Mullins v McFarlane & Anor

A sporting body’s administrative instruction to a testing laboratory may alter the reporting level for a prohibited substance without altering the governing rules. A reporting or detection cut-off is not thereby a threshold that makes the substance lawful below that level. The relevant rules are those applicable when the race takes place, and a later administrative instruction need not be applied retrospectively. Judicial intervention in a private sporting tribunal’s decision is discretionary and requires substantive unfairness, ordinarily expressed as arbitrariness or capriciousness. The court should show particular respect for the specialist tribunal’s assessment of fairness and the practical administration of the sport.

The claimant trained a horse which won the Hennessy Gold Cup but was disqualified after morphine was detected in its urine. The Jockey Club’s Disciplinary Panel and Appeal Board held that the applicable detection level at the time of the race was 10 ng per ml. A later instruction from the chief veterinary officer directed the laboratory not to report morphine below 50 ng per ml.

The claimant sought declarations that the disqualification was unlawful and that the later level should have been applied retrospectively. Judicial review proceedings had previously been transferred from the Administrative Court because the Jockey Club was not a public authority. The central issues were whether the later instruction created a threshold under the Rules of Racing and whether refusal to apply it retrospectively was arbitrary or capricious.

1. Claim dismissed. The Appeal Board had not erred in answering that no de facto threshold of 50 ng per ml existed for the relevant race.
2. An administrative instruction concerning the level at which a laboratory reports or confirms a substance is distinct from a threshold incorporated into the Rules of Racing. A threshold would operate as a legislative rule of general application and would ordinarily be published. The emails were sent by an executive officer to the laboratory and instructed it about testing and reporting. They did not modify the Rules or establish a threshold for the purposes of rule 53(ii).
3. The relevant level was therefore the 10 ng per ml detection level applicable when the race was run. The later 50 ng per ml reporting level did not apply retrospectively. The Rules concerned competitions which should be conducted under the rules in force when they take place. Retrospective application could also be unfair to other competitors and to persons whose disqualifications had already been accepted.
4. The Board’s discussion of the presumption against retrospectivity in criminal legislation was open to criticism. The authorities showed that fairness may sometimes require retrospective decriminalisation or legalisation. Those principles were not directly applicable because the case concerned an executive act and sporting rules, rather than legislation.
5. The court assumed, without finally deciding, that it had power to grant declaratory relief against a private sporting tribunal. The relevant control was substantive fairness. Intervention required arbitrariness or capriciousness, and the court had to accord particular respect to the specialist domestic tribunal. The Appeal Board’s decision fell within the range of fair decisions and was neither arbitrary nor capricious.

The judgment states that the proceedings were initially brought in the Administrative Court under CPR Part 54. On 17 October 2005, the court held that the Jockey Club and its Appeal Board were not public authorities amenable to judicial review under that Part. The proceedings were then transferred to the Queen’s Bench Division and continued under CPR Part 8.