Chapter 1 Introduction
1.3 The Aims and Structure of the Thesis and its Contribution to Knowledge
This thesis investigates the complex relationship between sports violence and the criminal law, in order to better understand the space that has been created in the criminal law for the practice of contact sports, and thereby answer its titular question: does the criminal law’s treatment amount to a ‘zone of legal exemption’? As such, the work is primarily analytical and descriptive; the justification for the chosen approach is aptly summarised by Stevenson:
One would not expect a book on scientific method to do the work of science itself; and one must not expect to find here any conclusions about what conduct is right or wrong. The purpose of an analytical study … is
81 A breach of the peace occurs when ‘harm is actually done or likely to be done to a person or,
in his presence, his property or is put in fear of being harmed through an assault, affray, riot, unlawful assembly or other disturbance’ (R v Howell [1982] QB 416 (Watkins LJ)). Alternatively, the Public Order Act 1986 may apply, in particular ss 4, 4A and 5, which are relevant where there is threatening behaviour which has caused, or was likely to cause, another to fear for their safety, with or without intention (for a more detailed description of these offences, see: David Mead,
The New Law of Peaceful Protest: Rights and Regulation in the Human Rights Act Era (Hart
Publishing 2010) ch 7; Richard Card, Public Order Law (Jordans Ltd 2000); David Ormerod, Smith
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always indirect. It hopes to send others to their tasks with clearer heads and less wasteful habits of investigation.82
The primary contribution this thesis makes to the existing literature lies in identifying these ‘wasteful habits of investigation’.
This thesis is not intended to be normatively prescriptive. That is, it does not set out to recommend the level to which sports violence should escape criminal sanction, or prescribe an optimal approach to be taken; to recommend that the criminal law should do more, or less, to bring sports violence under its auspices.83 I therefore express no particular view as to the legality of boxing, for
example.84 While there is undoubted value in work that attempts to explain the
existence of sports violence,85 and to justify86 or repudiate87 the need for legal
intervention, I do not seek to recommend a level to which violence causing injury should be accepted, either generally or in relation to particular sports.
Underlying the criminal law’s approach to sports violence is a recognition that sport is a socially valuable phenomenon; Cooper and James point to approval on the part of the courts insofar as sport serves to ‘promote health or exercise …
82 Charles L Stevenson, Ethics and Language (Yale University Press 1960) 1. Stevenson is writing
here in the context of the analysis of ethics.
83 Simon Gardiner, `The Law and the Sportsfield' [1994] Criminal Law Review 513.
84 Boxing was included as a ‘lawful activity in R v Brown [1994] 1 AC 212 (HL), and it was considered
the role of Parliament to decide as to whether this should continue to be the case. See Jack Anderson, The Legality of Boxing: A Punch-Drunk Love? (Birkbeck Law Press 2007) for an incisive and thorough treatment of the subject.
85 The field of the sociology of sport concentrates on this: Jay Coakley, Sport and Society (6th edn,
Mosby 1997) ch 7.
86 Edward Grayson and Catherine Bond, ‘Making Foul play a Crime’ [1993] Solicitors’ Journal 693.
87 Simon Gardiner, ‘The Law and the Sportsfield’ [1994] Criminal Law Review 513; Simon Gardiner
and Alexandra Felix, ‘The Juridification of the Football Field’ (1994-95) 5 Marquette Sports Law Journal 189. Gardiner and Felix state their ambition as ‘endeavour[ing] to suggest an exemplar of how on-the-field physical contact can be best regulated without formal legal mechanisms’ (190).
