TRAINER Luke Comer has had his licence withdrawn for a period of three years following a long-running investigation by the Irish Horseracing Regulatory Board and an expensive hearing of the case by the Referrals Committee.

The suspension will start on January 1st, 2024, although Comer has seven days to lodge an appeal.

The case traces back to October 2021 when the Comer-trained He Knows No Fear tested positive for anabolic steroids following a fourth-placed effort in the 14-runner Listed Trigo Stakes at Leopardstown.

A month later the IHRB visited Comer's yard and took hair samples from a number of horses, which resulted in 11 more positive results for the same prohibited substances.

Comer vigorously contested the findings and the Referrals Committee hearing ran for nine days in May, during which evidence was given - on Comer's behalf - by nine veterinary or pharmacological experts from around the world. The IHRB called on seven such experts.

The Referrals Committee did not believe there was evidence of deliberate doping but, in the absence of any other plausible explanation, had no option but to find Comer responsible for serious rule breaches and ordered that his licence be withdrawn for a period of three years, starting on January 1st.

Fines totalling €85,000 were imposed and, very significantly, Comer was ordered to pay 80% of the IHRB's legal costs, which amount to €755,000. The trainer is likely to have run up similar costs on his own side.

MORE ON THIS STORY IN THE IRISH FIELD NEXT WEEKEND

Luke Comer (Trainer) – Prohibited Substance Referral Leopardstown 16th October 2021 and Out of Competition Testing 10th November 2021

The Referrals Committee, Mr. Justice Brian McGovern (in the chair), Mr. Nicholas Wachman and Mr. Peter M. Allen convened at the Offices of the Irish Horseracing Regulatory Board on Monday 15th, Tuesday 16th, Wednesday 17th , Thursday 18th, Friday 19th, Monday 22nd, Tuesday 23rd, Wednesday 24th and Thursday 25th May 2023 to consider whether or not Luke Comer (Trainer) was in breach of any rules as a result of analytical reports received from LGC Laboratories, Newmarket, UK relating to horses returned in training with him.

The first of these reports stated that the hair sample taken from He Knows No Fear following his run in the Manguard Plus Trigo Stakes at Leopardstown on 16th October 2021, contained methandienone (MD) and methylestosterone (MT). The B sample confirmed the

result.

Following Out of Competition Testing at Mr. Comer’s training establishment on 10th November 2021 hair samples taken from He Knows No Fear, Old Tom Higgins, Boxing Hero, Grand D’espagne (FR), Aircraft Carrier, Powerful Don, Wee Jim, Great Moon, Our Man Flint, Questionare (GB), Green Force and Blyton (GB) were also found to contain MD and/or MT. The B samples confirmed these results.

Evidence was heard on behalf of Mr. Comer from:

Luke Comer Senior, Trainer,

Luke W. Comer, Trainer,

Jim Gorman, Trainer and Assistant Trainer to Mr. Comer Senior,

Dr. Anneleen Decloedt, Project Lead at Quality Control cv (Belgian independent inspection body) and post-doctoral researcher at Ghent University, Dr. Ursula Fogarty, Head of Pathology & Veterinary Surgeon of the Irish Equine Centre,

John Gough, Analytical Chemist,

Professor Pascal Kintz, Professor of Legal Medicine, University of Strasbourg and Senior Forensic Expert and Head of Laboratory of Toxicology, Institute of Legal Medicine of Strasbourg, University of Strasbourg,

Professor Maria Manuel Silva, Assistant Professor of Pharmaceutical Chemistry, Faculty of Pharmacy, University of Coimbra, Portugal,

Professor Jorge Salvador, Professor of Pharmaceutical Chemistry, Faculty of Pharmacy, University Coimbra, Portugal,

Professor Scott Stanley, Endowed Professor of Pharmacology and Toxicology at the University of Kentucky,

Dr. Kevin Corley, Veterinary Surgeon, Professor Deirdre Campion, UCD Veterinary Biosciences and Veterinary Pharmacology

Dr. William Salminen, Professor Andreas Lehner, Veterinary Analytical Toxicologist

Evidence was heard on behalf of the IHRB from:

