R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan
|England & Wales
|THE MASTER OF THE ROLLS,LORD JUSTICE FARQUHARSON,LORD JUSTICE HOFFMANN
|04 December 1992
|Judgment citation (vLex)
| EWCA Civ J1204-5
|Court of Appeal (Civil Division)
|04 December 1992
 EWCA Civ J1204-5
The Master of the Rolls
(Sir Thomas Bingham)
Lord Justice Farquharson
Lord Justice Hoffmann
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
MR SYDNEY KENTRIDGE Q.C., MR ANTHONY BOSWOOD Q.C. and MR DERRICK DALE (instructed by Messrs McCloy Day-Wilson & Co., Newbury, Berkshire) appeared for the Applicant.
MR PATRICK MILMO Q.C. and MR RICHARD SPEARMAN (instructed by Messrs Charles Russell) appeared for the Respondents.
On 10th June 1989 the filly Aliysa, owned by his Highness the Aga Khan, won the Oaks at Epsom. In a routine examination after the race, a metabolite of camphor was said to be found in a sample of the filly's urine. Under the Jockey Club's Rules of Racing camphor was a prohibited substance and the Disciplinary Committee of the Jockey Club held an enquiry. On 20th November 1990 the committee ruled that the urine contained a metabolite of camphor, that the source of the metabolite was camphor, that the filly should be disqualified for the race in question and that the filly's trainer should be fined £200.
The Aga Khan sought leave to move for judicial review of the committee's decision. In granting leave Macpherson J. suggested trial of a preliminary issue whether the committee's decision was susceptible to judicial review. This suggestion was adopted, and on 3rd July 1991 a Queen's Bench Divisional Court (Woolf L.J. and Leonard J.) ruled against the Aga Khan on this issue. In reaching that conclusion the court was much influenced by earlier authority, from which it held it should not depart.
The Aga Khan (hereafter the applicant) challenges that conclusion. The issue squarely raised before this court is whether the Jockey Club's decision here in issue can be challenged by judicial review.
The substance of the complaint, which is that the committee's proceedings were vitiated by fundamental unfairness, is not germane to this jurisdictional issue. Nor are the underlying facts. It should, however, be recorded that neither the applicant nor the trainer were said to have caused or connived at the doping of the filly. No source of camphor was identified. The filly's performance was not said to have been affected. The case rested on the presence of the metabolite, held to derive from camphor (a prohibited substance), in the urine. But the applicant deposes that the decision was damaging to his standing as a religious leader. It was plainly damaging to his reputation as a very major horse-owner and breeder. It deprived him of the prize money for this classic race. And it greatly depreciated the value of the filly for breeding purposes.
For purposes of this appeal I must attempt to describe, necessarily in very general terms, the salient features of the British racing industry and the role of the Jockey Club within it.
The evidence before the court makes plain that racing is aptly described as an industry. There are 59 active race courses in Great Britain which in 1990 attracted nearly five million racegoers to over 1,000 meetings with some 7,000 races, 69,000 runners and prize money of nearly £48 million.
The turnover of off-course betting subject to the Levy on Horserace Betting in 1989-90 was some £4 billion. In the same period General Betting Duty (not all derived from bets on horseracing) yielded revenue of some £327 million. It has been estimated that over 100,000 people depend for their livelihood on racing and betting. There were (at the end of 1990) some 19,000 owners, 6,500 stable lads, 550 trainers and 1,000 jockeys registered with or licensed by the Jockey Club.
In a recent memorandum to the Home Affairs Committee of the House of Commons, the Jockey Club accurately described itself as
"officially responsible for the proper organisation, administration and control of all horseracing, race meetings and racehorse training in the United Kingdom (excluding Northern Ireland…)"
It is, as the Royal Commission on Gambling reported in 1978, the "supreme authority in British racing". The Royal Commission succinctly summarised the historical origins and present standing of the Jockey Club:
"9.24 The Jockey Club acquired its position as the governing body of racing in the 18th century because the organisers of race meetings submitted themselves to its jurisdiction. The fact that racing was being conducted under Jockey Club rules was some assurance of integrity. As a result, the Jockey Club came to be voluntarily accepted as the rule making and disciplinary authority in all matters concerned with racing.
