Flaherty v National Greyhound Racing Club Ltd [2004] EWHC 2838 (Ch)

[2004] EWHC 2838 (Ch)

Case No HC03C01122

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 8 th December 2004

Before

THE HONOURABLE MR. JUSTICE EVANS-LOMBE

Between

TOM FLAHERTYClaimant

NATIONAL GREYHOUND RACING CLUB LIMITEDDefendants

T. Penny (instructed by Russell Jones & Walker) for Claimant

T. Charlton QC / J. Dhillon (instructed by Nicholson Graham Jones) for Defendants

Hearing Hearing dates: 6 th– 8 th July 2004, 4 th– 8 th Oct 2004 & 14 th Oct 2004

Judgment

The Hon. Mr. Justice Evans-Lombe :

[1]On the 10th September 2002 the claimant (“TF”) the owner and trainer of a greyhound known as Knockeevan King (“the Animal”) was found guilty of breaches of rules 4A(i)(b), 152(a)(b) and 174(a)(i) of the rules (“The Rules”) of the National Greyhound Racing Club Ltd (“the NGRC”) and of the directions of the Stewards made under those rules, by administering a prohibited substance to the Animal before it ran in the 9:15 p.m. race at Wimbledon Greyhound Stadium (“WGS”) on the 11th May 2002. This race was a heat of the Greyhound Derby. He was reprimanded and fined £400. In these proceedings TF challenges the findings of the Stewards as “invalid and ultra vires, alternatively, unlawful or in breach of

article 6 of the European Convention on Human Rights

”. TF alleges that the finding of the Stewards was affected by the actual, alternatively, apparent, bias of one of their number, Mr Critall and so must be set aside. Alternatively he alleges that the proceedings before the Stewards, were, in a number of respects, procedurally unfair or otherwise in breach of natural justice. TF accepts that, although breach of

article 6 of the Convention

is alleged, this adds nothing to TF’s rights under the common law.

The Background Facts

[2]The NGRC is a company limited by guarantee, and is the body in the United Kingdom responsible for regulating the sport of greyhound racing, a sport which (according to the NGRC’s website) last year alone attracted £1.6Bn in betting and saw more than 3.7m paying customers pass through the gates of the 31 racecourses under its supervision. The WGS is one of those racecourses. TOTE betting at NGRC supervised racecourses, alone, amounts to more than £80m a year. It is the object of the NGRC to govern the sport of greyhound racing in a manner beyond reproach, in so doing, being entirely independent in the enforcement of its rules in a fair and just manner.

[3]In order to achieve its objectives, the NGRC has issued the Rules and has appointed Stewards to enforce those Rules. In Law v NGRC

[1983] 1WLR p 1302

the Court of Appeal held that the power of the Stewards to impose penalties for breach of the Rules on owners of greyhounds, derives from a contract between the NGRC and owners and all those who took part in greyhound racing in stadia licensed by the NGRC. By Rule 2 every owner and holder of a licence is deemed to have read the Rules and to submit himself to them.

The Relevant Facts and Events

[4]TF is a greyhound owner from Scotland who owned and trained the Animal. As I understand it he is not a professional in the sense that the bulk of his income is derived from the proceeds of greyhound racing and breeding greyhounds for that purpose.

[5]On the 4th May 2002, TF brought the Animal from Scotland to run in the first heat of the Greyhound Derby at WGS. The Animal won the heat and thereby qualified for the second round of the Derby at WGS on the 11th May. As a result of his performance in the first heat the Animal became one of the favourites for the event. The prize for the winner was £75,000. However success in the Greyhound Derby would also enhance the stud value of the Animal. Following its victory in the first heat, TF took the Animal back to Scotland on the 4th May.

[6]The day of the second heat, the 11th May was a Saturday. TF and his wife brought the Animal down from Edinburgh, where they lived, by car, starting on the morning of the 11th May. Before doing so TF, in accordance with his usual practice, had the Animal checked by his Vet, a Mr Hastie, who found him to be in good health and fit to run. There was no evidence before the ensuing Stewards’ inquiry (“the Inquiry”) as to precisely when this check took place. However, in the course of his evidence to me TF accepted Mr Hastie’s inspection of the Animal took place “50 hours” before he left for the race.

[7]There was no evidence either at the Inquiry or in this court as to the events of the journey south, in particular, how often the state of the Animal was checked in the course of the journey. The Animal was scheduled to run in heat number 8 at 9:15 p.m. Dogs taking part in races were “kennelled” in a building known as the “Paddock” at the WGS. On the evening in question kennelling was to take place in two batches. The time fixed for kennelling the Animal was 6:15 p.m. TF’s evidence to the Inquiry was that he and his wife arrived at WGS between 5 and 6 p.m. and that prior to kennelling the Animal urinated and defecated and seemed generally healthy.

[8]In the course of the hearing I was shown a plan of the Paddock building and photographs of its interior. The building contains kennels on two levels along each of its four walls. Each kennel is numbered and has a door opening into the building covered in fine wire mesh. I was told that as a safety measure and so that the kennels could be quickly evacuated in case of fire, one key was able to unlock all the kennels. All such keys, however, were held by officials of WGS. There are three points of access to the Paddock, an entrance from the car park behind it, an entrance out into a tunnel leading up to the course and an emergency exit in a corner on the opposite side of the Building to those two entrances. Stationed close to this emergency entrance was a table in front of which a strip of blue carpet extended along the wall in front of one of the rows of kennels. This table was for the use of a duty Vet one of whose jobs was to inspect the greyhounds before kennelling. As described by Mr Critall (one of the Stewards at the Inquiry who gave evidence) the Vet would conduct a fairly cursory inspection of each greyhound, going over it with his hands, and requiring it to trot up and down the blue carpet before its owner or trainer was given a tag with the number of the kennel into which it was to be placed under the supervision of an official of the WGS, usually the Paddock Steward or his assistant. It was Mr Critall’s evidence that the object of the vetinary inspection was to ensure that all dogs taking part in races showed no signs of being unfit to do so, in particular, that they showed no symptoms of disease nor signs of lameness.

[9]The fact that such an inspection took place emerged, for the first time, late in the trial before me in the course of the cross-examination of Mr Critall, the NGRC’s last witness. There was no evidence before me that the fact that these inspections were carried out routinely was drawn to the attention of the Inquiry. It was an important fact in the case that Mr Critall, one of the Stewards who presided at the Inquiry, and was the vetinary member of the Tribunal, had for a period of some 31 years ending in 2001, served as a Vet at WGS and performed this task together with other Vets with whom he was in practice.

[10]It seems that on the evening in question the Animal passed this inspection and was duly kennelled at between 6:20 and 6:30 p.m. TF’s evidence to the Inquiry, which does not appear to have been disputed directly by anyone on behalf of the NGRC, was that at the point it was kennelled the Animal seemed in good health. This evidence is consistent with its being passed as fit to race by the Vet. It was Mr Critall’s evidence at trial that if the Animal had a urinary tract infection and had been recently treated with Hexamine it was quite likely that at the time of kennelling that dose would have made the Animal comfortable and that three hours later its effect would be beginning to wane.

[11]Although there are CCTV cameras installed on the walls of the Paddock, those cameras, were not set up to record events on film. They were wired up to a monitor in the local steward’s box but no one was given particular responsibility to keep an eye on the pictures which the cameras showed and the local stewards and others in the box had other tasks to perform. Three of the cameras were situated in the Paddock.

[12]TF and his wife returned to the kennel to get ready for the race at approximately 9 p.m. The NGRC has a programme for random testing greyhounds for the presence of drugs at races. It is the practice at WGS, and probably at other stadia also, to test by taking a urine sample from the selected greyhound immediately after the dog has been taken out of the kennel but before the race. It transpired that the Animal had been selected for testing on the evening in question. I was shown how this was done, how the urine was taken from the dog into a container from which it was decanted into a translucent plastic bottle to be sealed and transmitted for testing to a laboratory, at HFL, the whole process taking place under supervision of the Testing Steward. It was TF’s evidence to the Inquiry that when the Animal emerged from the kennel he seemed “tight in himself, and that when the urine sample was decanted into the container for transmission to the laboratory he noted that it was cloudy.” It was TF’s evidence in court that “a mug and a half” of urine was produced by the Animal.

[13]Mr Steven Maynard the current head of the Drug Surveillance Group of HFL gave evidence to me. It was his evidence that a minimum of 10 millilitres of urine was necessary to carry out the tests which HFL was directed by the NGRC to perform on urine samples submitted to them for testing. At paragraph 35 of his first witness statement he describes how in this case the laboratory used 15 millilitres of urine to conduct two screening tests the first on a pool of four urine samples, the second on the sample itself which proved positive and the third a confirmatory test. There was 1 millilitre of urine remaining after these tests had been completed. He concludes the paragraph by saying “the total volume of urine received by HFL in the original container was therefore in the order of 20 millilitres of urine.”

[14]As is apparently the practice for all NGRC drug tests on urine, the sample was not split so that there was available to TF a part of the urine produced by the Animal, for the conduct of a further confirmatory test or tests for other substances. In the result the tests conducted by HFL on the urine produced by the Animal indicated the presence of Hexamine, a drug available on prescription by a Vet primarily for use in dogs to control infections of the lower urinary tract.

[15]It is the practice before a race to parade the dogs taking part by walking them on a circuit of the track. It was TF’s evidence to the Inquiry that his wife, who took the Animal on the parade, had noticed that the Animal hung back as opposed to pressing forward, which was his usual behaviour. When TF’s wife placed her hand under the Animal belly to guide it into the starting traps it showed signs of pain. The Animal started the race as favourite although it had drifted slightly in the betting immediately before the start. It finished last of five runners being bumped on the first bend. It completed the course in a time 0.19 of second slower than its time in the first heat.

[16]TF’s evidence to the Inquiry was that, before leaving WGS, he and his wife returned to the kennel where they discovered that the Animal had, unusually, urinated on his bed quilt whilst in the kennel, between 6:20 p.m. and 9 p.m. TF considered that the Animal was fit to travel having taken on water and TF and his wife drove back to Scotland later that evening with the Animal. TF’s evidence to the Inquiry was that the Animal was fit to travel back and in good health upon their return. He did not consult the duty Vet about the Animal’s condition before leaving WGS.

