In Brown Lord Mustill reaffirmed that contact sports were an exception to the normal rules of consent owing to the public interest in sport He then went on to say Some sports such as the various codes of football have deliberate bodily contact as an essential element They lie at a mid point between fighting where the participant knows that his opponent will try to harm him and the milder sports where there is at most an acknowledgement that someone may be accidentally hurt In the contact sports each player knows and by taking part agrees that an opponent may from time to time inflict upon his body for example by a rugby tackle what would otherwise be a painful battery By taking part he also assumes the risk that the deliberate contact may have unintended effects conceivably of sufficient severity to amount to grievous bodily harm But he does not agree that this more serious kind of injury may be inflicted deliberately Lord Mustill is in essence implying that the participant cannot thus consent to the fact that he might be seriously injured This assertion raises issues around it s practicality within the sporting sphere For instance the UK Central Council of Physical Recreation CCPR stated that This raises a crucial question for sport Does a player who walks on to a pitch be it cricket football or rugby for example consent to the fact that he may be injured but not to the fact that he might be seriously injured Is it right that no one can consent to the risk of serious injury If a rugby tackle is made within the rules of the game i e not too high and not too late but nevertheless is an extremely hard tackle and the opponent sustains a serious injury as a result of the tackle the question has to be did the opponent consent to that tackle Hard tackles in rugby are not only encouraged but applauded
Any player must we submit therefore consent to being tackled hard by walking onto the pitch If we assume that the tackler did not intend to injure his opponent but did intend to tackle him as hard as he possibly could and if a court held that he applied more force than was strictly necessary and was therefore reckless as to whether his opponent was injured notwithstanding the fact that the rules not only permit hard tackling but actively encourage it the tackler would not perhaps be able to rely on the defence of consent The CCPR argues that the question of legitimate consent in sport should be gauged against the lawfulness of the activity in question meaning that a player consents to the risk of injury possibly even serious injury provided the rules of the sport in question are obeyed The CCPR are of the opinion that criminal law should have limited intervention in sport and if they have to intervene they should do so with the precise nature of sport in mind In response to the UK Law Commission report of 1994 the CCPR stated If the courts are to decide whether an activity is lawful by means of objective criteria and not by means of the rules of a particular game then there is also a danger that the offending player would not be tried by reference to what was acceptable to his sport but by reference to the opinions on the sport in question by a judge and jury who may never have played his sport Although in Brown questions have been raised regarding consent there is no doubt that the public interest element is a major factor in assessing whether an act is liable to criminal intervention It is evident from case law that off the ball incidents go beyond that threshold and thus the courts are unwilling to grant acts of thuggery
The courts however take a non interventionist approach when it comes to on the ball incidents As a result on the ball incidents with close proximity to the play are less likely to result in criminality There has been a lack of guidance around this issue until the decision in R v Barnes which provided some clarity around criminal law in sporting scenarios Until recently there has been little guidance as to where the line is drawn between legitimate and unlawful violence in sport R v Barnes however provided some clarification on this issue The case was centred around an amateur football match in which the appellant committed a late and unnecessary challenge on the opponent causing serious injury Barnes was convicted in the Crown Court of inflicting grievous bodily harm under s 20 of the Offences Against the Person Act 1861 The conviction was later overturned due to inadequate direction with regards to the meaning of legitimate sport by the judge Woolf C J deemed the term legitimate sport unsafe Woolf C J then made it evidently clear that there was limited need for criminal proceedings due to sports having their own rules and procedures in place which are implemented by governing bodies He then suggested that in most cases civil action may be better placed than that of criminal proceedings He again asserted the view that the criminal court should only intervene when conduct is sufficiently grave
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