De-Constructing Criminal Liability u/PREVENTION OF SPORTING FRAUD Part II

Arjun J Chaudhuri

Previous article attempted to demarcate liability in Civil, Tort & Criminal Proceedings u/Prevention of  Sporting Fraud, and effective enforcement of Bill once it become Law, using case study approach. This article explores criminal Liability in committing fraud in conduct of sanctioned sporting activity.

Prior to August 2010, News of the World [NOTW] Reporter conducted sting operation wherein Pakistani Bookie Mazhar Majeed claimed he paid Mohammad Asif 65,000 Pounds, Salman Butt 10,000 Pounds & Mohammad Asif 2,500 Pounds to carry out specific on-field actions or spot fixing, bowling No-Balls at pre-determined times, during 4th Lord's test match in August 2010 against England. In exchange for this information which was videographed & date-time stamped through hidden camera, NOTW reporter paid 150,000 British Pounds Sterling consideration to bookie. This recording formed primary evidence against 3 Pakistani test cricketers & bookie, corroborated by testimony of NOTW reporter in criminal court proceedings at Southwark Crown Court where trial took place before Justice Cooke who later sentenced all 3 accused after finding them guilty as charged by prosecution, in November 2010. Ruling of court was based on combination of common law which is body of law developed as result of custom & judicial decision, precedent which is doctrine that requires court to follow decisions of superior or previous court, and code which is system of accepted laws & regulations that govern procedure & evidence. It is this appreciation of evidence collected by enforcement authority such as information from wire-taps and search & seizure provided for in enactments of law already in force, which enactments despite in force, that do not quite have force of law because it is ruled out on technicality by Courts in India. In contrast, British Crown Court in Southwak, UK accepted evidence tendered by prosecution, and found conviction of accused, and sentenced Pakistan Captain Salman Butt to 30 months imprisonment & pay prosecution costs of 30,937 Pounds; Mohammad Asif to 12 months imprisonment & pay prosecution costs of 8,120 Pounds; and Mohammad Amir to 6 months imprisonment & pay prosecution costs of 9,389 Pounds, with option of release for all 3 cricketers u/License for Good behavior, respectively; and Bookie Mazhar Majeed to 32 months imprisonment. Prosecution & Sentence of accused was for conspiracy to accept corrupt payments & conspiracy to cheat at gambling, which both charges were evidenced in Court by videography & Oral Testimony of Witness. Prima Facie Case was made out which is equivalent of FIR u/Cr.PC 1973, Criminal charges were framed by court after submission of prosecution Charge-Sheet to Court, and Trial held in time-bound manner, without compromising on due process which is carrying out fundamental principles of justice as opposed to specific rule of law or codified enactment. However, key difference in Spot-Fixing Case in India & UK is that subject of those affected by fraud in UK were Legal Bookmakers whose trade is affected by illegal acts of 4 accused including Unlicensed Bookmaking. This list of affected extends to International governing body of cricket, ICC; ECB; PCB; 4th Lord’s test match ticket holders; and Broadcasters & payed Readers, Listeners, and Viewers of Print, Radio & TV whose consideration is under contract, express and/or implied in exchange for organizing & broadcasting genuine sporting contest. Only lacuna in this matter when compared to prosecution in India by Directorate of Prosecution, Delhi is lack of legalized betting of cricket in India which requires specific legislative enactment sanctioning this trade, and not another enactment which may dilute existing laws in place.

Because of Criminal Action taken by Police & Directorate of Prosecution in UK, ICC u/CEO Dave Richardson in September 2010 took civil action, and through its ICC Tribunal banned-suspended three Pakistan players - Salman Butt, Mohammad Asif, and Mohammad Amir - on allegations of Spot- fixing, from playing International Cricket. Salman Butt was imposed Ban of 10 years with 5 years suspended; Mohammad Asif was imposed Ban of 7 years with 2 years suspended; and Mohammad Amir was imposed ban of 5 years. Despite appeals to Court of Arbitration for Sport [CAS], neither ban-suspension of Salman Butt or Mohammad Asif was reduced or commuted. Salman Butt in his appeal did not contest his liability in Spot-Fixing case, but requested shortening of ban, which was not accepted because his counsel was unable to convince CAS panel that any of mitigating factors advanced qualified as exceptional circumstances or sanction imposed by ICC Tribunal as disproportionate. In contrast, Mohammad Asif attempted in his appeal to annul ICC Tribunal’s decision of Ban-Suspension on procedural grounds, which was not accepted because his counsel was equally unable to extend counter-evidence that clearly exculpated or proved Mohammad Asif free from guilt or blame.

Conclusion that follows is by legalizing betting in cricket, those affected by illegal bookmaking will be added as those criminally defrauded of money and other benefit by deliberate deception of accused whose criminal actions is evidenced with proof collected by Police, and presented to Court by prosecution, and subsequent appreciation of argument & evidence by Court which results in Prosecution & Sentencing. Notwithstanding this, the list of affected in India because of spot-fixing extends to International Governing Body of Cricket, ICC; national cricket federations; On-Site Ticket Holders; and Broadcasters & Payed Readers, Listeners, and Viewers of Print, Radio & TV whose consideration is under contract, express and/or implied in exchange for organizing & broadcasting genuine sporting contest.