The Referrals Committee, Mr. Justice Tony Hunt (in the Chair), Peter M. Allen and John McStay met at the Turf Club, The Curragh, Co Kildare on Saturday, 22nd November 2014 to consider the referral of Philip Fenton, trainer, by Denis Egan, Chief Executive of the Turf Club following Mr. Fenton’s conviction at Carrick-on-Suir District Court on 23rd October 2014, for being in possession of a number of illegal animal remedies including an Illium Stanabolic injection and Nitrotain oral paste at Garryduff, South Lodge, Co Tipperary on 18th January 2012 and a subsequent investigation into the matter by Turf Club Head of Security, Christopher Gordon and Deputy Head of Security, Declan Buckley.
Evidence was heard from Brendan Daly, Veterinary Inspector Special Investigations Unit of the Department of Agriculture, Food and the Marine (DAFM), Dr Thomas Barragry, Veterinary Pharmacologist (retired UCD), and Christopher Gordon. The Committee noted the content of the Court Orders issued following the hearing at Carrick-on-Suir District Court.
The Committee considered:-
(i) transcripts of:-
• Court hearing at Carrick-on-Suir District Court on 23rd October 2014
• Interviews with Philip Fenton on 31st October and 6th November 2014
• Interview with Sacha Maxwell (employee of Philip Fenton and director of Glenbower Stables Ltd) on 6th November 2014
• Interview with Denise Power (employee of Philip Fenton) on 6th November 2014
(ii) statements from:-
• Noel Kelly – Veterinary Inspector Special Investigations Unit (DAFM)
• Brendan Daly
• Ms Ruth Reilly MSc – Chemist State Laboratory
• Christopher Gordon
• Declan Buckley
Philip Fenton did not give evidence.
At the outset Michael McGrath S.C. on behalf of Philip Fenton submitted to the Committee that his client accepted he was in breach of Rules 25(a), 272 and 273(xiii). The Committee accepted this and agreed that it would not be necessary to go into detailed oral evidence as a consequence.
For the purpose of the record, the main evidence given orally, by interview and in statements that was considered by the Referral Committee is summarized below.
In his evidence (oral and written) Brendan Daly outlined the background to the inspection at Philip Fenton’s Training Establishment on 18th January 2012. He said that on arrival he and his colleague Noel Kelly met with Mr. Fenton who invited them to come to his office. Mr. Fenton walked quickly to the office and closed the door. Brendan Daly said he opened the door and entered the office followed by Noel Kelly. Immediately after entering the office Ms. Sacha Maxwell, who was in the office at the time, left and ran across the grass and into a shed. He said he monitored her from the office window and then followed her to the shed. As he entered the shed he met Ms Maxwell coming out the door with a horse rug. He asked her what she was doing and she replied getting a horse rug. He asked her if she had any veterinary medicines on her person, to which she replied she did not. Mr. Daly said that Ms. Maxwell told him that she was unable to open the medicines store as she did not have the combination for the lock, as only Philip Fenton and another employee, Denise Power had it. Mr. Daly said he searched outside the medicines store and discovered a cardboard box which was covered by a horse rug containing a variety of veterinary medicines. He said he brought the box of medicines to the medicines store (which had now been opened) and asked Mr. Fenton if they were his and he accepted that they were. He said he asked Mr. Fenton if the box was what the girl had hidden and he agreed it was. He then asked Mr. Fenton why he hid the box and in response Mr. Fenton indicated that it would lessen the effects of the visit, or words to that effect. He asked Mr. Fenton where he got the medicines from and he replied that some of them came from a local vet and others from an individual who works in Dubai.
Mr. Daly said that both he and Noel Kelly re-visited Mr. Fenton’s Training Establishment on February 14th, 2012 to interview Mr. Fenton under caution regarding the items found on his premises on 18th January 2012. He said he placed a number of items on Mr. Fenton’s kitchen table which had been seized during the previous visit and went through where each product had been sourced. Mr. Fenton reiterated that the Illium Stanabolic injection and the Nitrotain came from an individual based in Dubai. Mr. Daly handed the Nitrotain container and Illium Stanabolic injection that were seized to the Appeals Body. He said that the Nitrotain container was opened before the DAFM officials took possession of it and that it was only half full when it was seized.
