The importance of obtaining effective witness statements in sports disciplinary proceedingsTom Avis
Sports governing bodies (“SGBs”) play a pivotal role in protecting the integrity of their sport by enforcing its rules, investigating those who breach them and sanctioning them appropriately. From allegations of doping to allegations of misconduct on social media, SGBs are often tasked with policing and investigating on-field as well as off-field conduct. Keeping on top of everything is no mean feat, and from charge through to sanctioning, the success of an SGB’s case can often rely heavily on the effectiveness of their investigatory procedures and processes.
Central to any investigation, relating to sports disciplinary proceedings or otherwise, will be the collection of evidence, primarily in the form of witness statements. Witness statements act as a witness’s evidence in chief and a vehicle for addressing all factual issues within the witness’s knowledge. Cases will often turn on the strength of this evidence so the importance of obtaining clear and compelling witness statements should not be underestimated.
In the recent past, there have been high profile sports related disputes where the process by which a statement was obtained has been subject to scrutiny. This article considers the factors and aspects of best practice that SGBs seeking to gather evidence in sports disciplinary proceedings should bear in mind. Please note that the article is written from the SGB’s perspective, not that of the respondent/athlete (which is separate topic).1
Specifically this article examines:
- Identification and selection of witnesses
- Start early
- Explain the process and establish trust
- Let the witness speak
- Ask carefully chosen questions
- Clarifying issues with the witness
- Technical points
- Creating the formal document
- Revisit and refresh
- Author’s comments
Identification and selection of witnesses
Witnesses should be identified quickly.
In certain cases, there may be a number of witnesses that could be called upon. In these scenarios, thoughtful selection as to the identity and number of witnesses can be an important initial stage. The decision is going to be dependent on the facts of each case, but consideration should be given as to what key issue(s) can each witness speak to? Is evidence on that issue already covered by another witness?
It is important, so far as possible, that a witness can give clear, strong and well-articulated evidence. Where a witness will be required to give their evidence orally, consideration should be given to their ability to deliver their evidence in this manner and their ability to withstand potentially fierce cross-examination by the other side.
Memories invariably fade over time, therefore witness statements (or a proof of evidence) should be obtained as early as possible. This will lead to the most accurate recollection of events, capturing a level of detail which could be crucial to the investigation as a whole.
Obtaining witness statements early will also allow investigators to gauge the merits of a case at an early stage and allow them to make an informed decision about whether to continue to spend valuable SGB resources on continuing with the investigation or draw a line under the matter. Such decisions may be of particular importance to SGBs which do not benefit from the level of resources that SGBs of mainstream sports may have at their disposal.
Explain the process and establish trust
Before a witness statement is taken, witnesses should be briefed as comprehensively as possible on:
- Who is obtaining the witness statement and their role in the investigatory process;
- Why the witness statement is being taken;
- How it may be used as part of the investigation;
- What they can expect if the matter proceeds to a formal hearing (and their potential role in that hearing);
- Any obligations placed on them by the rules of the sport regarding cooperation in such investigations.
Engaging with witnesses in a positive and structured way will help prepare them for the process ahead and secure their willing cooperation. It will also help build a relationship of trust, not just with those investigating but with the disciplinary process as a whole.
Whilst many sports incorporate useful powers of inquiry over its participants into its rules2, there are obvious benefits in obtaining the willing cooperation of a witness without having to resort to the use of such powers.
Let the witness speak
When meeting with the witness in order to take their proof of evidence, it is important to provide a structure that best allows the witness to give their full evidence and which elicits all of the facts. This is often achieved by working through the relevant event / facts in a methodical manner, providing them with relevant documents and asking open questions where necessary. It is important to allow a witness to tell their story in their own words.
Notes should be taken during this process, flagging areas that require clarification.
Ask carefully chosen questions
Leading questions should be avoided and an investigator should avoid putting words in a witness’s mouth.
Consider an example of a footballer that has witnessed an alleged physical assault against a teammate by an opposition player after a match. Rather than ask “Did you see Player X enter the changing room and punch Player Y?”, the proper inquiry would be “What did you see happen after the game?”. The former simply invites a yes/no answer and is also geared exclusively towards details of the alleged physical assault. The latter on the other hand invites a far more descriptive recollection of events and also creates an opportunity for the witness to touch on other salient points about the events in question which could lead to other important lines of inquiry.
The language utilised when forming questions can have a significant influence over a witness’s response3, so care should be taken to word them appropriately.