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[and] associated values of sporting conduct’.88 This social utility facilitates its
status as one of a limited number of exceptional ‘lawful activities’ in which the infliction of harm that would otherwise be considered criminal is held to be lawful.89 In Attorney-General’s Reference No 6 (of 1980), Lord Lane refers to
‘properly conducted games and sports’ as being ‘needed in the public interest’.90
In Brown, Lord Mustill refers at length to historical accounts of the value of playing with single-sticks and the evils of prizefighting, and alludes to the ‘physical and moral benefits which have been seen as the fruits of engagement in manly sports’ in more modern times.91
In reality, the normative, moral questions as to what is ‘right or wrong’ about sports violence have been addressed only obliquely by the courts in recent times;92 in Brown, the House of Lords made it clear that the lawfulness of
particular activities involving consensual harm was a matter for Parliament,93
which could ‘call on the advice of doctors, psychiatrists, criminologists, sociologists and other experts and … also sound and take into account public opinion’ when deciding whether or not particular activities could lawfully involve the infliction of injury.94 As such, what is ‘right or wrong’ about sports violence is
a moral and political question with which the courts have largely refused to
88 Simon Cooper and Mark James, ‘Entertainment - The Painful Process of Rethinking Consent’
[2012] Criminal Law Review 188,194.
89R v Brown [1994] 1 AC 212 (HL).
90 A-G’s Reference (No 6 of 1980) (1981) 1 QB 715 (CA), 719 (Lord Lane CJ).
91 R v Brown [1994] 1 AC 212 (HL), 265 (Lord Mustill).
92 As I demonstrate in Chapter 2, this was not always the case, and the courts played a historical
role in determining the lawfulness of a range of sporting practices.
93 Lord Templeman made specific reference to boxing in this context (R v Brown 1 AC 212, 228).
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engage, beyond the basic contention that ‘legitimate sport’ has social utility and should therefore be lawful.95
Given this lack of detail, the opening chapters of this thesis seek to bring definitional and conceptual clarity to the socio-legal place of contact sport, first historically and then in terms of modern sports practices. Valuable in itself, this grounding is also important when it comes to understanding the influences that come to bear in shaping the criminal law’s response to sports violence.
To this end, Chapter 2 locates the socio-legal legitimacy of sports violence historically. It examines the evolution of boxing, rugby and soccer, from the primitive practices that existed in pre-Industrial times, through to the more civilised, systematised and standardised modern forms that emerged during the eighteenth and nineteenth centuries. The ‘civilising process’ undergone by the respective sports took place at a time of great social change and was the product of a number of factors, amongst them the concerns of the authorities over the disruptive leisure practices of the lower classes, the demands of urban living and more regularised employment conditions, and the encouragement of social reformers keen to impart the values of ‘rational recreation’. Through this period of change, the predominant concern of the criminal law was with sport as a cause of social disorder, and the potential for this receded as it underwent systematisation and institutionalisation. The period has had a lasting influence on the criminal law’s response to sports violence, and this is also true of a number of the cases that came before the courts during this time.
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In Chapter 3, I move from a historical understanding of the development of sports violence to present a contemporary picture of violence in each of the chosen sports. Sports such as boxing, rugby and soccer are intrinsically violent, routinely involving a physicality that risks and causes injury, and which is not simply incidental, but rather inherent to, and inextricable from, their practice. The governing bodies of each of the sports examined here promulgate rules relating to violent play and sanctions are imposed upon those who disobey them, tiered according to the perceived seriousness of the breach. The chapter begins by looking at the modern rules of the respective sports as they apply to violence, and in terms of the safety provisions that they mandate. It then moves to consider the place of violence that occurs outside of the rules, but within the accepted practices of a sport. It is suggested that a conception of what has been termed the ‘playing culture’ of a sport is useful to the criminal law in providing a more realistic portrayal, but that the concept is less straightforward than has generally been recognised by those who advocate its adoption by the criminal law. The chapter draws attention to, and analyses, a number of tensions and problematic aspects of the playing culture standard.