[17]I have already described the three stage test which HFL performed on the urine sample from the Animal and that it resulted in a finding of the presence of Hexamine. Following that test a certificate of analysis dated 17th June 2002 was sent by HFL to the NGRC. That certificate simply stated that “the sample contained Hexamine”. The certificate did not specify the concentration of Hexamine found in the sample. Concentration had not been tested for. In addition to the evidence from Mr Maynard I heard evidence from Mr Dunnett who was one of the six Stewards who presided at the Inquiry. He was also a highly qualified chemist and between 1984 and 1989 head of the drug testing laboratory of HFL, and, between 1989 and 1996, a director. Both he and Mr Maynard described the properties of Hexamine and in particular how it was designed to break down into its principal constituents, formaldehyde and ammonia, in the greyhound’s urinary tract provided that the greyhound’s urine was acidic, as is normally the case. It appears that the majority of therapeutic products containing Hexamine, on the market, also contain an agent for acidifying the urine so as to assist this process. It follows therefore that where a product containing Hexamine has been administered to a greyhound for any appreciable time it is to be expected that a urine sample taken from that greyhound will contain formaldehyde which, by contrast with the other by-product, ammonia, would not already have been expected to be there. The test certificate contained no mention of any findings of formaldehyde. This was also because HFL was not required to test for that substance.

[18]The test certificate was sent by HFL to Mr Thompson who, since 1999, has been security coordinator for the NGRC and before that a sergeant of police in one of the police complaints units. He was a witness. Mr Thompson sent a copy of the certificate to Mr Simon Harris, at the material time the racing manager at WGS. At some time between the 17th and 28th June Mr Harris telephoned TF and told him of the result of the HFL test. Mr Harris was present at the Inquiry and made a witness statement in these proceedings but was not called by either side to give evidence.

[19]After making some preliminary inquiries about Hexamine TF sent an e-mail dated the 28th June 2002 to the NGRC setting out his version of events. Since this document was before the inquiry I will set it out in full. It reads:- “We (Tom Flaherty, owner and trainer and Marlyn Flaherty kennel hand) arrived at Wimbledon at approximately 5.20pm for the second round of the Derby. I immediately took the dog around the car park perimeter area where he urinated twice. It was of normal colour and function. The dog was put back into the van and my wife and I changed from travel clothes into more formal dress. We subsequently entered the stadium at approximately 6.10pm and prior to kennelling, Marlyn took the dog into the centre of the track where he cleaned himself out. There were no indications that the dog was anything but normal at the time he was kennelled with his bed quilt by my wife. I was also in attendance. We arrived at the kennel at approximately 9.10pm to prepare the dog for his race, where I was informed he had been selected for testing purposes. Marlyn took the dog out of the kennel whilst I took the urine-sampling dish. I took the dog outside and a sample was produced immediately. I then passed the sample to the attending supervising steward. The dog at this time appeared “tight” in himself and I commenced massage and stretching. The supervising steward reappeared with the sample and decanted the urine into the glass laboratory container. I immediately noticed how cloudy the sample was and commented accordingly. I wouldconfirm at this stage I was entirely satisfied with the sampling stewards manners and ethics. Marlyn paraded the dog and later observed to me he was not as keen as normal, whereby he was following the parade six feet back on a loose lead, instead of as usual, up with he parade on a tight lead. When Marlyn attempted to put the dog in the traps, the dog caused some disruption when her hand was placed under his belly in guiding him into the trap. This incident can be seen on the video of the race. The dog trapped poorly, ran disappointingly, and when I met Marlyn with the dog at the trackside, I immediately noticed he was over duly distressed. We took the dog back to the urine sampling area (outside kennels) to wash and restore to a condition to enable us to travel. We were aware that something was wrong but unaware what. On leaving the kennels with our baggage, we discovered that the dog had soiled his bedding quilt with urine. We left Wimbledon at approximately 10.50pm arriving back in Edinburgh, after rest stops at approximately 7.15am. I examined the dog on Monday morning and found him physically sound with normal urine. On assessing the facts that Monday I was convinced the dog had been “stopped”, but to press enquiries reported my disappointment at the dogs performance, that he had no injuries, and that other than being over duly distressed, had no answer to the dogs performance. I also reported the cloudy urine sample during these discussions, but asked that no mention be made of this, until the results of the tests were known. My early investigations with veterinary personnel is that this statement is indicative of the use of Hexamine, in a racing greyhound, administered prior to racing, and therefore I must concur with the result of the urine test. I also state that the dog was not administered Hexamine, or any other medication prior to the said Wimbledon race, by myself or my wife, and that the dog was entirely in our control on the days prior to kennelling for the said race. I also confirm that the dog is fed on Red Mills Racer feed with 6ozs of meat daily. The meat used is also for human consumption and therefore contamination from the food chain is discounted. Veterinary experts are currently looking on my behalf at the use of Hexamine and it would be helpful if the positive sample could be provided to aid that investigation. A copy of the kennel security video from that night, or at least a viewing, would also be most welcome prior to the full hearing. I trust this initial statement is of assistance to the Stewards, and confirm my intention to appear personally at the resultant hearing, where further information will be provided. It would be appreciated if as much notice as possible can be given to me to facilitate my attendance. Finally, Knockeevan King was tested one month prior at the final of the Scottish Derby and produced a clean sample. He won and ran well in the Derby first round, and was well prior to entering Wimbledon Kennels. A trainer would be most foolish to “wash” the kidneys of a greyhound prior to a race, as the resultant PH change would detrimentally affect the dog’s performance. In King we had so much hope, sixth favourite and a serious contender, ante post vouchers 100& 66/1, owner of the dogs sire Knockeevan Star at stud, the 75K prize and glory, all very well worth the 900 mile return trip. Yes, only a fool of a trainer would administer Hexamine. I would remind the Stewards of the famous saying “If there were no fools there would be no Wise Men” I am no fool with greyhounds and trust those making judgement of this incident are “Wise Men””

[20]It will be seen that TF was advancing his view that Hexamine had been administered to his Animal by a third party in order to “stop” him and was seeking access to the urine sample for further testing. That request was denied and his request for access to the CCTV film of the Paddock area was ineffective because there was none. The NGRC Rules and the “charges” brought against TF under them.

[21]On the 12th July TF was informed in writing by Simon Harris that a Local Inquiry would take place on the 19th July in TF’s absence and that the matter would then be referred to the NGRC for a Stewards’ Inquiry. On the 12th August the NGRC’s chief executive Mr Melville wrote to TF notifying him that a Stewards’ Inquiry would be held on the 10th September into alleged breaches of rules 4A(i)(b), 49(iv), 152(a) and/ or (b) and 174(a)(i) or (ii) of the Rules and the directions of the Stewards. The letter notified TF of his entitlement to be represented by counsel or a solicitor and required TF to inform the Stewards within 14 days of any witnesses that TF intended to call. The letter asked TF to attend bringing the kennel book and described briefly the procedure which would be followed at the Inquiry. The kennel book is a book in which owners are required to record, amongst other things all therapeutic substances which they administer to their greyhounds. The letter was accompanied by a report of the local inquiry to the NGRC Stewards giving particulars of the race, the taking of the urine sample and the test result. TF received no other notification, in advance of the hearing, of the nature of the case against him. The Rules referred to in the letter are as follows:- “4A(i) The NGRC Stewards shall have power at their discretion:… (b) To grant licenses with or without conditions, to make general directions to licence holders as they may think appropriate … 49(iv) a licensed trainer shall use his/her best endeavours to ensure that the performance of any greyhound in his/her charge in a trial or race shall meet the satisfaction of the local stewards and/or the NGRC Stewards who must take into consideration the running of all the greyhounds in such a trial or race. 152 A person commits a breach of these rules if the NGRC’s Stewards in the exercise of their discretion and in accordance with the rules find:(a) That person to have been wholly or partly responsible for taking any action expressly or impliedly forbidden by these rules or for failing to take any action, which under these rules, he/she was expressly or impliedly required to take; or

(b) That person to have acted in a manner prejudicial to the integrity, proper conduct or good reputation of NGRC greyhound racing 174 Subject to the proviso to rule 174(a)(ii) below the NGRC Stewards shall have power at any NGRC inquiry to make such order as is contained in Rule 160(f) without necessarily assigning a reason for so doing if they in their discretion are satisfied that such person (a)(i) has administered or attempted to administer or has allowed or caused to be administered or connived at the administration for any improper use to a greyhound of any quantity of any substance which by its nature could affect the performance or prejudice the well being of a greyhound the origin of which on or in the tissues, body fluids or excreta of a greyhound could not be traced to normal and ordinary feeding or care; or (ii) has had in his/her charge a greyhound which on examination under Rules 113, 116 or 173 showed presence on or in its tissues or body fluids or excreta of any quantity of any substance which by it nature could affect the performance of a greyhound or which shows evidence in any way of administration for any improper use, the origin of which cannot be traced to normal and ordinary feeding or care…” 49(iv) a licensed trainer shall use his/her best endeavours to ensure that the performance of any greyhound in his/her charge in a trial or race shall meet the satisfaction of the local stewards and/or the NGRC Stewards who must take into consideration the running of all the greyhounds in such a trial or race. (a) That person to have been wholly or partly responsible for taking any action expressly or impliedly forbidden by these rules or for failing to take any action, which under these rules, he/she was expressly or impliedly required to take; or (b) That person to have acted in a manner prejudicial to the integrity, proper conduct or good reputation of NGRC greyhound racing (a)(i) has administered or attempted to administer or has allowed or caused to be administered or connived at the administration for any improper use to a greyhound of any quantity of any substance which by its nature could affect the performance or prejudice the well being of a greyhound the origin of which on or in the tissues, body fluids or excreta of a greyhound could not be traced to normal and ordinary feeding or care; or (ii) has had in his/her charge a greyhound which on examination under Rules 113, 116 or 173 showed presence on or in its tissues or body fluids or excreta of any quantity of any substance which by it nature could affect the performance of a greyhound or which shows evidence in any way of administration for any improper use, the origin of which cannot be traced to normal and ordinary feeding or care…”

[22]In force at the relevant time but not referred to in the letter of the 12th August were directions of the Stewards in the following terms:- “Administration of medicaments to racing greyhounds No tonic or similar medicament, nor any substance which by its nature could affect the performance and/or well being of a greyhound, the origin of which cannot be traced to normal and ordinary feeding shall be administered or applied for any reason in any way to a racing greyhound for a period of at least 7 days before the date which it is intended to trial or race at an NGRC licensed racecourse…any tonics medicaments or other substances administered or applied to a racing greyhound by a professional or greyhound trainer or by a vetinary surgeon must be duly recorded in the trainers greyhound treatment book. Residue of Anti-bacterial Drugs It is emphasised that it remains a severe breach of the NGRC rules, and contrary to NGRC requirements for greyhounds welfare, for a trainer to give any anti-infectious drug or other medicament to a greyhound within at least 7 days of any race or trial in which it is intended to run. If a greyhound requires such treatment it must be withdrawn from any engagement in accordance with NGRC rules and procedures. The presence of drugs in a sample of body fluids at levels consistent with suspected therapeutic treatment of a greyhound may be considered actionable by the Stewards… .” Residue of Anti-bacterial Drugs

[23]Rule 160 empowers the Stewards to impose penalties for breaches of the rules and rule 173 empowers the Stewards to take samples from greyhounds for testing and in particular to retain greyhounds under surveillance “for as long as necessary for such …sample to be obtained.”