In his statement, Noel Kelly outlined the background to the visit to Philip Fenton’s which followed on from an examination of a parcel at the Customs Depot where a number of 100ml Hemo 15 injections were discovered in a parcel addressed to Mr. Fenton.
Mr. Kelly confirmed the details as outlined by his colleague Brendan Daly with regard to what occurred when they were taken to the office by Philip Fenton. He said that Ms. Maxwell departed the office immediately they entered and headed down the yard. He said he asked Mr. Fenton to show the stock of medicines as he got the impression that he was being stalled. He said he was eventually taken via a circuitous route to the medicines store. He said that he was examining the medicines in the store when Brendan Daly entered with a cardboard box that contained a variety of medicines. He asked Mr. Fenton if they were his and he confirmed that they were. He said he asked Mr. Fenton why they were hidden in the location they were found and Mr. Fenton said it was to lessen the impact of the inspection. Mr. Kelly said that when he examined the box contents it contained prescription only medicines (POMS) that had no veterinary prescription labels on them, veterinary surgeon only medicines (VSO’s) and unauthorized injectable medicines. Mr. Kelly said he noted that the box contained at least one counterfeit product.
Noel Kelly said he continued his examination of the medicines store and found the Nitrotain Oral paste and the Illium Stanabolic Injection on the shelves. The officials seized the products and relevant documentation.
Mr. Kelly said that both he and Brendan Daly returned to re-interview Mr. Fenton on 14h February 2012. He confirmed that Mr. Fenton made a statement under caution.
Ms. Ruth Reilly MSc confirmed that she arranged for the analysis of the product seized at Mr. Fenton’s Training Establishment and that the product was as labeled.
In his evidence Dr Thomas Barragry said that Nitrotain is an anabolic steroid. It contains the substance ethylestrenol. It is a very potent anabolic steroid and has many times the potency of testosterone and other synthetic anabolic steroids on muscle development. Nitrotain is unique in that it has a very short half life in the body, and usually cannot be detected in horse’s urine after 48—96 hours post administration. However the anabolic effects on muscle will well outlast this 48—96 hour period. Nitrotain is convenient to use because it does not need to be injected but can be easily given orally in paste form. It is available in paste form for individual oral dosing. It is rapidly and well absorbed from the gut. It is an illegal product in Ireland under the Animal Remedies Act. It is substance prohibited at all times under the Rules of Racing.
Nitrotain is illegally sourced from jurisdictions where it is lawfully available. Nitrotain is a potent short acting oral anabolic steroid with very low potential for adverse side effects, and a short withdrawal time (providing liver and kidney functions are normal).
In terms of potency, it is highly potent. Nitrotain has an anabolic index of 19, compared to that of Testosterone (1), Stanozolol (3.8), Methandriol (7), and Nandrolone (4).
Nitrotain improves stamina, muscle mass and strength. Nitrotain is supplied in 60g multi-dose paste syringe, 250g paste pot or a 1 kg paste bucket. The recommended dose is 15mg ethylestrenol orally, daily. That is equivalent to 4g paste daily.
Stanozolol is a long established and well known anabolic steroid. It is derived from dihydro testosterone. Like all anabolic steroids it will improve muscle development and growth, stimulate red blood cell production, increase bone density and stimulate the appetite of debilitated or weakened animals. It can also assist in the repair of tissue. Its illicit use has been popular amongst body builders and athletes (Ben Johnson -Olympics 1988). It has potent muscle building properties and is used for short explosive bursts of muscular activity as in sprinting. It produces a very typical anabolic -steroid type of heavy muscular conformation. It retains a measurable amount of androgenic activity and so some aggressiveness and libido accompany its effects.
Stanozolol is usually given by injection for long-lasting effect, although some oral forms are available. It can usually be detected in urine for at least 10 days or so following a single dose, depending on the exact formulation used. Stanozolol usually is presented as a 20 ml bottle (“Ilium Stanabolic”) containing 50 mg stanozolol per ml. 1 ml (50mg/ml) is usually given weekly for a period of weeks.
