Is it a matter of public law whether a horse runs as fast as it can?

imagesOn Tuesday the 24th of March, a five judge panel will hear an appeal in O’Connell & Anor v The Turf Club & Anor. O’Connell is a professional jockey and his co-applicant is a horse trainer. The Turf Club alleged that O’Connell failed to ride a horse called Yachvilli to its maximum ability in Downpatrick (Co Down) on the 21st of September 2011, contrary to the Rules of Racing. The Turf Club interviewed the Applicants on dates between between October 2011 and July 2013, and it informed them that it would consider the allegations on the 3rd of September 2013. On the 28th of August 2013, the Applicants instituted judicial review proceedings in the High Court. Charleton J granted them permission to apply for reliefs but refused to stay the proceedings of the 3rd of September. The High Court judgment does not state the outcome of that, but the Applicants did not claim that they were denied fair procedure or natural justice.

The Applicants were seeking a declaration that the Rules of Racing were made ultra vires; a declaration that sections of the 1994 Act are invalid having regard to Article 15.2.1 of the Constitution; and/or a declaration that the allegation made under the Rules of Racing amount to an allegation of an extraterritorial criminal offence which the Turf Club is precluded from conducting by Article 38.1 of the Constitution.

In the High Court (here), McGovern J held that the Turf Club can no longer be viewed through the prism of Murphy v The Turf Club [1989] IR 171. Although it has been in existence since 1790 and operated as a club, subject to the law of contract, since the introduction of the Irish Horse Racing Act 1994, the Turf Club has been incorporated into the Racing Regulatory Body and has a statutory duty to independently enforce the Rules of Racing within the 32 counties. Therefore the Turf Club, through the Racing Regulatory Body, exercises a delegated legislative function which is limited to the principles of promoting integrity in horse racing. However, as the rules of horse racing were in existence before the 1994 Act, have evolved over the 200 years of the Turf Club’s existence and are best international practice, the Turf Club does not exercise a delegated legislative function. Nor does it perform a judicial function or administer justice on a 32 county basis contrary to the Constitution.

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