Doping in sport has again featured heavily in the news this year: Christian Coleman (current fastest man in the world) was cleared to race after a missed tests charge was dropped; the decision to hold Chinese swimmer Sun Yang's anti-doping violations at a public hearing before the Court of Arbitration for Sport ("CAS"); Dillian Whyte was subjected to a provisional suspension by the World Boxing Council over an alleged failed drugs test, and athletics coach Alberto Salazar received a fouryear ban for doping violations.
'Doping in sport' is not a criminal offence in the UK. However, renewed pressure has been put on Parliament to act. In March 2019 Travis Tygart, the head of the US Anti-Doping Agency, who was heavily involved in the Lance Armstrong doping case, urged the UK to shadow the US' introduction of legislation criminalising the assistance of coaches and medical professionals to athletes who commit doping violations. Tygart said that US law did not focus on the athletes, but rather those who 'aided and abetted' doping.
China, another big sporting power, has also sought to tackle doping in advance of the 2022 Winter Olympics in Beijing. Chinese athletes who are found to use performance enhancing drugs ("PED") will now receive criminal punishments, including sentences of imprisonment. Meanwhile, other nations including Germany, France and Italy have brought in criminal penalties for sports doping. In 2017, Russia also passed legislation making it a crime to assist or coerce doping in sport.
WADA and UKAD
The UK's approach to anti-doping in sport can be traced back to 1987 and the report on the Misuse of Drugs in Sport, by Lord Sebastian Coe and Lord Colin Moynihan, the latter having called for doping in sport to be made a criminal offence.
The World Anti-Doping Agency ("WADA") was founded in 1999, with the mission to 'lead a collaborative worldwide movement for dopingfree sport'. The agency was created following the doping revelations concerning the Tour de France in 1998 that rocked cycling.
In December 2009, UK Anti-Doping ("UKAD") was established as an independent National Anti-Doping Organisation, collecting intelligence and testing elite athletes in accordance with the World Anti-Doping Code ('the Code"). Under the Code, there is a uniformity of sanctions issued worldwide ranging from a formal warning/reprimand with no prohibitions, to a ban for life. UKAD's position in 2009 was that there should be no criminalisation of athletes for doping.
WADA released a statement in October 2015 confirming that it did not wish to 'interfere in the sovereign right of any government to make laws for its people', clearly stating that doping for athletes should not be made a criminal offence.
Review of criminalisation of doping in sport
In October 2017, the Department for Digital, Culture, Media and Sport ("DCMS") considered whether additional legislative measures were necessary. The DCMS pointed to various legislation that criminalise drugrelated activities such as the Misuse of Drugs Act 1971 which schedules many of the items on WADA's 'banned list'.
The DCMS felt that it would be more effective to address an instance of doping through regulatory or disciplinary forums, as those proceedings operate on the civil standard of proof – the balance of probabilities. The DCMS also formed the view that the police would prioritise and focus on more serious crimes at the expense of incidents of alleged doping.
It was considered that it would not be appropriate for sports governing bodies or other anti-doping agencies to hold disciplinary hearings in concurrence with criminal proceedings, which would ultimately delay the conclusion of investigations and the commencement of sanctions, thus making competition unfair. The DCMS review concluded that there was 'no compelling case' to criminalise the act of doping in the UK on the basis that it would be a disproportionate response to the issue of doping in sport.
Publication by Culture, Media and Sports Committee
Parliament considered the publication by the Culture, Media and Sports Committee ("CMSC") titled 'Combatting Doping in Sport' in March 2018. The CMSC argued that it would not be 'effective' to subject athletes accused of doping to criminal procedures and the associated penalties on the basis that longer bans from competing were more likely to be a deterrent. As part of the publication, the CMSC emphasised that the supply of drugs and promotion of unwarranted medical procedures were a separate issue. The CMSC suggested, however, that the UK government should consider criminalising the supply of drugs to athletes where there was an 'intent to enhance sporting performance'. The CMSC claimed that criminalising the supply of drugs to athletes would provide UKAD with the necessary powers needed to obtain support with their investigations from other associated agencies.
Parliament emphasised that the findings did not mean that those athletes found to be doping in sport would be immune from prosecution, and offences under the MDA (e.g. the importation and supply of class A controlled drugs) would still apply.
It ought to be remembered that WADA has previously encouraged governments to introduce laws that punish those who are trafficking and distributing banned substances, specifically those individuals who are ultimately responsible for putting banned substances into the possession of athletes.
In May 2018, Tracey Crouch MP, the then Minister for Sport and Civil Society, confirmed that it was an area that the government should 'continue to keep under review'. As part of the government's focus on anti-doping, Crouch claimed that the revision of
the UK's National Anti-Doping Policy, dating back to December 2009, was about to begin. In her foreword to the DCMS review, Crouch commented that the government should continue to take a strong stance in responding to any new developments or emerging threats, having in mind the world stage where the UK's elite athletes perform and the global changes in respect of the criminalisation of doping in sport.
Given that several substances in conventional use are banned by various sports as enhancing performance, questions arise as to whether the UK government would be able effectively to legislate doping in sport as a criminal offence. To draft a fair and effective piece of criminal legislation on drugs possession would be complex, compounded by the prospect of having to sit alongside existing civil and disciplinary procedures and disposals.
Although ignorance of the law is not a defence, it is not difficult to imagine scenarios where the introduction of a strict liability criminal offence for doping in sport could lead to outcomes which are manifestly unjust, for example, when the athlete did not know, and could not reasonably be expected to know, that the outlawed PED formed part of the ingredients of some other, seemingly lawful, medicinal product. Therefore, if there is to be a specific criminal offence, it seems appropriate for it to require a mental element (mens rea), such as the 'criminal intent' to cheat, or more appropriately to be 'dishonest'. In light of the decision in Ivey v Genting Casinos (UK) Ltd  UKSC 67 and the move to an objective test for dishonesty, this too might be perceived to be unfair on the athlete as it will require a court or jury to determine what was actually going through the individual's mind at the relevant time.
It is argued by some legal professionals in the sporting world that existing sanctions provide enough of a deterrent effect in that they are capable of ending a sporting career, such as a four-year ban or even a lifetime ban, and therefore financial penalties and/ or imprisonment are unlikely to be a stronger deterrent. Whilst the UK's approach to combating doping in sport may need some reform, the general consensus is that criminalisation would not introduce any significant additional deterrence
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