Caught in the Net

Sports coaches will be caught by a change in the law that addresses the disparity in treatment for 16- to 17-year-olds, writes Cameron Brown KC.

In recent times, a number of sports have found themselves subject to the glare of media scrutiny and public criticism following safeguarding scandals. In 2017, Daniel Sanders, the head coach at Wrexham Tennis Centre, one of the Lawn Tennis Association’s (LTA) performance centres, was sentenced to six years in prison for eight sexual offences committed against a female under-16 player. In 2018, Larry Nassar, the USA Gymnastics team doctor, was sentenced to 175 years in a Michigan state prison after pleading guilty to seven counts of sexual assault of minors. In 2020, British Gymnastics and UK Sport commissioned the independent Whyte Review following allegations of emotional and physical abuse by coaches at British Gymnastics, including a ‘culture of fear’.

The consequences of that 2017 conviction for the LTA in particular were far reaching. The LTA instituted a wholesale reform of its safeguarding approach following the appointment of David Humphrey, current head of LTA safeguarding and a former Metropolitan Police Chief Inspector who specialised in child abuse investigations, and a review in December 2017, conducted by Christopher Quinlan QC, which identified historical safeguarding failings. This ultimately led to the reprioritising of safeguarding by the LTA, with far stronger policies and procedures, the appointment of regional safeguarding officers, fulsome engagement with LTA registered clubs across the UK on safeguarding issues and the setting up of safeguarding panels, with a legally qualified chair, to objectively adjudicate on safeguarding cases.

It appears that some sports were slow in learning the lessons from the reforms put in place by the LTA. In 2016, the English footballing world was rocked by a child sexual abuse scandal. At its heart was Barry Bennell, a former First Division football coach. Jailed for 34 years at Liverpool and Chester Crown Courts for over 50 counts of child sex abuse between 1979 and 1991, Greg Clarke, the Football Association’s (FA) chairman, called the scandal one of the ‘biggest crises in the history of the FA’. The outcry resulted in the recent Sheldon Report into sexual abuse of children in football, published on 17 March 2021. One of the particular criticisms, like the LTA before it, was the failure to properly respond to the repeated complaints about behaviour. Sheldon also said the FA was culpable of ‘institutional failure’ in delaying the introduction of safeguards after 1995. Crewe Alexandra Football Club, where Bennell was employed as a youth coach and scout, announced on 25 March 2021 that John Bowler had stepped down as Chairman following publication of the report.

One of Humphrey’s key concerns upon his appointment to the role at the LTA was the disparity in treatment between those under the age of 18 and those under the age of 16. A BBC investigation concluded in July 2020 found that, between 2016 and 2020, there were more than 160 cases of sports coaches engaging in sexual activity with a 16- or 17-year-old under their supervision. During this period, it was often left to sports regulators alone to undertake regulatory proceedings against such coaches. Speaking to Counsel magazine, Humphrey said that the previous legislation ’gave the impression that the law did not see the two potential breaches of that position [one being in an education setting and the other, a sports setting] as equal, which was problematic’.

Yet, it is only in 2021, with the laying by the government of the Police, Crime, Sentencing and Court Bill, which has itself attracted a degree of public acrimony due to its public order provisions, that it is likely that it will now be illegal for a sports coach (along with those engaged in ‘religious’ positions of trust) to engage in sexual activity with a 16- or 17-year-old in their care. Driven forward by Tracey Crouch MP, and supported by the NSPCC, it will amend s 22 of the Sexual Offences Act 2003, which had previously not provided for sports coaches as those in a ’position of trust’. Accordingly, those over the age of consent (16) but under the age of 18 were not protected under the law. The new law provides that those who ’coach, teach, train, supervise or instructs B, on a regular basis, in a sport’ will be caught by the provisions.

The LTA has campaigned for some time for a change in the law. Sports coaches are very much working in a position of trust and can hold significant power and influence over young people. Tennis coaches in particular are frequently in one-to-one situations with their students. There is, in the sports arena, the possibility of a real imbalance in power between coach and student and thus increased vulnerability. Senior coaches may be held in high esteem. Students, particularly in the high-performance arena, may be seeking selection for a particular team or financial award, which may make them particularly vulnerable to an inappropriate approach by a coach. The wholesale use of social media, including Snapchat, has led to greater opportunities for abuse and only emphasised the need for a reform of the law.

Sports regulators were, unlike the police, hampered by limitations which are not present in criminal investigations. Criminal investigators have considerable wider powers, including the power to make arrests and conduct searches, which can lead to the seizure of phones and computers, where key evidence is frequently located. Regulatory investigations also require a significant amount of resources. To ensure fair hearings, statements need to be properly taken, interviews need to be conducted and the appointment of adjudication panels was required. For smaller sports regulators, the cost of such proceedings was, at best, challenging. Criminal convictions are frequently conclusive evidence of misconduct in regulatory proceedings, so convictions here will allow regulators to concentrate resources on the issue of the risk posed by such individuals and what sanctions need to be imposed upon them. There was also perhaps the issue of lack of clarity among coaches and indeed regulators. While sexual activity between a sports coach and 16- or 17-year-old in their care was morally reprehensible and would likely amount to a breach of the coaches’ code of conduct, it was not previously illegal. That lack of clarity will now, with the proposed change of the law, evaporate.

The new legislation will thus have a significant impact for sports regulators. By closing the legal loophole, allegations in the first instance will be referred to the Police, with their greater resources and investigative expertise, thereby lessening the burden on the regulators. While there may be some dispute as to what amounts to coaching on a ‘regular basis’ and whether the activity in question amounts to a ‘sport’, that is a dispute that should be resolved before the criminal courts, as opposed to the regulatory arena. Generally, the new Bill provides welcome clarity to both coaches and regulators. As Humphrey succinctly puts it, ’this change will assist all sports in ensuring we can protect children from the small number of individuals who seek to harm them’.