In his evidence Christopher Gordon said that the Turf Club commenced an investigation on 24th October 2014 under the Rules of Racing following the conviction of Philip Fenton. He said that Mr. Fenton acknowledged that the substances were in his yard between June 2011 and 18th January 2012 when discovered by the DAFM inspectors. However, he denied that he administered the anabolic steroids to any of his horses. He continued to deny administration when it was put to him that about half of the 1kg container of Nitrotain paste was used.
Mr. Gordon said that while Mr. Fenton accepted responsibility for the possession of these substances, he provided little if any meaningful cooperation on the circumstances in which the remedies were found in his yard including their origin. Mr. Gordon gave further details concerning this lack of cooperation with the Turf Club investigation.
(i) Circumstances of detection of remedies
Christopher Gordon said that inconsistent accounts have been given by Mr. Fenton and his staff concerning when and by whom the illegal animal remedies were removed from the medicines room in his yard to an adjoining shed known as the horse spa. In a statement made under caution Mr. Fenton accepted that he had asked either Denise Power or Sacha Maxwell to move the animal remedies from the medicines room to the horse spa. When asked why the box of animal remedies was found hidden under the horse rug Mr. Fenton used words to the effect that it was to “lessen the effect of the inspection”. None of this evidence had been challenged by Mr. Fenton or his counsel at the criminal trial.
Mr. Fenton indicated in his first interview with the Turf Club that the box of remedies was moved from the medical room to the horse spa, for intended disposal, two or three months before they were discovered by the inspectors. Denise Power, head woman in the yard, stated at interview with the Turf Club that she moved the box of animal remedies the day before the DAFM inspection. She claimed that she was doing a general clean out of the medical room on that day. When this was put to Mr. Fenton at a second interview with the Turf Club his response was that he expected Denise to maybe remove it sooner. Ms Maxwell denied any involvement in moving the box of animal remedies at interview with the Turf Club.
(ii) Origin of anabolic steroids
Christopher Gordon said that Mr. Fenton acknowledged under caution in his statement to the DAFM inspectors, which was read into evidence in the court proceedings, that he was provided with some of the animal remedies found (including the anabolic steroids - Ilium Stanabolic injections and Nitrotain paste) by an individual based in Dubai. This individual was described later in the proceedings as a friend of Mr. Fenton’s. In his first interview with the Turf Club, Mr. Fenton stated that he knew this individual for 10 or 12 years. When asked was he a rider here in the past, Mr. Fenton said he was. He went on to say that the individual visited his yard two or three times since he started training. When asked how much he paid for the products he claimed that they were a gift. He claimed he received the product around June 2011, some seven months before the DAFM inspection. When asked did he contact the individual about his prosecution and difficulties he stated no and that the individual concerned had split from his wife and severed his ties with Ireland.
Mr. Gordon said that Mr. Fenton was also less than forthcoming about the number of times he met the individual. As stated above, he mentioned at his first interview that he visited his yard two or three times. This changed to every year when he was home on holidays, as well as chance meetings at racecourses. Mr. Gordon said that they were unable to trace the individual named as the supplier as Mr. Fenton did not have specific contact details but the profile of the supplier was similar to another individual based in the Middle East whom the Turf Club contacted in relation to the supply of the product. That individual denied having any involvement in the matter.
Mr. Gordon said that for whatever reasons he has, it appears that Mr. Fenton has been less than truthful and uncooperative with the Turf Club investigation into this matter.
That concluded the oral evidence and the Referrals Committee then considered a plea in mitigation from Michael McGrath S.C. on behalf of Philip Fenton. He said that Mr. Fenton fully accepted responsibility for his actions and he wanted to express in the strongest possible terms his regret for his conduct which he described as hugely embarrassing for him and which has had a hugely detrimental effect on his reputation, his business and his family. He said he had lost a number of major owners as a result of his actions and had been vilified in the media both in Ireland and abroad. He said that it was now difficult for Mr. Fenton to attend and mingle at race meetings. He said that Mr. Fenton never used the Nitrotain or Illium Stanabolic injections on his horses and none of his horses ever tested positive for these substances. He proposed that an appropriate penalty would be the imposition of a fine, as a suspension would have detrimental effects on himself, his family, his employees and the local economy.