Dr. Lynn Hillyer, IHRB Chief Veterinary Officer and Head of Equine Anti-Doping,

Dr. Bob Gray, Chief Scientist Animal Sports, LGC

Dr. James Scarth, Laboratory Director Animal Sports & Specialised Analytical Services, LGC

Dr. David Sykes, Regulatory Veterinary Consultant

Professor Stuart Paine, Pharmacokineticist, University of Nottingham

Dr. Mark Dunnett, Consulting Equine Toxicologist

Dr. Benjamin Moeller, Associate Professor of Clinical Equine Analytical Chemistry, University of California Davis

The Referrals Committee issued a written decision regarding the finding of breaches and sought submissions from the parties on the appropriate sanctions, before issuing a written decision on sanction. Both decisions are set out below:

The Committee sat to commence this inquiry on 20th February 2023 and, having heard submissions on behalf of Mr. Comer and a reply on behalf of the Board, the hearing was adjourned to 15th May 2023. The hearing took place on 15th, 16th, 17th, 18th, 19th, 22nd, 23rd,

24th and 25th May 2023 at the premises of the Board at the Curragh, Co. Kildare. At the conclusion of the hearing the parties were given directions concerning the exchange of written submissions and a further period to make responses to the submissions received.

The Committee heard a significant amount of oral testimony, much of which was given by expert witnesses, and numerous scientific reports and studies were referred to in the course of that evidence. Some of the evidence was given in person and in other cases witnesses

gave evidence by video link. Each of the parties was represented by Solicitors and Counsel and the hearing was conducted in accordance with the Rules of Racing and the Irish National Hunt Steeplechase Rules (hereinafter referred to as “the Rules”). In accordance with Rule

271 the standard of proof required was proof on the balance of probabilities.

The Respondent, Mr. Comer, is alleged to have been in breach of the Rules as follows:

Charge 1. It is alleged that Mr. Comer was in breach of Rule 96(a) in the following circumstances: The IHRB took hair samples (A and B samples) from a horse named He Knows No Fear on 16th October 2021 after a race at Leopardstown. The A sample was found to contain prohibited substances, namely methandienone (MD) and methyltestosterone (MT).

The B sample confirmed the result.

Charge 2. It is alleged that Mr. Comer was in breach of Rule 96(b) and/or (c) of the Rules in the following circumstances: IHRB staff attended Mr. Comer’s Training Establishment at Eagle Lodge, Kilternan on 10th November 2021 and took hair samples from the following horses: He Knows No Fear, Old Tom Higgins, Boxing Hero, Grand d’Espagne, Aircraft Carrier, Powerful Don, Wee Jim, Great Moon, Our Man Flint, Questionare, Green Force, and Blyton.

The A samples were found to contain MD and/or MT and the results were confirmed by the B samples.

Charge 3. Mr. Comer is alleged to have been in breach of Rule 147(vi) in his capacity as a trainer. The Rule provides that a trainer may only train horses at a Training Establishment licensed by the IHRB. It is alleged he trained horses at Ballinteskin Stud which is not licensed by the IHRB. The horses in question are: He Knows No Fear, Seattle Sound, Eskimo Komet, Atlantic Island, Bradesco, D. Patrick, Green Force, Force of the Moon, Broad Street, Desert Wind, Guild, Seattle Creek, Scarlet Seymore, Wee Jim, Sods Law, Grand d’Espagne, Eskimo Lil, Four Strong Winds, and Aircraft Carrier.

Charge 4. Mr. Comer is alleged to have breached Rule 272(i) in that the matters alleged against him, if proved, constitute conduct or behaviour prejudicial to the integrity, proper conduct or good reputation of horseracing.

In advance of the hearing the Committee received agreed Books containing, inter alia, witness statements and Scientific papers and other material which the parties intended to use at the hearing. Among the list of witness statements was one entitled “Report of independent investigation into alleged doping of horses at Eagle Lodge”. The author of the report was a retired Judge of the Court of Appeal and it appears, from the submissions, that he was assisted by Senior Counsel. The Committee members agreed among themselves that they should not read that statement and at the commencement of the hearing ruled the evidence in the statement inadmissible. The Committee was appointed under the Rules to carry out an investigation and is obliged to reach its own conclusions based on the evidence before it. The evidence before the Committee was heard by listening to oral testimony which was tested by cross examination and by examining documents put in evidence. The Committee felt that it should not be influenced by a parallel enquiry (commissioned by one of the parties) dealing with the very matters which it had to consider.

