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Journal of Criminal Law/2007, Volume 71/Issue 6, November/Articles/A Different Ball Game--Why the Nature
of Consent in Contact Sports Undermines a Unitary Approach - JoCL 71 (534)

Journal of Criminal Law

JoCL 71 (534)

1 November 2007

A Different Ball Game--Why the Nature of Consent in Contact Sports

Undermines a Unitary Approach
A Different Ball Game--Consent in Contact Sports

Ben Livings

Senior Lecturer in Law, Sunderland University; e-mail ben.livings@sunderland.ac.uk.

© Vathek Publishing, 2007

Abstract The criminal offences to which consent may act as a defence fall into three distinct groups: those
against property, sexual offences against the person and non-sexual offences against the person. This
article posits a counterpoint to calls for a consistent application of the defence across the various offences to
which it may apply, exploring the role of consent as it applies as a defence to violent criminal assaults, and
particularly those committed during sport. It further examines the way in which the civil courts have
approached consent in largely similar contexts, when assessing claims in negligence arising from personal
injury caused by violence in the sporting arena, and juxtaposes and compares the civil and criminal
approaches. Sport can provide problematic and anomalous situations with regard to the law, and it is
submitted that this is better acknowledged in the civil law, where the courts have more readily considered
revisions to substantive legal principles.

The subject of consent has rarely been far from the sphere of academic debate in recent decades. As the
doctrine has application throughout the criminal law, and draws from numerous different sources according
to the offence and the factual circumstances in which it arises, it pertains to a diverse range of crimes.
Debate has therefore stemmed from such wide-ranging issues as the curtailment of the defence where
serious bodily harm results (and attendant issues of personal autonomy) and the barrier that proving an
absence of consent provides in rape cases.1

Recent developments have included s. 74 of the Sexual Offences Act 2003, which provides a statutory
definition of consent, applicable only to sexual offences,2 and was recently examined in R v Bree.3 As
regards non-sexual assaults, the leading authority remains R v Brown;4 cases such as R v Dica,5 R v
Konzani6 and R v Barnes7 build on this controversial ruling, and attempt to delineate the nature and scope
of consent in particular circumstances. The present disparity between sexual and non-sexual offences
supersedes R v Richardson,8 in which consent was held to operate identically in both sexual and non-sexual
offences.

The agglomeration of recent authorities has prompted calls for a consistent approach to the concept of
consent in the criminal law. Elliott and de Than argue that, in the wake of the Sexual Offences Act 2003, the
law on consent risks being a 'patchwork of statute and ad hoc case law',9 and suggest that consent be
imbued with overarching principles applicable to all offences and circumstances. They identify three
classifications of offences to which consent is applicable (those of sexual and non-sexual offences against
the person, and offences against property), and propose that the definition found in s. 74 of the Sexual
Offences Act 200310 be used as the basis for a universal statutory definition of consent, across all such
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offences:

All relevant offences should use a single core statutory definition of consent so that the boundaries of
criminality are stated more effectively. Consent is not a different concept in each offence; special factors may
apply, but the core concept is the same throughout.11

This article concentrates on non-sexual offences against the person,12 and particularly those committed
during contact sports such as football and rugby, and draws attention to the confusion inherent in the
defence of consent as it applies in these contexts. The exceptional considerations at issue in these activities
will be examined in the wider context of the doctrine of consent in the criminal law, and contrasted with its
operation in the civil law of negligence.

In cases where injury has been inflicted during the course of sport, the intricacies of the doctrine of consent
have been explored and argued in great depth by both the courts and commentators, and such discussions
have been greatly shaped by the policy considerations arising, in particular, from the leading case of
Brown.13 However, it will be seen that the real determining factor in imposing liability is the nature of the
defendant's act itself; to this end, culpability is assessed by reference to the rules and usual practice of a
sport.14 By contrast, s. 74 of the Sexual Offences Act 2003 (and the accompanying provisions of ss 75 and
76), and non-sporting cases such as Dica and Konzani, focus on the victim's freedom of choice and capacity
to consent. Although participation in sport entails a submission to the ordinary incidents of that sport, the
concentration on an objective assessment of the behaviour of the perpetrator, vis-à-vis the rules and 'playing
culture',15 makes an assessment of this consent radically different from that encountered in non-sporting
scenarios. It will therefore be submitted that any notion of consent on the part of the victim of an assault is
ill-suited to the context of sports.

The pursuit of consistency as a valid goal

In an erudite and compelling discussion, Elliott and de Than argue that it is the prerogative of the legal
scholar to try to impose order and coherence on the criminal law, to engage in 'rational reconstruction'.16
They invoke the following passage from Neil MacCormick:

... [the legal academic should dismantle the wide range of legal sources] ... to reconstruct them in a way that
makes them comprehensible because they are now shown as parts of a well ordered though complex whole.
This requires explanatory principles establishing criteria of what counts as well ordered and rational ... Of
course, it is an intellectual process, involving a new imagining and describing of the found order ... [T]here
has to be some discrimination between the parts that belong in the coherent whole and the mistakes or
anomalies that do not fit and ought to be discarded or abandoned or at least revised.17

This elegant appraisal of the role of the legal academic is proffered in support of a unitary approach to
consent as a logical imperative. Although it may seem incongruous to endorse consistency whilst seeking to
demonstrate the exceptional nature of consent within sport, it should be noted that, in the above extract,
MacCormick himself sagely counsels against the indiscriminate imposition of consistency. It is submitted that
the different facets of consent do not and should not form 'parts of a well ordered though complex whole', but
that the doctrine as it is currently imagined in sports, amounts to 'mistakes or anomalies that do not fit and
ought to be discarded or abandoned or at least revised'.

In highlighting the discrepancies between the operation of consent within and outwith the sporting arena, it
will be submitted that any rational reconstruction of consent demands that sport be treated differently. The
special circumstances of sport mean that it cannot be included within a general rule relating to consent, and
this therefore renders it ineligible for an overarching theory of consent. Furthermore, it is impossible even to
place sport within a coherent whole relating to offences against the person,18 whereby public policy dictates
that consent to actual bodily harm is generally not to be permitted, absent a small but diverse range of
activities which should remain immune from prosecution.
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An inconsistent approach to the role of consent

In order to implement a unitary approach, it is surely necessary that consent perform the same function in
every situation; this is not currently the case, and differing roles have been ascribed to consent as an
exculpatory mechanism.

The role of consent in the offence of rape is relatively clear: its absence on the part of the victim is a
constituent part of the offence, and falls to be proven by the prosecution.19 Within this paradigm, the
absence of consent forms a constituent element of the offence itself, rendering unlawful the otherwise lawful
conduct of the defendant. However, in other offences, there are conflicting authorities as to the actual role
that consent plays in excusing the otherwise unlawful behaviour of the defendant.

Insofar as consent operates in non-sexual offences against the person, it has been argued that consent
performs a function analogous to that which it performs in the offence of rape. Such an interpretation is given
credence by the judgment in R v Coney,20 amongst the earliest cases to grapple with the issue of when
consent could act as a defence in the face of a violent assault. In Coney, Hawkins J argued that an assault
could only be described as such if there was no consent on the part of the victim:

As a general proposition it is undoubtedly true that there can be no assault unless the act charged as such
be done without the consent of the person alleged to be assaulted, for want of consent is an essential
element in every assault, and that which is done by consent is no assault at all.21

This approach was approved much more recently in Collins v Wilcock,22 wherein consent was held to be a
defence to a battery.

An alternative view allows for consent to operate in much the same way as self-defence, vitiating a prima
facie case of assault. There is authority for this view in Brown, wherein Lord Jauncey of Tullichettle stated
(albeit obiter): 'If it were necessary, which it is not, in this appeal to decide which argument was correct, I
would hold that consent could be a defence to assault but that lack of consent was not a necessary
ingredient in assault'.23

The Law Commission clearly felt this to be an unresolved issue and, in approaching the question, used what
it termed 'neutral expressions'.24 The evidential importance of the question was acknowledged in citing the
judgment in R v May:25

The court is of the opinion that if the facts proved in the evidence are such that the jury can reasonably find
consent, there ought to be a direction by the judge on that question, both as to the onus of negativing
consent being on the prosecution and as to the evidence in the particular case bearing on the question.26

Therefore, although the distinction between the two opposing interpretations of the role of consent may
appear to be a simple matter of semantics, it could assume evidential importance.27 In defences such as
provocation28 and self-defence,29 there is an evidential burden on the defendant (the overall burden
remains with the prosecution), and the same may be held to apply for consent. If lack of consent is an
integral part of the actus reus, the burden of disproving consent will rest with the prosecution.30

To find a unitary basis for consent across the different offences, it is surely necessary that the conceptual
function is both identified and consistent.31 As such, the uncertainty surrounding its role in the various
assaults is symptomatic of its inherent confusion and lack of coherence. Although Lewis and Taylor have
doubted its practical importance, the disparity nevertheless forms an intellectual and evidential barrier to
uniformity. Notwithstanding this, it is submitted that the role consent plays is not as important as examining
the basis upon which that consent is determined; in doing so, further, more compelling barriers to the unitary
approach are encountered.32

The operation of consent in non-sexual offences against the person

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It has long been established that there are limits to those assaults to which a person may lawfully consent,
and therefore restrictions on the defence in criminal proceedings.33 This poses few legal problems where
the injury is transient, as in the case of a common law assault and battery; it was stated in Barnes: 'When no
bodily harm is caused, the consent of the victim to what happened is always a defence to a charge'.34
However, it is established that a person may not generally consent to the infliction of actual or grievous
bodily harm, or wounding.35