[24]Reviewing the provisions of these rules it seems to me that TF was confronted with what in effect were two charges, a charge under rule 174(a)(i) that he had “administered…for an improper use to a greyhound a quantity of a substance which by its nature could affect the performance or prejudice the well being of a greyhound the origin of which …could not be traced to normal or ordinary feeding or care”. The second charge under sub paragraph (ii) was “he had in his charge a greyhound which on examination … showed the presence in its body of a substance which by its nature could affect the performance of a greyhound…”.

[25]In the result the Tribunal acquitted TF of the second charge so I do not have to consider it further. It does not seem to me that the provisions of rule 152 add anything to those of section 174(a)(i) in the circumstances of this case. It was not suggested that TF had done anything which was capable of falling within rule 152 which was not comprised in the allegation of breach of rule 174(a)(i).

[26]In order to show a breach of rule 174(a)(i) it was necessary to prove that TF had administered a substance to a greyhound which could affect its performance in a race, and, that he had administered that substance for an improper use. Relevant to the latter requirement were the provisions of the Stewards’ direction on the “administration of medicaments to racing greyhounds”, in particular, that passage pointing out that it was a severe breach of NGRC rules for a trainer to give any anti-infectious drug or other medicament before a race. [I note in passing that it is extremely difficult to place any construction on the words “within at least 7 days of any race”. It seems to me that a trainer would be entitled to think that it was not “improper use” to administer a therapeutic dose of a recognised anti-infectious drug more than 7 days before a race. The direction has been substantially redrafted since the relevant events.] In my judgment it is plain that the combination of rule 174(a)(i) combined with the provisions of the Stewards directions set out above place the burden of proof on the NGRC to establish at any Inquiry the two elements of the “offence” comprised in rule 174(a)(i).

[27]A charge under rule 174(a)(i) read in combination with the provisions of the Stewards direction which I have quoted is plainly not one of the more serious “offences” contemplated by this rule notwithstanding the words “severe breach” used in the direction. Nonetheless in order to find it proved on the 10th September 2002 the Tribunal had to proceed on the basis that TF had deliberately set out to deceive them in his account of the events set out in the e-mail of the 28th June. It seems to me, therefore, that whereas the Stewards did not need to be satisfied of the “offence” to the criminal standard of proof they should nonetheless have required reasonably cogent evidence of “guilt” and been careful to ensure that TF was treated fairly and given a proper opportunity to present his case.

[28]Finally under this head the rules do not provide for any appeal from a decision of the Stewards at a disciplinary hearing although they do contain provisions permitting the Stewards to reopen the hearing if they consider that a just decision was not made or if other circumstances exist making it just for such a decision or order to be revisited. TF’s solicitors have unsuccessfully sought a reopening of the hearing on two occasions since the Tribunal’s hearing it. To hear new expert evidence and submissions as to breaches of natural justice and the ECHR.

[29]On the 26th August 2002 TF made a written complaint under rule 168 against WGS and Mr Harris concerning the security arrangements at WGS on the 11th May. That complaint was the other side of the coin of his contention that Hexamine had been administered to the Animal in a quantity sufficient to adversely affect his running by a third party during the period of approximately 2½ hours when the Animal had been kennelled prior to the race.

[30]Mr Thompson was responsible for assembling the papers to be used at a Stewards’ inquiry. It was his practice to send the papers in each case to the Stewards between three and seven days prior to the hearing. He would have done so in the present case. The material papers which were put before the Stewards were the report of the local Inquiry, to which I have already referred, a statement from Mr Harris dealing primarily with security at WGS and which included the sentence “Wimbledon Stadium kennels are constructed such that nothing can be administered to a greyhound without the kennel being unlocked and opened”, the HFL test certificate, TF’s e-mail of the 28th June and a letter from the area stipendiary steward, Miss McNally, describing the WGS kennels and Paddock with particular emphasis on security and the duties she performed there on the evening of the 11th May.

[31]TF elected to appear in person at the Inquiry and not employ a lawyer in his defence.

[32]At the Stewards’ inquiry on the 10th September the Tribunal consisted of Mr Nicholson, the senior Steward, Mr Critall, the veterinary Steward, Mr Bentall, Ms Kershaw Mr Dunnett and Colonel McDermott. Also in attendance were Mr Melville chief executive of the NGRC, Mr Betteridge the secretary to the senior Steward, Mr Harris the racing manager of WGS and his immediate superior Mr Bob Rowe of WGS, Miss McNally, the local area stipendiary steward, and Mr Thompson security coordinator for WGS. TF came on his own. Its seems that Mr Betteridge was taking notes as the Inquiry progressed. Those notes have not survived and I am told that they were in any event limited being directed to the making of the published record of the proceedings. Apart from this no record of any kind was made of the proceedings in respect of which there are substantial issues between TF and the NGRC as to what took place.

[33]The proceedings were started by Mr Thompson. He describes his role at paragraph 21 and 22 of his second witness statement and at paragraphs 14 –16 of his first witness statement as follows:- “21 Before escorting Mr Flaherty into the Inquiry room, I told him who would be in the room and what role each of them had in the Inquiry process. I told Mr Flaherty where the Stewards would be sitting, who each of the Stewards were, and gave him brief background details of each Steward. This is something I tell each person attending an Inquiry of which they are the subject. The reason for doing so is partly to let the person know what to expect so that they are not intimidated when they walk into the room, and partly to give each person an opportunity to tell me if they object to a particular Steward sitting on the inquiry. If the person tells me that they do object to a Steward’s presence at an inquiry, I will go in and tell the senior Steward who will discuss with the inquiry panel whether the Steward in question should stand down before the inquiry starts. 22 Although I cannot recall the exact words I used, I am certain that I would have told Mr Flaherty that Mr Critall was the vetinary Steward as that is how I always described him in these circumstances. Mr Flaherty did not indicate to me then that he was unhappy with Mr Critall’s presence on the panel.”

[34]In the course of his oral evidence at trial Mr Thompson said that in the course of his introductions he told TF that Mr Critall had been a Vet at WGS. Then at paragraph 14:- 14 At the Inquiry my task is to present and read out the inquiry papers. To the best of my recollection I would have started by presenting a brief explanation of the circumstances of the inquiry, namely that on 11 May 2002 a urine sample was taken from the greyhound Knockeevan King prior to its taking part in the second round of the William Hill Derby. I made reference to the Local Inquiry report dated 19 July 2002 recording the positive analysis of the urine sample followed by the statement of Simon Harris (also dated 19 July 2002) and Mr Harris’ letter to Mr Flaherty dated 12 July 2002. I read out the extracts of the form for sample analysis dated 11th May 2002 which recorded that the sample was taken in the presence of a sampling officer, Mr Sanderson and the trainer, Mr Flaherty at 9.04 p.m. followed by extracts of the certificate of analysis dated 17 June 2002 which recorded a positive result showing that the sample contained Hexamine. 15 At this stage I requested through the Senior Steward, Mr Nicholson for Mr Critall to explain the nature and properties of Hexamine. Mr Critall then gave a brief explanation. 16 After Mr Critall’s explanation of the drug, I then continued to read aloud the document before the Inquiry, commencing with an e-mail which was sent by Mr Flaherty to the NGRC on 28 June 2002.”

[35]Mr Thompson read out two documents which were before the Stewards: Mr Harris’ statement dated 19th July and Miss McNally’s letter to Mr Melville date 31st August 2002. Those statements were primarily directed to the security arrangements at WGS and were directed to TF’s principal explanation for how it was that there was Hexamine present in the Animal on testing, namely, that it had been administered by a third party who had had access to the Animal while it was kennelled before the race. Both Mr Harris and Miss McNally were present at the Inquiry but do not appear to have been asked any questions about the contents of their statements either by TF or the Stewards.

[36]It was then for TF to present his case. He did so from a prepared script which was produced in evidence. He was also armed, he said with three statements, from Mr Hastie his vet in Scotland, from Mr Fegan a vet and from a Mr Bryce Wilson a friend of his who was also an NGRC licence holder. None of the writers of these statements were present at the Inquiry and their statements were not amongst the papers sent to the Stewards. There is an issue as to whether Mr Bryce Wilson’s statement was actually before the Inquiry. It is accepted that the statements of Mr Hastie and Mr Fegan were put in in the course of TF’s address. Mr Hastie’s statement gives character evidence in support of TF but he also says in his third paragraph:- “Personally I cannot find any logic for the use of this drug to interfere with performance one way or another. In all my years as a greyhound vetinary surgeon I cannot recall the use of Hexamine other than in treatment of urinary infection or disease.”