Clarify any issues with the witness
If any aspect of the evidence obtained is unclear, doubtful, or inconsistent with other evidence gathered, these should be addressed with the witness and clarification sought.
Clarification can often take the form of probing questions, worded with caution to ensure the witness does not consider the questions accusatory as this may lead to a witness becoming defensive and damage any established rapport.
If not addressed at this stage, it is likely that any issues of this nature will be picked up by the other side later in the process.
Opinion evidence should be avoided in most circumstances, especially if its use may be construed as an attempt to argue the case.
However the approach to be taken to this type of evidence may depend on the witness’s character and also the nature of the proceedings.
Proceedings centred on allegations of discrimination for example, are more likely to evoke emotive statements by their very nature.
Equally, if a witness is particularly outspoken and opinionated, it is important to try to capture their character within the statement insofar as possible so that if it comes to them giving evidence at trial, the way they do so does not give the impression that great efforts have been made to restrain and control the language of the witness in their statement, which may call in to question the statement’s authenticity.
Witnesses should be asked to explain technical matters in a way that a layperson could understand. Technical acronyms and initialisms should be detailed in full.
The effective explanation of technical matters will be especially important in certain investigations, particularly in relation to anti-doping matters.
Creating the formal document
Just as the proof of evidence was taken, it should be recorded in chronological order and set out in clear, logical paragraphs.
The witness statement should be in the witness’s own words and should avoid simply providing a chronology of the statement’s exhibits. It is largely accepted that the statement will often be drafted by someone else, but the author should avoid using words that are legalistic or unnecessarily complicated.
When the draft is ready, the witness should be asked to review the statement very carefully. The witness should make amendments to the statement, such that they are completely happy with its content. In particular, they should identify any inaccuracies between what they said and what has been recorded.
It can be hard to properly engage witnesses at this stage – they will often be busy, and may not see this as a particular priority. This issue may be particularly acute with certain sportspersons, especially golf or tennis players, who often travel to a variety of different locations to compete within a short time period and therefore may be particularly difficult to engage. Nonetheless, the importance of this stage should be made clear when the proof is taken and offering an estimated timeframe of when they can expect the first draft to be ready at that initial stage can be a useful way to ensure they set aside this time in advance.
Commercial litigators will be well aware that the Civil Procedure Rules contain a number of provisions which detail the formal requirements for the format of witness statements adduced in such proceedings4. These range from required headings to how best to reference exhibits.
Sports disciplinary proceedings on the other hand are not strictly bound by the same formalities, though in practice many investigators will (and should be encouraged to) borrow from this guidance.
Witness statements should only include exhibits that the witness can genuinely speak to and the content and significance of those exhibits should be fully understood by that witness.
In the context of civil proceedings, judges have long been critical of the inclusion of exhibits (especially voluminous documentation) which witnesses have never read or fully understood5.
Witnesses must understand their evidence and have full knowledge of the contents or otherwise face being discredited and picked apart by an opposing advocate.
Revisit and refresh
Inevitably, the time it takes for matters to proceed to a hearing can be lengthy and recollections will often become hazy in that time.
Therefore witnesses should be strongly encouraged to revisit their statement and refresh their memories about the events and the evidence they provided at that time.
Witness statements (including drafts and interview notes) will invariably contain personal data as defined within the Data Protection Act 1998.
Deciding on a retention period for these documents will be a judgment call for the SGB and influenced by factors such as; the purpose for which it was obtained, the future value of the information and the risks of retaining the information6. The nature of the investigation may also have an impact on a decision regarding retention period.
Documents of this nature produced for the purposes of an anti-doping investigation, for example, may be worth retaining for longer. Scientific advances may lead SGB’s to retest doping samples, as the International Olympic Committee has recently chosen to do in relation to doping samples from the Olympic Games in both Beijing (2008) and London (2012)7. Therefore it may be wise to retain contemporaneous statements from doctors and other witnesses for longer in these cases, as they may prove useful should disciplinary proceedings open some years later.
The art of obtaining and drafting a good witness statement is generally not something that is taught. As with any task, experience and practice will help refine each individual’s process.
From an SGB’s point of view, taking witness statements is a task well worth dedicating time and resources to, as it underpins the integrity of the process and the success of its case may depend on it.
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- Tags: Beijing 2008 | Civil Procedure Rules (CPR) | Dispute Resolution | International Olympic Committee (IOC) | London 2012 | Olympic | Paralympic | United Kingdom (UK)
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