The definitive authority on this subject is Brown, in which the House of Lords restated a principle that can be
traced back through a long line of cases: '... it is an unlawful act to beat another person with such a degree of
violence that the infliction of bodily harm is a probable consequence, and when such an act is proved,
consent is immaterial'.36 A historical justification was given for this stance,37 alongside a contemporary
restatement, amounting to the principle that 'it is not in the public interest that people should try to cause or
should cause each other bodily harm for no good reason'.38 In order to invalidate consent to unintended
harm, there are authorities to indicate that it is necessary that the harm caused was likely,39 and foreseen by
the defendant.40 Consent is not possible to a public order offence.41

To the basic position, there are some exceptions, outlined in Brown, wherein they are referred to as 'lawful
activities'.42 These cover the area of invasive medical treatment (for which the defence of consent provides
a defence to the surgeon), such activities as tattooing and piercing, 'general horseplay',43 and dangerous
sports.44 Although Brown has caused controversy, it stands as the leading case governing consent to
non-sexual assaults.45

Elliott and de Than concentrate their argument on the incongruity brought about by the implementation of the
Sexual Offences Act 2003, and take a broad-based approach in assessing the disparity between its
provisions and the common law rules relating to consent that survive the Act. As such, the non-sexual
offences against the person, and the public policy-based limitations on a person's capacity to consent to
serious harm resulting from them, are not explored in great depth. However, they do state:

... in offences against the person the boundaries of capacity and consent have become blurred. The
decisions in Brown, Wilson, Emmett, Barnes and the Dica line of cases do not allow it to be stated with
confidence how much harm people are able in law to permit against themselves or even to solicit, before the
criminal law steps in. The potential for differential treatment of defendants remains, and has not been
justified.46

Notwithstanding the fact that an examination of the non-sexual offences against the person is not the central
thrust of their argument, this is a potentially misleading summation of the case law cited; it is not the degree
of harm that has posed the greatest problems in this line of cases (the cases straddle several of the 'lawful
[or unlawful] activities' enumerated in Brown), but rather the means by which that harm was caused. Elliott
and de Than are, however, justified in noting the 'potential for differential treatment of defendants'; in the
case of sport, this arises from the unique conditions from which the alleged offence derives.

The body of case law, of which the judgments cited above form a part, struggles with both the concept and
application of consent. In the context of sports, it is frequently difficult to disentangle the legal and factual
issues (it often appears in the judgments that there is a deliberate obfuscation), and this has proven
problematic when trying to discern the exact nature and scope of the defence.

The operation of consent in non-sexual offences against the person

committed during contact sports

Doctrinally, there is no difference between the elements to be satisfied for an assault committed on or off the
field of play.47 However, it is worth noting at this point that the courts have suggested, notwithstanding the
role of consent, that there is a variance in the way that offences are viewed within and outwith the context of
sport; this may result in a higher threshold that must be reached before liability is imposed for behaviour on
the sports field. It is in this respect that the mens rea requirement for recklessness is apparently altered, due
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to the operating consent on the part of the victim to behaviour within the rules of the game.48 An appraisal of
this is inextricable from the role of consent itself, and will be returned to below.

Notwithstanding the possibility of any such variance, it has been established that the constituent elements of
assaults can be found at numerous points in contact sports such as football and rugby,49 and that these are
averted by the application of a limited range of defences,50 of which the most often cited is consent. Contact
sports are covered by a public policy exception allowing consent to serious harm; as such, they form one of
the 'lawful activities' sanctioned in Brown.

Consent can be either declared explicitly by the parties, or given implicitly, inferred from a course of conduct.
In the context of sports, the latter is more likely, and implied consent may be found where the claimant
volunteers to take part in a sport.51 Implicit consent is not peculiar to sport; it is likely that the vast majority of
sexual encounters involve an element of implied consent, alongside a greater or lesser degree of expressed
consent, and the same can be said of horseplay.52 Although problematic evidentially, there is no reason why
implied consent should trouble the substantive law.

The legal and factual problems posed by consent are manifold, and the courts have examined both the
circumstances in which it is possible to consent to harm (a question of law), and whether the victim has in
fact consented to that harm (a question of fact). Where implied consent is argued, divining its existence, and
delineating its scope, has proven particularly problematic.

Alongside the case law, the Law Commission has examined consent as a defence to offences against the
person; Consultation Paper No. 134,53 in particular, has been quoted at length by the courts, and by other
commentators, and has thus had a role in shaping the law relating to consent. The law of other jurisdictions
has also been influential, notably that of Canada and Scotland, and case law arising from these jurisdictions
has been considered in cases such as Brown and Barnes.

In order to attempt a 'rational reconstruction' of consent, it is necessary to disentangle the various elements
of the doctrine as it operates on the field of play. Thus, the legal and factual questions will be addressed
separately, although the extent to which this is possible is limited. The availability of consent is deeply rooted
in public policy, which plays a significant role in shaping the doctrine. As a result, any systematic appraisal of
its operation is severely impaired.

The availability of consent when considering violence in sport

As one of the 'lawful activities' listed in Brown, contact sports enjoy a public policy exception, enabling
consent to serious injury. This applies to such diverse activities as boxing and football; in the
Attorney-General's Reference No. 6 of 1980,54 in a judgment quoted at length in Brown, the House of Lords
discussed the limitations of the defence of consent:

... nothing which we have said is intended to cast doubt on the accepted legality of properly conducted
games and sports ... these apparent exceptions can be justified as ... needed in the public interest.55

It is therefore pertinent to examine how this exception is implemented in the sporting arena. In other words,
whether a set of rules can be discerned as to when and how the exception will operate. The matter is
complicated by the disparate nature of the sports seeking to rely on the existence of this exception, and its
basis in public policy.

The recent case of Barnes56 addressed this subject, in relation to football. The appellant was found guilty at
first instance at Canterbury Crown Court of unlawfully and maliciously inflicting grievous bodily harm contrary
to s. 20 of OAPA 1861. In an appeal to the Court of Appeal, several points were argued, one of which was
that the judge had not sufficiently raised the possibility of the defence of consent for the jury's consideration.
In addressing the matter of whether consent is an available defence, two questions were posed: To what
may the participant consent? When will they be deemed to have consented, and to what extent?57
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The issues of whether consent is possible and in what circumstances it will apply (when in fact a person will
be deemed to have consented) are inextricably linked. However, in order to tackle the issue of valid consent,
it is necessary to attempt to address them individually.

When will the law allow the defence of consent to stand?

In Barnes, it was declared that consent has a public policy basis, and there is therefore no need to discern
definitive jurisprudential rules as to when it will be available. The corollary of this is that it is also difficult to
discern, as a matter of law, when consent will stand, a situation that is exacerbated by the tendency of the
courts not to distinguish between questions of law and fact.

The starting point in addressing this issue is the leading case of Brown, which attempted to draw together the
antecedent case law, and included sport in the list of 'lawful activities' that enjoy an exception to the general
rule prohibiting consent to injury. As such:

Even when violence is intentionally inflicted and results in actual bodily harm, wounding or serious bodily
harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in
which the person injured was participating.58

The degree to which consent is legally possible was discussed in R v Cey,59 wherein the Saskatchewan
Court of Appeal was concerned with ice hockey. Despite the highly physical nature of the game, in giving the
majority judgment, Gerwing JA made it clear that even in ice hockey:

some forms of bodily contact carry with them 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.60

As well as demonstrating that a sport cannot operate to remove a person's behaviour entirely from the
sphere of the criminal law, this excerpt also demonstrates the blurring of the factual and the legal questions;
in propounding such a theory, the court may disallow consent either on the ground of legal incapacity, or on
the ground of lack of factual consent.

The degree of consent possible is also dependent on the particular sport, and its rules: James Cotterill of
Barrow Football Club was convicted of an assault contrary to OAPA 1861, s. 20,61 after throwing a punch
which broke an opponent's jaw, during an FA Cup fifth round tie against Bristol Rovers in November 2006.
Notwithstanding any question of factual consent, this behaviour may not be deemed capable of consent
during football; the situation would be markedly different if it were to occur during a boxing bout.

Separating the factual from the legal: when will the facts allow for
consent, and does it need to be informed consent?

It is clear from the above that there exists the possibility of consent to harm in a sporting context, and that the
degree to which this consent is possible is to some extent dependent on the rules and nature of the particular
sport. However, an overriding concern across all situations in which consent can be said to be operating is
that that consent must correspond with the quality of the defendant's act.

In R v Tabassum,62 the victims allowed the defendant to touch their breasts (which amounted to an indecent
assault unless done by consent), on the basis that he was medically qualified and was carrying out a breast
cancer survey. Although the victims had consented to an examination of their breasts, this was because they
thought that the defendant was medically qualified. As he was not, the quality of the act of the defendant was
radically different from that which had been consented to, and consent was found not to operate in fact. It is
clear from the judgment that, had the victims in Tabassum known that the defendant had no medical
qualifications, their consent would have afforded him a defence. In other words, in order for consent to be
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effective in this case, that consent had to be informed consent.

The importance of the knowledge held by the victim of what they are consenting to is a subject broached by
the Court of Appeal in R v Dica,63 and subsequently in R v Konzani.64 Both cases concerned the conviction
of a man for having sexual intercourse with several women, whilst aware that he was HIV positive. Amongst
other issues (such as intention), one of the central issues in these cases was whether, by consenting to have
sexual intercourse with the man, the women were consenting to being infected with the virus (or the risk
thereof), and whether this depended upon knowledge of his infected state.

In Dica, it was held that a person who had been aware of the risks involved could be said to have consented
to those risks; consent to sexual intercourse did not amount to consent to injury caused by the transmission
of disease, although consent itself was to be judged on the facts. This issue was revisited in Konzani, where
the court held that the consent of the victim would be valid even where the perpetrator had not disclosed
their infected status to the victim. The court held that consent would stand if the victim had knowledge of the
defendant's infected status from another source.