Prior to the hearing, a great amount of correspondence was generated around the testing of the hair samples. On the first day of the hearing Mr. Comer acknowledged the presence of the prohibited substances in the horses referred to in Charges 1 and 2. In those circumstances the Committee agrees that the issues to be considered by the Committee are those enumerated in para 30 of Mr. Comer’s submissions of 6 June 2023, namely:

1. Were the prohibited substances concerned administered unknowingly or through environmental contamination?

2. Did Mr. Comer take all reasonable precautions to avoid a breach of Rule 96?

3. Did Mr. Comer train racehorses at Ballinteskin Stud in contravention of Rule 147(vi)?

4. Did Mr. Comer act in a manner prejudicial to the integrity, proper conduct or good reputation of horse racing?

5. What sanctions (if any) should the Committee impose on Mr. Comer in the circumstances?

Methandienone (MD) and methyltestosterone (MT) are androgenic anabolic steroids. They are not endogenous. No products containing these androgenic anabolic steroids are licensed for use in horses in Ireland and the use of anabolic steroids in thoroughbred horses training and racing in Ireland is prohibited. MD and MT are Prohibited At All Times (PAAT) substances, as set out in Rule 20(v) and Regulation R4 part 1.2(a).

It is worth stating, at the outset, that Mr. Comer has not been charged with a breach of Rule 273 (i). That Rule concerns “Any person who administers or attempts to administer or connives at the administration to a Horse of any Prohibited Substance…”.

Charge 1 relates to a sample taken from He Knows No Fear after a race at Leopardstown on 16 October 2021. Charge 2 relates to samples taken from 12 horses during an unannounced inspection at Eagle Lodge, Kilternan on 10th November 2021. The evidence concerning that inspection established that no attempt was made to impede the investigators and no prohibited substances were found on the premises. No articles or paraphernalia that might be associated with the administration of a prohibited substance were found.

Mr. Comer has admitted that traces of prohibited substances (MD and/or MT) were found to be present in the horses referred to in Charges 1 and 2. He categorically denies that either he or any of his staff were involved in doping the animals and has defended his position on a number of grounds. In so far as there were traces of MD and/or MT found he maintains that the traces found were very small. This was conceded by Dr Hillyer, the Chief Veterinary Officer and head of anti-doping with the IHRB and by Mr. Gray, chief scientist for the animal sports section of LGC which is an IFHA reference laboratory. Mr. Comer says that he took all reasonable precautions to avoid such a breach. He sought to undermine the Board’s results based on testing hair samples, claiming that hair was not reliable as a standalone matrix. The levels of prohibited substances could not be quantified. He postulated environmental contamination as the most plausible reason for the analytical findings.

It is fair to say that there was no direct evidence of deliberate doping in this case. The Board makes the case that there is no basis for concluding that there was environmental contamination because there are no documented cases of this with regard to MD and MT.

The Board argues that the case made by Mr. Comer is not based on empirical fact but on speculation.

Hair is a recognised accredited matrix by the International Federation of Horseracing (IFHA) and the Association of Official Racing Chemists (AORC). While it is not used as widely as blood and urine for testing, the Committee heard a substantial amount of credible evidence to show that it is being increasingly used and is particularly useful in allowing a more extended look-back period for the presence of Prohibited At All Times (PAAT) substances. It has been used in Ireland for testing since at least 2016. The Committee accepts the evidence of Dr Scarth, Mr. Gray, Dr. Sykes, Dr. Moeller and Professor Stanley as to the use and benefit of hair analysis in detecting PAAT substances. MD and MT do not show up in blood or urine samples after a short period because they clear very rapidly from the body but deposit in hair. Accordingly, hair samples can show traces of these substances long after they have been administered or ingested. (Dr. Scarth 17th May p.38) Insofar as a number of witnesses called on behalf of Mr. Comer sought to discredit hair as a stand-alone matrix, the Committee prefers the evidence of the witnesses referred to above. The Committee accepts that the use of hair as a matrix for testing for PAAT substances in a regulatory context is a relatively recent development but that is not a reason for calling into question its efficacy. Professor Kintz gave evidence that the IOC and WADA do not use hair as a matrix for testing for illegal doping in humans. However, he did not have a problem with the fact that it is used by some horse regulatory bodies. He concedes that his expertise is in the area of testing humans for prohibited substances and that he is not a specialist in the testing of horses. The Committee accepts the submission of the Board that comparisons between human and equine athletes are not comparing like with like. The Committee is satisfied that the use of hair as a sole matrix for testing the horses for PAAT substances was appropriate.