[37]Mr Fegan’s statement deals uncontroversially with the properties of Hexamine as a therapeutic drug. He points out however that it is used in the production of a number of other commodities in common use such as fungicides and deodorisers. He says that at therapeutic doses it would have no systemic effect on a dog but at higher doses “has been know to cause distress”. Like Mr Hastie he draws attention to the fact that, since Hexamine must have been ingested by the Animal to be present in its urine you would also expect to find formaldehyde as a product of its breakdown. He concludes “the independent finding of Hexamine is more likely to be as a result of contamination for example from someone wearing a new fabric which still contains traces of the chemical or from a deodorant or from an individual who has recently had their hair treated or eaten some unwashed citrus fruit. One thing we can be sure of is that Hexamine would not have been given in order to induce an improvement of performance.” Mr Bryce Wilson’s statement besides being character evidence in support of TF is critical of the standards of security at the WGS in May 2002 when he came with TF to watch the Animal run in the first heat of the Derby.

[38]It was TF’s evidence that when presenting his case with the assistance of his pre-prepared script he was continually interrupted by Mr Critall in an aggressive manner. He said that Mr Critall treated Mr Fegan’s statement with ill concealed contempt using some phrase such as “we will see who the experts are”. Nonetheless TF admitted in cross-examination that he was able to get the points he wished to make across to the Stewards. In the course of doing so TF was subjected to questioning by the Stewards. It appears that the lead questioner among the Stewards was Mr Critall. In the course of an exchange between Mr Critall and TF on the subject of TF’s allegations of lack of security in the Paddock area on the night in question it seems that Mr Critall mentioned his long service as a vet at WGS and remarked that he had never seen any problems with security at the stadium. It was TF’s evidence that his reaction was to say that Mr Critall ought not to be sitting as a Steward in those circumstances. The NGRC witnesses, Mr Critall, Mr Dunnett and Mr Thompsondo not accept that that was said, or certainly not in the hearing of the Stewards. It is accepted that at no stage either before or in the course of the hearing did TF suggest directly to the Stewards that Mr Critall should stand down notwithstanding the contents of paragraph 28 of TF’s first witness statement.

[39]The hearing lasted rather more than an hour. At its conclusion all those in the Inquiry room who were not Stewards, withdrew save Mr Melville the chief executive of the NGRC and Mr Betteridge the secretary of the senior Steward. It seems that the stewards took some 20 minutes to arrive at their verdict.

[40]The apparent participation of Mr Melville in the deliberations of the Stewards was, again, a matter of significance which only emerged in the course of Mr Critall’s cross-examination. Nowhere in the evidence for the trial was it highlighted by either side. It has led to amendments of the pleadings, and further evidence and written submissions from the NGRC and TF after the conclusion of the hearing.

[41]The Stewards found that TF was in breach inter alia of rule 174(a)(i) of the NGRC rules of racing and the directions of the Stewards in that a urine sample taken for the Animal which was in TF’s charge at WGS on the 11th May 2002 “was analysed by HFL as containing the drug Hexamine and the administration of a prohibited substance to the greyhound within at least 7 days of its race.” Under rule 160(f) the Stewards ordered TF to be reprimanded and fined the sum of £400. By these proceedings TF challenges that verdict and that result.

TF’s CASE

[42]It is TF’s case that the NGRC conducted the disciplinary proceedings against him unfairly and so in breach of an implied term of the agreement to which he and they were parties that they would not do so. TF makes this submission on a number of grounds as follows:-(i) That he was unfairly denied access to the sample of urine produced by the Animal for testing so that he could have procured further tests on it which might have demonstrated that the NGRC’s case against him was flawed.

(ii) That as a result of the fact that Mr Critall sat as a Steward their verdict can be properly attacked on the grounds of actual bias on the part of Mr Critall or alternatively apparent or ostensible bias on his part.

(iii) That the verdict of the Stewards is undermined by the fact that Mr Melville, who was not a Steward, was present at and contributed to their deliberations after the close of the hearing.

(iv) That the Stewards came to their conclusion as a result of assumptions of fact and technical theories which should have been but were not disclosed to TF in the course of the hearing so that he could deal with them.

(v) Miscellaneous points including failure to disclose all the documents associated with the testing of the urine sample but only the certificate of the result, and failure to permit TF to demonstrate video evidence relevant to the security issue. Secondly TF submits that the Stewards’ decision was one which a tribunal properly instructing themselves as to the facts and the law could not reasonably have reached and thus this court can set it aside. See the test in Edwards v Bairstow 1956 AC 14.

[43]At the close of Mr Penny’s submissions on behalf of TF, I indicated that I did not need to call on Mr Charlton for the NGRC on this second main ground of the claim. The Stewards had before them evidence that immediately before the race urine taken from the Animal contained traces of the drug Hexamine. It was common ground that Hexamine was a commonly used drug for treating infections of the lower urinary tract in dogs and in particular in greyhounds. TF’s own evidence of the symptoms displayed by the dog on emerging from the kennel and shortly before the race were consistent with its suffering from a urinary tract infection. The Animal had been in the control of TF from the moment it left Scotland, and before, until it was kennelled at approximately 6:20 p.m. on the 11th May. There was evidence before the Stewards that while in the kennel, by reason of the WGS security arrangements, in particular, in the Paddock, the Animal was safe from interference by third parties and it would not have been possible to administer Hexamine to it in any significant quantity or at all without having access to the kennel itself. Unauthorised access to the kennel would not have been possible at all material times. Although the Stewards did not find that the Animal had run below form it nonetheless came last in a race which it was expected to win.

[44]In my judgment, on this evidence, the Stewards were entitled to come to the conclusion that TF had administered to the Animal before it was kennelled a therapeutic dose of Hexamine to suppress a urinary infection contrary to rule 174(a)(i) and the Stewards directions which I have quoted.

Was TF’s defence arguable?

[45]I have already held that the burden of proof rested on the NGRC to establish a case against TF under rule 174(a)(i) that the presence of Hexamine in the test sample of urine from the Animal was the result of it having been administered by TF to the Animal for an improper use (i.e. purpose). The use was improper because it contravened the Stewards Direction that “no tonic or similar medicament or any substance which by its nature could affect the performance or well-being of a greyhound…shall be administered or applied for any reason… to a racing greyhound….” I have also found that on the evidence before the Tribunal they were entitled, applying the appropriate civil burden of proof, to come to the conclusion that TF had breached rule 174(a)(i). Before dealing with the question whether that conclusion must be set aside on the grounds of procedural unfairness, it seems to me to be necessary to examine whether on the evidence before this court it is possible to say that, even if the proceedings before the Tribunal had been conducted fairly, TF would inevitably have been found to be in breach.

[46]The presence of Hexamine in the sample of urine taken from the Animal can be explained in one of four ways:-(i) As the NGRC stewards found, by Hexamine being administered by TF to the Animal before the sample was taken.

(ii) By innocent contamination of the Animal through contact with substances containing Hexamine such as clothing or cleaning materials.

(iii) By contamination of the sample while in the possession of HFL for testing purposes.

(iv) By administration to the Animal by a third party while the Animal was out of the supervision and control of TF due to a breakdown of security at WGS.

[47]As to (ii) TF accepts that Mr Maynard’s evidence of the sensitivity of the tests conducted by HFL indicates that contamination of the Animal in this sort of way by traces of Hexamine subsequently absorbed through the skin would be of such small amounts that they would not be revealed by the testing process. (iii) Again the evidence of Mr Maynard as to the testing procedures of HFL, which I have no reason to doubt were carried out on the sample in question as he described, would rule out any internal contamination of the sample taking place without HFL becoming aware of it and reporting that fact.

[48]I turn therefore to consider (iv). In the course of Mr Critall’s examination he disclosed the Stewards’ conclusion of how it was that Hexamine came to be in the sample taken from the Animal. The Stewards accepted Mr Hastie’s written evidence that when he inspected the Animal it was entirely fit to race. On TF’s evidence this examination must have taken place on the Thursday morning before TF and his wife brought the dog south on Saturday 11th May. It was the Steward’s conclusion that between that inspection and the kennelling of the dog at approximately 6:15 p.m. on 11th May at the WGS, the Animal developed signs of an urinary infection which TF treated with Hexamine in a therapeutic dose so as to make it comfortable enough to run sufficiently close to its normal form to get it through the second heat. Given that the Animal would have to spend at least two and a half hours incommunicado in a kennel immediately before the race, the Animal would have to be so treated in the course of the journey south otherwise the treatment would have worn off. In fact it had worn off so that the Animal was uncomfortable when it emerged from the kennels and, there being no opportunity to give it a further dose of Hexamine without being seen to do so, it took part in the race in that condition and came last although it did not run noticeably below its previous form.

[49]The fact however remains that the Animal did pass the vetinary inspection before kennelling at approximately 6 p.m. on the 11th May. It is not suggested that TF or his wife had access to the Animal until, under supervision, it was taken from the kennel and a urine sample taken from it. It is not in issue that urinary tract infections are not common in dogs as opposed to bitches although not unknown. It was accepted by Mr Critall that the symptoms from which the Animal was seen to be suffering when it emerged from the kennels and which are described by TF in his e-mail of 28th June, were consistent with the Animal having had administered to it a dose of Hexamine greater than a normal therapeutic dose. Hexamine is not a “stopping” drug but at higher doses would affect adversely the running of a greyhound. Hexamine is very soluble in water and could have been administered by spraying the Animal through the grill in the front of the kennel using a large syringe as demonstrated in court. It would be ingested by the Animal licking itself which, it was accepted, might well happen if it became covered with spray. Alternatively, Mr Critall accepted that greyhounds are voracious eaters and will accept food given to them even by strangers. It was not directly put to him but it seems to me possible that an ill disposed person having a copy of the universal key to the kennels could have passed food to the Animal containing a substantial dose of Hexamine. It is accepted that it is possible that substantial numbers of trainers and kennel hands (up to 70 possibly) were present in the Paddock when kennelling was taking place and thereafter. Either of these two operations, I suppose, might have happened without their object being appreciated either by the authorities or other trainers in the midst of a crowd. The CCTV receivers from the cameras covering the Paddock were not continuously manned. In fact I have no evidence that they were actually manned at all. There was an incentive to “stop” the Animal which had become a prospect to win the Greyhound Derby as a result of its performance in the first heat. The rewards for the winner are substantial.