Helen Law has written of Konzani as inadvertently creating 'a loophole through which unmeritorious
defendants can evade liability'.65 This is a compelling argument, as it is somewhat incongruous that the
consent of a victim can nullify the liability of a defendant who has deliberately sought to conceal facts from
the victim, and therefore has no appreciation of the existence of the victim's consent. In order qualitatively to
affect the actions of the defendant, it must be the case that they are aware of the consent.

Although Dica is cited as authority in Barnes, the transposition of the principles arising from these cases to
the context of sport is problematic, as the consent that is given in sport invariably arises through implication.
However, the arguments invoked do call into question the quality and scope of the implied consent given by
the players. It is in the nature of team sports such as rugby and football that each encounter involves a wide
variety of personnel, the extent of whose subjective consent varies between them, according to both their
individual characteristics, and the circumstances of the game. It is also clear that applying a unilateral level of
consent to each competitor would be unworkable.

The Saskatchewan Court of Appeal directly addressed this issue in Cey,66 wherein Gerwing JA held that the
consent of the participants had necessarily to be judged objectively. The court held that 'ordinarily consent,
being a state of mind, is a wholly subjective matter to be determined accordingly'. However, in light of the
particular problems caused by implied consent in contact, team sports, this could not apply:

... there cannot be as many different consents as there are players on the ice, and so the scope of the
implied consent, having to be uniform, must be determined by reference to objective criteria. As a general
matter, conduct which is impliedly consented to can vary, for example, from setting to setting, league to
league, age to age, and so on ... The conditions under which the game in question is played, the nature of
the act which forms the subject matter of the charge, the extent of the force employed, the degree of risk of
injury, and the probabilities of serious harm are, 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 the consent at issue in any given case was
exceeded.67

In determining the facts, the court in Cey therefore advocated an holistic approach that yields an objective
and multilateral measure of the participants' consent, and which is arrived at by considering all of the relevant
circumstances in a given case.

The treatment of this issue by the English courts has been more circumspect, and the question has been
considered only obliquely. The issue was addressed in the following statement of the House of Lords in
Brown:

Even when violence is intentionally inflicted and results in actual bodily harm, wounding or serious bodily
harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in
which the person injured was participating.68
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Thus, the extent of the consent given by the players is deemed to be judged by reference to the
foreseeability of the perpetrator's actions. This envisages an objective test, and bears comparison with both
the gross negligence manslaughter test employed in R v Adomako,69 and, to a lesser extent, the test for
dishonesty propounded in R v Ghosh.70 In both of these cases, the jury was asked to assess the behaviour
of the defendant objectively,71 as against the subjective tests of cases such as Dica and Konzani.

As demonstrated in R v Misra,72 such tests are potentially vulnerable to challenge courtesy of Article 7 of the
European Convention on Human Rights, whereby the defendant should not be subject to liability for laws
which lack certainty.73 In Barnes, the direction by the Court of Appeal that liability should not be imposed
unless the actions of the protagonist were 'sufficiently grave properly to be categorised as criminal',74 may
be found to lack the requisite certainty.

Both Brown and Cey promulgate tests that are manifestly inconsistent with the notion of 'consent' as it is
commonly understood, and indeed how it is applied in cases such as Dica and Konzani, and its treatment in
the Sexual Offences Act 2003. It appears that in sport, the actions of the perpetrator fall to be judged
objectively, and without reference to the victim. Although this is perhaps understandable in light of the fact
that the risks involved in sport are, by contrast with sexual activity (especially without knowledge of the
infected status a sexual partner), largely predictable, it arguably precludes a unitary approach to consent.

'Consent' as a misnomer for participation in sport--can an objectively

viewed level of consent truly be characterised as consent?

In sport, 'consent' is effectively synonymous with participation, and that the competitors volunteer to take part
is self-evident; it is reasonable to state that they consent to the activity, and the risks inherent in its
commission. Beyond this, in addressing particular instances, it is apparent that assessing the liability of the
defendant by reference to the degree of consent on the part of the victim is problematic. A combination of the
presence of clear rules, the implied nature of any operating consent, and the number of competitors, all
preclude the deployment of any meaningful measure of the victim's consent.

This was acknowledged in Cey, where the court employed an objective, multilateral standard. Although this
was not explicitly recognised in Brown, the House of Lords declared that the competitors would escape
liability if a prima facie assault caused injury which was a 'foreseeable incident of a lawful activity'. As such,
the court appears to have formulated a test that similarly attempts to circumvent the difficulties inherent in
delineating the scope of the participants' implied consent.

Following Brown, the Court of Appeal in Barnes attempted to describe the means by which the level of
consent given by competitors in a football match could be discerned. Lord Woolf CJ stated: 'in a sport in
which bodily contact is a commonplace part of the game, the players consent to such contact even if,
through unfortunate accident, injury, perhaps of a serious nature, may result'.75 Therefore, consent was to
be found where the injury occurred through the normal and expected commission of the sport in question.
Expanding on this, he continued:

The fact that the participants in contact sports had consented implicitly to take part assisted in identifying the
limits of the defence; conduct which had gone beyond what a player might reasonably be regarded as having
accepted by taking part was not covered by the defence, and what was accepted in one sport would not
necessarily be covered by the defence in another.76

This is consistent with the judgment in R v Billinghurst,77 in which the defendant was playing in a rugby
match. During the match, he punched another participant, which resulted in the latter receiving a broken jaw.
The defendant was convicted under s. 20 of OAPA 1861. The logic of such a verdict is plain, in that the
actions of the defendant were palpably outside the rules of the game. As such, they were not expected to
happen (not 'foreseeable', in the language used in Brown78), and it was not reasonable that the victim
should have been adjudged to have consented to the injury inflicted.79 The formula propounded by Lord
Woolf CJ would also apply to the punch thrown by footballer James Cotterill.80
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Such actions as those described above are well outside the rules of their respective sports and it is no
surprise therefore that they were held to be beyond the behaviour consented to by the victims. Where the
actions are clearly within the rules, there is similarly little to dispute, in that such behaviour is usually deemed
to have been implicitly consented to by the victim.81 Problems arise however, where the conduct complained
of is outside of the rules, and yet not so extreme as to be wholly unexpected.

In Barnes, the actions of the defendant fell within what the court tentatively referred to as a 'grey area', in that
it may have been outside the rules, and yet within the range of acts that could be expected to occur on the
football field.82 In this instance, it was held that the test should be whether it was during the course of
'legitimate sport'. This is a concept that must necessarily be assessed holistically, by reference to a range of
factors, including the rules of the game, and any associated 'playing culture',83 and will depend on the facts
of the case. This objective view of consent is markedly different from the subjective appraisal of the consent
of the victim, the central concern of s. 74 of the Sexual Offences Act 2003, and of cases such as Dica and
Konzani.

As already noted, s. 74 of the Sexual Offences Act 2003 provides: 'For the purposes of this Part, a person
consents if he agrees by choice, and has the freedom and capacity to make that choice'. In the realm of
contact sports, it is difficult to see what sort of assistance this definition offers. In ss 75 and 76, guidance is
given as to the burden of proof, when consent is in issue in sexual offences; the provisions point further to
the incongruity of using such criteria in sports. Under s. 75, there is a rebuttable presumption that the
complainant did not consent, where: violence or the threat of violence was used against the complainant or
a third person; the complainant was unlawfully detained, asleep or otherwise unconscious; the complainant
was unable to communicate a consent due to a physical disability; or the complainant had been given a
substance which was capable of causing them to be stupefied or overpowered at the time of the attack.84

The formulation of the irrebuttable presumptions found in s. 76 is likewise ill-suited to the context of sport.
They provide that there will be no consent where the defendant intentionally deceived the complainant as to
the nature or purpose of the relevant act; or the defendant intentionally induced the complainant to consent
to the relevant act by impersonating a person known personally to the complainant.85

These provisions concern themselves with the foundation of consent, and factors that may affect its
validity.86 Although it is by no means impossible to imagine the scenario in which a victim has been forced
against his will to participate in sport, it is not an issue that is at the centre of the confusion regarding
consent. In the example of a game of football or rugby, it is unlikely that there would be any disagreement as
to whether the victim was a participant in the sport or not, and this renders the 'ordinary meaning' of consent
a matter of no consequence as regards sport. It is the far more difficult question of what that consent
encompasses that has proven problematic in such a context, and it is unlikely that any uniform test could be
formulated that would apply to sport and the many other contexts in which consent is relevant.

A comparison between criminal assaults and the civil offence of

negligence in sport

It has been observed that the behaviour leading to criminal liability for violence in the sporting arena falls
broadly into two categories: that which occurs 'off the ball'; and that which is more clearly identified with the
commission of the sport, yet which is nevertheless deemed to be criminal.87 Of these, it is the latter which
has proven more problematic, due to the existence of the 'grey area' identified in R v Barnes.88

Much the same problem pervades the civil law, and it is thus apposite to consider the two branches
alongside each other, and compare the approaches that they take to the problems faced. As they have
similar concerns and encounter similar difficulties of translation to the sporting context, it may be that the
practices of one can inform the other.

Stefan Fafinski has argued that the similarities in the application of the law in negligence and in criminal
assaults are such as to make them 'so similar that it is difficult to see any meaningful delineation between the
 Page 10

basis for civil and criminal liability'.89 There is considerable overlap between the criminal and civil offences
that can be committed in relation to offences against the person during sport,90 and the circumstances
leading to a conviction for a criminal assault could also precipitate a civil claim for trespass to the person or,
more usually, an action in negligence for personal injury (indeed, a criminal conviction can serve as evidence
of the facts for a civil offence91). Thus, a reckless tackle during a game of football or rugby, which causes
serious injury, may lead to a conviction (and possible imprisonment) for a statutory assault, and an order to
pay compensation to the victim, as a result of a claim in negligence.

