Author: John Berry

I WAS SURPRISED a few weeks ago when I realised that Walk In The Sun, who reportedly tested positive for cocaine after winning a race at Lingfield on 27 February 2018, still has not been disqualified from that race. We’re coming up for two years since the race was run so, even by the usual slow progress made on investigations where horses have failed a dope test, this shows a remarkable lack of urgency by the BHA. In the great scheme of things it’s not a major issue, although I probably wouldn’t be so unconcerned if I were the owner or trainer of New Orleans, who finished second that day and who will presumably be awarded the race in the fullness of time. (It should be added that there has been no official confirmation of the details of Walk In The Sun’s post-race dope test, but on 11 June 2018 The Guardian reported that cocaine was the substance which had been found, and the fact that this was not disputed by the BHA is good enough for me to believe that that report is factually accurate).

What has surprised me more is a development (or, rather, a nondevelopment) in Australia to which I have only just woken up. My realisation was prompted by a news story last week that former trainer Brian Johnston has applied to Racing Victoria for him and his co-owners to receive $88,313, which was the difference between first and second prizes in the 2012 Grand National Hurdle at Sandown in which their horse Zaman finished second, beaten by Brungle Cry, who was trained by Robert Smerdon and who was subsequently found to have been administered a ‘milkshake’ (a dose of sodium bicarbonate put by tube into the stomach) on the morning of the race. This pre-race administration to Brungle Cry was one of 115 instances which were established to have been given to horses trained by Smerdon, on the trainer’s instructions.

These formed the basis on which Smerdon was last year disqualified for life. While sodium bicarbonate in itself is not a prohibited substance, it is against the rules to administer it to a horse via stomach tube on the day of the race. Any such horse found to have been thus treated is ineligible to race that day, so this clearly establishes 115 occasions when Smerdon-trained horses raced but were ineligible to do so. The basic principles of correct governance clearly suggest that these horses should be disqualified and the results of the races amended so that every runner who finished behind the disqualified horse has his or her position upgraded by one. There is, of course, a potential problem with retrospectively disqualifying a horse; the prize money will already have been paid out and its recovery might be easier said than done, most obviously because the recipients might have spent it and no longer have the cash.

The rules in Great Britain reflect that this is a difficulty but also reflect that natural justice should be done and that crime shouldn’t pay, and I assume that a similar situation applies in Australia. In Great Britain, once ‘Weighed In’ (the British version of the Australian ‘Correct Weight’) has been announced, the result will stand for betting purposes, irrespective of whether it might subsequently be changed. This is common sense: most of the winnings paid out would be irretrievable because often a bookmaker does not know the identity of the punter. Obviously nowadays many bets are placed via the internet and thus the bookmaker can establish the punters’ identities, but even so there is still a high volume of cash betting on course and in betting shops, and reclaiming the winnings paid to such punters would in many cases be virtually impossible.

But reclaiming prize money, although hard, is always going to be theoretically feasible as the racing authorities always know the identity of the recipients. However, it can often be difficult, so altering a result after the prize money has been paid is rarely done. The way it works in Great Britain is that there is a 15 day deadline for lodging technical objections. Prize money is paid out 15 days after the race unless an objection has been lodged, so in the vast majority of cases (when there have been no objections lodged) it is just paid out then. On the majority of times when a dope test has been taken, the result will have arrived inside the 15 day window.

However, when either the test result has arrived and has indicated the presence of a forbidden substance or the result has not yet arrived within the 15 day window, then the stewards lodge an objection and payment is deferred until the matter has been fully investigated. In most cases this merely means that the result has not yet come back from the laboratory, and that when it does come back negative a few days later, the objection is then withdrawn and the prize money paid immediately. The one exception to the principle that the result cannot be altered after the 15 day window unless an objection had been lodged inside that window applies to cases of deliberate fraud. If it is found at some point in the future that the horse had been ineligible for the race as a result of a genuine mistake, then the result stands.

If it is found that the horse had actually raced with a prohibited substance inside him but that substance had been administered by mistake, then the result stands. If it is found that the wrong horse had run as a result of human error, then the result stands. But if any of these things happened by deliberate fraud, thus deliberately, to try to win a race by breaking the rules, then there is no time limit to disqualification. The 115 cases when Smerdon directed that his horses be given a milkshake on race morning clearly fall under the category of deliberate fraud. What one might regard as a potential hitch is that there were no dope test results to confirm the administration of any substance to these horses, but it appears to be beyond dispute that the milkshakes were given, and as any horse is ineligible to race later in the day after receiving a milkshake, then there should be no disputing that these horses should be disqualified.

Australian racing prides itself on being well run. Disqualification of these 115 horses ought to have been a formality which was effected straightaway after the Smerdon case was concluded in September. Racing Victoria should be ashamed of itself that this has not yet taken place. It is unfair to the connections of the horses who should be promoted that this has not happened (yet) and that they should be having to go, as Brian Johnston is doing, to the trouble and expense of consulting lawyers on the best way to proceed. One could say that it is understandable that Racing Victoria appears to be dragging its heels, on the basis that in some cases it is not going to be easy to reclaim the prize money previously paid out to people who benefitted (in most cases, one presumes, unknowingly) from deliberate fraud. But these people, once the horses have been disqualified, have no right to retain the money and should be duty bound to return it. Following this through is not going to be easy, but the duty of any governing body is not to take the easy way out but to do what is right. One hopes that Racing Victoria is going to do what is right rather than to shy away from its responsibility to apply justice to those under its jurisdiction, to ensure that crime doesn’t pay and that those who abide by the rules do not lose out.

Crime Shouldn’t Pay