The curious case of Ryan Lochte

By far the most high profile non-sporting incident to occur during the 2016 Olympic Games in Rio, Brazil was an incident involving four swimmers from Team USA, the most high profile of whom was Ryan Lochte, the winner of twelve gold medals across four separate Olympic Games.

The swimmers were involved in an incident at a petrol station after competing. The precise facts remain unclear, but according to reports Lochte provided an account to his mother of being held up by men dressed as police officers during his return from a night out. It was later alleged that Lochte and his team mates committed an act of vandalism and entered into a dispute with employees, who demanded compensation. At some point, a security guard drew a gun.

On 25 August 2016, Rio police put out a statement saying they had recommended prosecutors bring charges against Lochte for the crime of false communication. Rio police said that the investigator in charge of the case had recommended to judges that Lochte be deposed in the United States and that a transcript be sent to the ethical commission of the International Olympic Committee (IOC).

Previously, two team mates were removed from a flight bound for the USA and held for questioning. Another agreed to pay a sum in excess of $10,000 to a charity in Rio in exchange for having the charges dropped and his passport returned. Under Brazilian law, the penalty for falsely filing a crime report carries a maximum penalty of 18 months imprisonment.

There are a number of questions that remain unanswered. It is not clear whether Lochte, or indeed any of his teammates ever actually spoke to a police officer, or filed a formal report. In England and Wales, making a claim you know to be false to a police officer or any other person could lead to a charge of perverting the course of justice, or for less serious instances wasting police time, contrary to section 5(2) of the Criminal Law Act 1967. The law in England and Wales does not require a formal report. The CPS guidance states that a charge of wasting police time may be more appropriate where:

  • There was an admission that the complaint was false after a short period of time.
  • The complaint resulted in no arrest, or if so, that the accused was not charged, detained or convicted and has not suffered damage to his or her reputation as a result of the original allegation.
  • Where the alleged perpetrator was not named or identified.
  • Where the complaint was not made maliciously.

The offence of wasting police time in England and Wales is somewhat controversial, largely due to its use against individuals who have reported rape or domestic abuse. There are firm guidelines on the CPS website as to when charges should be brought.

Although the law differs from country to country, it is highly unlikely an individual who was drunk at the time making an embelished claim to his mother would result in police action in England and Wales. However, the incident clearly demonstrates the power of social media to spread news rapidly, and it is difficult to blame the Brazilian police for investigating an allegation by an athlete that they had been the victim of robbery during one of the most high profile events in Rio’s history.

However, there is of course the issue of proportionality. Wasting police time in England and Wales is a summary only offence, with explicit guidelines that prosecutors “pay due attention to whether other options such as an out of court disposal are appropriate after taking the full facts into consideration”. It is inconceivable that had the same situation occurred in London during 2012, individuals would have been removed from aeroplanes or matters pursued against an individual once he had left.

The reaction of the US authorities to the Brazilian police will be of interest. Requests for assistance can be made between countries – for information on requests to the UK from overseas authorities see Practice note. However, in the UK requests can be denied for several reasons, including de minimis, any loss or damage being less than £1,000. Reports also state that Brazil and the US have an extradition treaty, but it has been ignored in the past. How the matter will be resolved remains to be seen.

Finally, one issue that seems to have been overlooked is the conduct of the security guard. Lochte has some in for considerable criticism in this matter, both in print and on social media. But his statement of apology makes one interesting point:

“It’s traumatic to be out late with your friends in a foreign country – with a language barrier – and have a stranger point a gun at you and demanded money to let you leave”.

Lochte’s account is of course unverified, but had that happened at London 2012, the “stranger pointing the gun” could be charged with an offence of robbery (with perhaps a legal argument as to the theft element) false imprisonment and firearms charges. One may regard Lochte’s actions as foolish, and certainly disrespectful to the host nation. But perhaps the public condemnation and loss of sponsorship is punishment enough.

Practical Law David Bacon

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