As the same set of facts may expose a defendant to both civil and criminal liability, so the roles of the two
branches of the law have coinciding aims: the civil law concerns itself with regulating the behaviour of people
as amongst themselves, in much the same way that the criminal law does. In the sporting arena, both seek
to inhibit unnecessarily and unreasonably violent play, whilst avoiding rendering contact sports obsolete by
virtue of excessive judicial interference. Elliott and de Than also invoke the desirability of a synergy between
the values and priorities reflected by both the civil and criminal law,92 pointing to the inconsistency arising
from R v Hinks,93 whereby a criminal offence was committed in relation to property over which the defendant
had nevertheless gained civil rights, owing to the disparities between the civil and criminal doctrines of
consent.

In the same way as the criminal law is informed by public policy considerations which mean that the
availability of consent renders contact sports possible, so the civil law courts have exhibited a similar desire.
In the recent negligence case of Tomlinson v Congleton Borough Council,94 the House of Lords emphasised
that 'the pursuit of an unrestrained culture of blame and compensation' would interfere with people's liberty to
enjoy themselves, and that a 'dull, grey' safety regime should never be imposed.95

Even those who have expressed disagreement with the judgment in Tomlinson have usually acknowledged
that the civil law should exercise caution in this respect; writing critically about the case in the Solicitors
Journal in December 2003, Braithwaite nevertheless conceded: '... one has to recognise that people are
entitled to run risks in their pursuit of pleasure'.96 Such sentiments find their equivalence in criminal cases
such as R v Brown97 and Attorney-General's Reference (No. 6 of 1980), wherein the courts have
deliberately avoided criminalising sports.98

Despite the similarities highlighted above, it is axiomatic that the criminal law and the law of tort have
manifold differences in both the interpretation and the application of their respective legal principles, and
there is a discernible difference in the approaches that have been taken by the respective disciplines. The
civil courts have shown a willingness to deviate from the 'usual' rules of negligence in a manner that finds no
equivalence in the criminal law, and a possible explanation for the disparity in treatment lies in the respective
disciplines' disparate aims and functions.

Is a criminal offence 'more serious' than a civil offence?

In Barnes, the Court of Appeal asserted that criminal liability would only result 'where the conduct was
sufficiently grave to be properly categorised as criminal',99 and observed that the civil law provides a system
by which an injured party can gain redress. In making such a statement, the court appears to intimate that a
criminal offence is more serious than a civil offence, implying a hierarchy by which more serious offences are
the preserve of the criminal law, whilst low-level offences will be dealt with by the civil law. Alternatively, the
court may be indicating that there should be a bar to all but the most serious conduct forming the basis of a
criminal prosecution, which renders the observation regarding the existence of the civil law simply an
acknowledgement of its availability.

Whichever interpretation is adopted, the court nevertheless appears to have given some consideration to the
role of the civil law in deciding on criminal liability. The statement also appears tacitly to acknowledge that
the civil law may find the adjudication of such disputes less problematic than does the criminal law.

There is a seductive reasoning underpinning a claim that the criminal law deals with more serious offences
than the civil law. Undoubtedly, the most heinous offences are criminal in nature, for which the criminal law
 Page 11

provides the ultimate sanction: imprisonment. However, relatively trivial crimes, such as common law assault,
are likely to incur relatively minor sanctions.

It is a defining characteristic of the criminal law that it seeks to punish culpable behaviour, and it is the quality
of the act, and state of mind, of the perpetrator that are the main determinants of liability and sentence.100 In
the civil law, an element of culpability, or blameworthiness, is also essential, but once this threshold has
been attained, it is the consequent loss that determines the award (and thus the penalty suffered by the
perpetrator). As the sanction is compensatory, rather than punitive, the seriousness of the offence is defined
by the extent of the damage. To distinguish the two branches in terms of seriousness is disingenuous and
disregards their different methodologies and aims.

Applying the principles of negligence to the sporting context101

In order to establish how civil liability for negligence is determined, it is necessary to look to the tripartite test
found in Caparo v Dickman,102 which applies to all negligence cases, and to the relevant defences,
particularly consent. In order to succeed, the claimant must show that the defendant owed a duty of care to
the claimant,103 that this duty was breached (according to the standard of behaviour expected of the
'reasonable man'),104 and that this caused damage which was not too remote from the breach (largely a test
of foreseeability105). It will be a defence to both trespass to the person106 and negligence107 if the defence
can demonstrate consent on the part of the claimant (under the maxim volenti non fit injuria). However, in
cases arising from sports injuries, there is a quandary reminiscent of that already explored in the criminal
law. When applying the criteria to sporting situations, difficulties arise surrounding the level of skill that it is
reasonable to expect participants to exercise, and this is further complicated by the role of consent.

It is well established that a sportsperson owes a duty of care to fellow competitors. The principle of the duty
of care originates in Lord Atkin's famous 'neighbour principle',108 as refined through a long line of cases.
However, as the particular circumstances of sport have caused problems in assessing assaults in the
criminal law, so there has been difficulty encountered in delineating the level of the duty and standard of care
that is owed during the course of a sporting contest. Generally, the standard is to be assessed objectively,
according to the circumstances. In Read v J Lyons Co Ltd, Lord Macmillan stated: 'the law in all cases exacts
a degree of care commensurate with the risk'.109 Therefore, it has been held that, 'as the danger increases,
so must the precautions increase'.110 In Blake v Galloway,111 Dyson LJ described the transposition of the
general duty of care onto the sports field:

... there is a general standard of care, namely the Lord Atkin approach in Donoghue v Stevenson [1932] AC
562 that you are under a duty to take all reasonable care taking account of the circumstances in which you
are placed, which, in a game of football, are quite different from those which affect you when you are going
for a walk in the countryside.112

In the USA, the application of the usual duty and standard of care to the context of professional sport has
also proven problematic. Weiler and Roberts noted the difficulties:

It is wholly incongruous to talk about a professional football player's duty of care for the safety of opposing
players when he himself has been trained and motivated to be heedless of injury to himself. The character of
NFL competition negates any notion that the playing conduct can be circumscribed by any notion of
reasonableness.113

In much the same way as the criminal law has struggled to apply the law relating to assaults to the sporting
context, so the usual rules of negligence have also necessitated a degree of adaptation. However, in
confronting these differences, the approach of the civil courts has been markedly different from that of the
criminal courts.

Citing the judgment in Caldwell v Maguire and Fitzgerald,114 the Court of Appeal in Blake v Galloway
declared: 'One is to take a more generalised duty of care and to modify it on the basis that the participants in
the sport or pastime impliedly consent to taking risks which otherwise would be a breach of the duty of care'.
 Page 12

115 Therefore, the quality of the duty of care, and correspondingly the point at which it is breached, is altered
due to the perceived consent of the participants. The unequivocal nature of this statement is immediately
apparent, and is in sharp contrast to the often ambiguous and vague declarations that have been made by
the criminal courts.

In the High Court decision of Watson v Gray,116 Hooper J held that, in determining whether a professional
footballer was liable in negligence for an injury caused to another player in the course of a tackle, the
question was whether, on a balance of probabilities, the challenge was one that a reasonable professional
player would have known carried a significant risk of serious injury. This appears to imbue the defendant with
knowledge and expertise that would not usually be expected of the 'reasonable man', when objectively
assessing whether the duty of care has been breached.117

That there is a variance not only between the sporting and non-sporting scenario, but between different
levels of the same sport is reflected in the following observation made by the Court of Appeal in Condon v
Basi,118 wherein it was stated: 'There will of course be a higher degree of care required of a player in a First
Division119 football match than of a player in a local league football match'.120 Again, such transparent logic
is markedly different from the opaque reasoning of the criminal courts, and goes beyond the Bolam test (by
which the defendant is expected to behave according to the standard of a reasonable practitioner121), in that
it allows for a differentiation based on the level of the competition. Therefore, in sport, the objective
assessment of the duty of care is given a greater amount of flexibility than is usually possible within
negligence.

A shared concept of 'recklessness'?

In raising the bar for liability, it can be argued that the civil courts are going beyond a simple requirement of
negligence when assessing the duty and standard of care. Does this mean that the threshold for liability in
negligence has now reached parity with the criminal standard of recklessness?122

Recklessness is not usually in the lexicon of the law of tort when deciding on liability, and use of the word
has caused some controversy. The case that established the term as a measure of the standard of care
required of sportspersons was Wooldridge v Sumner,123 wherein the plaintiff was a spectator at a horse
show who was injured when the defendant rode his horse too fast and lost control. Although a case about a
spectator, and not a participant, the observations made by Diplock LJ apply to spectators and participants
alike.124 The standard of behaviour held to constitute a breach of the duty of care in Wooldridge was that of
'reckless disregard'.125 This bears comparison with the test used in the criminal case of R v Bateman,126
and with the Court of Appeal judgment in Barnes, wherein the court was asked to consider whether the injury
caused had been done so through the legitimate course of a sporting contest, or whether the defendant had
shown a criminally reckless disregard for the safety of his opponent.