In view of the admissions and/or acknowledgements made by Mr. Comer charges 1 and 2 are proved. The question that has to be considered is how traces of the PAAT substances came to be found in the horses. There are several possibilities. They could have been administered to the horses deliberately. They could have entered the horses through a vector, such as an employee in the yard, acting innocently. Or they could, as Mr. Comer suggests, have entered the horses through environmental contamination. He suggests that hay consumed by his horses may have been contaminated with MD and/or MT through pig slurry. The Board relied on a BHA study where two thoroughbred horses were administered a 200mg daily dose of MD for seven days. Blood and urine samples taken from the horses were analysed. Dr. Scarth and Mr. Gray stated that in their opinion and based on the evidence available the amount of MD and/or MT that would need to be ingested to obtain the estimated concentrations observed in the positive samples is not consistent with it being present as a result of environmental contamination.

Dr. Paine estimated the concentration of MD resulting from ingestion of supposedly contaminated hay using an established pharmacokinetic model which assumed horses eating 8kg of hay per day which corresponded with a daily dose of 0.76 mg of MD. The dose administered in the BHA study was 200mg per day which was 262 times greater than a dose of 0.76 mg. On that basis the Board maintains that the traces found in the hair samples are unlikely to have been caused by environmental contamination. It also adduced evidence to show that over a period of six years in 5,000 hair samples and over 60,000 equine plasma samples LGC have never detected a signal consistent with the presence of MD or MT in any samples.

The Committee heard evidence from Mr. Gorman, the assistant trainer, of the feeding regime for the horses and how the better horses were fed better hay. Some testing of hay was carried out, but the Committee cannot be satisfied that samples of hay actually fed to the horses were tested. On the balance of probabilities the hay tested was not fed to the affected horses. This conclusion is reached on the basis of the evidence given by Mr. Luke Comer and Mr. James Gorman. The IHRB was never asked to test the hay. The first hay samples collected by Mr. Comer were in April 2022. While he maintains that hay from 2020 was the source of contamination, none of it was tested. Mr. Gorman accepted that approximately 20 horses stabled in the barn who received “good hay” did not test positive.

Mr. Comer gave evidence that it was difficult to get the staff to comply with the instructions about feeding the good hay to the good horses. In any case he admitted he only spends about three months of the year in Ireland, so it would be very difficult for him to properly supervise the operation. If contaminated hay was the problem, it is difficult to understand how some horses fed “good hay” tested positive and some did not. JHG examined forty-five samples. Five of them tested positive. Of the forty-five samples, eighteen involved hay sampled between 14th April 2022 and 27th May 2022. Only three tested positive and related to hay from 2021. This was not the hay which Mr. Comer contended was fed to the horses that tested positive. All water samples tested were negative. Of four slurry samples, two were taken on 14th April 2022 from “lagoon (1) and lagoon (2) and two were taken on 19th May 2022 from Kilmurray. Only one tested positive. No Kilmurray slurry from 2020 was

sampled. The owner of Larchill Pig Farms, whose slurry was spread in 2021 and from which the hay was tested stated that his pigs had been legally prescribed Altresyn. But only one of two samples tested positive for MD and /or MT. LGC tested the same brand of Altresyn as JHG but had negative results for Altresyn. Out of 119 out-of-competition Comer horse samples tested by LGC, not one was positive. During the hearing a number of well qualified witnesses were highly critical of the JHG report and cast serious doubt on its reliability.

These witnesses found his methods of analysis hard to interpret and had issues with the quality of the confirmatory data. The Committee heard Mr. Gough give evidence in defence of the JHG report and were in a position to see how he dealt with these criticisms and feels that it cannot place reliance on his report and evidence. Dr. Fogarty gave evidence in support of the theory of environmental contamination, but it was clear to the Committee that she was not an “expert” on the matters on which she opined. Furthermore, she lacked the independence required of an expert witness as she was coordinating the investigation which Mr. Comer had initiated and had offered samples from her own horses. The Committee disregards her evidence. In response to a question from a member of the Committee, Mr. Comer conceded that an employee could have accidently caused contamination with MD or MT but there was little evidence that this is what occurred.