[50]In my judgment, though it seems on balance unlikely, the possibility that Hexamine found its way into the urine sample taken from the Animal as a result of the actions of an ill disposed person who in whatever way had access to it, while the Animal was kennelled before the race, cannot be ruled out. If, therefore, TF can establish that the hearing before the Tribunal was vitiated by procedural unfairness in breach of the NGRC’s contractual duty to conduct the hearing fairly, it is open to him to contend that had there been a fair hearing he would have been acquitted of the charge under rule 174(a)(i). It must be borne in mind that, as TF made clear, it is not the penalty but the fact of the finding of breach carrying with it a finding that he had deceived the Stewards, to which TF takes objection.

[51]I turn therefore to consider TF’s case of procedural unfairness which I have summarised under five numbered sub paragraphs of paragraph 42 above. It is convenient to deal first with sub paragraph (ii).

Bias

[52]I do not understand there to be any difference between the parties as to the law applicable to this part of the case. The tests of what constitutes bias in a judge has, now, as a result of recent cases, absorbed the jurisprudence derived from

Article 6 of the ECHR

. In Re Medicaments and Related Class of Goods [2001]1WLR 700 Lord Phillips MR defined bias at paragraph 37 of his judgment as follows:- “37 Bias is an attitude of mind which prevents the judge from making an objective determination of the issues that he has to resolve. A judge may be biased because he has reason to prefer one outcome of the case to another. He may be biased because he has reason to favour one party rather than another. He may be biased not in favour of one outcome of the dispute but because of a prejudice in favour of or against a particular witness which prevents an impartial assessment of the evidence of that witness. Bias can come in many forms. It may consist of irrational prejudice or it may arise from particular circumstances which, for logical reasons, predispose a judge towards a particular view of the evidence or issues before him. 38 The decided cases draw a distinction between “actual bias” and “apparent bias”. The phrase “actual bias” has not been used with great precision and has been applied to the situation(1) where a judge has been influenced by partiality or prejudice in reaching his decision and

(2) where it has been demonstrated that a judge is actually prejudiced in favour of or against a party. “Apparent bias” describes the situation where circumstances exist which give rise to a reasonable apprehension that the judge may have been, or may be, biased. ” ”

[53]Lord Phillips then continues at paragraph 83:- “83 We would summarise the principles to be derived from this line of cases as follows.(1) If a judge is shown to have been influenced by actual bias, his decision must be set aside.

(2) Where actual bias has not been established the personal impartiality of the judge is to be presumed.

(3) The court then has to decide whether, on an objective appraisal, the material facts give rise to a legitimate fear that the judge might not have been impartial. If they do the decision of the judge must be set aside.

(4) The material facts are not limited to those which were apparent to the applicant. They are those which are ascertained upon investigation by the court.

(5) An important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice… 85 When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased. 86 The material circumstances will include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances. Where that explanation is accepted by the applicant for review it can be treated as accurate. Where it is not accepted, it becomes one further matter to be considered from the viewpoint of the fair-minded observer. The court does not have to rule whether the explanation should be accepted or rejected. Rather it has to decide whether or not the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced. ” ”

[54]In Porter v Magill

[2002] 2 AC 357

the following passage appears in the speech of Lord Hope at page 494 where having set out paragraph 85 in the judgment of Lord Phillips in the Re Medicaments case he continues at paragraph 103:- “103 I respectfully suggest that your Lordships should now approve the modest adjustment to the test in R v Gough set out in that paragraph. It expresses in clear and simple language the test which is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias. It removes any possible conflict with the test which is now applied in most Commonwealth countries and in Scotland. I would however delete from it reference to “a real danger”. Those words no longer serve a useful purpose here and they are not used in the jurisprudence of the Strasbourg court. The question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

[55]It is TF’s case that Mr Critall demonstrated his actual bias against TF’s case in the course of the hearing before the Tribunal by his aggressive attitude towards TF, in particular when questioning him, and his apparent contempt for TF’s suggestion that the security arrangements in the Paddock were not sufficient to have prevented an ill disposed person from administering Hexamine to the Animal while it was kennelled before the race, and for the expertise as a vet of Mr Fegan. There is a conflict of evidence between TF on the one hand and Mr Thompson, Mr Dunnett and Mr Critall on the other hand as to what actually took place in the course of the hearing. It is unfortunate that no attempt was made to make any useful record of the proceedings. I have come to the conclusion that I should accept the NGRC witnesses’ account of the hearing namely that the most that could be said in criticism of Mr Critall’s conduct was that his probing of the case being advanced by TF was “robust” and that as a result they became cross with each other. In my judgment that is an insufficient basis in fact for a finding of actual bias against Mr Critall.

[56]It is TF’s further submission that, even if actual bias cannot be demonstrated, “all the circumstances which have a bearing on the suggestion” that Mr Critall may have been biased lead to the conclusion that there was “a real possibility” that that was so.

[57]The issue of “apparent bias” arises in the context of TF’s case as to the explanation for the presence of Hexamine in the urine sample produced by the Animal which I have summarised at paragraph 46 (iv) above and which I have found, for the reasons set out in succeeding paragraphs, cannot be ruled out as an explanation for that presence involving no breach of the rules by TF. This explanation involves the suggestion that the security at WGS and, in particular, the security arrangements protecting greyhounds in the kennels in the Paddock from wrongful interference, were deficient.

[58]Apart from TF’s evidence, the evidence before the Inquiry on this issue comprised the statement from Mr Harris, the racing manger of WGS and a letter from Miss McNally the area stipendiary Steward. Their evidence was to the effect that the security arrangements were at least adequate.

[59]Mr Critall’s vetinary practice had been retained by WGS to provide veterinary services between 1970 and 1st December 2001. Mr Critall said under cross-examination that he had attended WGS during that period of 31 years approximately once a week, sharing the duties with other members of his practice, their attendance averaging approximately 4 attendances a week. The practice charged £30 an hour until 2000 and thereafter £50 an hour. Thus the practice earned approximately £750 a week from this source. This made WGS the practice’s principal client over many years and was considered by Mr Critall as a valued and loyal client.

[60]Mr Critall had had contact with Mr Harris in the latter’s capacity as racing manger at WGS, a post which he held for some 3 or 4 years. Mr Harris had in fact worked for WGS since 1975. Mr Critall described Mr Harris as “a colleague” with whom he had worked at WGS. He also knew Mr Rowe, Mr Harris’ immediate superior at WGS. He had been acquainted with Mr Rowe for longer than Mr Harris. Both Mr Rowe and Mr Harris attended the Tribunal hearing. Mr Critall had over the years been allowed free entry for himself and his family to WGS which he occasionally made use of. He had also been invited by the management to lunch at some important meetings such as the Greyhound Derby.

[61]It was from the evidence of Mr Critall, assisted by photographs and a plan that I was able to obtain a mental picture of the layout of WGS and, in particular, the layout of the Paddock and how the greyhounds were given a vetinary inspection and disposed of before races. He evidently had firm views about the adequacy of WGS security arrangements. I accept that in the course of the Steward’s hearing he forcefully expressed those views. So far as the Stewards are concerned, he appears to have played a dominant part at the hearing particularly in the questioning of TF. Mr Critall has been an NGRC Steward for the past 13 years.

[62]Subject to the issue of waiver, which I will shortly deal with, I have come to the conclusion that a fair-minded observer informed of the facts of this case, which I have sought to describe in this judgment, would conclude that there was a real possibility that Mr Critall’s consideration of the NGRC’s case against TF alleging breaches of its rules, was biased in favour of finding that case proved.

Waiver

[63]A friend of TF was Mr Miles who was a fellow owner and trainer of greyhounds. In November 2001 Mr Miles had raised with Mr Melville whether it was appropriate for Mr Critall to act as a Steward having regard to the fact of his employment as a vet at WGS. In the course of his cross-examination TF accepted that as a result of discussions with Mr Miles before the Tribunal hearing he knew that Mr Critall had worked at WGS as a vet but was no longer doing so. TF said that he was not sure whether, prior to the hearing, Mr Miles had told him that he had raised with Mr Melville the possibility that Mr Critall might have a conflict of interest when sitting as a Steward at disciplinary inquiries. He thought that Mr Miles had mentioned it but he was not sure. Neither was Mr Miles. I will assume that he did. It follows that when Mr Thompson told TF prior to the hearing that Mr Critall had been a vet at WGS, this was not news to him. TF said that because Mr Critall was no longer employed at WGS he “just assumed that I would get a fair hearing”. He said he changed his view in the course of the hearing because of the “hostility” of Mr Critall.

[64]TF accepted that he made no direct application to the Stewards that Mr Critall stand down because of his previous connection with WGS or for any other reason, in the course of the hearing. I accept the evidence of Mr Thompson, Mr Dunnett and Mr Critall that the Stewards were not made aware in the course of the hearing or after verdict that TF was objecting to Mr Critall sitting as part of the Tribunal.

[65]In the speech of Lord Browne-Wilkinson in R v Bow Street Magistrate Ep.Pinochet (no 2) [2000] 1 AC at page 137, he points out that, for a plea of waiver to succeed in neutralising the apparent bias of a tribunal, the person who is said to have “waived” must be shown to have “acted freely and in full knowledge of the facts.”

[66]In R v Secretary of State for the Home Department ex parte Fayed unreported, 26th July 2000 at paragraph 84 Lord Justice Norse, having cited the Pinochet case says:- “… I accept, that any waiver must be clear and unequivocal and made with full knowledge of all the facts relevant to the decision whether to waive or not.”

[67]Later in the same case at paragraph 117 Lord Justice Rix says:- “Of course a waiver of apparent bias is only possible if there is full knowledge and the waiver is freely made and clearly and unequivocally demonstrated.”

[68]In addition, for the court to find that a party has waived the apparent bias of a tribunal it is necessary for the court to be satisfied that he knew of his rights to object to the constitution of the tribunal see R v Essex Justices ex parte Perkins

[1927] 2 KB 475

at page 489.