Although when delivering the judgment in Caldwell v Maguire and Fitzgerald,127 the Court of Appeal was at
pains to point out that it was not demanding proof of recklessness, the following passage shows the fine line
that is trodden when distinguishing recklessness from culpable behaviour sufficient to amount to negligence
in the course of a sporting contest:

The judge [of the trial at first instance] did not say that a claimant has to establish recklessness ... As in
Smoldon, there will be no liability for errors of judgment, oversights or lapses of which any participant might
be guilty in the context of a fast moving contest. Something more serious is required.128

The first sentence of this excerpt decries the use of the word recklessness. However, it is hard to marry with
the second, which appears to evoke the characteristics of reckless behaviour. The sentiments also bear a
striking resemblance to the judgment of the Court of Appeal in the criminal case of Barnes, wherein Lord
Woolf CJ had the following to say about when it would be appropriate to impose criminal liability following an
injury during the course of a football match:

In the instant case, the type of question that the jury had needed to ask themselves had been, inter alia,
 Page 13

whether the contact had been so obviously late and/or violent that it was not to be regarded as an instinctive
reaction, error or misjudgement in the heat of the game.129

Similar conclusions can be drawn from Blake v Galloway,130 wherein the Court of Appeal considered a case
of 'horseplay'. The defendant had thrown a piece of wood bark at the claimant, hitting him in the eye and
causing serious injury, and relied on the claimant's consent as a defence to a negligence claim. Although the
court did not employ the term 'reckless disregard', preferring the expression 'blameworthy conduct', it was
held that only recklessness or a very high degree of carelessness is sufficient to breach the duty of care
owed during horseplay. The Court of Appeal held that this reasoning would also apply to sporting scenarios:

... there is a sufficiently close analogy between organised and regulated sport or games and the horseplay in
which these youths were engaged for the guidance given by the authorities to which I have referred to be of
value in the resolution of this case.131

Considering the preceding cases, it is arguable that recklessness has necessarily become a standard by
which to measure this element of blame, whether or not the word itself is used. A further example can be
found in Caldwell v Maguire and Fitzgerald:132

Given the nature of such prevailing circumstances the threshold for liability is in practice inevitably high; the
proof of a breach of duty will not flow from proof of no more than an error of judgement or from mere proof of
a momentary lapse in skill (and thus care) respectively when subject to the stresses of a race. Such are no
more than incidents inherent in the nature of the sport.133

This standard was recently applied in Richardson v Davies,134 a county court hearing arising from an injury
sustained as the result of a football tackle. Judge Cryan held that, in order to succeed in negligence, the
claimant needed to show that the conduct of the defendant had fallen below the reasonable standards of
care and skill to be expected of a player at the particular level of the game, and that a reasonable amateur
player in the defendant's position would have known that there was a significant risk that his actions would
result in serious injury to the claimant.135 In this instance, the defendant was held to have taken a risk
beyond that which was reasonable or usual, and this amounted to a 'reckless disregard' for the claimant's
safety.

Following Wooldridge, judgments have tended to shy away from using the term 'reckless disregard', and
insisted that all that is required is an element of 'blameworthiness'. However, the following excerpt shows
how the Court of Appeal has attempted to make use of the higher standard afforded by the concept of
recklessness, whilst asserting that this does not transgress the usual rules of negligence:

In practice it may therefore be difficult to prove any such breach of duty absent proof of conduct that in point
of fact amounts to reckless disregard for the fellow contestant's safety. I emphasise the distinction between
the expression of legal principle and the practicalities of the evidential burden.136

Thus, although nominally the 'reckless disregard' test employed so controversially in Wooldridge v
Sumner137 has disappeared, the use of a criterion analogous to that of the criminal standard of
recklessness appears inescapable when assessing the standard at which liability in negligence is imposed.
This effectively allows the court to raise the bar for liability when assessing sport, and demonstrates that,
although the civil law faces many of the same problems as the criminal law when confronted with injury
inflicted during the course of sport, there is a flexibility that the criminal law is reluctant to afford.

The role of consent in negligence

It was noted above that a reason for the elevation of the standard of care as it is employed when assessing
injuries occasioned through violence in sport is the presence of consent on the part of the participants.138
The effect of consent in the law of tort is roughly equivalent to its effect in the criminal law: in order to be
effective, the defendant must have a reasonable belief in the consent of the victim;139 during the course of a
sporting contest, this would be satisfied by the claimant's participation.
 Page 14

The role of consent has proven less problematic, at least doctrinally, in the law of tort. The problems posed
by consent in the criminal law stem from an aversion to allowing the unconstrained consent to actual (or
more serious) bodily harm.140 The disbarring of consent from incidences of more than transient injury is
subject to a pubic policy exception in the case of sports,141 and it is thus necessary to establish, in the event
of injury beyond that which is transient, that the quasi-assault was committed by way of 'legitimate sport'.142
Such constraints do not exist in the realm of tort law, concerned as it is with compensatory judgments, and
consent is available as a defence to negligence, essentially unconstrained by public policy.

Another reason for the relative conceptual simplicity of the defence in negligence is because of the role that it
performs. The precise role of consent in the criminal law is a matter for debate (in other words, whether it
functions as a defence, or whether lack of consent is a constituent part of an assault). In negligence, consent
has traditionally been accepted as having a negating effect, acting as a defence to an action otherwise
established.143 In any event, in Condon v Basi,144 the Court of Appeal held that the precise role played by
consent, and the justifications for this, are of little practical importance.145

Although the legal question of consent has proven relatively straightforward, in assessing factual consent,
the civil law has encountered similar problems to those found in the criminal law.

Factual consent in tort and criminal law: a comparison of the difficulties

faced

In terms of discerning factual consent, the problems faced by the criminal and civil law are largely the same.
Where there is express consent, there are few problems, aside from the evidential issues. However, in the
vast majority of cases it is necessary to attempt to find implied consent, as the players are unlikely to have
articulated their intentions. In this situation, as in the criminal law, the rules and usual practice of the
respective game have been indicative as to whether consent has in fact been given.146

The importance of the rules of a sport in determining the extent to which a competitor could be said to be
consenting was considered in Smoldon v Whitworth and Nolan.147 The claimant was a rugby player in the
front row of a scrum, who was seriously injured when the scrum collapsed, causing him to suffer a broken
neck. An action was brought in negligence against the referee for failing to enforce the rules of the game,
and the Court of Appeal took the view that in this instance, consent was not an effective defence:

The plaintiff had of course consented to the ordinary incidents of a game of rugby football of the kind in which
he was taking part. Given, however, that the rules were framed for the protection of him and other players in
the same position, he cannot possibly be said to have consented to a breach of duty on the part of the official
whose duty it was to apply the rules and ensure so far as possible that they were observed.148

The Court of Appeal recently reaffirmed this decision in Vowles v Evans,149 in which the Rules of 1997 were
specifically invoked, and relied upon in determining that the referee in a rugby match had been negligent
when he abdicated responsibility to a team captain.

In football, it has been held that there is 'consent to the risk of injury from the great majority of errors of
judgement, mistakes and even intentional fouls'.150 Therefore, the rules of the particular sport, and 'ordinary
incidents', are definitive in delineating the scope of the claimant's consent. This bears a striking similarity to
the concept of 'legitimate sport' employed in Barnes (and to the idea of a 'playing culture', as espoused by
Gardiner151).

The civil law has shown a degree of flexibility in its approach to the rules of negligence, embracing the reality
of contact sports and moving away from a dogmatic adherence to the usual negligence criteria when
considering the issue of violence occasioning injury in sport. This is demonstrated in the apparent elevation
for the standard of the duty of care, informed by the presence of the competitors' consent, from negligence to
recklessness.
 Page 15

The fog of public policy in the criminal law

The courts have repeatedly stated that the reason injury caused by violence during 'legitimate sport' does not
attract criminal liability is as a result of public policy. In no arena is the public policy exception more
controversial than in relation to boxing152 (and other combat sports, such as martial arts153). In Brown, the
Lords were unanimously of the opinion that such sports are lawful, Lord Templeman stating: 'Ritual
circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities'.154

Although consent figured prominently in their reasoning, there was clear discomfort with its application in
justifying boxing, albeit that any comments on the subject must be considered obiter dicta. Lord Templeman
reviewed the history of the availability of consent, and commented that 'rightly or wrongly the courts accepted
that boxing is a lawful activity'.155 Lord Slynn of Hadley stated:

It seems to me that the notion of 'consent' fits ill into the situation where there is a fight. It is also very strange
that a fight in private between two youths where one may, at most, get a bloody nose should be unlawful,
whereas a boxing match where one heavyweight fighter seeks to knock out his opponent and possibly do
him very serious damage should be lawful.156

Lord Mustill found any attempt to legitimise boxing through effective consent intellectually unsatisfying,157
stating:

That the court is in such cases making a value judgment, not dependent upon any general theory of consent
is exposed by the failure of any attempt to deduce why professional boxing appears to be immune from
prosecution.158

Lord Mustill considered explaining 'the apparent immunity of professional boxing from the criminal process'
an impossible task, and concluded: 'It is in my judgment best to regard this as another special situation which
for the time being stands outside the ordinary law of violence because society chooses to tolerate it'.159

The operation of the exception as it applies to boxing (and other contact sports) can be contrasted with its
operation in 'horseplay', recently revisited in R v A.160 In this case, the defendant had been convicted of
manslaughter after lifting the victim over a railing by a bridge so that he fell into a river; not being able to
swim, the victim drowned.161 On appeal against conviction, the defendant contended that the trial judge, in
his summing-up, was wrong to withdraw from the jury's consideration the question of whether his conduct
had been unlawful. The defendant submitted that the following question should have been put to the jury:
'absent consent, do you regard this as truly criminal conduct?' In failing to do so, the judge had shown
'improper regard to the developments in the law or the public policy approach advocated by Lord Mustill in
his dissenting judgment in R v Brown [1994] 1 AC 212'.162

The Court of Appeal rejected this argument, and did not accept that the correct approach was to ask the
holistic question of whether the category of conduct should be lawful or unlawful.163 Instead, the conviction
rested on the answers to five points raised at first instance, which correlated with the elements necessary for
a conviction for unlawful dangerous act manslaughter,164 combined with the vitiating factor of whether the
victim had, in fact, consented.165 Thus the legality of the act was not directly confronted, and this forms an
interesting contrast with the situation regarding contact sports.166

Although the court cited cases such as Barnes as authority in the judgment, it is clear that this approach to
horseplay as a category of 'lawful activity' is fundamentally different from that taken to boxing, or other sports,
such as football, where the objective, multilateral view of consent means that an holistic approach is
adopted. In Barnes, this amounted to an assessment of whether the injury had been occasioned during the
course of 'legitimate sport'.167

It is apparent, therefore, that participants in boxing escape criminal liability due to a simple public policy
argument, which is not wholly consistent with the doctrine of consent. The courts have acknowledged the
anomalous position of boxing within the law of consent, and indeed the criminal law as a whole, and it is
 Page 16

perhaps disingenuous directly to transpose the arguments evinced to consideration of the subject in other
sports. However, it is submitted that the foregoing passages from Brown illustrate the attitudes of the courts
to contact sports more generally; that the inadequacies of consent as remarked by Lords Mustill and Slynn of
Hadley also apply to other sports.

