Someone seems to be spreading a degree of fear, uncertainty and doubt among some of the media reporting the Freeman MPTS hearings with regard to the Statute of Limitations and the possible effect of delays in the hearings.
Matt Lawton in the Mail:
If the tribunal is only part-heard, it would then be a case of reconvening and that becomes difficult logistically with lawyers, as well as witnesses, potentially booked up later in the year. Indeed there are concerns that the hearing may not be concluded this side of Christmas.
Any date beyond May this year would be a potential problem, not least for UKAD when the statute of limitations for an alleged doping offence in May 2011 was eight years.
Dan Roan for the BBC:
Freeman's renowned barrister Mary O'Rourke is understood to have various other cases arranged for several months following this one, possibly preventing any resumption until next year.
That delay could affect whether UK Anti-Doping (Ukad) is able launch a new investigation should fresh evidence emerge. Ukad concluded its investigation into British Cycling and Team Sky 15 months ago.
Freeman allegedly ordered the testosterone, which is banned for use by athletes at all times, to Manchester's National Cycling Centre from Oldham-based medical supplier Fit4Sport Ltd in May 2011.
The statute of limitations for prosecuting anti-doping cases was eight years in 2011. The World Anti-Doping Agency (Wada) extended that until 10 years in 2015 but it is likely the shorter statute of limitations will apply in this case.
Tom Cary in the Telegraph:
The situation is complicated by confusion over the statute of limitations. In 2015, the World Anti-Doping Agency revised its code, extending the statute of limitations from eight years to 10. However, it is unclear whether the new or the old code would apply in this case.
A Ukad spokesperson told Telegraph Sport last week that the new 10-year statute of limitations would apply. But other sources believe that has not yet been tested.
If the old code applies, Ukad may have only until May – eight years after the batch of Testogel was ordered from Oldham-based supplier Fit4Sport – to push for any sanctions.
First up, the Statute of Limitations: today, it's ten years, introduced in the 2015 World Anti-Doping Code. Before that, the 2009 Code applied, and there the Statute of Limitations was eight years.
The possession of the Testosterone occurred in 2011, for a period of time between (at the earliest) May (when Peters said he first became aware of the situation) and (at the latest) October (when the Fit4Sport email suggests the Testogel was only recently returned - we don't currently know when it was actually returned).
So, under the 2009 Code, the Statute of Limitations expires sometime between May and October of this year.
If the UKAD person who spoke to the
Telegraph is correct and the 2015 Code should apply, then the Statute of Limitations is still live through to 2021.
The UKAD person who spoke to the Telegraph is not correct.
WADA's 2015 Model Rules - issued in association with the 2015 Code revisions - make clear that cases initiated after the 2015 revisions came into effect and relating to offences before those revisions happened "shall be governed by the substantive anti-doping rules in effect at the time the alleged anti-doping rule violation occurred". In other words: the eight year limit applies to Freeman.
Even if WADA had not said that, the familiar legal principle of
lex mitior would apply: wherever two different sets of rules can be applied, you apply the more lenient. Meaning, again, that the eight year limit applies to Freeman.
So, to be clear, the Statute of Limitations relating to Freeman's possession of testosterone is eight years.
Except ... Lance Armstrong.
USADA showed in the Armstrong case that, as with the rules of piracy, "the Code is more what you'd call 'guidelines' than actual rules." There are situations in which the Statute of Limitations is not strictly enforced. This is from the USADA Reasoned Decision:
VII. THE EIGHT-YEAR STATUTE OF LIMITATIONS FOUND IN ARTICLE 17 OF THE CODE WAS SUSPENDED BY MR. ARMSTRONG’S FRAUDULENT CONCEALMENT OF HIS DOPING AND OTHER WRONGFUL ACTS
In its initial notice letter to Mr. Armstrong, which was incorporated into its charging letter USADA specifically informed Mr. Armstrong that USADA was seeking the disqualification of Mr. Armstrong’s competitive results from August 1, 1998, onward. Mr. Armstrong could have, but did not, challenge USADA’s assertion that the eight year statute of limitations found in the World Anti-Doping Code was suspended by Mr. Armstrong’s conduct. The eight-year statute of limitation found in Article 17 of the Code was suspended by Mr. Armstrong’s fraudulent concealment of his doping. In asserting anti-doping rule violations and disqualifying results older than the eight year limitation period found in Article 17 of the Code, USADA is relying on the well-established principle that the running of a statute of limitation is suspended when the person seeking to assert the statute of limitation defense has subverted the judicial process, such as by fraudulently concealing his wrongful conduct.
So, for UKAD, if they feel Freeman has a case to answer, there is little to stop them from initiating that case even after the eight year Statute of Limitations expires.
So why is someone trying to convince the media reporting the MPTS hearings that there is a degree of urgency here?
Facebook
Twitter
Instagram