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Criminal Law Review

2008

No licence for thuggery: violence, sport and the criminal law

Jack Anderson
Subject: Criminal law. Other related subjects: Sport
Keywords: Canada; Criminal liability; Implied consent; Offences against the person; Sports; Violence
Cases: R. v Barnes (Mark) [2004] EWCA Crim 3246; [2005] 1 W.L.R. 910 (CA (Crim Div))
R. v Cey (1989) 48 C.C.C. (3d) 480 (CA (Sask))
R. v LeClerc [1991] 67 C.C.C. (3d) 563 (CA (Ont))
*Crim. L.R. 751 Summary: Contact sports carry the risk of physically invasive collisions.
Player-on-player contact is a foreseeable and, at times, elemental hazard of such games. This article
asks when, as a matter of policy and legal certainty, and on what basis, might criminal liability attach
to a violent incident on the sports field? It suggests that the answer is located in the principle of
implied sporting consent and discusses the critical level at which such an implied consent ordinarily
ceases to be an answer to a prosecution for inflicting harm during the course of a game.

Introduction
On February 23, 2008, Arsenal played Birmingham in a Premier League football game. In the third
minute of play, Birmingham's Martin Taylor tackled Arsenal's Eduardo da Silva. In the vernacular of
the game, the tackle was late, and Eduardo suffered a fractured left fibula and dislocated ankle. The
images of the injury were so egregious that they were not broadcast during that night's TV highlights
of the match. In the aftermath of the incident, Sepp Blatter, the President of FIFA, football's world
governing authority, called for lifetime bans and criminal prosecutions of footballers guilty of
dangerous tackling.1 Although there was an acknowledgment within the football fraternity of the need
to monitor dangerous tackling more closely, Blatter's proposals as to potential criminal liability were
met with some scepticism.2 This article reviews the applicability of the criminal law of assault to
incidents of this nature. The question of fundamental legal import addressed is: at what point does,
and when is it appropriate for criminal liability to attach to the perpetrator of an injury inflicted upon an
opponent in the course of a game?
The answer, it is suggested, may lie in what can be termed the principle of implied sporting consent.
The jurisprudential origins of implied sporting consent, its evolution as a principle and its influence on
the current status of the law of sporting assault are central to this discussion. Its origins are located
in *Crim. L.R. 752 case law of the late 19th century such as Bradshaw. 3 Its development as a
principle is examined in light of the surprising number of criminal proceedings arising out of violence
in the sports of rugby and football. The current status of the law of sporting assault is discussed,
mainly in the context of the Court of Appeal's decision in Barnes. 4 The analysis is informed by a
comparative approach whereby reference is made to the sophisticated approach of the Canadian
courts to violence in sport, principally in the context of ice hockey. The article concludes by reflecting
upon the suitability of the ordinary law of violence in addressing unnecessarily aggressive behaviour
in sport, and the influence it might have on the playing culture of our leading contact sports.

Implied sporting consent

In general, the rationale underlying the encroachment of the criminal law into sport is that no
particular segment of society should be permitted to commit crime with impunity. It follows that when
criminal proceedings are seen to be justified, then, depending upon the gravity of the conduct, a
prosecution can be (variously) for assault contrary to s.47, s.20 or s.18 of the Offences Against the
Person Act 1861.5 The application of the 1861 offences is predicated on the conduct in question being
sufficiently criminal in character. In the context of on-field violence in sport, it appears that if an
injuring player's conduct is seen to have been within the bounds of what one would reasonably
foresee as a physical hazard of the game, the violent act of bodily harm is not unauthorised and will

