Criminalised Doping

The Sunday Times expose on drugs in sport has reopened an interesting issue for criminal lawyers – should doping be criminalised – and what would the likely effect be? Under IOC Rules, whilst athletes may face disqualification for doping offences, unless the drugs fall within the Misuse of Drugs Act 1971 (and many do not), the use of such drugs is not illegal in the UK.

Prior to the 2012 Olympics, the UK Government appeared to rule out legislating to fill in this gap – maintaining that doping “is an issue that should be owned by sport”. However, the march of time, history and practice suggests that this will be re-looked at sooner rather than later. Earlier this year, Germany joined France, Italy and Austria in criminalising doping. This makes it illegal for athletes to use performance enhancing drugs inside these country’s borders.

For after all, many would regard doping as a kind of sports fraud – but there is limited legal action that police can take. For example, if an athlete wins a race worth several thousand pounds – and that athlete later tests positive for doping whilst the second place athlete is clean. Is the second place athlete a victim of fraud? (or what the punter who have bet on the outcome of the race).

Clement de Mallard a case officer at Interpol and liaison to the World anti Doping Association was quoted in Vice Sports earlier this year and he maintained that Interpol had “Doping in professional sport is a fraud”. Prosecution for fraud would be incredibly difficult – who is to say what factor caused an athlete to win the race (talent, drugs, tactics or others having a bad day). Hence law enforcement’s interest in criminalising the drugs themselves.

There are though, difficulties with the resort to criminalisation. To begin with, the way that these laws define illegal substances seems problematic. Whether banning the distribution or use of performance enhancing drugs, much of the legislation in Europe appears to reference the WADA’s list of banned substances, basically making substances on the list illegal. However the problem is that simply importing this into UK law is not straight forward. Particularly, for doping in sports, athletes bear the burden of proof in showing that any chemical is not performance enhancing instead of having the legislating organisation prove that it is. This may lead to real challenges in criminal law and whether a defendant would have to “prove innocence”.

What may persuade the government goes back to the Sunday Times article. Whilst it appears that the drug tests were suspicious individually (and incredulous taken as a whole), there was insufficient evidence for doping cases. There is a school of thought that strengthening legislation will allow the full weight of criminal law and investigatory techniques to be used to aid these enquiries. Therefore, allowing search warrants or questioning under caution may provide for better evidence.

Both IOC and WADA appear to suggest that the UK should look at and review these laws and the trend for professional regulatory matters to have a criminal element, which suggests that such are a review is likely to come sooner rather than later.

Raj Chada is a partner in the Criminal Department at Hodge Jones and Allen and has represented many professionals in the criminal justice system. Should you wish to contact him or discuss any of the matters raised in this article, contact him here.