9.25 Racing over fences did not develop until the late 18th century. In 1863 two members of the Jockey Club (and one other) formed the Grand National Hunt Steeplechase Committee (afterwards simply the National Hunt Committee) to act as the governing body for jumping races. In 1970 the National Hunt Committee merged with the Jockey Club.
9.26 In 1970 the Jockey Club was incorporated by Royal Charter. The objects for which the Club exists are stated in the Charter to include undertaking responsibility for the 'proper conduct and due encouragement' of horseracing and encouraging and fostering the breeding of bloodstock. The Royal Charter does not of course give the Jockey Club any authority which it did not have before.
9.27 The racing industry makes heavy demands upon the Club, which is today far more than a law-making and disciplinary authority for the sport. Its unpaid stewards have the responsibility of directing what amounts to an extremely complicated multi-million pound business. Among its numerous activities it licenses trainers, jockeys, officials and racecourses, employs its own officials to attend and supervise all race meetings, administers discipline and, perhaps most important of all, decides how many race meetings there will be, where they will be held and what kind of races each meeting may include.
9.28 The Jockey Club's control of the fixture list affects the whole racing industry. The extent to which a race course makes a profit or not can depend on how many meetings it is allowed to hold, the importance of the races to be run and whether they are on days when the public are likely to attend. The efforts of the breeders are directed towards supplying the kind of horses likely to win the race to which the Jockey Club attaches the most prize money and prestige. Since 1967, these have been the Pattern Races which are a series of races designed to provide tests for the best horses over appropriate distances according to their ages. The number of fixtures also has a direct effect upon the financial commitments of the Levy Board, which has to provide the necessary technical and security services for each meeting, contribute to the prize money and frequently to subsidise the racecourse."
The Royal Commission concluded:
"Largely due to the efforts of the Club, British racing is considered to be as fair and honest as any in the world".
The powers which the Jockey Club exercised in the present case (to order the taking of samples, to fine and to disqualify) are among those assumed by the Club to safeguard the integrity of British racing. Under its Rules of Racing, the finding of a prohibited substance obliges the Club to fine the trainer (unless the administration of the substance is shown to be accidental) and to disqualify the horse for the race in question. The applicant has not criticised the stringency of these rules. There is no ground for doing so. For a variety of reasons, including the large sums of money which stand to be won or lost on the outcome of a single race, horseracing is an activity peculiarly prone to criminality, cheating and chicanery of many kinds. Experience no doubt shows that strong measures of control and close vigilance are necessary pre-conditions of fair and honest competition.
The Royal Charter granted to the Jockey Club included among its objects
"(ii) to take over the activities connected with the control and regulation of horse-racing throughout Our United Kingdom of Great Britain and Northern Ireland heretofore carried on by the Old Club and to undertake all such responsibilities and activities as may be necessary or convenient for the proper conduct and due encouragement of horse-racing howsoever carried on and whether or not of a kind heretofore controlled or regulated by the Old Club."
The governing rules of the Club were set out in a schedule and were capable of alteration only with Privy Council approval. Among these rules was rule 11, defining the role of the stewards as the main officials of the Club:
"(1) The Stewards shall publish or cause to be published on behalf of the Club such Rules (hereinafter called "the Rules of Racing") regulations, orders and directions as they may think necessary for the proper conduct of horse-racing, race meetings and racehorse training.
(2) The Stewards shall have power on behalf of the Club to issue licences and permits in relation to horse-racing, race meetings or racehorse training…"
The Rules of Racing are a skilfully drafted, comprehensive and far-reaching code of rules through which the Jockey Club exercises its control over racing in this country. So far as relevant for present purposes, the effect of the rules is broadly speaking as follows:
(1) The stewards have power to licence racecourses and allocate fixtures. Any meeting not held at a licensed racecourse is unrecognised.
(2) The stewards have power to license Clerks of the Course,...
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