[69]I cannot be satisfied on the evidence before me that TF was sufficiently aware at the time of the Stewards’ Inquiry of the full extent of Mr Critall’s past connection with WGS so that his permitting the hearing to continue, after understanding from an intervention by Mr Critall that he had worked at WGS for 31 years and was firmly of the view that the security arrangements at the stadium were adequate, was effective to waive any apparent bias in Mr Critall as one of the Stewards. There is no evidence that TF knew how important a client WGS was of Mr Critall’s practice or that Mr Critall had worked with Mr Harris, a “prosecution witness” and Mr Rowe his superior. I accept Mr Penny’s submission that Mr Critall should have disclosed the full extent of his connection with WGS that emerged in the course of the hearing before me. I am not satisfied that TF, who was not represented before the Stewards, was aware of his right to object to Mr Critall’s presence as part of the Tribunal or that his waiver of the continued presence of Mr Critall was “clearly and unequivocally demonstrated”. The Stewards should have informed TF of his right to object to Mr Critall and asked him whether he was content that the Inquiry continue with him sitting as a Steward.

[70]It does not seem to me that in arriving at this conclusion I have failed to make the proper allowance that this court should make to a domestic tribunal in the procedure that it may elect to follow for the purposes of disciplinary hearings. It is not, it seems to me, unreasonable to have expected the Stewards to have been aware of the potential complications in a disciplinary hearing involving issues as to the security systems in force at WGS, arising from the presence of Mr Critall among the Stewards dealing with the case. They must have realised that there was a distinct possibility that he would not be able impartially to consider a submission that those security systems were fallible or, at least, that TF might come to think that he had not done so.

[71]In my judgment the NGRC’s plea of waiver fails and TF’s contention that the order of the Stewards should be set aside on the grounds of the apparent bias of Mr Critall succeeds.

The Melville question

[72]As already described at paragraphs 39 and 40 above, after the conclusion of the hearing Mr Melville remained behind when the inquiry room was cleared for the Stewards to consider their verdict. That this had happened emerged for the first time in the course of Mr Critall’s cross-examination towards the end of the trial. In his closing written submissions Mr Penny for TF took the point that this was an example of procedural unfairness to TF which should lead to the annulment of the Tribunal’s order. I was persuaded not to give judgment on the basis of the evidence as it stood at the end of the hearing before me, but to allow an opportunity to file further evidence and make further submissions directed to this point alone. In the result further evidence was filed by NGRC namely witness statements from the six Stewards who presided. For the reasons which I will describe Mr Penny did not ask for an opportunity to cross-examine the Stewards and both sides agreed that the point could be dealt with by further written submissions without the necessity of reopening the hearing. I have received further written submissions from both sides.

[73]It will be recalled that Mr Melville was the chief executive officer of the NGRC. It was his responsibility, amongst other things, to administer disciplinary inquiries. Under the rules it was for the Stewards to order an inquiry on having a potential breach of the rules reported to them. Thus it was Mr Melville who notified TF of the “charges” being made against him and who took the necessary administrative steps to obtain documents for the Inquiry, the attendance of witnesses, informing TF of the Stewards’ decision, and publishing that decision. It was Mr Charlton’s submission, which I accept, that the real nature of the Stewards’ Inquiry was inquisitorial rather than adversarial. The prosecutor was the NGRC but no individual fulfilled that role at the Inquiry. Mr Melville did not and Mr Thompson was only concerned to read out the documents relevant to the case.

[74]The salient points of the further witness statement of Mr Nicholson, the Senior Steward, are that, as a matter of routine, Mr Melville attended disciplinary inquiries and, in the course of the hearing would be asked whether he wished to put any questions to any of the witnesses. Also as a matter of routine he was permitted to remain in the inquiry room when it was cleared at the close of the hearing. The purpose of this was so that the Stewards could obtain from him clarification of the relevant rules and how they were applied. Another purpose was so that, in cases where a breach of the rules had been found, he was available to inform the Stewards of any previous “convictions” of the respondent. Upon occasion Mr Melville would draw the Stewards attention to penalties awarded in previous inquiries in respect of similar breaches. Otherwise Mr Melville will not ...“be asked for or permitted to give any opinion or view as to whether the affected person is in breach of that Rule as that is a matter exclusively for the Stewards.” As to the inquiry itself Mr Nicholson said that when asked by him Mr Melville did not seek to ask any questions of any of the witnesses. No explanation of the rules was required and Mr Melville’s only intervention was to inform the Stewards that TF had no previous record of breaching the rules. Mr Nicholson stated that the presence of Mr Melville during the Stewards’ deliberations in no way influenced his or the other Stewards’ decisions. The other Stewards, in their further witness statements, confined themselves to confirming that they arrived at their decisions on the basis of the evidence and submissions at the inquiry and, with the exception of Ms Kershaw, stated that Mr Melville made no contribution to their deliberations. Ms Kershaw was not able to say, from her own recollection, that Mr Melville made no contribution.

[75]As I have said this question only emerged at the end of the trial in the course of Mr Critall’s cross-examination. It did not appear in any of the witness statements and TF was not asked whether he was aware that Mr Melville had been present during the Stewards’ deliberations. He has since filed a witness statement stating that he first became aware that this had happened when it was described by Mr Critall under cross-examination.

[76]That cross-examination took place on the 8th October when Mr Critall was being asked questions about the security arrangements at WGS the relevant exchanges were as follows:- “Q… my question is: to your knowledge, did any of them [the Stewards] have any knowledge of the security arrangements at Wimbledon Stadium? A I would say yes. Q Who would that have been? A I am sure that Senior Steward would be aware of them, Chief Executive would have been aware of them. Q He was not a Steward A He was not a Steward… but he sits in at the deliberations and during the whole of the inquiry. Q Is he allowed to contribute to them? A During the deliberations? Q Yes A He can. In fact it is very often asked by Senior Steward, “have you have any questions of this trainer?”… Q Mr Melville was there during your deliberations, after the hearing was over? A He was indeed Q He is involved in the decision making process? A He is able to contribute any views that he might have, and it is up to the Stewards themselves to take account of them. Q He does not have a vote in other words? A He has no vote Q But he can contribute to the discussion? A That is why he stays in…. He has very extensive knowledge of greyhound racing.” Q Who would that have been? Q He was not a Steward Q Is he allowed to contribute to them? A During the deliberations? Q Yes Q Mr Melville was there during your deliberations, after the hearing was over? A He was indeed Q He is involved in the decision making process? Q He does not have a vote in other words? A He has no vote Q But he can contribute to the discussion? A That is why he stays in…. He has very extensive knowledge of greyhound racing.”

Q But he can contribute to the discussion?

[77]Mr Penny did not elect to cross-examine the Stewards on their further witness statements. In a letter to me, copied to Mr Charlton, dated 28th October 2004 Mr Penny gave his reasons for not doing so that “Mr Flaherty is not in a position to, and does not, take issue with the Stewards new evidence to the effect that Mr Melville did not in fact contribute to the determination of the outcome of this case.” Nonetheless the contrast between Mr Critall’s answers and Mr Nicholson’s description of Mr Melville’s role when present during the Stewards’ deliberations is striking.

[78]In chapter 13 of Wade on Administrative Law 9th edition entitled “The rule against bias- judicial and administrative impartiality” at page 457, where the authors are dealing with administrative decisions, the following sentence appears:- “The mere presence of a non-member while a tribunal is deliberating is enough to invalidate the proceedings.”

[79]The authorities cited for that passage are Cooper v Wilson

[1937] 2KB page 309

and R v Leicestershire Fire Authority ex parte Thompson

(1978) 77 LGR 373

[80]Cooper’s case involved disciplinary proceedings against a police officer before the Watch Committee on appeal from the dismissal of the officer by his Chief Constable. The Chief Constable opened the proceedings by reading a statement and, throughout them, sat with his Assistant next to the chairman. He remained in the chamber with the committee while they considered their decision and all others had withdrawn. The Court of Appeal by a majority, Greer and Scott LJJ, allowed the police officer’s appeal and set aside the Watch Committee’s determination. Macnaghten J dissented. The reasons for his dissent are summarised at page 357 of the report in this way:- “After reading his statement, the Chief Constable took no further part in the proceedings. When the hearing of the case was ended and the parties retired to enable the committee to consider their decision, the Chief Constable remained in his seat beside the deputy chairman, and I agree with Singleton J, in thinking that it is undesirable that the Chief Constable should remain with the Watch Committee while they are considering their decision on an appeal from him. It is, however, found as a fact that the Chief Constable, though present in the room, took no part in the discussion. He said nothing at all, and Singleton J, who heard the evidence of all the surviving members of the committee, was completely satisfied that none of them was in the very smallest degree influenced by the Chief Constable.”

[81]In the judgment of Lord Justice Greer at page 323 he is recorded as saying:- “But I think he [the police officer] is fairly entitled to complain that the presence of one of the respondents to his appeal on the bench, when they were deliberating as to whether they would or would not affirm his sentence, was contrary to natural justice, and that it thereby invalidated the decision of the Watch Committee, and entitled him to have a declaration to that effect. I think the cases relied upon by Mr Wooll, … establish the proposition that, if the conduct of the justices is such as to give rise to a reasonable suspicion that justice does not seem to have been done, then their decision should be set aside. It is noticeable that in all those cases it was established to the satisfaction of the court that the persons whose presence was complained of when the tribunal was considering its decision in fact took no part in the decision….”

Lord Justice Scott at page 344 says:

[82]- “But, even if the presence of the respondent sitting to all appearances amongst the members of this tribunal could be said not to vitiate the proceedings, the fact that he remained with them when the court was cleared for the committee to consider its decision is fatal to the validity of the proceedings. It makes no difference whether he then discussed the case with them or not: the risk that a respondent may influence the court is so abhorrent to English notions of justice that the possibility of it, or even the appearance of such a possibility, is sufficient to deprive the decision of all judicial force, and to render it a nullity. In my view, this action is open to the same objections as is the committee’s conduct in allowing the chief constable, really the prosecutor, on the re-hearing, and respondent on the appeal, to sit on the bench with them, but in a more acute degree, as there was, from the appellant’s point of view, secrecy, and the risk of bias through the tribunal seeing one party without the other being present…The rule of justice that a court must not listen to one side behind the back of the other is fundamental, one of those “matters of substance, and not mere matters of form” to which Lord Halsbury LC, referred inAndrews v Mitchell. It is not necessary to seek further authority for so self-evident a principle of justice as that when a tribunal considers its decision behind closed doors it has no right to invite one party in and to shut the other out.”