It has been stated repeatedly that the exception allowing for consent has a public policy basis and, as such,
needs no separate jurisprudential basis by which to explain its application. The flexibility that this allows
arguably provides advantages which are absent from the uniformity of approach advocated by Elliot and de
Than, and was lauded in Barnes:

The advantage of identifying that the defence is based upon public policy is that it renders it unnecessary to
find a separate jurisprudential basis for application of the defence in the various different factual contexts in
which an offence could be committed.168

This means that consent can be applied differently in each of the categories of 'lawful activity' identified in
Brown. However, having acknowledged that it is not necessary to promulgate a uniform jurisprudence for
consent throughout the respective categories, it is curious that the courts have felt the need to transpose
authorities from one category to another, in a way that obfuscates the issue. This invites comparison
between the different categories, to the detriment of not only certainty, but also clarity. For example, in
Barnes the court repeatedly cites Dica as authority, whilst simultaneously asserting that there is no need for
a consistency of approach.

The arcane application of policy considerations undermines comprehension of the availability and
applicability of consent, and of the exact role of consent. Despite the mutual proclamations of approval, and
a declared linearity of reasoning through Brown, the Law Commission and Barnes, there are several points
at which there is apparent dissention.169 At times, the legal and factual questions are employed
interchangeably, and this raises the suspicion that the obfuscation thus engendered is deliberate; the courts
appear wary of creating binding precedents that would engender inflexibility in a realm where, for policy
reasons, this would be deemed undesirable.170

The public policy rationale explored above relates to disparate circumstances. Societal attitudes to violence,
and personal autonomy, change, and public policy predicated on prevailing beliefs and values is liable to
change as a result of this. This is explicitly acknowledged in Brown in relation to 'horseplay',171 and Lord
Woolf CJ noted the susceptibility to change of reasoning predicated on policy considerations in Barnes.172
In Dica, the notorious 19th century case of Clarence173 was overruled. As a result, it is now the case that
consent to unprotected sex is not the same as consent to unprotected sex with someone with a potentially
fatal disease, evidence of a shift (mirrored in the provisions of the Sexual Offences Act 2003) in society's
attitudes towards informed consent.174

Such a shift in perception is also evident in the attitudes towards 'lawful chastisement', which comprises one
of the exceptions lifting the bar to consent to harm, as outlined in Brown. Lawful chastisement is referred to
in Brown as 'involving the exercise of a legal right',175 and is similarly regarded by the Law Commission
Consultation Paper No.134.176 The advent of the Children Act 2004, s. 58 means that 'battery of a child
cannot be justified on the ground that it constituted reasonable punishment', in relation to ss 47, 18 and 20 of
OAPA 1861, and s. 1 of the Children and Young Persons Act 1933 (although by implication it is a defence to
a charge of assault or battery). This statutory development and the debate around the physical punishment
of children that is current a little more than a decade after Brown and the Law Commission paper highlight
the susceptibility to change of this area of the law.177

The court in Barnes made reference to the idea that consent would be a defence so long as the defendant's
behaviour was in the course of a 'legitimate sport'.178 An examination of the scope of 'legitimate sport'
entails a degree of symbiosis between the criminal law and the rules as sanctioned by the governing bodies
of sports; the role and suitability of sport's governing bodies as quasi-legislators of the criminal law is outwith
the scope of this work.179

Conclusion
 Page 17

Elliott and de Than express concern that consent 'risks being a patchwork of statute and ad hoc case
law';180 this has already been realised in the realm of offences against the person, in a large part ascribable
to the impossibility of accommodating contact sports within a logical framework encompassing a
heterogeneous array of circumstances in which consent may act as a defence to assault.

The basis of this defence of consent in public policy has lent the doctrine great uncertainty in the criminal
law. Although it enables a subversion of accepted rules, without having to justify this through conventional
jurisprudential reasoning,181 this is frequently to the detriment of clarity, consistency and logic. In addition,
the courts have been reluctant to acknowledge sports as wholly exceptional, and have sought to construct
judgments by reference to the other categories of 'lawful activity' in which consent to serious injury is
possible.

The question of when consent will operate to vitiate liability for violence on the sports field is by no means
straightforward. There is considerable scope for confusion regarding the legal and factual questions
surrounding its application; this is further clouded by ambiguity surrounding the method by which it operates
(as an integral factor in the offence of assault, or as a defence). The question of when the defence of
consent will be available has been revisited in the recent case of Barnes, wherein Dica was cited as
authority, despite proclamations that, as an invention of public policy, there is no need for a universal
jurisprudential basis for the defence. This interposition of conflicting authorities, along with the lack of
conclusiveness as to the role that consent plays, belies an almost Orwellian insistence on consistency where
this is patently lacking, and is symptomatic of the confused state of the doctrine.

Although there has been a concentration on consent, and its role and scope, it is also clear that consent in
the sporting arena does not operate according to the usual understanding of the word; as it arises through
implication (and also due to the number of participants involved in team sports), liability is not imposed
according to the subjective, informed consent of the victim, but rather as an objective standard, and by
reference to the rules of the particular sport. Thus, participants can be said to have consented to that which
occurs during the normal course of the game, and this consent arises through an holistic appraisal of the
circumstances in which the incident has occurred, and is applied multilaterally and coterminously to all
participants.

This is not unreasonable: the rules of a given sport are delineated and very much in evidence, and it is
realistic and logical to assume that the participants are aware of them. However, when contrasted with the
very real issue of consent encountered in R v A (regarding 'horseplay'), in cases such as Dica and Konzani
(regarding sexual activity), and in Tabassum (indecent assault), the concept of consent in contact sports
appears anomalous, and to offend against the accepted meaning of the word.

The similarities between the imposition of civil and criminal liability for assaults on the sports field are
manifold, and they may arise from the same factual circumstances. Both areas have struggled to define the
relationship between the rules of the game and consent, and this complex interplay has proven problematic
in determining liability. As a result, Fafinski concludes that the issues are 'so similar that it is difficult to see
any meaningful delineation between the basis for civil and criminal liability'.182 However, there are palpable
differences in the aims of the two branches, and this has led to a difference in approach.

Unconstrained by the public policy considerations which hold the person inviolate in criminal law in all but a
select few 'lawful activities', the law of negligence is better able to consider the scope of factual consent. In
doing so, there has been an acknowledgement that the consent of the claimant raises the bar for liability to a
level akin to that of recklessness.183 This means that there is no liability for the ordinary incidents of
play,184 and that liability is assessed by reference to the reasonableness of the conduct of the perpetrator.

Although the pursuit of consistency is often a commendable goal, uniformity of approach does not represent
the sine qua non of an effective legal system, and the virtues of a unitary approach to consent are
undermined by the inclusion of contact sports. If a unitary approach to consent is to be achieved, it is
necessary to acknowledge that the inclusion of contact sports within the nomenclature of consent as it is
currently envisaged is problematic.
 Page 18

A definition such as that found in s. 74 of the Sexual Offences Act 2003 re-emphasises freedom of choice,
and gives guidance as to when, and in what circumstances, consent may be found. This concentration on
the quality of the consent adds little when applied to sport; from the point of volunteering for the activity
(and this is unlikely ever to be an issue), the nature and scope of the acts that will be deemed unlawful bears
no relation to any notion of 'consent' as the word is usually understood. Framing the decision as to
unlawfulness within the implied consent of the participant is a fiction that is singularly unhelpful, as the rules
and usual practice of the sport are the sole determinant of the validity and existence of the victim's consent.

1 The thorny issue of consent as it applies to rape was argued extensively in R v Olugboja [1982] QB 320, [1981] 3 All ER
443.

2 Section 74 of which provides: 'For the purposes of this Part, a person consents if he agrees by choice, and has the freedom
and capacity to make that choice'. Further guidance can be found in ss 75 and 76, which contain rebuttable and non-rebuttable
presumptions. The legislation addresses many of the issues raised by the Court of Appeal in R v Olugboja [1982] QB 320,
[1981] 3 All ER 443.

3 [2007] EWCA Crim 256, [2007] All ER (D) 412 (Mar). The case examined the situation where an alleged rape victim was
held to be drunk but not unconscious. The court refused to extend the meaning of ss 74 and 76 of the Sexual Offences Act
2003 beyond their own explicit provisions.

4 [1994] 1 AC 212.

5 [2004] EWCA Crim 1103, [2004] QB 1257.

6 [2005] EWCA Crim 706, (2005) 69 JCL 389.

7 [2004] EWCA Crim 3246, [2005] 2 All ER 113.

8 [1999] QB 444.

9 C. Elliott and C. de Than, 'The Case for a Rational Reconstruction of Consent in Criminal Law' (2007) 70 MLR 225.

10 Section 74 declares: 'For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and
capacity to make that choice'.

11 Elliott and de Than, above n. 9 at 226.

12 The term 'non-sexual' may cause some confusion here, when considering cases such as Dica and Konzani; although
these arose in sexual contexts, the offences themselves are not sexual offences, and derive from the spectrum of offences
envisaged by ss 18, 20 and 47 of the Offences Against the Person Act 1861.

