Recent comments made by the Olympic athlete, Carl Lewis, have reignited the issue of whether the use of banned substances in sport should be made a criminal offence in the UK. Lewis advocated an urgent change of law to catch users of banned substances and remarked to the BBC "I would change the law – if you test positive, why can't it be illegal?"
These comments have proven timely indeed. Similar questions are likely to be raised throughout the forthcoming Beijing Olympics. For example, if an athlete performs exceptionally in Beijing and manages to beat a previous world record, suspicions will doubtless be increased as to whether the use of banned substances played a part in his achievement. Against a backdrop of high-profile doping scandals in the world of sport, human nature will incline commentators and viewers alike to point accusing fingers first and ask questions later. So does this mean that criminal sanctions should be imposed on the use of banned substances in sport or are current sanctions adequate?
Arguably, current sanctions are not sufficient. We can see this from the constant news spotlight on banned substances in sport over the past six months alone. In the United States, the renowned baseball star, Barry Bonds, has recently been indicted on the grounds of perjury relating to an inquiry into steroid use while Marion Jones, winner of five medals at the 2000 Olympics, has been imprisoned for six months for lying to federal prosecutors about her use of steroids.
Such tales are not confined solely to the United States. Here in the UK, the saga of Dwain Chambers' involvement in the Beijing Olympic athletics has reached the finish line with his attempt to obtain an injunction to force the BOA to select him, notwithstanding a BOA by-law which automatically imposes lifetime bans upon athletes who commit anti-doping offences, running into a brick wall with the recent High Court ruling in the BOA's favour. And of course the latest tales of drug abuse from the Tour de France have once again served to remind the world of the problems in cycling.
It is undeniable that high profile scandals (similar to those outlined above) can create a perception that the majority of sportsmen and women are drug-users and that those caught represent merely the tip of an ever-growing iceberg. As current sanctions appear to be failing to act as a deterrent, are Carl Lewis, Paula Radcliffe and others correct in advocating that doping in sport be made a criminal offence?
Doping in sport is currently an offence in several countries, including, Italy and Germany. However, it appears unlikely to be criminalised in the UK. The House of Commons Science and Technology Committee ("the Committee") recently looked at this area and noted that while many of the drugs taken to enhance human performance in sport are controlled and fall within the ambit of the Misuse of Drugs Act 1971, many do not. In addition, it noted that a mechanism does not currently exist in UK law to follow up findings in a sports drug testing programme with investigations which may lead to prosecutions under the Misuse of Drugs Act 1971. The Committee urged the government to initiate a review of the experience of countries which have enacted laws which criminalise doping in sport. However, comments made by the then Minister for Sport, Richard Caborn, to the Committee make clear that the government has little intention to enact legislation criminalising doping in sport. Caborn pointed out to the Committee that "WADA is there to root out cheats in sport" and that sport should "deal with its own misdemeanours". Caborn considered that criminalising doping in sport would be "disproportionate" to what the government is trying to achieve.
Caborn is arguably correct. While doping in sport would appear to be a growing problem, it has to be questioned whether criminal sanctions would act as a sufficient deterrent where civil sanctions do not at present. Criminal law may also be considered too blunt an instrument to deal with this issue and some would argue that it is inappropriate for the state to take on the role of policing the activities of sportsmen and women. Perhaps attention should be paid instead to reinforcing existing regulations and focusing more on education, support and rehabilitation as mechanisms for tackling this invidious issue. In this regard, a new International Standard for Testing has been approved by WADA which aims to provide a unified approach to the issues of "athlete whereabouts" and "missed tests" across countries and sports rather than the piecemeal approach taken at present on a country by country and sport by sport basis. Until a truly harmonised approach takes effect, the arguments in favour of criminalising drug-users in sport will no doubt continue to rage.
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