R (Mullins) v Appeal Board of the Jockey Club
Reference:  EWHC 2197 (Admin);  ISLR, SLR-30; (2006) ACD 2; The Times, 24 October 2005
Court: Administrative Court
Judge: Stanley Burnton J
Date of judgment: 17 Oct 2005
Summary: Judicial review - horseracing - prohibited substance - morphine - disqualification from race - prelminary issues - whether rules required proof of concentration and potential effect on horse - domestic bodies answering no - claim for judicial review - amenability - precedent
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Alexandra Marzec (Defendant)
Instructing Solicitors: Charles Russell
The Claimant (M) was the trainer of Be My Royal, which was first past the post in the Hennessy Gold Cup in 2002. The horse tested positive for morphine. Before the Disciplinary Committee (DC) of the Jockey Club (JC) it was agreed the drug came from contaminated feed and M was not at fault, but the question arose of whether the horse should be disqualified. M argued that the rules required proof that the amount of drug present could have affected performance. The DC dismissed M’s contentions, and an appeal to the JC’s Appeal Board was dismissed. M sought judicial review of the Board’s decision, and in the alternative transfer to the QBD to pursue his claim in private law. The JC and Appeal Board argued that the court was bound by R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan (CA).
A preliminary issue was tried as to the amenability of the decisions to judicial review under Part 54.
Whether the decisions of the Appeal Board of the Jockey Club were amenable to judicial review under Part 54.
(1) The Court was bound by the Court of Appeal’s decision in Aga Khan that decisions of the DC were not amenable to judicial review. (2) Although independently constituted, the nature of the Appeal Board’s function is the same as the DC. None of the Claimant’s suggested factual distinctions provided a basis for departing from Aga Khan. (3) As to changes in the law, the procedural rules have changed since 1993. The test for amenability to judicial review under CPR Part 54 is coterminous with the test for a functional public authority under section 6 of the Human Rights Act 1998. However, the test is in substance that applied in Aga Khan. Aston Cantlow v Wallbank  1 AC 546 applied. (4) The court would have reached the same decision even if it were free to reconsider the matter. Review of such disciplinary decisions is a matter for private law.
Had this judgment gone the other way, it would have had implications for all sporting regulators in the exercise of their disciplinary powers. As it is, it maintains the position that the decisions of such bodies are not amenable to judicial review in the post Human Rights Act era. There remains the possibility in appropriate cases of a review in private law, such as occurred in Bradley v The Jockey Club. But the consistent signal being handed down is that the courts prefer to leave the application of the rules of sport to the expert bodies set up to regulate those activities, and will not intervene unless something has gone badly wrong.