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not expose the perpetrator to criminal liability. The doctrinal root of that approach is located in contact
sports' long-standing exemption from the normal threshold of consent in the criminal law of assault.6
The origins of this implied sporting consent can be traced to a trilogy of late 19th century case law,
namely Bradshaw, 7 Moore 8 and Coney. 9 In Bradshaw, the accused struck an opponent with his
knee during a football game, resulting in the eventual death of the opponent. Bamwell B.'s direction to
the jury is established as the historical source of the criminal law's approach to violence in sport:
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. But, independent
of the rules, if the prisoner intended to cause serious injury and was indifferent and reckless as to
whether he would produce serious injury or not, then the act would be unlawful.10
*Crim. L.R. 753 The Bradshaw jury, taking into account evidence from an umpire that no unfair play
had occurred, acquitted the accused on the manslaughter charge. In Moore, the accused had jumped
knees first into the back of an opponent. He had done so with such force that he threw the victim
against an on-rushing goalkeeper. The victim suffered serious internal injuries and died a few days
later. In summing up to the jury, who returned a guilty verdict, Hawkins J. took an approach similar to
that of Bradshaw, noting succinctly:
Football is a lawful game, but a rough one, and persons who play it must be careful to restrain
themselves so as not to do bodily harm to any other person.11
In Coney, the principle that, independent of the rules of the game in question, criminal liability could
attach to deliberately or recklessly dangerous play causing serious injury, was extended to include
non-fatal violence. In the stated case, the participants (and organisers and spectators) in a prize fight
faced various criminal assault and abetting charges. The Court for Crown Cases Reserved held that,
because prize fighting was unlawful, the consent of the participants was irrelevant. Nevertheless,
where the activity could be considered lawful, a number of dicta noted that the question as to whether
consent affected the illegal character of the force inflicted was one of reconciling the social utility of
the defendant's conduct with the level of injury inflicted.12
Over half a century later, the English Court of Appeal in Donovan would reaffirm the general rule
that the consent of the victim is immaterial where the accused has beaten the victim to such a degree
of violence that the infliction of bodily harm is a probable consequence. Swift J. went on to remark
that the rule was one to which there were a number of well established exceptions, including the
manly diversions of rough and undisciplined sport or play.13 In Attorney-General's Reference (No.6
of 1980), the Court of Appeal delivered the more modern expression of the rule. Lord Lane C.J.
observed that it was not in the public interest that people should try to cause, or should cause, each
other actual bodily harm for no good reason, though, and again in the public interest, that approach
was not intended to cast doubt on the accepted legality of properly conducted games and sports.14
In both cases, the Court of Appeal noted that the underlying public interest in the sporting exception
to the usual threshold of criminal consent had a long and established history based on the manly
diversion of contact sports that intend to give strength, skill and activity, and may fit people for
defence, public as well as personal, in time of need.15 As noted by the House of Lords in Brown, the
public interest in, and accompanying legality of, contact sports is now slightly more refined than
national, military preparedness.16 It is based largely on the societal and health benefits of participation
in sport, as underpinned by responsible methods of *Crim. L.R. 754 self-regulation through which it
is made clear that violence and harm are incidental only to the norms of a properly conducted game,
and will face internal sanction.17
There has been some criticism of the theoretical and moral coherency underpinning the well
established exceptions to the usual bodily harm threshold of consent in the criminal law of assault.18
For instance, how can the (social utility) rationale underpinning that threshold be reconciled--indeed,
how can the criminal law of assault itself be reconciled--with the sport of boxing, where the deliberate
infliction of injury, principally to the head and softer areas of the body, is rewarded with points?19 That
criticism is well made, though, equally, Ashworth's view that the sui generis nature of the legality of
boxing means that it would be wrong to use it as a benchmark, against which a level of sporting
criminality might be set, is also correct.20 Of more immediate import is the fact that in Brown, the
House of Lords reiterated the criminal law of assault's benevolent view of contact sports, including
boxing, to which, in contrast, the satisfying of the sadomasochistic libido was not a good reason in
the public interest for departing from the usual threshold of criminal consent.21 In Dica, the Court of

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Appeal summarised the post-Brown view of consent succinctly:

As a general rule, unless the activity is lawful [the examples used were surgery and the sport of
boxing], the consent of the victim to the deliberate infliction of serious bodily injury on him or her does
not provide the perpetrator with any defence.22
Clearly, the boundary of implied sporting consent is not limitless, and the exemption granted to
lawfully conducted sports and games is not a licence for thuggery.23 A steady number of
prosecutions arising from violent incidents on the sports field have been reported, particularly in rugby
24
and football.25 Two points are evident *Crim. L.R. 755 from the case law. First, deliberate,
unprovoked assaults, especially of an off-the-ball nature, can result in custodial sentences.
Secondly, the Court of Appeal has consistently commended trial courts for their intolerance of
unacceptable levels of violence on the playing field--a commendation that should be heeded by all
contact sports that operate in England and Wales.26 In Moss, for example, the accused was convicted
of inflicting grievous bodily harm contrary to s.20 of the 1861 Act, after punching an opponent in the
face, fracturing his eye socket. The accused was sentenced to eight months' imprisonment. Despite
what appeared to amount to a strong plea in mitigation, the appeal against the severity of sentence
was dismissed.27 The Court of Appeal acknowledged, as had the trial judge, that rugby was a contact
sport and would inevitably result in players suffering injury, but that sport was:
[N]ot a licence for thuggery and was a game covered by strict rules; the offence involved an
assault off the ball and after play had moved on; serious injury had been inflicted; the offence was so
serious that only a custodial sentence could be justified.28
That case law notwithstanding, the central question remains, when, as a matter of policy and legal
certainty, and on what basis, is it appropriate to consider criminal liability for incidents of sports
violence? Problematically, the boundary of implied sporting consent is blurred or, to paraphrase Lord
Mustill in Brown, it is difficult to identify the critical level at which such an implied consent ordinarily
ceases to be an answer to a prosecution for inflicting harm during the course of a game.29 Recently,
the Court of Appeal in Barnes has remarked that criminal proceedings arising from violence in sport
should be reserved for those situations where the conduct is sufficiently grave to be properly
categorised as criminal.30 The (somewhat tautological) rationale underlying that judgment--criminal
conduct on the field of play is recognisable by its criminality--will be assessed shortly. Meanwhile, and
in order to have a better understanding of the issues at play, it is necessary to leave the playing fields
of England for the ice hockey rinks of Canada.

