The Criminal Law Has No Role to Play in the Regulation of Sports Field Violence - Term Paper Example

Sport should govern itself on the field of play. The criminal law has no role to play in the regulation of sports field violence”. There is indeed adistinct array of common sense as well as case law that supports the notion of leaving sports to be governed by their own rules of play. The argument surrounds the concept of consent, whereby a victim sportsman in a contact sport (such as football, basketball, wrestling, etc) has impliedly consented to the possibility of actual bodily harm either by his conduct of participation in the game (implied consent) or through an express provision in the contract (express consent). Thus, this mutual consent should go towards removing any additional pressure on the playing field upon those participating so that they can play to their truest potential without worrying about incurring additional criminal liability outside of the game. However, what of the victim who injures himself seriously and has to face time out of the field. Thus, the issue is one of finding the right balance, and is governed more so by public policy than anything else as seen in the decision of the courts. Consent is the governing factor in contact sports, since it is accepted to be a defense to assault and battery as prescribed by s. 47, 20, 18, and 20 of the Offenses Against the Persons Act 1861, which limits the involvement of criminal law in the game of choice. In R v Brown (Anthony Joseph) (1994)1 Lord Templeman and Lord Jauncey defined consent as a defense more than an element of the offense (in the latter case, the prosecution must show its absence in order to satisfy guilt). This view was also supported by the Law Commission2. It is accepted that consent in sport is part of informed consent, where the victim is aware of the nature of the sport that he is to be a part of, and accepts that there may be a risk of bodily harm. The requirement of knowledge can be explained by the case of Konzani (2005)3, which although ruled on facts unrelated to sports, but of sexual conduct, explains what knowledge a victim must possess before his consent is valid. In that case, it was accepted by the courts that consent to the exact nature of the harm (such as the risk of contracting a sexually transmitted disease) must be there before the defendant can use it as a defense. In order to satisfy the courts of effective consent, it must also be valid in law to consent to such an act, and sports are generally included in that list since they uphold the society’s inclination towards physical fitness4, and therefore fall under the realm of public policy. The offenses under s.18, 20, 47 of the Offenses Against the Persons Act 1861 are generally exempted from application in sports (McCutcheon, 1994)5. It follows that a sport like boxing, for example, where one contestant intends to inflict assault as well as grievous bodily harm to his opponent (which in regular cases would constitute a crime as serious as murder) is allowed to take place without any criminal sanctions on the part of the participants for the following reasons; the boxers have consented to the risk of harm6 with their participation expressed in their relevant contracts and have complete knowledge of the extent of the harm, which could be grievous within the rules of the game. As a matter of public policy and upholding societal preferences of activity and fitness7, the courts willingly accept the sport of boxing as an exception, allowing consent to be used as a defense if both actual or grievous bodily harm was inflicted provided that the rules of the sport were adhered to. However, what of the case of a boxer, who going against the rules, inflicts a blow below the belt? Would the “implied sporting consent” (Anderson, 2008) be negated in this case? It was established in R v Bradshaw (1878) that an intentional injury at the hands of the accused in a sport which does not necessarily entail actual bodily harm will incur liability. But in boxing, this is not the complete picture, as it is an accepted fact that injury is consequential. Bamwell B explained, “If a man is playing according to the rules and practice of the game and not going beyond it, it may be reasonable to infer that he is not actuated by any malicious motive or intention, and that he is not acting in a manner which he knows will be likely to be productive of death or injury” (R v Bradshaw (1878))8. The consequence of this notion is that, a blow below the belt, if seen to be maliciously motivated, would constitute an unlawful act and perhaps not deemed so if the malicious intent was absent, as in the case of a mistimed punch. In Bradshaw, the victim was struck with the knee and died in a football game while the accused was not held liable since no foul play was detected. In R v Moore (1898)9, the accused was not so lucky. He had attacked the victim from the back causing him to collide with the goalkeeper, subsequently dying of injuries. In Moore, the act was noticeably deviant and could easily be deemed against the rules of the game. Similarly, a blow below the belt by a boxer might not be part of foul play if the accused could be deemed to be aiming for the stomach, but a blow aimed squarely below the belt could incur criminal consequences as an intention to deviate from the rules of the game and inflict injury could be derived. The act of Mike Tyson, for example, in biting the ear off of Evander Holyfield could easily negate consent and hold him liable since it was intended to cause him actual bodily harm outside the rules of the game. As can be seen, there are occasions when the harm caused may be serious enough to invite intrusion by the criminal courts. But their involvement is not necessarily certain. The courts generally find themselves reluctant to intrude on contact sports. Instances of their intrusion depend squarely on the degree of violence involved, and for that reason, consent may not be valid where the accused has delivered beatings to a degree