I know it has been a while since I have posted anything new on the site, but life, and particularly lockdown life tends to get in the way of good intentions sometimes! Now I've finished my LLM studies, I thought I would post something related to one of my coursework assignments that I really enjoyed, that being on the line drawn by the courts on where they act upon violence that takes place during the heat of sporting battle.
In any sport, an element of risk is inherent within it whether that risk may be of increased physical injury or of a sporting nature where the result is on the line. Sportspersons, whenever they participate in their respective sport, accept some risk of injury, and different sports present different risks. Contact sports present higher risks for obvious reasons as they present the risk of injury from deliberate and accidental impacts or collisions. In contrast, boxing and mixed martial arts reward fighting skills and the infliction of injury. Sport, despite its protestations, is not immune from the law of the land. Although sports have their own rules and regulations to sanction foul play, they cannot do so in a vacuum, and these rules must pay deference to statutory and common law influence.
Where a physical injury occurs the criminal law and law of tort will no doubt take an interest about what is and is not permissible. The law has a nuanced view about what level of risk and harm it is reasonable for participants to consent to. This standard has been arrived at from cases from sport and outside sport. The foundation for the law in this area started with R v Coney in 1882, where the defendants engaged in bare-knuckled prize fighting were convicted of assault occasioning actual bodily harm under Section 47 of the Offences Against the Person Act 1861 (OAPA 1861), despite both fighters consenting to the fight. This has evolved through cases such as the R v Donovan, Attorney General's Reference (No.6 of 1980), and R v Brown to say that a victim can consent to anything up to grievous bodily harm.
Although the victim consented to the harm inflicted upon them in each of these instances, there were sound public policy decisions why the criminal justice system felt that they should not be encouraged. This is what is known as the 'social utility' model, where the social good, or utility, of an activity, is considered to decide whether allowing it to continue is in the public interest. This has been used to create exceptions to the usual bodily harm threshold of consent in criminal law. The criteria on this from case law is somewhat unclear, which David Kell has used to argue that we should be looking at this from the opposite perspective, arguing "unless the prosecution is able to provide persuasive reasons for prohibiting certain conduct, consent will be effective generally up to the level of grievous bodily harm".
The Current Criminal Law Position on Consent
To begin the discussion of this question, the current position under criminal law must first be discussed. Under English law, the position has evolved through case law to state that the effectiveness of the defence of consent will be dependent on the level of harm inflicted on the victim. Consent provides a complete defence against charges of common assault and battery as per the judgment in Attorney-General's Reference (No.6 of 1980), provided that that consent is freely given by a person with the requisite mental capacity. This can be given expressly or can be implied through a person's actions. It also cannot be procured fraudulently. If the harm caused results in actual bodily harm, then following the decision in Donovan, a case involving a man consensually caning a woman in the course of a sexual act, any consent is invalidated.
This was reinforced in Brown, a famous case involving sadomasochistic sexual acts (such as dripping candle wax on their genitalia and hammering nails through their penis), among consenting adult men where the Lords rejected the appeal mainly on public policy grounds, where it is best summarised by Lord Templeman that "the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally". This highlights the social utility approach of the courts, which can be seen from the exceptions created to this general rule. This has seen the creation of exceptions to the general rule like lawful sports and games, horseplay (meaning rough or undisciplined play), the reasonable chastisement of children, and lawful medical treatment.
Actual bodily harm is defined in Donovan as any injury which is more than transient or trifling, which was clarified by the court in Miller as any injury calculated to interfere with the health or comfort of the victim. In practical terms, the Crown Prosecution Service has expanded on this to say harm" is not limited to "injury" but extended to hurt or damage.
Sport and the Criminal Law
The first prominent case involving sporting violence was Coney (1882), where the participants in a bare-fisted prize-fight were convicted of assault after the court rejected their defence of consent. The fight took place in a squared-off ring, with support staff in each corner, watched by a 150-person crowd. Such fights were not unusual at that time, but this was the first known prosecution and conviction of the participants, even members of the crowd for aiding and abetting the bout. This was primarily rooted in public policy reasoning as prize-fighting was, and still is considered illegal, due to the safety concerns to participants, as well as concerns that such bouts produced 'riot, tumult, and mischief' and therefore was socially and legally unacceptable, ergo, lacking in social utility.