[83]In the Leicester Fire Authority case the Divisional Court was considering a case where a Chief Fire Officer had adjourned the hearing of a disciplinary charge against a fireman to be heard by a committee of the Fire Authority rather than himself because of a communication by the fireman’s union accusing him of having victimised their member. He attended the hearing as an observer, but after the committee had found the charge proved, was invited to join them to assist in their deliberations as to what penalty to impose. The judgment of the court was given by Mr Justice Griffiths. He described the relevant events in this way:- “What happened was this. Having decided to convict, and then having turned to consider the question of sentence, the sub-committee found that they did not have sufficient information to inform them of the implications for the accused of the various sentences which they could impose. In order to instruct themselves they invited Mr Lockyer [the Chief Constable] to re-enterthe room and to tell them what would be the practical consequences of the various sentences that were open to them. Mr Lockyer explained that to the committee. In no sense was he party to any deliberations as to sentence. In so far as the application is based on an allegation that he participated in the proceedings it fails. But there is a final far more formidable objection to what occurred on the occasion of this hearing, and that is the submission that, whatever may have in fact happened when Mr Lockyer went into the room whilst the committee were considering the sentence, it must have appeared to the accused and his advisors that he was taking part in the deliberations as to sentence, and so there has been a denial of natural justice because there has been a breach of the principle that not only must justice be done but that it must be manifestly be seen to be done.”

[84]Later in the judgment the judge draws attention to a decision of Lord Chief Justice Goddard in the prosecution of a soldier and then says this:- “Lord Goddard pointed out that it mattered not one whit how long he was with them [the relevant soldier’s officer] or what was said to them. It may well be that he was merely trying to assist his own solider but the fact is that the soldier did not know what was being said. When the justices came back and imposed a sentence of 6 months imprisonment he may well have felt that their decision had been influenced by something that was said to them which he had no opportunity to hear contradict or refute and that was held to be a denial of natural justice. There have been many such cases in this court arising out of magistrates courts decisions but this principle is not confined to courts of law.”

[85]Then referring to a case involving a compensation committee he continues:- “Certiorari went to quash their decision on the grounds that, whether or not the valuation officer sought in any way to influence them, the mere fact that he was present with them when considering their decision might well arouse in the mind of the ratepayer the belief that he may have improperly influenced the committee and he, the ratepayer, had no chance to hear what was being said or to challenge it. Finally in a case relating to domestic proceedings Ward v Bradford Corporation 1972 the present Master of the Rolls Lord Denning restated these principles as applicable not only to judicial bodies but also to quasi-judicial bodies. Clearly when one is dealing with a quasi-judicial body there has to be some degree of flexibility and there may be exceptional circumstances in which it will not be right to apply this rule in its full rigour. But those will be exceptional cases.”

[86]Then having emphasised the fact that the fireman had a deep hostility towards the Chief Fire Officer he continued:- “Accordingly, in my judgment, though I am quite satisfied that in fact no injustice was done to the fire officer, I feel that the general rule is of such great importance that it must be upheld in this case. For that reason, and that reason alone, I myself would order Certiorari to go and quash this order of the Fire Authority.”

[87]Thompson’s case was reviewed by the Court of Appeal in another police case R v The Chief Constable of South Wales ex-parte Thornhill

[1987] IRLR 313

in which Lord Justice Stocker gave the lead judgment. In that case the Court of Appeal were considering a disciplinary hearing conducted by a Chief Constable who had withdrawn to consider his verdict in his office. The case against the accused policeman had been presented at the hearing by his deputy. Simultaneously the relevant police force was under pressure from the Home Office to produce a particular report which was in the course of preparation in which the Chief Constable and his deputy had an important role to play. It became necessary for the deputy Chief Constable urgently to consult his Chief. He therefore entered his office and was with the Chief Constable for some minutes before emerging. He was seen to do so by the “accused”. The Court of Appeal dismissed the policeman’s appeal. In doing so they did not disapprove the Leicester Fire Authority case but laid emphasis on that passage in the judgment of Griffiths J which I have quoted above emphasising a more relaxed approach by the court to proceedings before quasi-judicial bodies. In his concurring judgment Lord Justice Lloyd says this:- “Similarly any appearance of injustice would have been eliminated if, when the Chief Constable returned from his room to announce his findings, he had explained that he had seen the Deputy Chief Constable on a matter of urgency which had nothing to do with the disciplinary proceedings…. So the appearance of injustice seems also to depend on how soon the explanation is given. These considerations lead me to the conclusion that the principle that justice must manifestly appear to be done, fundamental though it be, must nevertheless be applied with common sense. In saying this, I am saying no more than was said by Griffiths J in [The Leicestershire Fire Authority case]:

“Clearly, when one is dealing with a quasi-judicial body, there has to be some degree of flexibility, and there may be exceptional circumstances in which it will not be right to apply the rule in its full vigour. But those will be exceptional cases”

The Divisional Court held that the facts of that case did not justify a departure from the general rule. For the reasons given by Stocker LJ I am not persuaded that there was any appearance of injustice in the present case. But if there was, then the circumstances were clearly exceptional. So like my Lord I would dismiss this appeal.”

[88]Mr Charlton for the NGRC cited two cases Kilduff v Wilson [1939] 1AER p 429 and Ward v Bradford Corporation (referred to in a passage from the judgment of Griffiths J in the Leicester Fire Authority case which I have quoted above), where the Court of Appeal did not strictly apply the rule. It seems to me, however, that both these cases can properly be described as exceptional within the judgment of Mr Justice Griffiths in the Leicester case. The Kilduff case was another police disciplinary case in which the complaint was that the Chief Constable had been seen by the “accused” policeman conferring with members of the Watch Committee, which were to try his appeal from the Chief Constable’s order, some seven weeks before the actual hearing, when he was discussing with them newly imposed rules as to the hearing of appeals by Watch Committees. In Ward v Bradford the representative of the local authority had a right under the rules to be present when the relevant disciplinary committee was considering its verdict and, as the court found, by implication, to contribute to its deliberations in the absence of the “accused”.

[89]It seems to me from these authorities that the following conclusions emerge:-(i) The rule against non-members being present at the deliberations of a tribunal flows from a different principle of procedural fairness from that considered by the cases on bias. Here the principle is the right of an “accused” to know the case against him and to hear, and deal with, if he can, all the evidence and submissions in support of that case which are brought before the relevant tribunal. A failure to observe this principle may induce bias in the tribunal, but that is a different matter.

(ii) The appearance of injustice as it may be perceived by the “accused” as a result of his knowledge that a non-member, connected with his accuser, was present at the tribunal’s deliberations, is sufficient to undermine the tribunal’s decision provided the appearance of injustice is sufficiently stark.

(iii) The fact that it can be proved by evidence, including evidence from the tribunal members themselves, that no injustice has actually been done, is immaterial.

[90]The next question must be whether the Cooper line of authorities, which otherwise bind me, and, in particular, conclusion number 3 above, are still good law in the light of such decisions as R v Inner West London Coroner ex-parte Dallaglio & anr [1994] 4 AER p 139. The facts of that case are not material save that it was a bias case and not one where interference in a tribunal’s deliberation by a stranger was being alleged. At page 161 of the report the Master of the Rolls Lord Bingham is describing the three classifications of bias, the first two being actual bias and bias resulting from a decision maker having a pecuniary interest in the subject matter of the decision. In both such types of case, where the facts are made out, without more, he held the decision cannot stand. He then turns to his third classification of case as follows:- “The third class comprises cases in which there is no actual bias and no direct pecuniary interest giving rise to a presumption of bias. It was the bounds of this third class which were in issue inGough. The House of Lords was there called upon to choose between two tests for inclusion in this class, both of the rival tests finding support in authority. One test was whether a reasonable and fair-minded person sitting in the court and knowing all the relevant facts would have had a reasonable suspicion that a fair trial was not possible because of bias on the part of the decision-maker. The second was whether there was a real likelihood, or danger, of bias. The House of Lords unanimously upheld the second of these tests, expressed in terms of real danger, to make clear that it is possibilities, not probabilities, which matter. This decision shows, as it seems to me, that the description “apparent bias” traditionally given to this head of bias is not entirely apt, for if despite the appearance of bias the court is able to examine all the relevant material and satisfy itself that there was no danger of the alleged bias having in fact caused injustice, the impugned decision will be allowed to stand. The famous aphorism of Lord Hewart CJ inR v Sussex Justices, ex parte McCarthy… that “justice … should manifestly and undoubtedly be seen to be done” is no longer, it seems, good law, save of course in the case where the appearance of bias is such as to show a real danger of bias.”

[91]On the face of it there seems no reason why similar considerations should not be applied to the facts of such cases as Coopers case or the Leicester Fire Brigade case where, in both cases it had been demonstrated by evidence that there had been no actual injustice as a result of the apparent interference in the tribunals’ deliberations. There is, however, no sign in the text books and in particular in Wade that the authority of the Cooper line of cases has been undermined. Such an argument would have provided a quick way out of the problem which faced the Court of Appeal in the ex-parte Thornhill case in 1987 by which date the House of Lords had decided Calvin v Carr

[1980] AC 574

which prompted Lord Justice Latham in the Modahl case, relying on a passage in judgment of Lord Wilberforce at page 593 to say “the test which is appropriate is to ask whether having regard to the course of the proceedings there has been a fair result. As Lord Wilberforce indicated there may be circumstances in which by reason of corruption or bias or such other deficiency the end result cannot be described as fair. The question in every case is the extent to which the deficiency alleged has produced overall unfairness.”

[92]The Cooper line of cases do not feature in such cases as ReMedicaments, e.p. Dallaglio,ModahlandPorter. It seems to me to follow contrary to Mr Charlton’s submissions, that the appearance of interference in the deliberations of a tribunal, by a stranger to that tribunal, is in a special class of procedural unfairness to which the famous aphorism of Lord Hewart referred to by Lord Bingham in the Dallagliocase continues to apply in full force.

