4Criminalisation of doping in sports
140.Throughout this inquiry there has been a debate about the resources and enforcement powers of the anti-doping authorities. Leading figures in sport, including Lord Coe, have stated that doping in sport is tantamount to committing a fraud against the clean athletes in the same competition.175 Lord Moynihan, the former sports minister and former Chair of the British Olympic Association, has called for doping in sport to be made a criminal offence.176
141.We raised the issue of criminalisation with Lord Coe when he gave oral evidence to the Committee. He reflected on a report he had written to the Government in 1988, which had led to the creation of an independent, random, out-of-competition system that became the blue print for anti-doping programmes around the world. He said criminalisation of individual athletes was looked into but it was felt that the first thing to do would be to create a criminal offence around trafficking; this was written into the bill that became the Criminal Justice Act.1988. He argued that he had concerns about criminalising the athletes because he thought it was always very complicated to combine criminal and civil processes and sanctions, as this led to arguments about which took primacy.177
142.While stating that “it does not wish to interfere in the sovereign right of any government to make laws for its people”, the World Anti-Doping Agency (WADA) does not believe that doping should be made a criminal offence for athletes. In a statement on the criminalization of doping in sport, on 25 October 2015, WADA noted that it believes that, “the sanction process for athletes, which includes a right of appeal to the Court of Arbitration for Sport (CAS), is a settled process, accepted by all governments of the world, and further that the sanctions for a doping violation by an athlete, which now includes a longer, four-year period of ineligibility, have been globally accepted by sport and government. As such, the Agency does not believe that doping should be made a criminal offence for athletes”.178 However, WADA has encouraged governments to introduce laws that penalise those who are trafficking and distributing banned substances, noting: “this is a commitment that governments made in ratifying the UNESCO International Convention against Doping in Sport”.179
143.WADA acknowledges that countries that have introduced criminal legislation for doping have been effective in catching athlete support personnel that possess or traffic PEDs. It seems that, given the threat of being imprisoned, these personnel are often more cooperative with anti-doping authorities. In Italy, for example, a large number of Italian nationals are currently listed as having ‘disqualifying status’ under the Prohibited Association clause of the Code, a list that was first issued by WADA in September 2015.180
144.This is consistent with evidence given to the Committee by the former British Olympic cycling champion, Nicole Cooke, based on her experience as a professional road racing rider. In a written statement published by the Committee relating to the conviction for doping offences of her former team boss, William Dazzani, she said that if he had “operated in the UK rather than in Italy he would still be running doping rings, producing tragedy and misery in so many around him. As it was the Italian Guardia were empowered by legislation making it a criminal offence to receive and procure PEDs for athletes and were able to conduct an investigation—Operation Bike—using tools of the state to do so. They tapped phones and had recorded conversations of Olivano Locatelli speaking to William Dazzani advising him how athletes could take PEDs and still not test positive at events. They conducted video surveillance and they raided houses and found stashes of PEDs. They arrested the Directeur Sportif William Dazzani. I was ignorant that, during my time with the team, the Italian Police were conducting their investigation and so I took my experiences of Dazzani to the forerunner of UKAD, I was told there was nothing they could do. My representative specifically asked the director, John Scott, as they would do nothing, could they at least have the common courtesy of passing the intelligence I provided to the Italian anti-doping authorities. John answered that he would not do so, he and his organisation would do nothing with the information. As a 19 year old female in a foreign country, I am grateful that Italy viewed the behaviour of Dazzani as criminal.”181
145.The Advisory Council on the Misuse of Drugs (ACMD) has a similarly nuanced approach. When considering calls for the creation of an offence of possessing anabolic steroids for personal use, the ACMD noted the comparative risks of using steroids as opposed to ketamine or benzodiazepines, and concluded that no such offence should be created.182 Instead, the ACMD stated that criminal prosecution should be limited to illicit steroid dealers, suppliers, manufacturers and traffickers who profit from this trade. The ACMD argued that improved tailored intervention and education messages aimed at anabolic steroid users would be more effective in protecting public health than criminalising users and further pushing the issue underground.183
146.In his Manifesto, Ed Warner of UK Athletics called for the supply or procurement of performance enhancing drugs to be criminalised and for those in positions of authority who are found to be involved in such practices to be banned for life from any involvement in sport.184 He disagreed, however, with some countries which had recently criminalised the use of performance-enhancing drugs because he felt the sporting punishment was sufficient.185
147.Sports Minister Tracey Crouch MP was confident that there were good policies in place and stated: “We are not convinced necessarily that criminalisation is a panacea and if you look at areas like France, for example, who have legislation in place that criminalises doping, they are still on the watch list for WADA”. She added: “We are not and we do not have that kind of legislation in place. I think at the end of the day we have to show a great deal of confidence in UKAD, who I think do a very good job. They are considered one of the world’s leading anti-doping agencies. They have an excellent education and awareness programme for youngsters and their testing regime is extremely good. So we are looking at it and we have not ruled it in, but we must also note with caution that it is not necessarily the panacea for everything in athletics”.186 A number of substances in ordinary use—as over-the-counter remedies for colds, hay-fever and so on—are banned by various sports as enhancing performance.187 This adds to the complexity of any attempt to draft a fair and effective law on possession.
