stated, when interviewed by the BHA as part of their investigation, that he would occasionally request that a horse be given a booster or something to perk the horse up when returning to training from the field if they appeared to be weak or in poor condition. The “pick me up” referred to in the horses in question was the anabolic steroid, laurabolin. Johnson asserted that the substance would have been administered on the advice of his veterinary surgeons. Johnson said he had never sought to hide the fact that his horses received steroids – he believed it was acceptable to administer anabolic steroids to his horses as long as they were not in training.
There were several areas of dispute regarding the Anabolic Steroid Charges. In broad terms these divided into four main issues:
1. The interpretation of the Rules of Racing.
2. The decision to administer a steroid.
3. The definition of whether a horse is ‘in training’.
4. The effect of the anabolic steroids.
The Rules of Racing
The issue regarding the interpretation of the Rules arose due to the wording of Rule 239 of the Orders and Rules of Racing 2007 which the BHA alleged was breached in respect of the positive samples relating to MINTAKA PASS (IRE) and WHISKY MAGIC (FR). Rule 239 relates to circumstances where ‘…an Analysis of any Sample is positive…’. It was argued on behalf of Johnson that there had not been any ‘positive samples’ in respect of these geldings. The evidence of drug use was confined to the veterinary records and Rule 239 did not cover such circumstances.
The Panel accepted this submission and rejected the broader approach submitted by the BHA that the Panel should look not only at the Rule, but also the purpose of the Rule and the mischief it was seeking to prevent.
This decision left the Panel to consider the cases of MINTAKA PASS (IRE) and WHISKY MAGIC (FR) under the alternative charge of Rule 220(iii) of the Orders and Rules of Racing 2007 which alleged Johnson’s conduct by allowing or causing laurabolin to be administered to MINTAKA PASS (IRE) and WHISKY MAGIC (FR) was prejudicial to the integrity, proper conduct and/or good reputation of horseracing in Great Britain.
This issue of interpretation did not arise in the case of MONTOYA’S SON (IRE) since the administration of laurabolin took place on 30 October 2009 when the new Rules of Racing were in force. Rule (C)50.3 providing that ‘Each Trainer is strictly liable for ensuring that Prohibited Substances are not administered to their horses by any Person’. The Panel determined that any allegation under Rule (C)55 would also necessarily fail for the same reasons in Rule 239 since the new Rule also referred to the positive test of a ‘sample’.
The Decision to administer a Steroid
With regard to the decision to give the geldings steroids, the Panel heard evidence from Johnson’s veterinary surgeons David Peat and Ben Sturgeon, Ray White, the Head Lad, and from Johnson himself.
Mr White accepted in cross examination that none of the geldings that were given steroids had any illness – they were “just big, weak and backward”. He said that the idea to give a particular horse a steroid came from Johnson rather than the veterinary surgeon. He also confirmed that the veterinary surgeons gave advice as to the ‘withdrawal period’ for the drug during which time the horse could not be run. The Panel accepted his evidence.
Johnson asserted that his veterinary surgeons would tell him when a horse needed a steroid. He accepted that the three horses in question were not the only horses at his stables that would have had a steroid. But he was adamant that none of the horses were “in training” at the time.
The Panel did not accept the evidence of the treating veterinary surgeons, Mr Peat and Mr Sturgeon, that the steroids were clinically indicated. The clinical notes for each gelding did not record any reasoning for the administration – a mere record was made of the dose given. Moreover laurabolin was being prescribed ‘off label’ – it is not licensed for the treatment of horses in the United Kingdom. The Veterinary Medicines Directorate permit prescription of drugs ‘off label’ in order ‘to avoid unacceptable suffering’. In such circumstances the veterinary surgeon should keep records detailing the ‘off label’ use. No such records were kept in the notes of the three geldings. The weight the Panel attached to the treating veterinary surgeons’ evidence was also limited by the extent of the evidence given by Mr Sturgeon. He attended the hearing with Counsel – he was permitted by the Panel to receive legal advice at the hearing in view of the Royal College of Veterinary Surgeons concurrently considering the issues. Mr Sturgeon exercised his privilege against self incrimination when asked questions about the clinical justification for giving steroids to the geldings.
The Panel was assisted by the evidence of the BHA’s Expert – Professor Tim Morris, the BHA’s current Director of Equine Science and Welfare and Richard Hepburn who appeared on behalf of Johnson. Both agreed that in respect of the description of the horses given to the Panel, the steroids did not appear to be clinically indicated.
In the absence of a credible explanation from the treating veterinary surgeons, the Panel preferred the more straightforward account of the Head Lad – namely that when Johnson felt his horses required a steroid as a ‘pick me up’ – he asked for a veterinary surgeon to attend his yard to prescribe anabolic steroids for his horses – which they did.