Similarly, he conceded that some disgruntled employee could have interfered with the horses. But this was all in the realm of speculation and there was no actual, or circumstantial, evidence to support this. Overall it was difficult for the Committee to evaluate the evidence on environmental contamination.

The Committee accepts the evidence of those expert witnesses who said that they had never found MD or MT in the environment in extensive testing over years. Of 65,000 tests carried out by LGC, and any of the tests conducted by Dr. Moeller and Dr. Dunnett there was no evidence of a single signal consistent with MD or MT other than in the horses owned by Mr. Comer. The hay which is alleged to have caused the presence of the PAAT substances was never tested. On the basis of the evidence presented, no convincing case was made out for environmental contamination being the most likely explanation for the positive results.

On the other hand, there was no direct evidence of deliberate administration of PAAT substances. While the Board invited the Committee to infer from the evidence that, in the absence of environmental contamination, it should conclude that the PAAT substances were deliberately administered, this would result in a finding of the most serious kind requiring evidence. In circumstances where an unannounced yard inspection found no traces of PAAT substances or objects associated with their administration, and in the light of the strenuous denials by Mr. Comer and Mr. Gorman that any such deliberate administration took place, the Committee must exercise caution before coming to the conclusion that there was deliberate doping in this case. Again, it is worth stating that Mr. Comer has not been charged with a breach of Rule 273 (1). In addition to his denials, Mr. Comer has spent an enormous sum of money to try and establish how his horses came to test positive. After considering a great deal of evidence the Committee finds itself in the position of being unable to say, on the balance of probability, how the horses came to test positive for the PAAT substances.

Charge 3 involves an alleged breach of Rule 147(vi) which only permits a trainer to train horses at a registered Training Establishment. Mr. Comer’s registered Training Establishment is Eagle Lodge, Kilternan. He built a state-of-the-art gallop at Ballinteskin Stud and each day horses would be brought from Eagle Lodge to gallop there. When representatives of the Board inspected Ballinteskin Stud they found evidence which Dr. Hillyer said “…had all the appearance of an active training yard but without the horses”. She described how a number of the boxes had been bedded down with straw and there was fresh dung in a number of the boxes and there were bales of hay in another barn. There was some feed in one of the boxes but she conceded that she would have expected to see more feed if all the horses concerned were in training there. Mr. Gorman explained how the horses were brought up and down to the gallop from Eagle Lodge and dealt with the evidence concerning the straw bedding and the limited amount of feed to cater for the needs of the horses while they were there. It is routine in horseracing for horses to be brought from Training Establishments to gallops away from the yard, for example to the Curragh.

In submissions to the Committee the Board “accepts that a trainer can bring horses to locations other than his licensed premises to exercise”. The Committee accepts the evidence of Mr. Comer and Mr. Gorman as to the use of the gallop at Ballinteskin Stud and does not consider it to be a Training Establishment within the meaning of the Rules.

Accordingly, the Committee does not find Mr. Comer in breach of Charge 3.

Charge 4 alleges a breach of Rule 272 (1) in that Mr. Comer, whether verbally or by conduct or behaviour acted in a manner which is prejudicial to the integrity, proper conduct or good reputation of horseracing (whether or not such behaviour or conduct, verbal or otherwise is associated directly with horseracing). The Committee does not see a direct equivalence between the case law on professional misconduct and the interpretation of Rule 272. It is not necessary to establish moral turpitude or conduct of a “morally culpable or otherwise disgraceful kind”. In reaching our conclusions on this matter the Committee has regard to the evidence as a whole. There were aspects of the evidence which called into question the candour and credibility of Mr. Luke Comer. In his witness statement he claimed to have an “unblemished record”. This was clearly not the case. In May 2017 he was fined for failing to return 15 horses - out of training. In March,2017 thirteen of nineteen horses required veterinary input, care and monitoring and there were three unregistered staff in his yard.