In Canniff, a distinction was made between boxing with gloves and bare-fisted prize fights where juries were given directions that a fight was lawful if it was ‘an amicable contest or mere exhibition of skill in sparring’. But if the rules dictated that the participants were to fight to the death, or until submission then they became unlawful. During the 19th century, if a defendant to a murder charge was shown to have been taking part in a 'fair fight' or exhibition of skill in sparring, then the charge could be reduced to manslaughter. This played into the Corinthian ideal of civilised rule-based sport played for demonstration of sporting skill rather than for financial reward. This was the position even though no overarching governing body existed to regulate and enforce the rules uniformly, despite the introduction and gradual acceptance of the Queensbury Rules introduced in 1865. This became the foundation for the decision in Coney and has been held as the legal position on consenting to sporting violence ever since. The development of the law from Coney, to Brown, has provided properly conducted and organised sport with significant but not total protection from the criminal law.
In 2005, the Court of Appeal in Barnes identified several factors to ascertain whether an injury inflicted during sporting activity was either impliedly or expressly consented to. These were based on several Canadian cases involving violent assaults in ice hockey such as Maki, Green, and Gray. The cumulation of these cases has helped the Canadian courts arrive at the position in Cey that suggests that the line of criminality between the norms of the game in question and what is beyond its spirit or playing culture should be determined by several objective criteria.
This includes the conditions under which the sport in question is played; the nature of the act which forms the charge; the extent of the force employed; the degree of the risk of injury; and the state of mind of the accused. In Cey, it was stated that these criteria should be used to determine whether the defendant’s actions were so 'violent and inherently dangerous as to be excluded from the implied consent'. This is true even within the context of particularly violent sports such as boxing where particular types of injury are outside what is permissible in the rules of the sport (i.e like biting). An example of when the courts stepped in to punish violent acts on the football pitch came in Ferguson v Normand, when Duncan Ferguson, the former Everton and Scotland footballer, was convicted of causing grievous bodily harm with intent under section 18 of OAPA 1861; and imprisoned for three months for headbutting John McStay of Raith Rovers during an off-the-ball incident seen but unpunished by the match officials, while Ferguson was playing for Glasgow Rangers during the 1993/94 season.
Such instances of the criminal courts intervening are rare. Prosecutorial decisions in England and Wales are primarily informed on the Barnes criteria. They consider the standard two-tier test prosecutors apply when deciding to prosecute a case, firstly that there needs to be sufficient evidence to provide a realistic prospect of conviction, and secondly that a prosecution is in the public interest. In regards to sport, this heavily leans on the social utility theory of jurisprudence in this area, and lists several criteria for looking at whether prosecuting such an act is in the public interest, including whether it is pre-meditated, whom it was directed and what impact it had, did the offender seek to do it out of eyesight of match officials, and also consider any action taken by match officials.
This implies a significant degree of deference to sports governing bodies to handle such incidents internally rather than allow for the courts to intervene. This is due to case law recognising the social utility of sport in allowing people an outlet for safe, regulated sporting and recreational activity. This approach by the courts means that only the most serious cases will be prosecuted. An example being Lloyd, where the defendant was imprisoned for 18 months for repeatedly kicking an opponent in the head during a rugby union match, or Kamara, where a footballer punched and broke another player's jaw after the final whistle. It can be seen that prosecutions have been brought in sports such as football and rugby union where it is easier to demonstrate that the defendant has acted outside of the accepted culture of the sport and where the injury caused could not reasonably be one that a participant could impliedly consent to. But in sports such as boxing, this is difficult to demonstrate due to its inherently violent and confrontational nature unless it is an act so extreme, such as when Mike Tyson bit Evander Holyfield's ear during their 1997 fight.
In his judgment in Brown, Lord Mustill drew on the Australian case of Pallante, where a professional boxer injured in a fight sued the fight promoters for damages for the injuries he received, which he alleged the promoters had a duty of care to prevent. In this case, the defendants employed a somewhat creative defence strategy by invoking the ex turpi causa defence of illegality, forcing the court to consider the question of the legality of boxing. The judgment of McInerny J is notable for his attempt to arrive at an intellectually robust argument on its legality. McInerny J followed the Coney reasoning to state:
"…boxing as a sport or contest and not from motives of personal animosity or at all events not predominately from that motive, but predominately as an exercise of boxing skill and physical condition in accordance with rules and in conditions the object of which is to ensure that the infliction of bodily injury is kept within reasonable bounds…..and to ensure that victory shall be achieved in accordance with the rules by the person demonstrating the greater skill as a boxer…"
Lord Mustill, in his dissenting opinion in Brown effectively damned his Australian colleague with faint praise when he said it was impossible to give “an intellectually satisfying account of the apparent immunity of boxing”.