13 These will be returned to at various points below.

14 The standing of the rules, and how they pertain to the 'legitimate sport' standard mooted in Barnes, were explored by the
author in: B. Livings, '"Legitimate Sport" or Criminal Assault? What Are the Roles of the Rules and the Rulemakers in
Determining Criminal Liability for Violence on the Sports Field?' (2006) 70 JCL 495.

15 This is a standard posited by Simon Gardiner et al. in S Gardiner et al., Sports Law, 3rd edn (Cavendish: London, 2006)
606-12. It envisages both play within the rules, and other behaviour usually encountered in a particular sport.
 Page 19

16 Elliott and de Than, above n. 9.

17 N. MacCormick, 'Reconstruction after Deconstruction: A Response to CLS' (1990) 10 Oxford Journal of Legal Studies 539
at 556.

18 There are several sub-categories of offences against the person, to which consent will provide a valid defence to actual or
grievous bodily harm. Outlined in the leading case of Brown, wherein they are referred to as 'lawful activities', these cover the
area of invasive medical treatment (for which the defence of consent provides a defence to the surgeon), such activities as
tattooing and piercing, 'general horseplay', and dangerous sports (R v Brown [1994] 1 AC 212 at 233, per Lord Templeman).

19 Sexual Offences Act 2003, s. 1(b). The definition of rape can be found in the Sexual Offences Act 2003, s. 1. The relevant
provisions relating to consent can be found in ss 74 and 76, which were recently revisited in R v B [2006] All ER (D) 173 (Oct).
The provisions create rebuttable and irrebuttable presumptions.

20 R v Coney (1882) 8 QBD 534.

21 Ibid. at 549.

22 [1984] 1 WLR 1172 at 1177, per Robert Goff LJ.

23 R v Brown [1993] 1 AC 212 at 246.

24 Law Commission, Criminal Law: Consent and Offences against the Person, Law Com. Consultation Paper No.134
(HMSO: 1994) 1.

25 [1912] KB 572 at 575.

26 Law Commission, above n. 24 at 10.

27 The conceptual significance of the distinction was noted by Lewis and Taylor, who nevertheless viewed the issue as
having limited practical importance (A. Lewis and J. Taylor, Sport: Law and Practice (Butterworths: London, 2003) 1081-2).

28 Mancini v DPP [1942] AC 1.

29 R v Lobell [1957] 1 QB 547.

30 As held in Woolmington v DPP [1935] AC 462, the burden of proving every element of a criminal offence falls on the
prosecution, absent the presumptions created by the Sexual Offences Act 2003.

31 Such arguments evoke the longstanding debate surrounding the constituent elements of a crime, in particular the analysis
by Glanville Williams (CLGP, 19), in which he states: 'Actus reus includes ... the absence of any ground or justification or
excuse ...' (documented, alongside alternative views by the authors and D. J. Lanham ([1976] Crim LR 276), in D. Ormerod,
Smith & Hogan: Criminal Law (Oxford University Press: Oxford, 2005) 40).

32 Although the doctrine of consent will continue to be referred to as a 'defence' for reasons of convenience, continuity and
clarity, there is no conclusive answer as to the role it plays in vitiating quasi-assaults during sport.

33 Definitive proclamations were made on this subject as far back as R v Coney (1882) 8 QBD 534, a case cited as authority
in the leading judgment of R v Brown [1994] 1 AC 212.

34 R v Barnes [2004] EWCA Crim 3246, [2005] 2 All ER 113. Therefore, the only question in this instance would be whether
 Page 20

factual consent could be shown.

35 The general rule was stated in Law Commission, above n. 24 at 1. The Law Commission proposed that this common law
rule be given a statutory footing.

36 R v Brown [1994] 1 AC 212, per Lord Templeman, who was quoting from Swift J in R v Donovan [1934] 2 KB 498 at 507.

37 R v Brown [1994] 1 AC 212 at 222:

'A maim was bodily harm whereby a man was deprived of the use of any member of his body which he needed to use in order
to fight but a bodily injury was not a maim merely because it was a disfigurement. The act of maim was unlawful because the
King was deprived of the services of an able-bodied citizen for the defence of the realm. Violence which maimed was unlawful
despite consent to the activity which produced the maiming. In these days there is no difference between maiming on the one
hand and wounding or causing grievous bodily harm on the other hand except with regard to sentence'.

38 In Attorney-General's Reference (No. 6 of 1980) [1981] QB 715 at 719, [1981] 2 All ER 1057 at 1059.

39 R v Boyea (1992) 156 JP 505. This precedent is proposed somewhat tentatively, as there is some controversy over the
findings of the court. However, in light of the above-mentioned elevation of the threshold for liability in the case of sports, it is
submitted that criminal liability would be unlikely to be imposed where wholly unexpected harm occurred, especially in light of
the implied consent of the competitors.

40 R v Slingsby [1995] Crim LR 570. Again, there is a cross-over here with the standard required to reach a prima facie
assault. Where no harm is foreseen, the mens rea requirement for recklessness is not met.

41 In R v Coney (1882) 8 QBD 534. Hawkins J declared: 'It is not in the power of any man to give an effectual consent to that
which amounts to, or has a direct tendency to create, a breach of the peace; so as to bar a criminal prosecution'.

42 R v Brown [1994] 1 AC 212.

43 See R v Aitkin [1992] 1 WLR 1066, and R v A [2005] All ER (D) 38 (Jul). It was argued in the Law Commission
Consultation Paper No. 134 that 'horseplay' should cease to be capable of consent (Law Commission, above n. 24 at 65).

44 R v Brown [1994] 1 AC 212 at 233, per Lord Templeman.

45 In Brown, there was disagreement amongst the Lords as to the upholding of the convictions, Lord Mustill and Lord Slynn
of Hadley dissenting. Voicing his misgivings over the case, Lord Mustill stated: 'My Lords, this is a case about the criminal law of
violence. In my opinion it should be a case about the criminal law of private sexual relations, if about anything at all'.

There are evident similarities between Brown and R v Wilson [1996] 3 WLR 125, in which a man was charged with an assault
contrary to s. 47 of the Offences Against the Person Act 1861(OAPA 1861), having branded his initials on the buttocks of his
wife, at her request, with a hot knife. It was held that there existed a valid defence of consent, with the Court of Appeal of the
opinion that it was not in the public interest that such consensual activity between husband and wife in the privacy of the
matrimonial home should be a matter for criminal investigation or prosecution. However, the Court of Appeal felt there to be 'no
factual comparison between' the two cases, a decision that has provoked notable and widespread comment and criticism. The
later case of R v Emmett, The Times (15 October 1999) provides a counterpoint, as the Court of Appeal found that the
interference of the criminal law was appropriate where there was a realistic risk of harm beyond a merely transient or trivial
injury.

In answering the question of whether the victims were legally capable of consenting to what could amount to a charge under s.
20 of OAPA 1861, the court in Dica distinguished the present case from Brown, on the grounds that the conduct in Dica (the
transmission of the HIV virus) was not in itself in pursuit of sexual gratification.

Although none of the above cases is directly concerned with sport, the inconsistency of approach that they demonstrate is
 Page 21

central to the application of the defence of consent, especially in light of the fact that they have been cited extensively when
applying consent to the sporting context.

46 Elliott and de Than, above n. 9.

47 These will amount to a common law assault and battery, or a more serious statutory assault, under OAPA 1861 (ss 18, 20
and 47, in descending order of seriousness).

48 Recklessness is the mens rea requirement for the common law offences, and for offences under OAPA 1861, ss 20 and
47.

49 In R v Barnes [2004] EWCA Crim 3246, [2005] 2 All ER 113 at 118, Lord Woolf CJ stated:

'In a sport like football, anyone going to tackle another player in possession of the ball can be expected to have the necessary
malicious intent according to this approach, and in the great majority of criminal cases, the existence of a malicious intent is not
likely to be in issue'.

50 There are other defences that may be pertinent, in addition to consent. Self-defence may apply where a person honestly
believes that they, or someone else, are about to be the victim of an attack (Beckford v R [1988] AC 130), and was successfully
argued in R v Hardy, Guardian, 27 July 1994, as a defence to manslaughter.

Lewis and Taylor (Sport: Law and Practice (Butterworths: London, 2003) 1088) put forward the possibility of the defence of
automatism as the closest equivalent in English law to the American defence of involuntary reflex. In State v Forbes,
unreported, Case 63280, Minn Dist Ct, 12 September 1975, the defendant had hit the victim repeatedly with a hockey stick, and
then hit his head repeatedly on the ice, during a game of ice hockey. Involuntary reflex was pleaded, with the defence claiming
that the actions were instinctive, as a result of the training the player had undergone and led to a hung jury; the prosecutor did
not ask for a retrial. Although Lewis and Taylor view as highly unlikely the possibility that a training regime would be sufficient to
substantiate the defence, they nevertheless cite automatism as a possible defence to a charge of assault. In order for
automatism to form an effective defence, it is necessary to establish that the defendant was acting without voluntary control of
his actions, caused by an external factor (Bratty v Attorney-General for Northern Ireland [1963] AC 386).

51 This has been explored in many cases, and was recently acknowledged in R v Barnes [2004] EWCA Crim 3246, [2005] 2
All ER 113.

52 Sections 75 and 76 of the Sexual Offences Act 2003 give guidance as to when implied consent may be found in the case
of duress, intoxication, unlawful detention, sleep or unconsciousness, or fraud as to the nature of the act, or the identity of the
perpetrator.

53 Law Commission, above n. 24.

54 Attorney-General's Reference (No. 6 of 1980) [1981] 2 All ER 1057.

55 Ibid. at 1059. Quoted in R v Brown [1994] 1 AC 212 at 233, per Lord Templeman.

56 R v Barnes [2004] EWCA Crim 3246, [2005] 2 All ER 113.

57 The Court of Appeal in Barnes stated at 114:

'Issues arose on appeal concerning: (i) when it was appropriate for criminal proceedings to be instituted after an injury had been
caused to one player by another in the course of a sporting event; and (ii) the facts that had to be established before a
defendant could be convicted of the offence charged'.