The Cey test: ice hockey and the criminal law

The Supreme Court of Canada has held that participation in contact sports is a good reason in the
public interest for granting such activities an exemption from *Crim. L.R. 756 the criminal law of
assault's normal threshold of consent.31 To a much greater depth than the applicable English
jurisprudence, the Canadian courts have attempted, mainly through the frequency of prosecutions
taken on foot of injuries sustained during ice hockey games, to identify the circumstances when an
accused might be held to have exceeded the scope of that exceptive (and implied) sporting consent.32
The seminal Canadian authority is from 1969 when, during a National Hockey League exhibition
game in Ottawa, a player with the St Louis Blues, Wayne Maki, collided with and fought Ted Green of
the Boston Bruins. In Maki, 33 the provincial court in Ontario found Maki's claim of self-defence to be a
valid one or, at least, the court could not say that Maki was not under a reasonable apprehension of
harm to his person. In Green, 34 the trial judge relied on the principle of implied consent to find that no
assault had been committed, and acquitted Green. In both cases, the courts appeared influenced by
the ordinariness--in the context of professional ice hockey--of the fight and that, in effect, the
players' actions had been instinctive and unintentional in nature.35
During the period 1970-85, more than 100 criminal convictions were secured for offences involving
unacceptable violence between ice hockey players during the course of a game.36 Cases such as
Watson, 37 Moloney, 38 Henderson, 39 Gray, 40 and Cot 41 demonstrate that across its several
jurisdictions Canadian authority has tended towards the view that by participating in a contact sport,
participants impliedly consent to some bodily contact necessarily incidental to the game but not to
overtly violent attacks. Crucially, the case law suggests that the line (of criminality) between that
which is within the norms of the game in question and that which is beyond its spirit or playing
culture, should be determined by a number of objective criteria, first outlined in detail by the
Saskatchewan Court of Appeal in Cey. 42 The Cey principles demand specific attention because they

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continue to inform the debate in other jurisdictions as to when acts of violence on the field of play
might attract criminal liability.43
In Cey, a participant in an amateur ice hockey game crosschecked an opponent into the boards
surrounding the ice rink. The victim suffered injuries to the face and mouth. At trial, the defendant was
acquitted on a charge of assault causing bodily harm. On appeal, the acquittal was overturned and a
retrial ordered, principally on the ground that the trial judge had not properly addressed the issue of
implied *Crim. L.R. 757 sporting consent. The Saskatchewan Court of Appeal held that the proper
approach in instances of alleged criminal assault resulting from a contact sport was to consider first,
whether there was an express or implied consent to the type of contact involved and secondly,
whether that contact was of such a nature that in any event no true consent could be given. In a
sports setting, the court acknowledged that consent will almost always be of an assumed or implied
nature. The nature of the contact for which that implied consent is assumed must not be of such a
high risk of injury and such a distinct probability of serious harm as to be beyond what, in fact, the
players commonly consent to, or what, in law, they are capable of consenting to.44 Therefore, in
application to the facts at hand, the first matter that the trial judge should have sought to have had
determined was whether there was an express or implied consent and secondly, whether
crosschecking the victim exceeded the implied sporting consent.45
The usefulness of the Cey judgment is located in that court's attempt to provide an objective
framework within which the scope of implied sporting consent could be assessed. Prior to Cey,
Canadian case law suggested that players in a contact sport were presumed to consent to physical
conduct that was reasonably incidental and instinctive to the sport, though it was admitted that the
type of conduct that a court of law might consider to be reasonably incidental was hard to predict.46
In Cey, the court sought to delineate the scope of a participant's sporting consent by way of
objective criteria, namely: the nature or conditions under which the game in question is played; the
nature of the act and surrounding circumstances; the extent of force employed; the degree of risk of
injury including the probability of serious harm; and the state of mind of the accused.47
The Cey court went on to say that the criteria:
[A]re, of course, all matters of fact to be determined with reference to the whole of the
circumstances. In large part, they form the ingredients which ought to be looked to in determining
whether in all of the circumstances the ambit of consent at issue in any given case was exceeded.48
The Cey principles were utilised in Cicarelli, 49 where the accused was charged with assault for his
part in a bench-clearing brawl, which took place after the whistle had blown on a televised National
Hockey League game. Although the victim suffered no bodily harm, the accused was convicted after
striking the opposing player three times on the head with a hockey stick. The trial judge, referring to
the objective criteria outlined in Cey, found that the accused's conduct was not of a nature impliedly
consented to by the victim. A subsequent appeal was dismissed. The Cicarelli judgment has two
outstanding points of interest. First, the appellate court held that the objective standard used by the
trial judge was preferable to the playing culture standard proposed by counsel for the appellant--that
players are deemed to consent to anything that may be expected to happen during a game.50 *Crim.
L.R. 758 Corbett J. was of the view that the latter was overly permissive and might pander to a
public appetite for violence as entertainment.51 Secondly, in applying the Cey criteria, the trial judge
demonstrated a comprehensive and sensitive understanding of the game in question, and was quite
rightly influenced by the fact that high sticking an opponent in the head was unusual even in a game
as fast, vigorous and competitive as national league hockey.52
Since Cicarelli, and in line with its principles, there have been a number of high profile prosecutions of
professional ice hockey players, including those of Marty McSorley in 200053 and Todd Bertuzzi in
2004.54 The debate in Canada as to whether the criminal law is, in the first place, an appropriate
means of combating violence in sport continues to be deliberated upon, as does the view that when in
the rare instance a conviction for a sports assault is obtained, the tender approach to sentencing
dilutes the deterrent and denunciation value of such convictions.55 At this point, it suffices to state that
the Canadian approach to implied sporting consent, as underpinned by the objective Cey criteria, is a
considered and attractive one. An illustration of its benefits can be found in LeClerc, 56 where the
accused was charged with aggravated assault alleged to have occurring during the course of a
recreational hockey game under whose rules no bodily contact was permitted. The accused and the
victim collided in a tussle over the puck during which the accused hit the victim in the back with his
hockey stick. Applying the rules, the referee immediately stopped play, penalising the accused for a
deliberate attempt to injure. The victim suffered a dislocation of a portion of the cervical spine and

