High Court: Greyhound owner fails to quash finding that a prohibited substance was present in his animals

About this case:

• Citation:
  [2018] IEHC 618
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Miriam O'Regan

The Appeal Committee had dismissed the man’s appeal against a finding that a prohibited substance was present in three of his greyhounds. Refusing to quash the decision taken by the Appeal Committee, Ms Justice Miriam O’Regan said that the man had failed the discharge the burden of proof necessary to condemn the decision.

Background

On three dates in September 2015, at Shelbourne Park greyhound stadium, various samples were taken from three greyhounds belonging to Mr Owen McKenna.

In February 2017, the Control Committee of the Irish Greyhound Board issued a decision in circumstances where it was satisfied that a prohibited substance, hydrochlorothiazide, was present Mr McKenna’s greyhounds. A total fine of €1,000 was imposed and certain prize money forfeited. 

The issue was a food contamination issue, as there was no evidence suggest that the greyhounds had received a direct injection.

Control Appeal Committee

Appealing the decision of the Control Committee, Mr McKenna accepted that, by feeding his animals Category 2 meat, any contamination or drugs in that meat would get into the dog’s system, and that he may have been reckless in proceeding despite this risk.

However, Mr McKenna did not accept that he had been warned by the Control Committee in July 2015 and nevertheless continued to feed Category 2 meat to his greyhounds, taking a chance knowing he was in breach of regulations.

In August 2017, the Control Appeal Committee of the Irish Greyhound Board dismissed Mr McKenna’s appeal, finding, inter alia, that:

• The feeding regime could not be considered normal and ordinary feeding;
• The testing maintenance an control while in the UK laboratory was in order and the certificate from it could be relied on;
• Mr McKenna engaged in a reckless feeding regime and must accept the consequences; and
• It was bound by the provisions contained in the 2007/2008 Regulations.

Application for judicial review

In the High Court, Mr McKenna sought:

• An order of certiorari in respect of the Appeal Committee’s decision, together with an order that his appeal be remitted to another division of the Appeal Committee for reconsideration; and
• A declaration that the Appeal Committee failed to determine the appeal in accordance with law, and/or acted contrary to fair procedure and/or natural justice, and/or unreasonably, and/or irrationally. Mr McKenna submitted that the decision was based on serious errors of fact and breached the principles of legitimate expectation and proportionality and was objectively unjustified discrimination against him. 

Considering the application, Ms Justice O’Regan firstly rejected Mr McKenna’s submissions complaining about the custody chain when the sample was sent to a UK laboratory for testing. In this regard it was an important consideration that Mr McKenna’s submissions to the Appeal Committee “did not include a denial of hydrochlorothiazide being in the dog’s system”.

Ms Justice O’Regan explained that while Mr McKenna had complained that he had not been given a caution in July 2015 in regards to his feeding regime, there was no mention of such a caution in the Control Appeal Committee’s decision. As such, Ms Justice O’Regan was satisfied that Mr McKenna had failed to establish that this issue formed the basis of the Appeal Committee’s decision.

Ms Justice O’Regan was also satisfied that there were ample reasons for the Appeal Committee’s finding that the feeding regime was not considered normal and ordinary feeding. It was notable that Mr McKenna did not have a Category 2 feeding licence in September 2015, but nevertheless continued to feed his greyhounds Category 2 feed being aware that this was a risk.

Mr McKenna did not receive his meat feeder’s licence until October 2015, so there was evidence that his feeding regime was contrary to the statutory provisions. Ms Justice O’Regan said that the fact that IGB did not issue an advisory notice regarding feeding until November 2015 did not mean that feeding Category 2 meat without a licence was permissible. In this regard, Ms Justice O’Regan said there was “no evidence whatsoever” that there was a retrospective application of the advisory note.

Dismissing Mr McKenna’s application, Ms Justice O’Regan was satisfied that Mr McKenna had failed to discharge the burden necessary to secure an order of certiorari in respect of the Control Appeal Committee’s decision.

• by Seosamh Gráinséir for Irish Legal News