The High Court has refused to quash a Control Appeal Committee decision that dismissed Owen McKenna’s appeal over hydrochlorothiazide found in samples from three of his greyhounds. The court concluded that McKenna had not met the burden required for an order of certiorari.
The challenge concerned the committee’s decision of 18 August 2017, which upheld an earlier Control Committee decision. That decision found a prohibited substance in tested samples, imposed a total fine of €1,000 and ordered certain prize money forfeited. McKenna also sought to have his appeal sent to another division of the committee for reconsideration.
The samples were taken on 5, 12 and 19 September 2015 at Shelbourne Park greyhound stadium. At the appeal hearing, the parties treated the matter as one of food contamination, with no evidence that the dogs had received direct injections. McKenna accepted that feeding Category 2 meat could introduce contamination or drugs into the dogs’ systems. The High Court noted that he did not have a Category 2 feeding licence when the samples were taken, and accepted that the appeal decision had explained why the feeding regime was considered outside normal and ordinary feeding and reckless.
McKenna argued that there was a gap in evidence about the sample’s testing and custody at a UK laboratory. The court found that the presence of hydrochlorothiazide had not been disputed at the appeal hearing and that the notice of appeal had not challenged the certificate. Evidence had also been given that the UK laboratory was ISO-standard and UKAS-accredited. The court said the appeal committee could not assume powers to investigate the sample’s handling in the UK beyond those provided by the governing legislation and regulations. It added that, even if that issue could have been considered, it would not grant relief in light of the parties’ agreement about food contamination.
The court also rejected claims that the committee relied on an alleged earlier caution, applied a November 2015 advisory note retrospectively, or failed to consider comparable cases. It found no evidence that the caution formed part of the committee’s reasons, that the advisory note had been applied to the September samples, or that particular comparable cases had been put before the committee. The claimed effect of the penalty on McKenna’s livelihood had not been supported by evidence before the committee or developed in submissions to the High Court.
The judgment, delivered by Ms Justice O’Regan on 9 November 2018, dismissed the application for certiorari. It did not order a rehearing or remit the appeal.