On 3rd July 2017 he was fined €15,000 for providing false and misleading information. He was also fined for six riders not wearing body protection, failing to keep a medical register to required standards and failing to register two members of staff. In September 2017 he was found guilty of having a horse receive a vaccination less than seven days before a race.

In March of that year he was found guilty of supplying misleading information at a stewards’ enquiry. On two occasions he was found guilty of declaring a horse as a gelding when, in fact, it was a colt. At the hearing he was reluctant to admit some of these findings even

though some had been admitted at the time, and he sought to minimise the seriousness of some of the findings. Mr. Comer was at pains to emphasise again and again how much money he was spending on his racing enterprise. But there were a number of issues which the Committee found troubling. Although Mr. Comer holds a trainer’s licence he admits that he only spends three months a year in Ireland. His absence from the Country for long periods of time makes it extremely difficult for him to perform the duties expected of a licensed trainer. This is a matter the Licensing Committee may wish to consider. His assistant trainer and yard manager, Mr. James Gorman, gave evidence that on a typical day he arrives at the yard early in the morning and is there until 1pm or 2pm. He said that a head stable lad named Anezio Rocha was there in the afternoon and evening, but just

dealing with issues of animal husbandry. At the time of the incidents giving rise to the charges there was poor security at the yard especially in terms of camera surveillance. It would have been all too easy for unauthorised persons to gain access to the horses undetected. The Committee is satisfied that for the reasons set out above Mr. Comer did not take all reasonable precautions to prevent a breach of Rule 96.

The presence of PAAT substances in horses involved in racing is, in itself, prejudicial to the integrity, proper conduct of and good reputation of horseracing. That is why there is zero tolerance of the use of anabolic steroids in horses used for racing. In this case there was inadequate supervision and security in the yard which probably facilitated the absorption of the PAAT substances, however it occurred. It is, therefore, the view of the Committee that Mr. Comer

is in breach of Rule 272(i) of the Rules.

Decision on Sanction issued to all parties on 13th September 2023

On the 20th July, 2023 the Committee found Mr. Comer (“The Respondent”) guilty of charges 1, 2 and 4 as set out in the decision delivered on that date. The Committee now considers what sanctions would be appropriate.

In considering the appropriate sanctions the Committee has regard to the principle of proportionality and considers both aggravating and mitigating factors. The Committee has also considered a letter from the Respondent’s solicitor dated 23rd August, 2023 which was

addressed to the Committee and copied to the IHRB. The letter expresses concern with the Committee’s finding that, inter alia, “…there was inadequate supervision and security in the yard which probably facilitated the absorption of the PAAT substances however it occurred.”

The Respondent complains that he was never specifically charged with failing to have or provide adequate security in his yard and that the Board never put it to him or cross-examined him on the adequacy of his security. The Respondent maintains that he has a very advanced security system in place and wishes to be given a further opportunity to adduce evidence on the issue at a reconvened oral hearing. It appears from other submissions made subsequent

to the hearing that the Respondent takes particular objection to the Committee’s findings on the issue of inadequate camera surveillance. The committee rejects the application for further evidence on this issue. In answer to questions from a Committee member, the Respondent gave an account which entitled the Committee to reach such conclusions. He was represented by Solicitor and Counsel and was re-examined by his Senior Counsel on the matter. At no time

was any objection made that the Respondent was taken short or disadvantaged in giving his answers. The hearing lasted for a further three days after this account by the Respondent on Day 6, during which time no such objection was raised. In those circumstances there cannot be any legitimate objection to the entitlement of the Committee to act on that evidence, even if it arose in an ad hoc manner. In any case, the Committee wishes to make it clear that even in the absence of that evidence there was other evidence on which it reached its conclusions on the question of inadequate security and supervision. The Respondent gave evidence that he only spends three months each year in this jurisdiction.

He is a man with extensive business interests apart from his racing enterprise. It seems unlikely that he would spend the entirety

of his time in Ireland each year engaged in activity relating to his horseracing business. But even if he did, it would be quite impossible for him to adequately supervise the racing yard throughout the year. The Respondent’s assistant trainer, Mr. Jim Gorman, gave evidence that he is only at the yard from early in the morning until lunchtime. He said Mr. Anezio Rocha, the head stable lad, would be in charge in the afternoon and evening, but mainly in terms of animal husbandry.