The Definition of whether a horse is ‘in training’
There was considerable debate at the hearing as to the circumstances in which it is acceptable to give a horse a steroid. The Rules of Racing (pre and post September 2009) are clear and consistent on the point that anabolic steroids are prohibited substances.
The question arose as to whether it was ever permissible to give a racehorse an anabolic steroid. The Panel’s attention was drawn to an article in the Racing Post on 4 July 2008 where Professor Morris had made the following assertions – “They [anabolic steroids] are banned, but if the question is ‘can anabolic steroids be used clinically’ the answer is ‘yes, absolutely’ ”. He was also quoted with reference to anabolic steroids as follows – “A horse may have a particular injury that needs help…but in general that horse would not be in training and we are talking about an extremely uncommon occurrence.”
In his witness statement prepared for the hearing, Professor Morris noted that “…there is an absolute prohibition on their [anabolic steroids] use on horses in training and on horses out of training if the substance is still present, or can have an effect on the horse when it is in training..”.
At the hearing Johnson sought to demonstrate that his horses were not in training at the time of the administration of the steroid and that there was an overriding clinical need to give the horse the drug. The time line for each horse and evidence to support the position is set out below. In determining whether a horse was in training particular regard was given to the detailed training invoices provided by Mr Wylie which set out the varying costs of Johnson’s training depending on whether a horse was in full training, half training or roughed off.
WHISKY MAGIC (FR) – this gelding came in from its summer break in 2008. Mr Johnson gave evidence that he was “very poor” and “had not done well”. In cross examination Mr Johnson admitted the gelding had “No disease. Definitely not. Just very much down in condition…lethargic.” The gelding was given an anabolic steroid injection on 16 July 2008.
Johnson gave evidence to the Panel that invoices were raised every four weeks in arrears to Mr Wylie. The narrative on the invoice for WHISKY MAGIC (FR) dated 19 August 2008 showed the charge for the administration of laurabolin alongside charges for 4 weeks training. The Panel considered this invoice alongside the previous invoice dated 22 July 2008 which provided for three weeks roughed off and one week’s full training.
In the light of the invoice records, the Panel was satisfied that the gelding was in training prior to and after the administration of the laurabolin. In the absence of any overriding clinical need for the gelding to receive the anabolic steroid, the Panel found the 7th Topic for Inquiry, namely the breach of Rule 220(iii), proved.
In arranging for a prohibited substance to be administered to WHISKY MAGIC (FR) when the gelding was in training, Johnson had acted in a manner that was prejudicial to the integrity, proper conduct and good reputation of horseracing in Great Britain
MINTAKA PASS (IRE) – this gelding ran at Haydock in November 2008 and did not race again that season. The veterinary records show that it was given an anabolic steroid injection on 29 April 2009. Johnson gave evidence that this horse was turned out during the day or put on the walker and brought in at night in order to try and keep condition on him. Johnson said that although the gelding was on his farm, it was not in training. The invoices sent to Mr Wylie at this time reflect this; the narrative on the invoices dated 26 May 2009 and 23 June 2009 show no training fees being raised during the period. It is undoubtedly the case that MINTAKA PASS (IRE) was in Johnson’s care and control at the time but the evidence before the Panel was unclear as to whether this was enough to warrant a breach of the Rules in the light of the evidence from the BHA as to the issue of ‘horses in training’. Although the Panel had concerns as to the clinical justification of the administration, since the horse was not in training at the time of injection the Panel found the allegations against Johnson in respect of MINTAKA PASS (IRE) (Topics of Inquiry 5 and 8) not proven.
MONTOYA’S SON (IRE) – the alleged breaches in respect of this gelding fell to be considered under the new Rules of Racing which came into force in September 2009. The background facts as to the administration of the anabolic steroid were very different in this case. On 13 October 2009 MONTOYA’S SON (IRE) received a dose of laurabolin. Three days prior to the injection, the gelding had raced at Hexham on 10 October 2009. It was sent off favourite and finished in 4th place in a field of 11 runners. On 6 December the gelding raced again at Kelso and was placed 8th of 14 runners.
In his statement made in preparation for the hearing, Johnson asserted that he was concerned that MONTOYA’S SON (IRE) had not put on any condition during the time he had been in training. He also told the Panel that the gelding was not trained for 4 weeks after the injection although he admitted he stayed in the yard. The Panel was shown a picture of MONTOYA’S SON (IRE) taken during the race at Hexham. Johnson said the gelding was not in good condition and more generally was one of the worst examples he had seen for some time in terms of a horse that had not thrived or done well either in training or out of training. The Panel found the photograph of the gelding racing at Hexham difficult to reconcile with Johnson’s description and moreover doubted that Johnson would have sent a runner to his local track (and which was sent off favourite) in a condition that was anything other than in a fit state to race.