Conal Boyce, on behalf of the Turf Club, made a number of submissions and said that the Referrals Committee needed to send a message that the possession of an anabolic steroid is completely unacceptable and any penalty imposed should reflect this. He referred to the negative impact that the publicity of the finding of an anabolic steroid has had on the Irish racing industry.
The Referrals Committee acknowledged the confirmation by Michael McGrath S.C., on behalf of Philip Fenton, that his client was in breach of Rules 25(a), 272 and 273(xiii) and they confirmed these Rule breaches. Such admissions are always significant in terms of legal certainty and in demonstrating co-operation with the inquiries of the Committee and were considered to be a weighty mitigating factor in this case. The Committee made a number of preliminary remarks about the case. They noted that this was a sad case for Mr. Fenton and his family, as well as for the racing industry generally, and had had very damaging consequences for the industry, as acknowledged by Mr. Fenton himself. They stated that no licensed trainer can ever countenance the presence of anabolic steroids in his Training Establishment, there being no legitimate purpose for the presence thereof. They accepted that there was no evidence of use in this case, and approached it as a case of possession, as distinct from use or administration, but noted that the presence of these products did indicate a disposition to use.
They said that anabolic steroids cannot and should not be present under any circumstances and that Mr. Fenton’s conduct has to be looked at in terms of the serious consequences for the industry. They noted that Mr. McGrath had submitted that a monetary penalty would be more appropriate, but in view of the seriousness of the offence, and in the context it being the first time that a licensed trainer was found in possession of anabolic steroids, it concluded that this was not an appropriate approach to penalty in a case of such gravity. Therefore, the only appropriate way of dealing with penalty was by way of the imposition of a period of disqualification. The offences were very grave matters, and had to be marked as such.
In relation to the duration of any such period of disqualification, the Committee operated on the principle that it was important that the punishment must fit the circumstances of the offender, as well as reflecting the nature of the offence. In arriving at penalty, all mitigating factors had to be taken into account. In this respect, the committee considered Mr. Fenton’s age and career position had to be considered, together with the burden and hardship of a period of disqualification on Mr. Fenton, as opposed to the effect on any other person. They noted that what would be appropriate in one case may not be appropriate in another. They also considered his personal circumstances, as a person who had no skills or qualifications other than in the equine area, and evidence that he had worked with considerable success as a trainer and jockey since the age of 16. They also noted the effect that a disqualification would have on him and others such as his family, his employees and suppliers. They further noted that Mr. Fenton had suffered significant public opprobrium as a result of his actions, and that he had already lost a number of large owners.
The Committee concluded that the appropriate penalty for the offences under consideration was a period of disqualification of in the region of 5 to 6 years. In view of the evidence and the submissions by Mr. McGrath on mitigation, co-operation with the Referrals Committee and the actual financial and other effects of such a penalty on Mr. Fenton, the Committee imposed a disqualification of 3 years as the appropriate punishment in all of the circumstances.
The Committee rejected a further request by Mr. McGrath to consider suspending a portion of this penalty, stating that the starting point for their deliberations was a very much higher period of disqualification, but the penalty imposed reflected a substantial discount or allowance for the particular position of Mr. Fenton.
The Committee ordered that Mr. Fenton be declared to be a disqualified person with effect from 1st March 2015. They also ordered that his licences be suspended with effect from midnight on Friday, 28th November 2014. In arriving at the commencement date for the disqualification, the Committee accepted a submission that Mr. Fenton required a reasonable time to wind down his business in an orderly fashion.
The case was presented by Conal Boyce, Solicitor, Naas, Co Kildare. Philip Fenton was represented by Michael McGrath S.C., instructed Ken Molan, Solicitor, John Molan & Sons Solicitors, 29 Lower Cork Street, Mitchelstown, Co Cork.