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suffered permanent paralysis from the neck down. The trial judge, noting that the culprit's conduct
was instinctive, reflexive and defensive in nature, acquitted the accused. The Crown appealed.
The appeal, which was dismissed, again raises a number of points of interest. First, the Ontario Court
of Appeal agreed with the trial judge that the fundamental question at issue was whether the culprit's
conduct--stick-hitting the victim on the back near the boards--was, in the context of the Cey criteria
and the game conditions as a whole, so inherently dangerous as to breach the implied consent of the
victim.57 Secondly, the Crown argued that the scope of the implied sporting consent ought to be
narrowed in the stated circumstances because the alleged assault had occurred during the course of
a recreational game in which bodily conduct was not permitted by the governing rules. The trial judge
had found that the ideal of a no contact rule was frequently breached in games of this nature
where bumps and other contacts resulted in many penalties. The Ontario Court of Appeal held that
the trial judge was right to state that, although the no contact rule was relevant in determining the
scope of implied consent, it was not by itself determinative of the issue.58 Thirdly, the Crown argued
that the degree of force of the blow to the victim's neck was sufficient of itself to establish criminal
conduct. *Crim. L.R. 759 The trial judge had found, and again the Court of Appeal agreed, that the
blow, though tragic in consequence, resulted from an instinctive reflex reaction done at high speed
by the accused in an attempt to minimise the risk of bodily harm to his person in close proximity to the
boards surrounding the ice rink.59
The LeClerc approach is a good one with an inherent and welcome flexibility to its application. It
reiterates that the Cey principles can act as a guideline for a court in distinguishing the grey area
between conduct intrinsic to the spirit of a game thus impliedly consented to, and that which is
extrinsic to its norms thus attracting criminal liability. In this, the LeClerc decision can be read as
being sensitive to criticism raised by a number of academics that the sober atmosphere of a
courtroom objectively applying the rule of law might be ill-suited to assessing the spontaneous and
occasionally heated playing culture of the sports arena.60 It is argued that quite the opposite is the
case with, for instance, the trial judge in LeClerc demonstrating a clear understanding of, and
sensitivity towards, the playing culture of the recreational ice hockey game in question. It is of
particular note that notwithstanding the fact that the referee had described the foul in question as
deliberate and vicious; the fact that the injuries suffered were extremely grave in consequence; and
the intemperate zeal of the injuring blow, the trial judge still found that the conduct in question was
not, taking into account the conditions and circumstances of the game as whole, criminal in nature.61
The Cey principles/LeClerc application to implied sporting consent might also be usefully applied
beyond the ice rink, and have been referred to by the Court of Appeal in its most recent decision on
this topic.

Barnes
The case arose from an incident in an amateur football match during which the victim sustained a
serious leg injury as a result of a tackle involving the defendant. The defendant was subsequently
convicted of unlawfully and maliciously inflicting grievous bodily harm contrary to s.20 of the Offences
Against the Person Act 1861. In the defendant's subsequent appeal, the appellant highlighted the fact
that the trial judge had made it clear that the appellant should be found guilty only if the prosecution
had proved that what had happened was so reckless that it could not have been done in legitimate
sport, thus was tantamount to an aggravated assault. The appellant's contention was that the trial
judge had not adequately explained to the jury the concept of legitimate sport in the context of the
circumstances at hand, to the extent that it must have been difficult for the jury to determine what they
had to decide in order to find the defendant guilty. The Court of Appeal allowed the appeal, holding
the conviction unsafe on the grounds outlined by the appellant.62
*Crim. L.R. 760 Lord Woolf C.J., delivering the judgment of the court, took as his starting point the
fact that most organised sports have their own (relatively sophisticated) disciplinary mechanisms.
Those internal procedures, allied to the fact that there was also the possibility for an injured player to
obtain damages in a civil action, led Lord Woolf to conclude that a criminal prosecution should be
reserved for those situations where the conduct is sufficiently grave to be properly categorised as
criminal.63 On reviewing and recognising the historical public policy basis of the defence of implied
consent for contact sports, Lord Woolf acknowledged that a critical aspect of the criminality of such
incidents lay in identifying whether the stated conduct breached the limits of that defence, such that,
in the case of ss.18 and 20 of the 1861 Act, it might be deemed unlawful.64