The Sanctions imposed must be proportionate to the gravity of the offence and take into account the personal circumstances of the Respondent. There can be no doubt that the presence of Prohibited At All Times (PAAT) substances in twelve horses in the Respondent’s

yard is a very serious matter. The presence of PAAT substances in such a number of horses in a training establishment in this jurisdiction is quite unprecedented. Where a serious breach of the Rules occurs in the sport of horseracing, the principle of deterrence is a very important feature to be considered in determining an appropriate sanction. This is necessary to avoid trainers and others giving in to the temptation to take steps which would give their horses an unfair advantage. Such conduct strikes at the very heart of the of the sport’s integrity.

Mr. Comer is a wealthy man and the effect of a fine on him must be considered and the Committee must take into account his personal circumstances. If his licence was to be withdrawn for a period of time there is no reason why his racing enterprise could not continue

pretty much as normal. He is only in the jurisdiction for three months of the year and he has an assistant trainer, Mr. Gorman, on site.

The Respondent maintains that he is not guilty of any misconduct. The Committee has found that he is in breach of a number of Rules. His submission that “What the Committee has found is that he is not guilty of any deliberate act…” is a mischaracterisation of the findings. In its Decision, the Committee said: “On the basis of the evidence presented, no convincing case was made out for environmental contamination being the most likely explanation for the

positive results. On the other hand, there was no direct evidence of deliberate administration of PAAT substances. While the Board invited the Committee to infer from the evidence that, in the absence of environmental contamination, it should conclude that the PAAT substances were deliberately administered, this would result in a finding of the most serious kind requiring evidence.” The Committee went on to say that it would have to exercise caution before

coming to such a conclusion. In the end, the Committee found that it was not possible, on the evidence, to say how the horses came to test positive. That is the context in which the Committee has to decide on appropriate sanctions.

Charge 1.

This charge relates to a positive test in respect of the horse He Knows No Fear, arising out of a sample taken after a race at Leopardstown on 16th October, 2021 where traces of methandienone (MD) and methyltestosterone (MT) were found. These are PAAT substances.

The Respondent did not admit this charge until the hearing and had, in respect of this Charge and Charge 2, put the Board on full proof (including the necessity of establishing hair as a suitable matrix for testing) which required a great deal of expense to be incurred in obtaining expert evidence and added significantly to the length of time required to complete the hearing. Allowing for the admission of the offence, albeit late in the day, the offence is a serious one and must be considered in light of the admission of the offence set out in Charge 2 involving a further eleven horses trained by the Respondent as a result of a test less than a month later.

The fine provided for in Rule 96 may be waived by the Committee “…if it is satisfied that the Prohibited Substance was administered unknowingly and that the Trainer had taken all reasonable precautions to avoid a breach of this Rule”. The burden of proving these matters

rests on the Trainer. For the reasons set out in our decision of 20thJuly, 2023 the Committee found that the Respondent had not taken reasonable precautions to avoid a breach of the Rule and was unable to determine how the horses came to test positive. The Committee will impose a fine which will not be waived.

The sanction imposed on the Respondent for a breach of Rule 96 (a) is as follows:

He Knows No Fear shall be restricted from running for a period of two years from the date of his last run, which was 16th October 2021.

The horse shall be disqualified from the Leopardstown race on that date and the placings in the race shall be altered accordingly.

The Respondent (trainer) is fined €5,000.

The decision on whether the Respondent’s license should be withdrawn will be dealt with below when considering Charges 1 and 2 together.

Charge 2.

This charge relates to an alleged breach of Rule 96(b) and/or (c) after twelve horses at the Respondent’s training yard at ‘Eagle Lodge’ tested positive for MD and/or MT following an unannounced inspection of the yard on 10th November, 2023. As one of those horses was He Knows No Fear and was the subject of Charge 1 within a short time earlier, the Committee proposes to deal with this charge on the basis of the remaining eleven horses. The Respondent’s approach to this charge was the same as in Charge 1, namely to put the Board on full proof and to challenge the use of hair as a suitable matrix in sampling. Very late in the day, the Respondent conceded liability under the rule but continued to challenge the use of hair samples thus adding significantly to the expense and length of the inquiry.

