Deleted evidence and disputed sackings: the unanswered questions for Yorkshire and the ECB

The three-person Cricket Discipline Commission has cleared Michael Vaughan of racism, but major questions remain unanswered as English cricket's worst furore rages on.

Who deleted evidence at Yorkshire? What was destroyed and why?

The club's decision to enter a guilty plea to a surprise charge of destroying documents is mystifying. The ECB and Yorkshire have refused to disclose exactly what is missing although it is known they had gathered evidence to use in an employment tribunal brought against the county by Rafiq.

The only explanation over the charge comes in a brief statement from Yorkshire detailing that "certain documents and emails" created before Lord Patel's appointment as chairman "were unable to be located" and "had been irretrievably deleted from both servers and laptops and otherwise destroyed”.

A host of insiders close to previous regimes at Yorkshire have raised questions over this version of events, insisting evidence was backed up by an IT firm and will have been available at Headingley in recent weeks. In response to those allegations, the club released another statement saying the deletion had come to light after November 5 2021 (the day Patel took charge) but did not say when it happened.

The loss of evidence is vital because, due to a lack of corroborating evidence backing up Rafiq in almost all the charges against individuals, the ECB relied on the club accepting a charge of racist language being widespread at Yorkshire.

But it was the new board at Yorkshire that accepted the charge, not those in place before Lord Patel’s appointment. There is inevitable suspicion among those accused that the documents in question may have led to major elements of the case collapsing

Who ordered the sackings at Yorkshire: the ECB or Patel?

The hasty decisions to sack 16 members of staff in the winter of 2021 has cost the club £3.5m in pay-offs and legal fees and there is still an outstanding High Court case against former head of medicine, Wayne Morton, who is suing the club for £500,000.

Those dismissed included 14 signatories of a letter which had been leaked to Telegraph Sport in the week of Lord Patel's arrival as chairman. The delegation had written to their board several weeks earlier, on October 14, 2021, to bitterly complain about the club's failure to stand up to Rafiq's alleged "one-man mission to bring down the club".

Lord Patel sacked the members of staff and in a recent interview with Eastern Eye said he did it because "the ECB urged him to get rid of people".

During the hearing of the Cricket Discipline Commission, Christopher Stoner KC, Michael Vaughan's counsel, read out an extract which said: "The peer told Eastern Eye that the England and Wales Cricket Board asked him to deliver the impossible."

However, Meena Botros, the ECB's director of legal and integrity, said in response: "If you are talking about the ECB urging Mr Patel to take action, and there is reference I think here in relation to the individuals who were sacked, I have no knowledge of the ECB urging Mr Patel to take action and sack those individuals."

A month before the wave of sackings in December 2021, Patel had arrived at the club and signed off a settlement in excess of £200,000 for Rafiq within 48 hours.

Why did the ECB not interview more witnesses, including those charged?

The Squire Patton Boggs report, commissioned by Yorkshire, remains the only full investigation into the claims. At the ECB, Rafiq was a star witness from the outset as evidence gathering was led by an integrity branch created in 2018 by former chief executive Tom Harrison.

Vaughan told the ECB they had created a "terrible look" with what he called a one-sided inquiry that failed to speak to most of those charged.

The governing body also failed to speak to the umpires or the majority of team-mates playing in the T20 match at Trent Bridge in which Vaughan was accused of saying the "you lot" comment. The ECB admitted relying on the Professional Cricketers’ Association or Rafiq for contact numbers. Pakistan bowler Rana Naved-ul-Hasan, who Rafiq claimed was one of the victims, refused to take part despite telling a journalist at the start of the process that he backed up the claims.

Botros, who heads the ECB's integrity branch, also faced a ferocious attack  from Vaughan's legal team during the hearing. "You didn't speak to the umpire? The Sky cameraman? You didn't seek to interview Mr Vaughan?"

"The reality is," Stoner added, "You weren't really interested in looking into the matter other than finding corroborating evidence."