The work undertaken in Chapters 2 and 3 provides necessary context for the discussion of the criminal law of sports violence, but it also adds to the existing literature in a number of ways. For instance, Chapter 2 supplements existing historical accounts of the criminal law’s treatment of sports violence by pointing to the shifting priorities of the courts, and the way in which important nineteenth-century cases such as Coney and Bradshaw sought to calibrate the criminal law’s approach in accordance with the normative expectations of those
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engaged in increasingly sophisticated and codified sports, in a way that continues to resonate through the modern case law.96 This historical understanding carries
through into the discussion of the modern practices of sport considered in Chapter 3, which notably adds to the existing literature in terms of exploring the meaning and sources of the ‘playing culture’ of sport and its importance to the imposition of criminal liability. Whether referred to explicitly or not, the idea of a playing culture that draws from more than a strict reading of the rules underlies much of what has been written in this area, but its significance and inherent complexities have been insufficiently analysed by those who argue that the playing culture should be taken into account by the criminal law.97
After the necessary groundwork of Chapters 2 and 3, the focus of the thesis moves to an examination of the criminal law principles that have developed in response. A large part of this thesis is concerned with what I term the ‘orthodox view’ of the criminal law of sports violence, by which I mean the prevailing view of the operation of the criminal law in relation to sports violence. Under this view, the criminal law’s formal approach comprises separately assessed offence and defence requirements, and it is analytically expedient to approach the subject according to the same structure. In keeping with this, therefore, Chapter 4 examines the offences that might be held to pertain to incidents of sports violence, concentrating on those which are provided for by ss 18, 20 and 47 of the Offences Against the Person Act 1861. The constituent
96 In Bradshaw, it was held that ‘playing according to the rules and practices of the game’ would
be instructive in determining the lawfulness of the defendant’s conduct (R v Bradshaw (1878) 14 Cox CC 83, 85 (Bramwell B)). R v Coney (1882) 8 QBD 534 is cited at length in the leading case of
R v Brown [1994] 1 AC 212 (HL).
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elements of these offences have been applied to sports violence with relative ease, and this chapter adds to the existing literature by in addressing how this has been achieved. When examining the application of these offences, there is a particular focus on the mens rea requirements, and the way in which these have been construed narrowly so as to allow for prima facie liability to be established in cases of sports violence. This chapter also prepares the way for a consideration of alternative measures of liability in Chapter 7.
Chapters 5 and 6 are concerned with the important subject of consent, a normative and doctrinal concept that is central to understanding the criminal law’s treatment of sports violence. I address consent in two parts: Chapter 5 examines the normative role of consent; and Chapter 6 looks to its doctrinal function.
The formal organisation of the criminal law of sports violence around the participants’ consent points to an acceptance that persons should be allowed to make decisions for themselves about the activities in which they engage. However, the normative role of consent in the criminal law is problematic, and its availability is generally restricted where the behaviour is such that it entails or risks significant physical harm.98 Here, the normative power of consent is
complicated by a dichotomy between its significance as an expression of private authorisation and the public censuring role of the criminal law. Consent rightfully plays an important normative role in considerations of the lawfulness of sports
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violence, but its effect is inevitably contingent upon considerations of public policy.
However important the consent that can be said to derive from sports participation is as a normative justification for the lawfulness of sports violence, translating this into coherent and functional legal doctrine is not straightforward. This has not gone unrecognised, and it is now over two decades since Lord Mustill aired his misgivings about the dispositive value of consent in discerning between lawful and unlawful sports violence.99 In its examination of the doctrinal function
of consent, Chapter 6 adds to the existing literature by analysing the operation of consent in relation to sports violence, and comparing this to the very different types of consent that are relevant to medical treatment and sexual conduct. Unlike in these other contexts in which consent performs an important doctrinal function, consent in sport is inextricably linked to the rules and practice of the activity in such a way as to render an enquiry into the individualised consent of any one participant largely redundant. Rather, consent is imputed to the participants in accordance with the amalgam of rules and practices that comprises that sports’s playing culture. This involves the employment of a legal fiction, the operation and utility of which is taken up in Chapter 7.100
In Chapter 7, I seek to account for the criminal law’s recourse to legal fictions in relation to sports violence. I propose three alternative means to the
99 R v Brown [1994] 1 AC 212 (HL), 259.
100 For examples where the fiction has been explicitly acknowledged, see: Peter Westen, The Logic
of Consent: The Diversity and Deceptiveness of Consent as a Defence to Criminal Conduct (Ashgate
2004); Stephen King, ‘Consensual Violence and the State: A Case Study in Combat Sports’ (PhD thesis, University of Limerick 2011). For an implicit acceptance of its operation, see: Jack Anderson, ‘No Licence for Thuggery: Violence, Sport and the Criminal Law’ [2008] Criminal Law Review 751. Anderson writes of ‘implied sporting consent’.