[93]If this conclusion is correct, it seems to me that the facts of the present case cannot be regarded as exceptional within the judgment of Griffiths J in the Leicester Fire Brigade case. True it is that Mr Melville could not be described as a “prosecutor”. There was nobody who could be so described who took part in the hearing in front of the Stewards. He was, however, a senior official of the body, the NGRC, that was seeking to persuade the Stewards that TF had acted in breach of the Rules. The primary defence raised by TF involved security at WGS as to which it is accepted Mr Melville had particular knowledge. The remaining matters raised at paragraph 27 of Mr Charlton’s written submissions are directed to facts relevant to establishing that there was no actual injustice as a result of Mr Melville’s presence during the Stewards’ deliberations.

[94]It follows that, in my judgment, on this ground also TF’s challenge to the Stewards’ decision succeeds. TF’s other procedural complaints The failure to split the urine sample

TF’s other procedural complaints

[95]A large proportion of the hearing time before me was taken up with the issue of whether the NGRC’s procedure on taking random samples of urine from greyhounds racing at stadiums supervised by them should be split into an A and B sample as a matter of routine so that the B sample should be available to the respondent for tests to confirm the result of the NGRC’s test on the A sample or to support the respondent’s case in his defence. It was stressed to me that my decision on this point had considerable implications for the NGRC whose universal and long established practise was not to split samples.

[96]It appears that no consistent policy is pursued worldwide on this issue by greyhound racing authorities. Some split samples and some do not. This case illustrates one of the problems in producing split samples of urine taken from greyhounds which do not occur in other forms of racing. This problem arises from the fact that greyhounds frequently do not produce urine in sufficient quantity both to allow the regulatory body to conduct its own tests and also to provide a sufficient B sample to be of realistic use to the respondent trainer. In the present case only one millilitre of urine was left after HFL had conducted its tests. Such a quantity was insufficient for the conduct of any meaningful tests on behalf of TF. Since it is not necessary for me to decide this issue for the purpose of disposing of this case I do not propose to do so, both, for that reason, and also, because I am satisfied that on the facts of this case, without fault on the part of the NGRC, TF could not have been provided with a sample of the urine produced by the Animal on the 11th May 2002 which could have been of any use to him in obtaining evidence in support of his case. The failure to permit TF to demonstrate video evidence of security practices at Irish Greyhound racing stadiums.

[97]It seems to me that the Stewards were justified in refusing to permit this evidence. The issue before them was whether the security arrangements at WGS were adequate not whether they could have been improved.

Issues not put to TF

[98]Part of the evidence before the court was a second witness statement by Mr Neville Dunnett dated 5th August 2004. Mr Dunnett is a distinguished chemist, past head of HFL’s drug testing laboratory and a past director of HFL. In his witness statement he gives an account of the hearing before the Stewards and describes his own and the Stewards’ process of reasoning which resulted in their verdict. Just as Mr Critall was one of the Tribunal because of his expertise as a vet, so Mr Dunnett’s presence on the Tribunal was, at least in part, because of his expertise as a chemist with wide previous experience in drug testing.

[99]Shortly before the re-commencement of the hearing before me TF filed a fourth witness statement largely devoted to dealing with Mr Dunnett’s second witness statement and highlighting passages in that witness statement which illustrated, so he alleged, Mr Dunnett advising his fellow Stewards, and himself coming to conclusions, based on his knowledge and expertise. It was submitted on behalf of TF that this process of decision making should have been disclosed to TF before the verdict was arrived at to give him an opportunity to deal with it and, possibly, adduce expert evidence of his own on the same points. The process, it was submitted, constituted procedural unfairness to TF. For the NGRC it was not admitted that the various points were not raised in the course of the hearing.

[100]As one would expect almost all the points concerned the chemistry and therapeutic effect of Hexamine and the methods used and reliability of drug testing generally. I have already concluded that TF’s criticisms of the system for testing the urine sample taken from the Animal are not determinative of the result of these proceedings. I will therefore confine myself to observing that it is a feature of sports disciplinary tribunals that they are deliberately constituted as containing members with relevant expertise. The tribunal in the Modahl case is an example. It is intended and inevitable that the tribunal will make use of the expertise of its members in its deliberations resulting in its verdict. This, inevitably, will involve from time to time conclusions based on expertise which the respondent will not have had an opportunity to question.

[101]This seems to me to be an area where a reviewing court should be particularly slow to impose upon a tribunal the strict rules that would normally apply in conventional litigation where, for instance, a judge, from his past experience, knowing of some authority with an important bearing on the case before him which the advocates were unaware of should, as a matter of course, raise it with the parties so that they have an opportunity to comment on it and, perhaps, disabuse him of its relevance. It is obviously fundamental that disciplinary tribunals give to respondents a fair opportunity to deal with any points which the tribunal regard as important in coming to their conclusion. In the result it is not necessary for me to decide whether the various points raised by TF in his fourth witness statement constituted procedural unfairness such as, by themselves, to justify setting the verdict of the Stewards aside.

[102]In the course of his cross-examination Mr Critall revealed what the Stewards concluded in the course of their deliberations had actually happened. I have set this out at paragraph 48 above. It was the NGRC’s case that in the course of this hearing it was put to TF that before the race the Animal was suffering from a urinary infection (denied by TF) but it was accepted that this version of events only fully emerged in the course of the deliberations and thus was not put to TF. It is obviously open to criticism in a number of ways. It presupposes that TF happened to have with him on the journey south or was able to obtain en route, a supply of Hexamine a drug only obtainable on prescription. There had been no evidence that TF was aware that the Animal would be subjected to a vetinary inspection before being kennelled which, although a brief and superficial inspection, might have revealed that he Animal was suffering from a urinary infection. In order to ensure that TF’s presumed plan to get the Animal through the next heat was successful, it would have been necessary for him to administer a therapeutic dose of Hexamine to the Animal at the right time before their arrival at WGS so that it would pass the inspection and still be benefiting from the therapeutic effect of the drug so as to turn in an adequate performance between two and three hours later. If the symptoms observed by TF when the sample was taken from it were, as the Stewards assumed, symptoms of a urinary infection reasserting themselves as the effects of the drug was wearing off, TF’s assumed scheme had plainly failed and given the evidence of the speed of absorption by a greyhound of Hexamine and its passage through the body, it could have been submitted that it was almost bound to fail.

[103]That the Stewards “theory” as to the likely events leading to the presence of Hexamine in the urine sample taken from the Animal was not put to TF is not, in the result, determinative of the case. If it had stood alone as a complaint against the procedure followed at the Stewards Inquiry it would not, in my view, have been sufficient to disturb the result. It would, however, have been much fairer to TF if the procedure of the Stewards had allowed TF advanced warning of the factual assumptions which the “charge” involved. He could then have had an opportunity to reconsider what expert and other evidence he needed to bring to the hearing. He might have acquired more detailed written evidence from Mr Hastie and Mr Fegan and have obtained their presence at the hearing to answer questions.

Conclusion

[104]In Cowley v Heatley, The Times 24th July 1986 (cited with approval in the Modahl case) Sir Nicholas Browne Wilkinson VC is recorded as saying:- “I am echoing the sentiments expressed by Sir Robert Megarry VC in McInness v Onslow-Fane

[1978] 1 WLR 1520

. At page 1535 at F he says this:

“I think that the courts must be slow to allow an implied obligation to be fair to be used as a means of bringing before the court for review honest decisions of bodies exercising jurisdiction over sporting and other activities which those bodies are far better fitted to judge than the courts. This is so even where those bodies are concerned with the means of livelihood of those who take part in those activities. The concepts of natural justice and the duty to be fair must not be allowed to discredit themselves by making unreasonable requirements and imposing undue burdens. Bodies such as the board which promote a public interest by seeking to maintain high standards in a field of activity which otherwise might easily become degraded and corrupt ought not to be hampered in their work without good cause.”

I think that is, if I may say so with respect, good sense. It is the court’s function to control illegality and to make sure that a body does not act outside its powers. But I do not think that the interests of sport or anybody else would be served by the courts seeking to double guess regulating bodies in charge of domestic arrangements… .”

[105]It is therefore with some hesitation that I have concluded that this is a case where the court is required to intervene. In doing so I take some encouragement from a textbook on this area of the law, Sport: Law and Practise by Adam Lewis and Jonathon Taylor. Where, having identified the judicial reluctance to intervene highlighted by the Vice Chancellor, it continues at paragraph A 3.73:- “A 3.73 The origin of this principle of judicial restraint lay not so much in the public law analogy as in the belief that, save in cases of clear breach of obligations (or rank injustice), an association governing an essentially non commercial activity should be allowed to get on with it without being subjected to time consuming and costly complaints to the courts about what it was doing. However with the development of the proposition that sport governing bodies are bound by general obligations of fairness and reasonableness, the principle developed into the expression of the constraint on the extent to which those general obligations can be invoked…. A 3.74 Even where it applies however this principle does not today mean that an English court will never interfere, but rather that it will apply the quasi public test in the context of its consideration of implied terms or general obligations of fairness and reasonableness. In other words, the principle of self regulation is given its rein, but the courts will still exercise a supervisory jurisdiction over the activities of the governing body, and will intervene if the governing body steps outside the boundaries set for it by the quasi public law test. The governing body will be afforded a margin of appreciation or latitude, in its decision making but will still be held to account if it goes too far… further, the extent of the margin of appreciation or latitude will vary from context to context: it will be at its widest were rules confer a discretion on the governing body, where there may be a range of permissible alternatives open to the governing body whereas where an obligation under the rules is to be interpreted, there may often be only one correct answer. … It is no longer appropriate to base judicial reluctance to intervene on anything other than the margin of appreciation or latitude that should be afforded to a specialist body making a decision within the boundaries of the regulatory function entrusted to it.” It is no longer appropriate to base judicial reluctance to intervene on anything other than the margin of appreciation or latitude that should be afforded to a specialist body making a decision within the boundaries of the regulatory function entrusted to it.”

[106]I will hear counsel on the form of the order which should follow from this conclusion.