It is hardly necessary to state the gravity of the finding where it involved so many horses in one yard. It was quite unprecedented. That is an aggravating factor. The Committee will give the Respondent credit for eventually accepting liability for breach of the Rule but with the caveat that the issue of hair testing was doggedly pursued. Furthermore, the Respondent postulated environmental contamination as the most likely cause. This was not accepted by the Committee. The Committee will impose a fine for the breach of Rule 96(b) and/or (c). For the reasons outlined above in respect of Charge 1, the Committee sees no reason to waive the fine which will be imposed.

The sanction imposed on the Respondent in respect of breach of Rule 96(b) and/or (c) is as follows:

The eleven horses other than He Knows No Fear specified in Charge 2 shall be restricted from running for a period of two years from 10th November 2021, being the date on which the samples were taken.

The Respondent (trainer) is fined €5,000 in respect of each of the eleven horses. The Committee has considered whether the Respondent’s license should be withdrawn and, in doing so, feels that the correct approach is to look at Charges 1 and 2 together to arrive at an appropriate sanction as the positive test result in respect of He Knows No Fear taken at Leopardstown racecourse may be replicated in the test taken at the yard. While these are first offences in respect of PAAT substances the Respondent had a number of other convictions for breaches of Rules. The large number of animals involved warrants a withdrawal of the Respondent’s licence for a period of three years commencing on 1st January, 2024.

Charge 4.

This Charge alleges that by his conduct or behaviour, the Respondent has acted in a manner which is prejudicial to the integrity, proper conduct or good regulation of horseracing. The Committee has found the Respondent guilty of this charge, which is a breach of Rule 272(i).

Under the powers invested in the Committee under Rule 19A 8(ii) the Committee imposes a fine of €20,000. This fine is based on the large number of horses which tested positive and the reputational damage this has on horseracing in Ireland. Under the powers vested in the

Committee under Rule 19A 8(iii) the Committee withdraws the Respondent’s licence for a period of three years from 1st January, 2024, to run concurrently with the withdrawal of his licence for breach of Rule 96.

I

Rule 272 provides:

“Any person involved in horseracing who, within the jurisdiction of the IHRB…(ii) supplies misleading information to or gives false evidence …at a hearing by the Referrals Committee…..shall be in breach of these Rules and liable to sanction”.

The hearing before the Committee proceeded on the basis that witness statements would be taken as evidence subject to any amendments or clarification a witness might wish to draw to the attention of the Committee at the commencement of their viva voce evidence. In his witness statement the Respondent said, “I have an unblemished record as a trainer”. This statement was manifestly untrue. At the hearing, the Respondent was asked by his Counsel

if there was anything he wished to change in it and he replied, “Not really”. On day 6 of the hearing Counsel for the Board took the Respondent though the records of the Board which

established that the Respondent had been found guilty of multiple breaches of the Rules in the past, including the supply of misleading information. He had been disciplined and, in some cases, fined for these breaches. The Respondent said that some of the Rule breaches had been admitted. When the previous Rule breaches were put to him he sought to explain some of them away and to minimise what had occurred. But what is beyond doubt is that he did not have an unblemished record. The Transcript of the evidence on Day 6 of the hearing speaks for itself. The Committee is satisfied that the Respondent supplied misleading evidence and is in breach of Rule 272(ii) and imposes a fine of €5,000 on the Respondent.

Costs.

The Committee directs that the Respondent pay 80%* of the costs incurred by the IHRB in prosecuting this matter. We understand that a sum of €107,794.15 is claimed for laboratory costs (excluding salaries). Most of that sum is for analysis of ‘A’ samples taken from horses owned by the Respondent. The Committee will disallow that sum because it is part of the Board’s regulatory function to collect such samples. But under that heading the Committee will allow the sum of €1,385.15, being the costs incurred in testing for Altreysyn, which was claimed by the Respondent to be a potential source of contamination.

The case was presented by Ronan Kennedy SC, Caoimhe Daly BL and Alison Fynes BL instructed by DAC Beachcroft Solicitors, Dublin, on behalf of the IHRB. Mr. Comer was represented by Martin Hayden SC and Frank Crean BL instructed by Coonan Cawley Solicitors,

Naas, County Kildare.

*Note to editor – The amount of costs payable by Mr. Comer as referenced in the decision on sanction is €755,754.08