Botros denied the allegation but Vaughan's solicitor, Paul Lunt, later gave a witness statement detailing how a total of six team-mates playing with Vaughan and Rafiq at Trent Bridge did not hear the comment. The ECB defended its investigation during the CDC, saying it wrote to individuals to give them an opportunity to respond in writing before any charge was filed. But in his closing submissions, Stoner claimed the investigation  was  "biased", "woefully inadequate" and an "affront to fairness".

"Due process", Stoner added, had been "sent on holiday".

Is it time to break up the ECB?

Should the game's promoter and regulator sit side by side? It is always tricky for governing bodies in sport to investigate a disciplinary charge that brings bad publicity to the game. The ECB relies on selling tickets, sponsorship and broadcasting deals. A racism case can be devastating reputationally and financially.

At the earlier parliamentary hearings this conflict of interest was brought up. Julian Knight, when he was chair of the DCMS select committee, heaped pressure on the ECB. “They’re dual in their purpose, promoter and regulator," he said. "If they are not up to the task of being a regulator, then there may come a point in the future when we would have to ask that there’ll be an independent regulator formed.”

In recent years, sport has seen its big scandals interrogated with some level of independence. Gymnastics' had its Whyte Review into abuse while Baroness Casey reported on the Wembley fan chaos at the Euro 2020 final. Those investigations were not disciplinary cases, but enabled the governing bodies involved to justifiably claim they had not approached their probes with preconceived bias.

The ECB say the investigation was overseen by an independent sub-group of the ECB's Regulatory Committee, chaired by lawyer Nic Coward.

Who decided to press charges against Vaughan?

Botros has been portrayed as the head of the ECB's case during his evidence at the CDC, but the governing body says it was the Regulatory Committee who was responsible for bringing charges. The ECB says the Board are not involved in charging decisions.

Why did the others decide to not show up at the hearing?

Five other team-mates charged – Matthew Hoggard, John Blain, Tim Bresnan, Andrew Gale and Richard Pyrah –  refused to attend, having lost faith in the process. Many of them were all-but-resigned to being found guilty.

In an interview with Telegraph Sport last week, Blain described being left suicidal by the ordeal, but said he had no regrets about his decision not to show up. Ahead of verdict day, the problem for the defendants was a presumption that failure to show up would be seen as an admission of guilt. However, the CDC did not issue blanket guilty verdicts on Friday, with former bowling coach Pyrah being handed a not-guilty verdict on one charge. Others were found guilty, but, given Rafiq’s evidence had only been cross examined by Vaughan’s legal team, the Pyrah verdict illustrates some scepticism from the CDC towards the ECB's case.

What precedent has been set by verdicts?

There is a fierce debate within cricket over whether this saga had advanced or been a setback in the fight against discrimination in cricket. For the ECB, careers destroyed were all apparently worth it in a rush to prove cricket's credentials in stamping out racism.

A statement from the governing body said: "We are satisfied that the disciplinary process in this matter has been both rigorous and fair. The ECB's investigation and disciplinary process has been overseen by an independent committee and specialist leading King's Counsel.

"As with any case before the Cricket Discipline Commission, defendants are entitled to a fair hearing by an independent and experienced CDC panel where they can call witnesses, and they can also challenge the evidence in support of the charge, including through cross-examination of the ECB's witnesses. It is entirely the decision of defendants if they choose not to take advantage of this opportunity."

However, the inquiry's many critics claim truth and natural justice have become an irrelevance. Another ex-chair, Roger Hutton, has ruled out taking part because "I simply do not have confidence in the ECB, its governance or its agenda and who notably escape all scrutiny themselves". Other former chairmen - Colin Graves, Steve Denison and Robin Smith – also claim the ECB has shown itself unfit to expose the full story behind Rafiq’s damning accusations. But their claims are countered by anti-discrimination campaigners who insist he should receive unwavering support to empower other victims to come forward in future.