that make the “infliction of bodily harm a probably consequence”10 (Anderson, 2008). But the moments where the courts would be willing to incriminate are subject to further scrutiny, as allowances are made for exceptions like manly diversions11 (a general tendency of men to engage in rough play) and “properly conducted games and sports … as is needed in the public interest” (Lord Lane C.J in Attorney General’s Reference (no. 6 of 1980)). Moreover, it is not just a question of whether the violence was committed outside the rules of the game or within it, since the victim may have been said to consent to the risk of injury from an assault or battery resulting on the field resulting from an action not endorsed by the rules of the game. The above example of hitting below the belt would also fall within this ambit, as would a late tackle in a football match (Moore (1898))12. The courts, in order to assess this risk, are thus inclined to consider a variety of objective factors to determine the validity of consent (Barnes)13 which range from the kind of activity the sport entails, the level of harm involved, force used, skills involved, the perceivable risk of injury and the defendant’s mens rea. The Law Commission14 attested to the use of these factors, in turn signaling the courts to treat the playing field as an exceptional case. Lord Mustill in this regard mentioned in Brown (1993)15 that offenses committed within sports can be left to be governed by the internal rules of the game citing one of the major reasons for this proposition as public interest, which in today’s contact sports, is more refined than military preparedness. The threshold of risk is generally set high in contact sports as a result, but at the same time, the players are urged to restrain themselves with the possibility of criminal sanctions looming in the background for grave conducts out of the ordinary that could be deemed as criminal. The natural question that follows is, in what instances are the courts more willing to intervene? The case law provides some guidance. It must be noted that the frequency of criminal convictions has been higher in the sports of football and rugby (Anderson, 2008)16 than other respective contact sports, such as cricket. What could be judged from the number of cases is that the courts are willing to impose sanctions where the assault was unprovoked and deliberate, delivered off the ball. This would render a very late tackle causing serious bodily harm immediately criminal, where the ball was not in possession of the player. The case of R v Moss (2000)17 illustrates this, where in a Rugby match, the assailant punched the victim in the eye fracturing his eye socket. The Court of Appeal upheld the conviction under s. 20 of the OAPA 1861, saying that engagement in a rough contact support may not be used as a license for thuggery18. Lord Woolf endorsed this viewpoint in Barnes (2004), wherein he stated that the intentional causing of injury in a contact sport, no matter how rough the in-game rules allow it to be, must not be subject to immunity. Consider what would happen if such injuries were allowed to be governed strictly by the code of conduct and disciplinary measures of the game they occurred in. In Moss, the conviction allowed the courts to sentence the defendant to 8 months in prison. Had this not been a criminal case, it is arguable that all Moss would have incurred would be a fine and a few matches worth of bans, which he could be allowed to appeal against, a punishment arguably unfair to his victim whose fractured eye had to have titanium inserts just to rebuild it up to spec. There may even be significant losses on the victim’s part in the future, in terms of repudiated contracts, on account of his acquired handicap. This case occurred in the middle of the defendant’s career, but things would have been even more unfair had he been close to his retirement. Consider the case of Zinedine Zidane, who head-butted a player in the final match before his retirement and was awarded a red card as a result. He walked off the pitch with virtually nothing to lose, as it was his final game and any bans on him would prove fruitless. In that case, his victim did not suffer any serious injuries, but if he had, would it be fair to use the in-game rules and disciplinary measures of soccer to govern Zidane’s penalties? I believe no. Conclusion It thus follows that the issue is not one of definition, but one attributing to the particular circumstances of each case. Sports may be allowed to govern themselves, but in cases of serious bodily harm where the defendant may be liable under s. 20 of the OAPA 1861, the victim will most definitely have to pay the price. In general, the courts are inclined to allow each sports’ respective traits to determine the seriousness of the risk of injury (as the rules of boxing cannot be inter-changeable with the rules of football), and thus, consider a range of factors, such as type of sport, the level at which it is played, the nature of the act, the degree of force etc (as per Lord Woolf in Barnes) in determining criminal liability. Courts may only intervene if the conduct is one grave enough to be considered criminal, occurring unprovoked and off the ball in rugby and soccer for example, and thus allow first preference to be given to the rules of the game. However, it must also be iterated that sports cannot wholly be allowed to govern themselves, and criminal law must intervene in extreme cases. References Smith and Hogan, “Criminal Law” 11th edition. p. 524-535. Anderson, J. “No licence for thuggery: violence, sport and the criminal law” (2008) Criminal Law Review. P. McCutcheon, “Sports Violence, Consent and the Criminal Law” (1994) 45 N.I.L.Q. 267 R. v Barnes [2004] EWCA Crim 3246; [2005] 1 W.L.R. 910. R. v Donovan [1934] 2 K.B. 498 at 507 and 508-509. R. v Bradshaw (1878) 14 Coxs C.C. 83. R. v Brown [1994] 1 A.C. 212; [1993] 2 W.L.R. 556 HL. R. v Konzani (2005) R. v Moore (1898) 14 T.L.R. 229. R. v Moss [2000] 1 Cr.App.R.(S.) 307 CA (Crim Div). Read More