Introduction
In February 2023, as discussed in my previous blog, an amateur rugby player was held liable by the English courts for injuring an opposition player "without any regard for [their] wellbeing or safety". This tackle left the claimant paraplegic and was described as "deliberate" and "obviously dangerous" by the judge. This case raises the question of when on-field conduct in sports crosses the line into criminal behaviour and becomes subject to prosecution.
Over the last 3-4 years, there have been several instances where on-field actions have prompted allegations of criminality. For example, during the 2019 Rugby World Cup in Japan, former Welsh international Jamie Roberts suggested that Sebastien Vahaamahina's red card (for elbowing Aaron Wainwright in the face during a maul) in the France vs. Wales quarter-final "belonged in a criminal court, let alone in front of a rugby judiciary." Similarly, a disturbing crash during the 2020 Tour de Pologne led the General Manager of Dutch Deceunick-Quick-Step ("DQS") to publicly state that Dylan Groenewegen should be "thrown in jail" for deviating into Fabio Jakobsen's line, causing a life-threatening collision and severe injuries to Jakobsen.
It's essential to note that neither of the above incidents resulted in criminal prosecutions. When such incidents occur outside the UK, they would typically be handled under local law. However, there is a bar, although a high one in England and Wales, that obliges law enforcement to intervene regarding acts committed on the sports field. In this article, we'll explore the complex relationship between sport and criminality under English law and how internal disciplinary, civil, and criminal proceedings can intersect in cases involving on-field violence.
Historically, cases where on-field sporting acts have crossed the line into criminality have often involved contact sports such as rugby union or football. Most notable examples include Kamara (1988) where Chris Kamara was convicted of assault after elbowing an opposition player after the final whistle where it is alleged that he reacted to being racially abused; and Duncan Ferguson, who was imprisoned for 3 months after headbutting an opponent while playing for Rangers in 1994. Where a sporting participant crosses the line, the sport governing bodies normally handle such cases, or the civil courts in more egregious instances, such as Gordon Watson suing Huddersfield Town for damages after suffering serious injury following a tackle by Huddersfield’s Kevin Gray.
"Off-The-Ball" vs. "On-The-Ball" Offenses
While athletes don't enjoy blanket immunity from criminal liability or civil liability for their actions during sports, there's a distinction between sports-related illegal acts such as match-fixing and on-field offences where an athlete physically injures another athlete due to an act of violence or recklessness. This article mainly focuses on the latter, and it's necessary to differentiate between "on-the-ball" and "off-the-ball" offences when it comes to imposing criminal sanctions.
"On-the-ball" offences: These involve injuries caused when a player is playing the ball or is centrally involved in the action. Examples include reckless, dangerous, or mistimed tackles, the use of excessive force when colliding with an opponent and leading with the forearm when jumping.
"Off-the-ball" offences: These result in injuries when the ball is not in play or is far away from the central action. Examples include punches, head-butts, kicks to the head, eye-gouging, or acts of violence.
An incident like the Jakobsen crash is considered an "on-the-ball" offence since both riders were engaged in a sprint finish at the time, and there was close proximity to the sporting activity. While there are commonalities between "on-the-ball" and "off-the-ball" offences, historically, English courts have been hesitant to class the former as criminal and have generally left such matters to sports disciplinary bodies.
R v Barnes: A Non-Interventionist Approach
The case of R v Barnes in 2004 exemplified the English courts' reluctance to find athletes criminally liable for on-field actions. In this case, the defendant, Barnes, inflicted a serious leg injury on an opponent through a late sliding tackle from behind during an amateur football match. While he was initially found guilty of inflicting grievous bodily harm (GBH), his conviction was later overturned on appeal. On appeal, Lord Woolf stated that most organized sports have their own disciplinary procedures for enforcing their rules and standards of conduct, and it's undesirable for criminal proceedings to be initiated unless the conduct is ‘sufficiently grave’ to be classified as criminal. He emphasized that a criminal prosecution should be reserved for situations where the conduct is severe enough to warrant criminal classification.
The relevant factors to consider when deciding whether a sporting act is criminal:
The type of the sport (contact or non-contact?)
The level at which it is played (professional or amateur)
The nature of the act
The degree of force used
The extent of the risk of injury
The state of mind of the defendant – i.e. ‘mens rea’ or intent of the defendant
This non-interventionist approach has guided English law, and criminal prosecutions on the sports field have been predominantly reserved for "off-the-ball" gratuitous or wilful violence. The severity of the offence plays a crucial role in determining whether a criminal prosecution is warranted.
R v Chapman: A Shift Towards Interventionism?
The case of Mark Chapman in 2010 raised questions about whether English law was shifting away from the non-interventionist approach advocated in Barnes. In this case, an amateur footballer was sentenced to six months in prison for an injury-causing tackle, which would be classified as an "on-the-ball" offence. The judge held that Chapman's act was deliberate and premeditated, amounting to willful violence. This decision seemed to blur the lines of criminality in contact sports, as it departed from the established approach in Barnes.
However, the decision in Chapman is not necessarily irreconcilable with the formula and objective test identified by Lord Woolf in Barnes. Lord Woolf's guidance in Barnes continues to be the authoritative precedent, and it suggests that only the most serious on-field actions should warrant criminal prosecution. This non-interventionist approach was further operationalized in the "Agreement on the Handling of Incidents falling under both Criminal and Football Regulatory Jurisdiction," published by the CPS in 2015, and a more recent version of the document issued in 2020.
Professional vs. Amateur Status
Since Barnes, there has been an unwillingness of the CPS to involve itself in professional sports. The robust internal disciplinary mechanisms of professional sports, compared to the amateur game, are likely a major reason for this. It might seem unfair that professional athletes could be indirectly provided with an additional layer of protection from criminal liability purely due to their employment status. However, professional athletes are held to a higher standard in terms of the duty of care they owe toward each other under civil law, which takes into account the skill and experience of the person who owes the duty. In contrast, almost identical acts committed by professional and amateur athletes may be viewed differently, with the professional athlete held to a higher standard of care.
Conclusion
Under English law, an athlete's conduct will only be considered criminal if it's deemed "sufficiently grave" to warrant such treatment. The bar is set high for prosecutorial bodies to intervene, particularly regarding "on-the-ball" offences. This approach is rooted in the belief that a more interventionist stance could have unintended consequences, such as discouraging individuals from participating in certain sports and undermining the social value of these activities.
The acceptability of contact in sports depends on the specific circumstances of the case and the evolving "playing culture." English law acknowledges that participants in sports consent to a certain level of injury, which might be deemed unacceptable in other contexts. This notion of consent is central to understanding how criminal law treats on-field conduct in sports. While there may be occasional shifts in approach, Lord Woolf's guidance in Barnes remains the prevailing legal standard in England and Wales.