The Appeals Body (Division Two) Justice Tony Hunt (in the Chair), Sean Barry and Laurence McFerran met at the Turf Club, The Curragh, Co Kildare on Tuesday, 17th May 2016 to consider the appeal of Shane Brian Kelly (rider) against the severity of the penalty imposed by the Referrals Committee on 10th November 2015.
At the Referrals Committee hearing Shane Brian Kelly was found to be in breach of Rule 277 as a sample of urine taken from him during in competition testing on 13th August 2015 at Leopardstown Racecourse, Co Dublin was found to contain enzoylecgonine and ecgonine methyl esther (metabolites of cocaine). Under the Rules of Racing and Irish National Hunt Steeplechase Rules, cocaine is a banned substance because it acts as a stimulant on the central nervous system with addictive and hallucinogenic properties and is prohibited in-competition pursuant to the World Anti-Doping Agency Prohibited List International Standard as adopted by the Turf Club.
As a result of the finding the Referrals Committee imposed a two year suspension on him from holding a licence with effect from 24th November 2015, with the last year of the penalty suspended on condition that the balance thereof could be activated immediately by any Referrals Committee which found at any future time that Mr Kelly had committed a further doping offence during the period of suspension, together with any further penalty in respect of the future offence as might be appropriate. They further ordered that Shane Brian Kelly submit to a programme of random drug testing for the next two years at the direction and discretion of the Turf Club Medical Officer.
The grounds of appeal lodged were that the penalty imposed was unduly harsh given the circumstances of the manner in which Shane Brian Kelly had met the case, the supporting evidence provided at the hearing and on a comparative review of cases previously coming before the Referrals Committee.
The Appeals Body met again on 5th January 2016 to consider Mr Kelly’s appeal. They deferred a decision on the appeal at that time and agreed to reconvene to reconsider the matter on Tuesday, 17th May 2016. In the meantime they had asked for the random testing programme to continue.
Evidence was heard from Dr Adrian McGoldrick, Shane Brian Kelly and a number of professionals involved with Mr Kelly.
The Committee also considered a letter from Michael O’Callaghan (Shane Brian Kelly’s Master).
In his evidence Dr McGoldrick outlined the random testing programme which had been completed by Mr Kelly since the last hearing. He said that he had tested Mr Kelly on eleven occasions at short notice all of which had proved negative. He described him as more than compliant and a model patient. He was happy that Mr Kelly was fit to go back race riding.
Evidence was also given by a number of professionals who have been working with Mr Kelly and they outlined the progress which he had made. Both said he had a strong desire to go back race riding.
In his evidence Shane Brian Kelly outlined the efforts he had made since the last hearing to comply with the suggestions made by the Appeals Body. He also expressed a strong desire to return to race riding.
Having considered the evidence the Appeals Body accepted the original penalty imposed by the Referrals Committee was correct on the basis of the evidence that was before it. However, the Appeals Body was now in possession of additional evidence relating to what had occurred since the Referrals Committee hearing particularly in relation to the number of negative tests which had been carried out on Mr Kelly. They accepted that he must be encouraged and acknowledged the great help he was receiving from those who are now supporting him. They accepted that he had now earned an opportunity to pursue his livelihood and stressed the importance of Mr Kelly having no further positive tests as it could result in his licence being withdrawn permanently.
The Appeals Body confirmed the original decision of the Referrals Committee to impose a two year suspension on Mr Kelly’s licence. The relevant dates are now from 17th May 2016 to 17th May 2018. However they suspended the period of the ban from 1st July 2016 to 17th May 2018 provided Mr Kelly does not commit any further doping offences within the two year period. In the event that a further offence is committed, the date of the commission of the offence is relevant and in such circumstances any further Referrals Committee may impose whatever penalty it feels is relevant for the new offence, as well as activating the suspended part of this penalty. They further ordered that Shane Brian Kelly be supervised by Dr Adrian McGoldrick and that he complies with any reasonable requests made with regard to further random tests during the period.
The case was presented by Paul Murtagh, Turf Club Stipendiary Steward. Shane Brian Kelly was represented by Andrew Coonan, Coonan Cawley Solicitors, Naas, Co Kildare.