At times it is difficult to justify how boxing can continue from a legal and medical perspective, even with improved regulation and safety measures in place, which have been shown to be far from foolproof. A 2011 study by Joseph R. Svinth showed that there were 233 boxing-related deaths in the 1920s, while there were just 103 in the 2000s. In 2019, just four boxers died from fight-related injuries; Charles Day, Boris Stanchov, Maxim Dadashev and Hugo Alfredo Santillan. This suggests that although boxing has become safer, the inherent risk cannot be eliminated, and the violent nature of the sport of boxing always makes this possible. Despite this, the rules and regulations of boxing place it in a relatively safe distance from the criminal law.
Even using the more agreeable and sympathetic social disutility approach, professional boxing would fail to find favour due to the aforementioned health and safety concerns reinforcing the argument for prohibition. As stated earlier, serious harm is inherent within boxing and arguably its primary objective. Despite this, boxing still falls within the sui generis sporting exception category because it has a governing body that regulates bouts between fighters, reasonably stringent safety measures to mitigate fighters' injuries. It was this which the court in Coney used to differentiate between prizefighting, which fighters generally fought to a standstill, and boxing under the Queensbury Rules, which was considered more civilised, and did not, according to the medical opinion of the day, endanger life or health. Despite improvements in health and safety practice in boxing, the statistics show that the court in Coney was to some degree, incorrect about the risks to participants.
Those who argue in favour of boxing's legality point to its improved safety record, additionally the positive impact it has in combatting anti-social behavioural in young people, and improving the health and fitness of those who participate. Its ability to produce positive role models such as Anthony Joshua and Nicola Adams has inspired people from predominantly working-class communities to improve health, education, and to lower crime by providing positive outlets and direction. Additionally, by criminalising the sport, it is argued that there is the possibility of creating more underground boxing matches, with lower safety standards and greater dangers to participants, and also lead to greater secondary illegality connected to organised crime such as gambling, drug dealing, and money laundering. The experience of Sweden, Iceland, and Norway outlined in a report by the Dutch Health Council has rejected this argument to some degree. Still, the depth of feeling in the UK about boxing suggests that the Scandinavian experience would not have the same impact here.
The laissez-faire approach of the law and the improvements in health and safety practice in boxing have helped boxing to become big business. World championship bouts attract purses of many millions of dollars and pay-per-view broadcasting of world championship fights makes broadcasters huge sums of money. The fact that boxing can generate such lucrative sums attracts a range of people who seek a slice of the pie, including those who seek to operate outside the confines of the officially regulated sport.
An example of this would be the growth of White-Collar Boxing (WCB), an activity in which amateur participants fight in short matches. The participants often have little or no boxing experience and receive a period of training before they enter the ring to fight, which can be as little as eight training sessions. These fights are unregulated by boxing governing bodies, and those who participate are usually unlicensed fighters. There also appears to be lower safety standards compared to licensed boxing events such as the number of available on-site medics and licensing of participants. A recent documentary on the subject shown on ITV alleges that health checks of participants are not conducted with sufficient rigour to confirm that participants are fit to take part in training and bouts.
That WCB style events are not officially recognised raises some interesting questions as to whether these would be the type of contests outlined in Pallante and Coney as contests of pure sporting skill. The fact that the lack of harmonised safety standards, disciplinary process and sanctioning power available to event organisers other than that within the contractual relationship between the event organiser and participant, means that the CPS guidelines for prosecuting sporting violence mean that the criminal justice system may allow to take a more active role.
Arguably, there could be room for the prosecuting authorities to take a more active role in such instances, especially those events where safety standards fall well short of the official standards. If there is a lack of proper harmonious regulation of the sport and no single set of rules to comply with, then it is difficult for there to be any proper system of regulating participant conduct inside the ring. The lack of harmonious regulation was a crucial reason for the Court of Appeal decision in R v BM, although this is not a sports-related case, it can be extrapolated to apply to the issue of consent in sport. This case involved a tattooist and body piercer, who performed body modification procedures such as tongue splitting, and ear and nipple removals despite having no formal medical qualifications. BM was charged with three counts of Grievous Bodily Harm under Section 18 OAPA 1861. On all counts, the person who had the procedure consented to it, and it was noted that the procedures were performed to an acceptable clinical standard. A crucial part of the judgment was the lack of regulatory oversight of such procedures and the potential harm that unregulated and unqualified practitioners could cause to a willing, but unaware participant. This has direct application to examples of serious harm inflicted during unregulated fighting sports such as white-collar boxing where there is little universal regulation to govern the sport and to sanction participants who transgress those rules. In those instances, the criminal justice system has a greater case for discarding the sports exception, as the social utility of such activities is much harder to justify.
