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Safeguarding Proceedings - How To Balance The Rights Of The Accused With Treatment Of The Abused?

Scales of justice
Monday, 20 June 2022 By Richard Bush

Safeguarding practice is about protecting and promoting wellbeing. It encompasses a wide variety of actions that are designed both to protect individuals from abuse and maltreatment, and to positively improve individuals’ lives and outcomes. In keeping with that, safeguarding proceedings are not about the punishment of those who perpetrate abuse - that is a function of criminal and disciplinary proceedings. Safeguarding proceedings are instead concerned with the management of risk. However, insofar as proceedings might be necessary to manage the risk an individual might pose to others, safeguarding practice is concerned with ensuring (as far as possible) that such proceedings are not themselves the cause of harm or distress. This is especially so in respect of the giving of evidence by children and adults at risk at hearings.

Fortunately, it is possible for sports regulators to resolve most safeguarding cases without the need for there to be a hearing involving live evidence. Alternative outcomes can readily be legislated for in sports regulators’ safeguarding rules and regulations. In respect of lower level (poor practice) concerns, cases can often appropriately be resolved through measures such as guidance and training. In cases following criminal convictions, the fact of the criminal conviction will usually stand as irrefutable evidence of the facts relating to the conviction - so there is no need to hear factual evidence to establish the same facts. And in cases across the spectrum of severity, sports regulators can reach agreement with individuals who admit poor practice and/or abuse as to the appropriate risk management measures to be applied in their cases.

The most difficult safeguarding proceedings in sport are those that are contested and require a hearing involving oral evidence to determine relevant facts (often involving cases that failed to meet the threshold for criminal prosecution, or that resulted in an acquittal when tried against a higher criminal standard of proof) – such cases are difficult for those who have been abused, for those who stand accused of abuse (and/or of posing a risk of harm to others), for friends and family of those parties, for witnesses, and indeed often for any lawyers and other experts involved in the process.

Achieving a procedure for safeguarding cases that finds the right balance, particularly as between the treatment of victims/survivors/complainants on the one hand, and respondents to safeguarding proceedings on the other, is no easy task. This article examines how that balance may be best achieved, by looking at

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Richard Bush

Richard Bush

Richard is an Associate in Bird & Bird's Sports Group. 

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