Mullins loses Be My Royal appeal
The horse was originally disqualified by the Jockey Club's disciplinary panel at a two-day hearing in January after the horse failed a post-race drugs test for morphine.
A contaminated food supply was found to be the source of the drug and although Mullins was not fined, he was ordered to pay £5,000 in legal costs and Be My Royal was stripped of his victory in the Newbury race.
The Irish trainer took the case to the Jockey Club appeal board at a two-day hearing last month. Yesterday the board announced it had upheld the original decision.
The appeal board, consisting of independent chairman Sir Edward Cazalet, Christopher Hall and Anthony Mildmay-White, explained the "decisions and reasons" in a 52-page document.
Cazalet concluded the Board's findings by saying: "We dismiss this appeal. In doing so we wish to say that we do have sympathy for the position of those connected both with this race and other like races.
"Nevertheless, we hope that we have made clear in our reasons why, in the circumstances, disqualification of the horse must follow."
Mullins said: "I have heard that the appeal has been dismissed, but until our legal team has had time to scrutinise the findings I cannot make any further comment and they are on holiday."
The dismissal of the appeal means that the Lavinia Taylor-trained Gingembre is confirmed as the winner of the 2002 Hennessy Cognac Gold Cup, which carried a first prize of £60,900.
Between November 2002 and February 2003, 37 horses under rules produced positive tests for morphine, of which 16 were winners.
There were also two point-to-point winners who tested positive.
So far, eight cases have been heard by the disciplinary panel.
All the horses have been disqualified and fines for trainers waived after the panel was satisfied in each case that the source of the substance was a batch of Connolly's Red Mills 14% Racehorse Cubes which were being used in the relevant yards at the time.
The disciplinary department will now be contacting the connections of the remaining 29 horses with a view to setting dates for the remaining hearings.
It is hoped that these can be concluded with connections 'in absence'.
Jockey Club public relations director John Maxse said: "The appellants have the option of going to the High Court. That is their call.
"As far as we are concerned, as far as we hope, it is the end of the matter.
"We will not wait for that to be resolved before concluding the outstanding cases and redistributing the prize money.
"This case dates back to November 2002 and the morphine cases did not finishing coming until the following spring, so it has been a very long-drawn-out process.
"There was a lot at stake and these complicated cases take time. Cases in the courts take time, and our disciplinary process is possibly quicker.
"The board's findings demonstrate to people the sort of issues and the sort of detail the Jockey Club is required to go into for what other people might consider to be fairly straightforward or routine cases, when in fact they are considerably more complicated."
Despite the breadth and complexity of the legal arguments heard during the appeal, the majority of the dispute between Mullins' representatives and those of the Jockey Club centred on levels of morphine in the bloodstream.
In evidence, Jockey Club veterinary director Peter Webbon stated that the scientific procedure used by the Horserace Forensic Laboratory at the time when the test on Be My Royal was carried out was able to establish a level of morphine of some 10 nanograms per millilitre.
However, on March 28 last year, Dr Webbon instructed the HFL not to confirm morphine in urine samples likely to contain less than 50ng/ml.
Mullins' QC, Edward Fitzgerald, argued that the latter limit should be used in assessing the possibility of morphine leading to improved performance.
They would then bring in evidence in an attempt to show that Be My Royal's sample could have been below that level.
But the appeal board concluded: "We fail to see how the Jockey Club can be said to have promised, represented or raised through established practice any implication that the 50ng/ml instruction issued... nearly three months after the race, could be applied in this case."
Maxse confirmed yesterday that by altering the limit to be tested for, Webbon had been attempting to bring British guidelines further into line with those used by foreign racing authorities.
"A number of our Rules and Instructions, such as this, are subjected to review and amendment at any time," he said.
"But rule changes are never made in a way which could be retrospective.
"By that definition, you could argue that changes made to the rules concerning interference in recent years would mean that Royal Gait should be reinstated as the winner of the 1988 Gold Cup.
"It is neither plausible nor practical to have any form of retrospective action.
"One of the reasons that the limit was changed was to bring the situation more into line with other authorities. And so there is a logic to thinking that the reading must have been over 50ng/ml anyway for the Hong Kong laboratory to confirm the sample."
The outcome of this case may, however, lead to a change in the way in which alterations to Jockey Club instructions over prohibited substances are made in the future.
"The handling of the moving of the level is something we might look at," Maxse said. "We only received the findings of the Appeal Board yesterday and we are still digesting them, but there are matters evolving from the case which will be considered by our regulatory board to see if there is a need to review current procedures."