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Citing Cey with approval, Lord Woolf noted:

If what occurs goes beyond what a player can reasonably be regarded as having accepted by taking
part in the sport, this indicates that the conduct will not be covered by the defence.65
It followed, according to Lord Woolf, that a player does not (and cannot reasonably be expected to)
consent to the intentional infliction of injury.66 With respect to a test governing the reckless causing of
injury, Lord Woolf was of the opinion that where it is claimed that the defendant has shown reckless
disregard for the safety of an opponent, a judgment as to whether the defendant's conduct is criminal
or not should be viewed objectively using the criteria employed in Cey. 67 Similar to LeClerc, the
English Court of Appeal in Barnes noted that even with the Cey principles as a guideline, tribunals of
fact would still be faced with grey areas blurring the lines between conduct intrinsic to the spirit of a
game, and that which is extrinsic to its norms, thus vulnerable to criminal liability.68
Lord Woolf went on to observe that the Cey guidelines would have better enabled the jury to ask
whether the injuring tackle in question was, in the context of the game, its rules and its conditions, so
violent that it could not be regarded as an instinctive reaction, error or misjudgement in the heat of
the game.69 In contrast, the trial judge had directed the jury along the rather vague grounds of
whether the tackle was done by way of legitimate sport. Although, as the Court of Appeal
acknowledged, the concept of legitimate sport was not of itself unhelpful, the failure of the trial judge
to provide clarification as to its nature meant that the trial judge's summing up was inadequate, as
aggravated by the omission to make clear to the jury that there could lawfully be breaches, even
serious breaches, of the rules of sport without there necessarily being the commission of a criminal
offence.70
*Crim. L.R. 761 Barnes has attracted some criticism from academic commentators, principally on the
grounds that it does not adequately accommodate the playing culture of sport.71 That debate centres
on an extract from the Barnes judgment at [15] (italics included):
In making a judgment as to whether conduct is criminal or not, it has to be borne in mind that, in
highly competitive sports, conduct outside the rules can be expected to occur in the heat of the
moment, and even if the conduct justifies not only being penalised but also a warning or even a
sending off, it still may not reach the threshold level required for it to be criminal. That level is an
objective one and does not depend upon the views of individual players.
The contention is that the approach to violence in sport should be of a more subjective nature;
otherwise the physicality (and pleasure) of participating in contact sport will be emasculated.72 That
contention can be rejected on two grounds. First, the playing culture of sport is taken into account: it
is one of the objective Cey criteria approved of by the Court of Appeal in Barnes. Secondly, doubtless
it is preferable that sports governing bodies ensure, through the enforcement and updating of their
rules and internal disciplinary mechanisms, that unnecessarily violent practices are eliminated.
Equally, however, no organisation or sport operates beyond the reach of the criminal law.
Unfortunately, an overly subjective approach based on the prevalent playing culture of a sport might
be used to excuse behaviour that should ordinarily be deemed criminal in nature.
The sporting fraternity often finds it difficult to accept that their chosen pastime might be subject to the
criminal law. An ethos of sporting omert, whereby members of individual sports communities
appear reluctant to give evidence in criminal investigations, is a notable feature of this topic.73 In a
similar vein, the reaction of rugby player Simon Devereux, convicted in 1996 for grievous bodily harm
with intent after breaking an opponent's jaw during a game, is illustrative. On his early release from a
sentence of nine months' imprisonment, Devereux described the flare-up that led to his
imprisonment as being no different to countless others on rugby pitches the length and breadth of
Britain every Saturday of the season.74 That may well be so, but it neither excuses his behaviour nor
deflects potential criminal liability.75 Unfortunately, the mantra of what happens on the field; stays on
the field, which one former Scottish rugby international acting as a witness in a criminal trial abridged
to the expectation of punch and be *Crim. L.R. 762 punched, is ingrained in the ethos of many
contact sports.76 That mantra is not necessarily nor always an odious one, but it should never be
permitted to excuse an overly violent (and often cowardly and cynical) playing culture.
Overall, in addressing the uncertainty as to the attachment of criminal liability for violent play on the
sports field, the underlying thrust and sentiment of the Barnes judgment is welcome, albeit with a
residual need to clarify the extent to which the English law of sporting assault now relies upon the Cey
criteria.77

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Current status of the law of sporting assault