In the Panel’s view there was no doubt that MONTOYA’S SON (IRE) was in training at the time it received the steroid and moreover from an examination of the training invoices, it was still in training after the administration of laurabolin on 13 October 2009. The invoices for 13 October 2009 and 10 November 2009 were raised on each occasion for four weeks full training. In consequence the Panel found Johnson to be in breach of Rule (C)50.3 of the Rules of Racing 2009 in that he had caused a prohibited substance to be administered to MONTOYA’S SON (IRE). The Panel further found his actions constituted a breach of Rule (A)30 of the Rules of Racing 2009 in that they were prejudicial to the integrity, proper conduct and good reputation of horseracing in Great Britain.
The effect of the anabolic steroids.
A significant amount of evidence was adduced before the Panel as to the effect anabolic steroids have on horses. Veterinary experts on behalf of the BHA and Johnson gave detailed evidence as to whether there was any proven benefit from the administration of anabolic steroids in the dosages given to the geldings that formed the subject of the Inquiry.
The Panel do not consider it appropriate to make rulings on issues of complex veterinary physiology. In reviewing the scientific literature, the Panel noted the paucity of evidence on which firm conclusions could be drawn. Although the clinical effects of anabolic steroids have been well documented in humans, studies on racehorses have not been conducted to any great extent. The Panel drew no conclusions as to the mode of action of the steroid drugs and indeed their efficacy.
The Panel has preferred to approach this issue in a more pragmatic way. It is clear from the Rules of Racing that anabolic steroids are prohibited substances. They are considered to confer an advantage and the Rules of Racing ban their use in horses in training. Johnson in his evidence admitted that he gave the anabolic steroids to the geldings because he believed the drugs would benefit them. Johnson in answer to the question “..you believed that anabolic steroids had a beneficial effect on your horses..” answered “Well, to help them thrive yes. To eat. Thrive.”
Johnson gave evidence that he would not run his horses for 28 days after the administration of an anabolic steroid on the advice of his veterinary surgeons. This had nothing to do with the effects of the drug. The veterinary evidence was revealing since the 28 day period actually related to the time after which the drug would no longer be detectable. Mr Hepburn advised that the true period after which there would be no effects from the drug was more likely to be in the region of six months.
It is clear to the Panel that regardless of the mode of effect or indeed the actual effect of the drug, Johnson sought to confer a benefit to WHISKY MAGIC (FR) and MONTAYA’S SON (IRE) when in training through the administration of a prohibited substance. Johnson falls to be penalised for this conduct.
KNOWLEDGE OF THE RULES OF RACING
One of the pervasive themes throughout this inquiry has been Johnson’s apparent disregard for the Rules of Racing. His admissions with respect to the Neurectomy Charges and the background facts relating to the anabolic steroid charges have revealed a cavalier indifference towards the Rules of Racing which govern not only the administration of the sport but also fundamental issues concerning integrity and the welfare of horses.
In recording our decision, it is right to note that Johnson was questioned in the hearing as to his knowledge of the Rules and the attempts that he made to keep up to date and acquaint himself with any changes to the Rules. His answers to these questions gave the Panel no comfort that Johnson, in relation to his activities as a licensed trainer, had sought to acquaint himself with the detail of the Rules of Racing or made proper attempts to keep up to date with the regular changes made to the Rules.
Johnson’s casual approach to the governance of horseracing is clearly evidenced by his failure to make due inquiry of the Rules in relation to the topics forming the subject matter of this case.
PENALTY
In the light of the wide ranging Topics for Inquiry, the Panel has carefully considered the approach it should adopt in respect of the imposition of any penalty. The two issues for which Johnson falls to be censured are separate and distinct. One involves a welfare failure following a breach of the standards expected of a trainer, the other relates to the administration of a prohibited substance. In these circumstances the Panel has determined that the correct approach is to consider the question of penalty separately for each issue and for any sanction to be applied consecutively.
In respect of the neurectomy issues, Johnson admitted this breach at the very outset of the BHA’s inquiry and the Panel has noted this in his favour. That said, there is nothing else to Johnson’s credit about this episode. Johnson is a well known trainer who has enjoyed success at the very highest level of the sport. His character has not been called into question before. Horseracing should be able to expect such individuals to act as guardians of the Rules of Racing. Johnson has shown a reckless disregard for the Rules so as to jeopardise the future welfare of a gelding in training and the safety of those jockeys and stable staff who were engaged to ride it.
The Rules are unambiguous on this issue. A horse which has undergone a neurectomy is prohibited from racing. The Panel noted that STRIKING ARTICLE (IRE) was a valuable gelding which had enjoyed an encouraging start to its career with Johnson. But its persistent lameness could not be cured by means which left it eligible to race again. Nevertheless, Johnson still entered STRIKING ARTICLE (IRE) in 8 races when the sensation in its near-fore limb was likely to be compromised.