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orthodox view by which liability could be determined, all of which concentrate on the quality of the defendant’s act in the context of sport, taking into account the consent of the participants as one of a number of considerations. Each of the alternative approaches, I argue, better reflects the substance of the lawfulness of sports violence, and I demonstrate this by reference to the Court of Appeal’s judgment in Barnes. After consideration of these alternative rationales by which to describe and define the lawfulness of sports violence, I return to the fictional representation that characterises the orthodox view, and ask what purpose it serves. I suggest that, as a fiction, its use requires justification, and that this might lie in its dispositive value; that is, its ability better to enunciate the applicable principles, and thus facilitate decisions in individual cases. Alternatively, it may serve as a formal device; a means by which to structure the criminal law so as to cast sports violence as exceptional, allowing greater policy control over the circumstances in which it will be considered lawful.
In analysing the the orthodox view through an immanent critique of its structure and operation, I make a substantial contribution to existing literature. I am able to point to the rationale and implications of its function, engaging an argument that draws on Norrie’s account of the criminal law as aspiring to ‘technical core offences’ and a ‘moral defence periphery’,101 whereby moral
judgement can be removed from the offence categories and considered in separable defence categories. Norrie writes of this as structuring the law according to a ‘morality of form’,102 and I suggest that the orthodox view reflects
101 Alan Norrie, Crime, Reason and History (3rd edn, Cambridge University Press 2014).
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a desire for a formal account of the criminal law of sports violence that shadows the inherently moral and political judgements that its resolution necessarily entails.
In Chapter 8, I look to Lord Woolf’s proposition that a criminal prosecution for sports violence ‘should be reserved for those situations where the conduct is sufficiently grave to be properly categorised as criminal’,103 which is
substantiated by the view that there are alternative, more effective means, by which excessively violent behaviour can be deterred and punished. The development of organised sport has entailed concomitant sophisticated systems of rules and regulation which might be better suited to this task, and yet an acceptance of this is balanced by a sense that there should be a place for the criminal law; that sport is not, and should not be, a ‘licence for thuggery’,104 and
that judgements as to what is to be considered an acceptable level of violence in society ultimately fall to be decided according to the criminal law. The chapter considers the extent to which prosecutorial discretion is an effective or appropriate mechanism by which to regulate the treatment of those who commit acts of sports violence, and looks to the potential impact of the recently- implemented Agreement on the Handling of Incidents Falling Under Both Criminal
and Football Regulatory Jurisdiction,105 which aims at coordinated responses to
suspected criminal behaviour on the part of sports governing bodies and the
103 R v Barnes [2004] EWCA Crim 3246, [2005] 1 WLR 910, 911-12 (Lord Woolf CJ).
104 R v Lloyd (1989) 11 Cr App R (S) 36 (CA), 37.
105 Agreement on the Handling of Incidents Falling under both Criminal and Football Regulatory
Jurisdiction (2015)
<http://cps.gov.uk/publications/agencies/football_agreement_02_09_2015.pdf> accessed 20 July 2016.
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agencies of criminal justice. Wherever discretion is posited as the answer to difficult problems in the substantive law, there are potentially irreconcilable tensions between the demand for consistency of treatment under the law and a demand that the regulatory function be allowed to do its job wherever possible. The chapter adds to the existing literature in its consideration of recent policy developments, and in engaging in discussion of the relative merits of discretion as a means of obviating indeterminacy in the criminal law. Following this, Chapter 9 concludes the thesis.
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