Non Raceday Inquiry – Written Decision dated 3 October 2022 – Brendan Harrison

1. The RIB charged Mr B Harrison, that on 20 June 2022 at Cambridge Jockey Club, he wilfully failed to perform an act ordered by an Investigator to be performed, in that he failed to provide for a drug test.

2. Pursuant to Rule 801(1)(k), it is a Serous Racing Offence if a person wilfully (deliberately) fails to perform an act ordered by an Investigator.

3. Mr Harrison was handling horses at the Cambridge Jockey Club early in the morning of 20 June 2022.  Investigators from the RIB were conducting routine drug testing at that time and as a person performing a “safety sensitive activity” was selected to provide an acceptable sample of urine or saliva, and served with the required “Drug Test Notification” form.  He was advised by the Investigator of the location of the Drug Detection Agency (TDDA) testing van and he was required to attend for testing between 7.30am and 11am.

4. The Respondent did not attend for testing at any time.  At 11.05am, a text was sent to him to ascertain where he was to which he did not reply.

5. The Respondent was spoken to on 25 June 2022 and he acknowledged his action in failing to present himself for testing.  He said to the Investigator that he had consumed Cannabis 2 nights before the testing and panicked (“freaked out”) because he knew he would test positive and would lose his job.  He said he only consumed Cannabis occasionally at weekends.

6. This is the Respondent’s second breach for drug related offending as he was suspended for 12 months on 25 October 2019.  However, the failure to comply with an order to present for testing is a Serious Racing Offence under Rule 801(1)(k) and so is liable to penalties for a Serious Racing Offence – not for the lesser penalty if in fact a positive test to Cannabis occurs.  That is because the testing has been avoided; it might be to hide use of any prohibited substance, so any penalty must reflect the more serious Class A Drug use.

PENALTY:

7. Mr Harrison, once spoken to, was cooperative and immediately admitted his offence.  He holds a Class E Amateur Riders Licence, and with the support of Ms Logan, wishes to obtain a Jumps Riders Licence.  He has worked with racehorses and assisted in track work (although he has an “outside” job) and he is fortunate to have her support.

8. Because this is a “Serious Racing Offence” – not just a breach of a Riding Rule – Rule 801(2) provides “liability penalties or

(a) Disqualification for any specified period and/or

(b) Suspension of licence for up to 12 months and/or

(c) A fine not exceeding $50,000.

9. Recent cases involving licence holders wilfully failing to present for a drug test have resulted in penalties of 12 months disqualification – RIU v Taylor (8.1.21); 12 months suspension, RIU v Harrison (14.11.19) and 7 months suspension – RIB v Jones (27.8.22).

10. Mr Westerland submitted that the penalty for failing to obey the order to attend for testing must exceed, or at least be in the range applicable for providing a positive sample to a Class A Drug (eg such as Methamphetamine).  Otherwise, as already noted, there is no incentive for licence holders to comply with drug testing procedures if they know or suspect they may test positive for the more serious Class A, yet by refusing, expect only the Cannabis use level of penalty.  Recent penalties for (Track and Harness Drivers) positive Methamphetamine tests, have been penalties of 12 months disqualification (RIU v Donoghue – November 2019; RIB v Eriha – June 2022) and 11 months disqualification (RIU v Harris – June 2021).

11. Mr Westerland submitted that because of the previous breach since being suspended for 12 months on 14 November 2019, a period of disqualification for 12 months was sought.

12.  It appears that Ms Logan, when she was informed by Mr Harrison, of his predicament, took steps to help him by then getting him to provide a urine sample to a credited testing authority, which was positive to Cannabis.  This was approximately 5 days after he refused compliance at Cambridge Racecourse and, to the Adjudicative Committee’s knowledge, and depending on the extent of use, the THC (Cannabis) would usually be undetectable after 5-7 days depending on the degree of use.  So, Mr Harrison has been well served by heeding Ms Logan’s decision.  It does not alter the fact that a Serious Racing Offence occurred but it is a fair inference that Cannabis use occurred.

13. But, as the RIB correctly submitted, all licence holders must be deterred from refusing to comply with procedures vital for the safety of all Riders and horses, and to maintain the integrity of, and public confidence in, the Industry.

OUTCOME:

14. Because of the previous breach of the Rules, and the breach related to a safety sensitive activity, a period of disqualification (not suspension) is necessary.  Mitigating factors which are taken into account are Mr Harrison’s immediate cooperation when he knew he was in trouble, his frankness to the Adjudicative Committee, and Ms Logan’s support and desire to promote him into a Jumping Licence.  A total period of 7 months disqualification is imposed, starting from today, 28 September 2022 and concluding on 28 April 2023.  There is no order as to costs.