It is submitted that a summary of the law of sporting assault in England and Wales, predicated on a
breach of a participant's implied sporting consent to injury during the course of a contact sport, might
now read as follows.78
Contact sports carry the risk of physically invasive collisions. Player-on-player contact is a
foreseeable and, at times, elemental hazard of such games. A participant's consent to bodily contact
during contact sports encompasses that which is ordinarily and reasonably incidental to the playing of
the game in question. It does not extend to conduct that is overtly violent. There is no immunity from
the ordinary law of assault for the intentional infliction of injury during a sport or game. A decision by a
tribunal of fact as to whether the reckless infliction of injury during a game is criminal in nature should
be assessed in light of the following objective criteria:
the type of sport in question;
the safety rules, level and conditions under which the game in question was played;
the playing culture of the game, recognising that in highly competitive contact sport conduct
outside the rules should be expected to occur in the heat of the moment but might not reach the
required level of criminality;
the nature of the injuring act and its surrounding circumstances, recognising that injury inflicted off
the ball is more likely to exceed the boundaries of implied sporting consent;
the extent of force employed;
the degree of risk of injury including the probability of serious harm;
the state of mind of the accused.
Again, it must be reiterated that the stated criteria act collectively as a guideline only and that there
may well remain a grey area. Ultimately, it remains a matter for the tribunal of fact to make its
determination based on the conditions and circumstances of the game as a whole.

*Crim. L.R. 763 Conclusion

The criminal law should remain a last resort in matters of sporting violence. It is preferable that the
lead on eliminating inherently excessive violence in a sport comes from within the expertise of the
sport itself. The criminal law can be a rather blunt instrument in such circumstances, and can lead to
an individual participant becoming the scapegoat for the unsafe practices of their chosen sport.
Moreover, the evidential practicalities of instigating sports-related prosecutions, and their
unpopularity, should not be underestimated. It can be difficult to reconcile the robust, spontaneous,
agony of the moment reflexes of the sports participant with the appropriate mens rea of the stated
offence under the criminal law of assault. Nevertheless, no particular segment of society, even one
adjudged to have a high social utility such as sport, should be permitted to commit crime with
impunity. Contact sport is not a licence for brutality. Thanks to the Court of Appeal in Barnes, and the
concomitant Canadian authority, the demarcation line between physicality that can be considered
reasonable in light of the rules and spirit of the game in question and that which is clearly criminal in
nature, is more readily identifiable. At the very least, the increased awareness of the threat of the
criminal law beyond the touchline may avert its actuality, and all contact sports will be better served
as a result.
Crim. L.R. 2008, 10, 751-763

1.

M. Syed, Thugs should be banned for life, says Sepp Blatter, The Times, March 7, 2008.

2.

M. Samuel, Tackle that broke a leg and divided a nation, The Times, February 28, 2008.

3.

(1878) 14 Cox's C.C. 83.

4.

Barnes [2004] EWCA Crim 3246; [2005] 1 W.L.R. 910; [2005] Crim. L.R. 381.

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5.

If death resulted from the assault, the charge could be one of manslaughter or possibly murder, depending on the
defendant's intent.

6.

See P. McCutcheon, Sports Violence, Consent and the Criminal Law (1994) 45 N.I.L.Q. 267.

7.

(1878) 14 Cox C.C. 83.

8.

(1898) 14 T.L.R. 229.

9.

(1882) L.R. 8 Q.B.D. 534.

10.

(1878) 14 Cox C.C. 83 at 85, Bramwell B. Note, J.H. Beale, Consent and the Criminal Law (1895) 8 Harvard Law
Review 317, 323 and 325.

11.

(1898) 14 T.L.R 229, Hawkins J.

12.

e.g. (1882) L.R. 8 Q.B.D. 534 at 549, Stephen J. See generally J. Anderson, The Legal Response to Prize Fighting in
Nineteenth Century England and America (2006) 57 N.I.L.Q. 265.

13.

[1934] 2 K.B. 498 at 507 and 508-509.

14.

[1981] Q.B. 715 at 719.

15.

1 Fost. (1809), p.260 and 1 East P.C. (1803), pp.268-270. See also G. Williams, Consent and Public Policy [1962]
Crim. L.R. 74 and 154.

16.

Lord Mustill's judgment is most helpful in this regard; [1993] 2 W.L.R. 556 at 584-602.

17.

That approach to consent, sport and the criminal law can also be found in comparable jurisdictions. See generally the
review by the NZ Court of Appeal in Lee [2006] 3 N.Z.L.R. 42.

18.

B. Bix, Assault, Sado-masochism and Consent (1993) 109 L.Q.R. 540; D. Kell, Social Disutility and Consent (1994)
14 O.J.L.S. 121; and P. Roberts, The Philosophical Foundations of Consent in the Criminal Law (1997) 17 O.J.L.S.
389.

19.

M. Gunn and D. Ormerod, The Legality of Boxing (1995) 15 L.S. 181.

20.