In many ways, it is almost an absurdity that that two people fighting and inflicting serious harm on each other receives judicial approval because the combatants wear gloves and fight inside a ring, obey specific rules imposed by a body to regulate such activity. Remove the gloves, if this were to happen on the streets, then the criminal justice system would intervene without hesitation even though the participants impliedly consent to the risk of serious injury. The level of sporting regulation to deal with those who transgress the rules and culture of a sport provides that sport with a level of judicial deference that allows that governing body to keep such transgressions in-house.
Football is an example of a sport that has a system in place of punishing those who inflict serious harm on other participants either negligently or intentionally. In boxing, there is also a system in place where a national governing body imposes sanctions on participants and ultimately removes licences from boxers who contravene the rules. The courts will only intervene in cases where those transgressions are so extreme that it is socially unacceptable for a particularly violent act to face only sporting sanctions. Ferguson is a particularly pertinent example of this where an act outside the accepted culture or norms of the sport, and where the match officials did not act to punish Ferguson despite seeing the incident. Even in Barnes, where the incident was seen and punished, Barnes was convicted of GBH under section 20 OAPA 1861, even though the conviction was later overturned by the Court of Appeal. These cases are rare, and courts will generally defer to the sport’s governing body to deal with such incidents where possible. The cases where prosecutions have been brought have been in instances where the governing body has either failed to act or not acted appropriately to punish the alleged wrongdoing.
In sports such as football, cricket, or even rugby, the delineation between violent acts that do and do not fall within the accepted culture of the sport is easier to ascertain. Still, in sports like boxing, this delineation is much blurrier, as acts that would typically be considered criminal are acceptable in the context of the sport. So, although it may be a reflexive instinct to criminalise fighting sports due to the harm they inflict upon its participants, there is a broader argument to be had regarding the social utility that sports such as boxing brings. A 2019 All-Party Parliamentary Group for Boxing report argues that sports such as boxing have a positive social impact upon underprivileged communities and particularly in helping to reduce anti-social behaviour. One project, Fight for Peace (FFP) has been empirically validated as a cost-effective way of altering anti-social behaviour. Over 1,300 young people have accessed FFP since January 2012, of which 94% of attendees were not in full-time education. The report showed that after attending FFP they are less likely to commit crime and join a gang (71%); will now think before they act (77%); feel calmer (71%) and feel more confident and ambitious (94%).
This is a small sample of the social utility that sport can provide, and why the jurisprudence of cases where the consent defence applies during sporting activity is cognisant of the public policy benefits of sport. If the criminal justice system became more interventionist and sought to ban fighting sports such as boxing, then it would be susceptible to the criminology principle of the 'evils of criminalisation'. This means that by criminalising an activity, it becomes harder to regulate and control that activity by pushing it underground, and by doing that it makes that activity more dangerous. Paradoxically, banning a sport because of the harm it causes to participants, could make that harm more likely as there would be less incentive to put the necessary safety controls such as medical assistance, licencing, and equipment regulation in place to protect participants. A broad-based prescriptive approach to fighting sports such as boxing does little to appreciate that the delicate balance between the prevention of harm and the regulation and encouragement of positive societal behaviours, which there is considerable evidence to suggest that sports such as boxing promotes.
In addition to the broader considerations, there is a narrow practical issue which the judiciary also must consider if they have the resources to hear these types of cases relating to violence inflicted during professional and recreational sport. In many instances, it is better for the governing body to intervene in the first instance as they have a better appreciation of the issues, of the sport and culture, and the sanctioning power. Often, a sporting punishment will be sufficient to punish such wrongdoing by imposing a ban on participation for a defined period or a fine. The balance that has been struck by the courts is cognisant of this balance and recognises the practical and philosophical nature of sport and the inherent risks involved. When violent behaviour exceeds that level of risk to cause more extreme levels of harm, then the courts are willing to step to say, ‘this far, but no further’.