There is no published recommended penalty in the Guide to Procedures and Penalties 2011 to assist the Panel in respect of the issues found proved. In applying its mind to the appropriate and proportionate sanction the Panel has considered the significant implications created by this welfare failure. Those who are entrusted with a licence to train racehorses must not compromise, ignore or be reckless as to the consequences of their actions in respect of equine welfare. Johnson’s reckless disregard for the Rules was behaviour which fell seriously short of the standard to be expected of an experienced licensed trainer.
The Panel believe that the matters found proved against Johnson can only properly be dealt with by the imposition of a period of disqualification. Any lesser penalty would undermine the confidence Stakeholders in racing are entitled to hold that, reckless disregard of equine welfare, will not be tolerated. A suspension or fine would simply fail to reflect the seriousness of the findings.
In the Panel’s view, any disqualification must be for a significant period – one which marks the gravity of the issues. The Panel consider that Johnson has forfeited his right to enjoy the privilege of a licence to train racehorses. The Panel has determined to disqualify Johnson for a period of 3 years in respect of the Neurectomy issues. In determining that 3 years is the appropriate period, the Panel wish to reflect the need to remove Johnson’s right to train horses for a period of time which is more than a mere suspension of his business. His actions merit such reproach.
The Panel also directs that an Order for disqualification is made against STRIKING ARTICLE (IRE) in respect of each of the races it ran following the neurectomy (see Annex A for revised placings).
Turning to the Anabolic Steroid issues – the Guide to Procedures and Penalties 2011 again provides little assistance. This case is not akin to single a positive dope test on the racecourse. The penalty must reflect that Johnson’s practice, in administering anabolic steroids in his yard, ignored the Rules of Racing. Prohibited substances were given to geldings in training – substances which were perceived to confer a benefit. Johnson’s actions have seriously prejudiced the integrity and good reputation of horseracing in Great Britain.
Again – Johnson’s knowledge of the Rules of Racing on these issues has been found wanting. Adherence to the Rules of Racing is not an optional extra for a trainer. And in this case, Johnson has also sought to mislead the Panel as to the facts underpinning whether the geldings were in training. These are serious findings made against an experienced trainer. The Panel has considered whether this issue could be dealt with by way of a fine but do not consider that this course of conduct could properly be marked with a financial penalty. This was not a single aberration of a trainer that should be punished with a significant fine; the penalty must reflect the course of conduct that was adopted by Johnson.
The Panel has therefore concluded that these issues must also be marked by a period of disqualification and have determined that the proportionate period in respect of these matters is 1 year.
In the light of the decision to treat these matters as separate and distinct, the Panel therefore makes an Order for disqualification against Johnson for 4 years. This Order shall take effect on 19 August 2011.
In making this combined Order the Panel wishes to record that it has reminded itself of the likely effect of the period of disqualification. It has noted and accepted the submissions on behalf of Johnson that any significant period of disqualification may lead to the break up of Johnson’s yard and the immediate redundancy of his stable staff. It has taken account of this matter when determining the appropriate penalty in this case.
Matthew Lohn
Philip Curl
Richard Gould
12 AUGUST 2011
Annex A
In respect of the Panel’s Order to disqualify STRIKING ARTICLE (IRE) from the races in which it ran after its neurectomy, the revised placings are as follows:
Race 1. Hexham, 11 October 2008
STRIKING ARTICLE (IRE) disqualified from first place, placing THE SHY MAN (IRE) first, JAMIE’S BOY (IRE) second, CARRIETAU third and WISE CHOICE fourth.
Race 2. Aintree, 25 October 2008
STRIKING ARTICLE (IRE) disqualified from third place, placing ORPEN WIDE (IRE) third.
Race 3. Wetherby, 27 December 2008
STRIKING ARTICLE (IRE) disqualified from fourth place.
Race 4. Musselburgh, 20 February 2009
STRIKING ARTICLE (IRE) disqualified from second place, placing REEL CHARMER second, WATCH MY BACK third and HERNANDO’S BOY fourth.
Race 5. Wetherby, 14 March 2009
STRIKING ARTICLE (IRE) disqualified from first place, placing LINLITHGOW LAD first.
Race 6. Sedgefield, 17 April 2009
STRIKING ARTICLE (IRE) fell.
Race 7. Wetherby, 14 October 2009
STRIKING ARTICLE (IRE) disqualified from first place, placing NIRVANA SWING (FR) first, OR DE GRUGY (FR) second, EVELITH ECHO third and MANDINGO CHIEF (IRE) fourth.
Race 8. Musselburgh, 7 February 2010
STRIKING ARTICLE (IRE) pulled up.