A. Ashworth, Principles of Criminal Law, 5th edn (2006), p.321. For an assessment of the current legal status of boxing,
see J. Anderson, The Legality of Boxing: A Punch Drunk Love? (2007).

21.

See, in review, M. Allen, Consent and Assault (1994) 58 J. Crim L. 183.

22.

[2004] EWCA Crim 1103; [2004] Q.B. 1257 at [41], Judge L.J. Note also Konzani [2005] EWCA Crim 706; [2005] 2 Cr.
App. R. 14 at [34]-[46], Judge L.J.

23.

Lloyd (1989) 11 Cr. App. R. (S.) 36; [1989] Crim L.R. 513, Pill L.J., as echoed in Lord Mustill's observation, [1993] 2
W.L.R. 556 at 593.

24.

Billinghurst [1978] Crim L.R. 553; Gingell [1980] Crim. L.R. 661; Bishop, The Times, October 12, 1986; Johnson (1986)
8 Cr. App. R. (S) 343; Devereux, The Independent, February 23, 1996; C [1999] 2 Cr. App. Rep. (S.) 64; Moss [2000] 1
Cr. App. R. (S.) 307; Bowyer [2001] EWCA Crim 1853, [2002] 1 Cr. App. R. (S.) 101; Pepper [2002] EWCA Crim 3141;
and Best [2004] EWCA Crim 483.

25.

Birkin [1988] Crim. L.R. 854; Kamara, The Times, April 15, 1988; Chapman (1989) 11 Cr. App. R. (S.) 93; Shervill
(1989) 11 Cr. App. R. (S.) 284; Lincoln (1990) 12 Cr. App. R. (S.) 250; Davies (1990) 12 Cr. App. Rep. (S.) 308; Rogers
(1993) 15 Cr. App. R. (S.) 393; Goodwin (1995) 16 Cr. App. R. (S.) 885; Tasker [2001] EWCA Crim 2213; [2002] 1 Cr.
App. R. (S.) 515; Thelwell [2004] EWCA Crim 208; Cotterill [2007] EWCA Crim 526, [2007] 2 Cr. App. R. (S.) 64;
Wilkinson [2007] EWCA Crim 2456; and, in Scotland, Butcher v Jessop 1989 S.C.C.R. 119 and Ferguson v Normand
1995 S.C.C.R. 770.

26.

Note also the results of a nationwide survey of trial judges in the United States, three-quarters of whom were of the
opinion that incidents of excessive sports violence should be handled in the criminal courts; M. Barry, R. Fox and C.
Jones, Judicial Opinion on the Criminality of Sports Violence in the United States (2005) 15 Seton Hall Journal of
Sports and Entertainment Law 1.

27.

The appellant asked the Court of Appeal to take into account that he had no previous convictions; that he had offered to
pay compensation; that the risk of re-offending was assessed independently as being low; that he had a number of
glowing character references as to his sporting and personal character; and that he, the appellant, was a married man
with dependent children who had a small family business to maintain.

28.

[2000] 1 Cr. App. R. (S.) 307 at 309, Potts J. See also Garfield [2008] EWCA Crim 130; [2008] 2 Cr. App. R. (S.) 62 at
[7], Walker J.

29.

[1993] 2 W.L.R. 556 at 586.

Page9
30.

Barnes [2004] EWCA Crim 3246; [2005] Crim. L.R. 381 at [5], Lord Woolf C.J.

31.

Jobidon [1991] 2 S.C.R. 714; 7 C.R.4th 233 (Can. Sup. Ct., 1991), 273-274, Gonthier J.

32.

See generally J. Barnes, Sports and the Law in Canada (1996), pp.251-269.

33.

1 C.C.C.2d. 333; 14 D.L.R.3d. 164

34.

2 C.C.C 2d. 442; 16 D.L.R.3d. 137

35.

Note G. Letourneau and A. Monganas, Violence in Sports: Evidentiary Problems in Criminal Prosecution (1978) 16
Osgoode Hall Law Journal 577

36.

D. White, Sports Violence as Criminal Assaults: Development of Doctrine by Canadian Courts [1986] Duke Law
Journal 1030.

37.

26 C.C.C.2d. 150 (Ont. Prov. Ct., 1975).

38.

28 C.C.C.2d. 323 (Ont. Dist. Ct., 1976).

39.

5 W.W.R. 119 (B.C. Co. Ct., 1976).

40.

6 W.W.R. 654 (Sask. Prov. Ct., 1981).

41.

22 C.R.3d. 97 (Que. Prov. Ct., 1981).

42.

48 C.C.C.3d. 480 (Sask. Ct. App., 1989).

43.

Cited in Barnes [2004] EWCA Crim 3246; [2005] Crim. L.R. 381 at [12].

44.

48 C.C.C.3d. 480 (Sask. Ct. App., 1989) at [31], Gerwing J.A.

45.

48 C.C.C.3d. 480 (Sask. Ct. App., 1989) at [35].

46.

Leyte 13 C.C.C.2d. 458 (Ont. Prov. Ct., 1973), 459, Perkins J.