148.UK Anti-Doping (UKAD) has been tasked by the Government to examine whether doping should be made a criminal offence. UKAD’s position in 2009, which remains the same today, is that there should be no criminalisation of doping athletes. Nicole Sapstead of UKAD said:
I am sure you can imagine that when you look at the resources and the priorities, particularly, of law enforcement right now, asking them to pursue an individual because they have taken steroids, for example, is not high up on their agenda. We have a hard enough job partnering with law enforcement now to try to get into where we think there might be underground laboratories, to try to take them down and for law enforcement to seize their assets. It is hard enough trying to get them to engage in that regard let alone to pursue a criminal action against an athlete or their entourage.188
149.We acknowledge UKAD’s point that resources and priorities are such, particularly in relation to law enforcement, that to pursue an individual because they had taken steroids would not be a high priority and that there would have to be clear evidence that UKAD had reason to believe wider criminal activity was taking place. We also noted the point made by UKAD that it makes it attractive for law enforcement agencies to engage if UKAD can show a benefit such as seizing cash stemming from a successful raid.189
150.We asked UKAD whether athletes who had deliberately cheated could be considered as having committed fraud. While UKAD agreed with us that this was so in theory, Nicole Sapstead said the difficulty was in proving that other athletes had been cheated out of prize money or a medal, she said: “How could fraud be proved if there was no tangible outcome to it?”190
151.We do not think it would be effective to subject doping athletes to criminal procedures and penalties. Longer bans on competing are likely to be more of a disincentive to them, and will avoid placing an extra burden on law enforcement bodies such as the police and courts. However, the supply of drugs or promotion of unnecessary medical procedures is a different matter. The Government should give serious consideration to criminalising the supply of drugs to sportspeople with intent to enhance performance rather than to mitigate ill-health, and in so doing defraud clean athletes they are competing against. This would send a stronger message about the unacceptability and the dangers of doping, not only to the suppliers but also to the athletes.
152.For UK Anti-Doping to be more effective, it not only needs more resources, but greater powers too. It has no powers to demand to see private papers, and financial and medical records, to aid its investigations. A change in the law to criminalise the supply of drugs to sports people could give UKAD the powers to access documents without seeking prior agreement, and the right to seek the support of the law enforcement agencies in their investigations, as appropriate.
153.We consider that a more graduated approach to sanctions would be most likely to command support, and therefore enforcement. Governing bodies should be readier to impose more than a two-year ban for a first offence, given that having a blood transfusion or taking EPO is not routine medical care and is clearly an action taken with intent to cheat.
154.The call for a life-time ban from representing the UK for a first offence seems excessive. However, we support the suggestion by the UK Athletics Manifesto, which states that bans for first-time offenders should be extended to five years. This will ensure that cheating athletes could miss two Olympics or two Paralympics. Repeat offenders should forfeit their opportunity to represent the UK again.
176 The Telegraph, “Government urged to make doping a criminal offence”, 2 August 2015
182 Consideration of the anabolic steroids, Advisory Council on the Misuse of Drugs, Pages 42-43, Recommendation 3
2 March 2018