47.

48 C.C.C.3d. 480 (Sask. Ct. App., 1989) at [31], Gerwing J.A.

48.

48 C.C.C.3d. 480 (Sask. Ct. App., 1989) at [31], italics included.

49.

54 C.C.C.3d. 121 (Ont. Dist. Ct., 1989).

50.

54 C.C.C.3d. 121 (Ont. Dist. Ct., 1989) at [18], rejecting G. Williams, Consent and Public Policy [1962] Crim. L.R. 74,
81.

51.

54 C.C.C.3d. 121 (Ont. Dist. Ct., 1989) at [19]-[21].

52.

54 C.C.C.3d. 121 (Ont. Dist. Ct., 1989) at [22].

53.

McSorley [2000] BCPC 117 (CanLII).

54.

Bertuzzi [2000] BCPC 472 (CanLII).

55.

Note A. Husa and S. Thiele, In the Name of the Game: Hockey Violence and the Criminal Justice System (2002) 45
Crim. L.Q. 509.

56.

67 C.C.C.3d. 563 (Ont. Ct. of App., 1991).

57.

67 C.C.C.3d. 563 (Ont. Ct. of App., 1991) at [19] and [25].

58.

67 C.C.C.3d. 563 (Ont. Ct. of App., 1991) at [26].

59.

67 C.C.C.3d. 563 (Ont. Ct. of App., 1991) at [28].

60.

See S. Fafinski, Consent and the Rules of the Game: The Interplay of Civil and Criminal Liability for Sporting Injuries
(2005) 69 J. Crim. L. 414; S. Gardiner, The Law and the Sports Field [1994] Crim. L.R. 513; and M. James and S.
Gardiner, Touchlines and Guidelines [1997] Crim L.R. 41.

61.

See also Chu [2006] BCPC 587 (CanLII).

62.

See further B. Livings A Different Ball Game--Why the Nature of Consent in Contact Sports Undermines a Unitary
Approach (2007) 71 J. Crim. L. 534.

Page10
63.

Barnes [2004] EWCA Crim 3246; [2005] Crim. L.R. 381 at [5].

64.

Barnes [2004] EWCA Crim 3246; [2005] Crim. L.R. 381 at [17].

65.

Barnes [2004] EWCA Crim 3246; [2005] Crim. L.R. 381 at [12], citing 48 CCC 3d 480 (Sask. Ct. App., 1989), 490,
Gerwing J.A.

66.

Barnes [2004] EWCA Crim 3246; [2005] Crim. L.R. 381 at [13], citing the Law Commission, Consent and Offences
Against the Person (Law Com CP 134, 1994), para.10.18. See also Law Commission, Consent in the Criminal Law
(Law Com CP 139, 1995), paras.12.1-12.31.

67.

Barnes [2004] EWCA Crim 3246; [2005] Crim. L.R. 381 at [15].

68.

Barnes [2004] EWCA Crim 3246; [2005] Crim. L.R. 381 at [16].

69.

Barnes [2004] EWCA Crim 3246; [2005] Crim. L.R. 381.

70.

Barnes [2004] EWCA Crim 3246; [2005] Crim. L.R. 381 at [25] and [28]-[29].

71.

e.g. A. Pendlebury, Perception of Playing Culture in Sport: The Problem of Diverse Opinion in the Light of Barnes
(2006)
4
Entertainment
Sports
Law
Journal,
available
at
http://go.warwick.ac.uk/eslj/issues/volume4/number2/pendlebury/ [Accessed July 15, 2008].

72.

See S. Gardiner et al. (eds) Sports Law, 3rd edn (2006), pp.606-612.

73.

See the small field-work project on the attitudes of rugby union players undertaken by Pendlebury, Perception of
Playing Culture in Sport (2006) 4 Entertainment Sports Law Journal, paras 16-30. See also the comments made by the
Criminal Injuries Compensation Board, Twenty-third Annual Report. 1997. Cm.265, para.37.

74.

C. Hewett, Rugby union: inside story, Simon Devereux, Guardian, August 30, 1996.

75.

A point well made by the trial judge who would later write of his surprise at the intensity of criticism emanating from the
rugby fraternity and sporting press as to his treatment of Devereux; see J. Baker, Two High Profile Sports Cases: A
View from the Bench (2001) 9 S. & L. J. 95.

76.

A. Dalton and W. Chisholm, Violence part of rugby says Sole as player fined for punch, The Scotsman, February 14,
1997. Subsequently, the procurator fiscal and the Scottish Rugby Union publicly rebuked Mr Sole.

77.

See previously the concerns for sport and games outlined by, amongst others, R. Leng, Consent and Offences against
the Person: Law Commission Consultation Paper No.134 [1994] Crim L.R. 480, 487.

78.

For an interesting application of this approach, note the scenario outlined by M. James, The Trouble with Roy Keane
(2002) 1 Ent. Law 72.
2014 Sweet & Maxwell and its Contributors