58 R v Brown [1993] 1 AC 212.

 Page 22

59 (1989) 48 CCC (3d) 480.

60 Ibid. at 490.

61 http://news.bbc.co.uk/1/hi/england/bristol/6252157.stm, accessed 21 September 2007. The punch broke the jaw of

opponent Sean Rigg, and Cotterill was sentenced to four months' imprisonment.

62 [2000] 2 Cr App R 328.

63 R v Dica [2004] EWCA Crim 1103, [2004] QB 1257.

64 R v Konzani [2005] EWCA Crim 706, (2005) 69 JCL 389.

65 H. Law, 'Offences against the Person: Reckless Transmission of HIV', case note on R v Konzani (2005) 69 JCL 389.

66 R v Cey (1989) 48 CCC (3d) 480.

67 Ibid. at 490, per Gerwing JA.

68 R v Brown [1994] 1 AC 212, per Lord Templeman.

69 [1995] 1 AC 171.

70 (1982) 75 Cr App R 154.

71 For gross negligence manslaughter, after establishing that a duty of care, breach of that duty and causation, the jury is
asked whether the behaviour of the defendant was such as to amounts to 'gross negligence'.

The test for dishonesty, derived from Ghosh, is actually two-tier, amounting to an objective and subjective test (Was the action
of the defendant dishonest in the eyes of the reasonable man? If so, was the intention of the defendant dishonest?).

72 [2005] 1 Cr App R 21.

73 Article 7 decrees that there shall be 'no punishment without law':

'1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal
offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the
one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it
was committed, was criminal according to the general principles of law recognised by civilised nations.'

74 [2005] 2 All ER 113 at 116, per Lord Woolf CJ.

75 R v Barnes [2004] EWCA Crim 3246, [2005] 2 All ER 113.

76 Ibid. at 113.
 Page 23

77 [1978] Crim LR 553.

78 [1993] 1 AC 212

79 It is interesting to note that the injuries encountered in Billinghurst are commonly received in the course of the game of
rugby, and, if received during the legitimate course of play, would be unlikely to result in criminal charges.

80 Above n. 61.

81 This raises the issue of the legitimacy of the rule-making and policing body, which is outwith the scope of this article.

82 R v Barnes [2004] EWCA Crim 3246, [2005] 2 All ER 113 at 115, per Lord Woolf CJ.

83 For an exploration of the idea of a 'playing culture', see Gardiner et al., above n. 15 at 606-12.

84 According to s. 75, if any of these conditions are operating:

'the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue
as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented
unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it'.

85 This gives a new statutory basis to long-standing rules in relation to consent in rape.

86 Informed by the dismal conviction rates for rape.

87 Gardiner et al., above n. 15.

88 [2004] EWCA Crim 3246, [2005] 2 All ER 113.

89 S. Fafinski, 'Consent and the Rules of the Game: The Interplay of Civil and Criminal Liability for Sporting Injuries' (2005)
69 JCL 414.

90 A point acknowledged in R v Barnes [2004] EWCA Crim 3246, [2005] 2 All ER 113 at 116.

91 Civil Evidence Act 1968, s. 11. See Wauchope v Mordecai [1970] 1 All ER 417, in which the facts that had led to a
criminal conviction were substantially the same as those to be proven in negligence for a claim to succeed. The criminal
conviction was adduced as evidence.

92 Elliott and de Than, above n. 9.

93 [2001] AC 241.

94 [2003] UKHL 47.

95 Tomlinson v Congleton BC [2003] UKHL 47.

96 B. Braithwaite, 'Disastrous Diving' (2003) Solicitors Journal, Vol. 147(33), 5 December 2003.
 Page 24

97 R v Brown [1994] 1 AC 212.

98 Attorney-General's Reference (No. 6 of 1980) [1981] 2 All ER 1057 at 1059: '... nothing which we have said is intended to
cast doubt on the accepted legality of properly conducted games and sports ... these apparent exceptions can be justified as ...
needed in the public interest'.

99 R v Barnes [2004] EWCA Crim 3246, [2005] 2 All ER 113.

100 It is the mens rea requirement of intention that renders s. 18 of OAPA 1861 more serious than its counterpart, s. 20,
which requires intention or recklessness. The factors to be borne in mind when sentencing (according to the aims of the
Criminal Justice Act 2003, s. 143) are found in the Powers of the Criminal Courts (Sentencing) Act 2000, as amended by the
Criminal Justice Act 2003.

101 Although civil claims may also be brought in trespass to the person, it is submitted that, in this instance, the application of
the rules will not differ much between situations on and off the field. This is because it is most likely to apply to 'off-the-ball'
incidents, such as that described above, in which James Cotterill punched an opponent in an FA Cup football match (see above
n. 61) and in which there is unlikely to be a defence of consent available to the defendant. Although actions are brought, with
some success, a claim in tort is far more likely to be brought as an action in negligence, due to the requirement in the former for
evidence of a degree of intention. Where the facts are as in Barnes, the appropriate civil recourse would appear to lie in
negligence (the facts of Barnes are substantially the same as those of the negligence case of Condon v Basi [1985] 2 All ER
453).

102 [1990] 2 AC 605.

103 As characterised in Lord Atkins' famous 'neighbour principle' from Donoghue v Stevenson [1932] AC 562.

104 The test is objective (Nettleship v Weston [1971] 2 QB 691), although age may be taken into account, in the case of
children (Mullin v Richards [1998] 1 WLR 1304). Account is also taken of those who have special skills, or hold themselves out
as so having. In this case, they are expected to behave to the standard of a reasonable practitioner, and to follow usual industry
practice--the so-called Bolam test (Bolam v Friern Hospital Management Committee [1957] 2 All ER 118).

105 This is a simplification: the test, as established in The Wagon Mound (No. 2), Overseas Tankship (UK) Ltd v The Miller
Steamship [1967] 1 AC 617, is two-fold. Firstly, the type of damage must be foreseeable. Provided that this is the case, the
degree of the damage need not be foreseeable.

106 In Lane v Holloway [1967] 3 All ER 129, Salmon LJ acknowledged the existence of the defence, whilst declaring:
'Academically one can see the argument of volenti, but from a practical point of view the defence is quite absurd'.

107 For the operation of consent against a claim of negligence in a sporting context, see Condon v Basi [1985] 2 All ER 453.

108 Donoghue v Stevenson [1932] AC 562.

109 [1974] AC 156,at 173.

110 Lloyds Bank Ltd v Ry Exectuive [1952] 1 All ER 1248, at 1253, per Denning LJ.

111 Blake v Galloway [2004] EWCA Civ 814, [2004] 1 WLR 2844.

112 Ibid. per Dyson LJ.

113 P. Weiler and G. Roberts, Sports and the Law: Text, Cases, Problems, 2nd edn (West Publishing : St Paul USA, 1998)
937.
 Page 25

114 [2002] PIQR P6.

115 Blake v Galloway [2004] EWCA Civ 814, [2004] 1 WLR 2844, per Dyson LJ. Clarifying, the court added that the 'more
generalised duty of care' was that espoused in Donoghue v Stevenson [1932] AC 532, namely Lord Atkin's 'neighbour principle'.

116 The Times (26 November 1998).

117 The test is usually objective (Nettleship v Weston [1971] 2 QB 691), although age may be taken into account, in the case
of children (Mullin v Richards [1998] 1 WLR 1304). Account is also taken of those who have special skills, or hold themselves
out as so having. In this case, they are expected to behave to the standard of a reasonable practitioner, and to follow usual
industry practice--the so-called Bolam test (Bolam v Friern Hospital Management Committee [1957] 2 All ER 118).

118 [1985] 2 All ER 453.

119 The term at the time for the highest tier of professional football in England.

120 Condon v Basi [1985] 2 All ER 453 at 454.

121 Deriving from Bolam v Friern Hospital Management Committee [1957] 2 All ER 118.

122 It is generally accepted that 'recklessness' imputes a higher degree of fault than mere 'negligence'.

123 [1963] 2 QB 43.

124 As was held in Blake v Galloway [2004] EWCA Civ 814, [2004] 1 WLR 2844.

125 Wooldridge v Sumner [1963] 2 QB 43, per Diplock LJ:

'The practical result of this analysis of the application of the common law of negligence to participant and spectator would, I
think, be expressed by the common man in some such terms as these: "A person attending a game or competition takes the
risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or
competition notwithstanding that such act may involve an error of judgment or lapse of skill, unless the participant's conduct is
such as to evince a reckless disregard of the spectator's safety"'.

126 R v Bateman (1925) 19 Cr App R 8.

127 Caldwell v Maguire and Fitzgerald [2001] EWCA Civ 1054, [2002] PIQR P6.

128 Ibid. per Lord Tuckey.

129 R v Barnes [2004] EWCA Crim 3246, [2005] 2 All ER 113 at 117.

130 Blake v Galloway [2004] EWCA Civ 814, [2004] 1 WLR 2844.

131 Blake v Galloway [2004] EWCA Civ 814, [2004] 1 WLR 2844, per Dyson LJ.

132 [2001] EWCA Civ 1054, [2002] PIQR P6.

133 Caldwell v Maguire and Fitzgerald [2001] EWCA Civ 1054, [2002] PIQR P6, per Lord Tuckey (his 'proposition 4').
 Page 26

134 [2006] 1 CL 405, Medway County Court.

135 Applying Caldwell v Maguire and Fitzgerald [2001] EWCA Civ 1054 and Watson v Gray, The Times (26 November
1998).

136 Caldwell v Maguire and Fitzgerald [2001] EWCA Civ 1054, [2002] PIQR P6, per Lord Tuckey (his 'proposition 5').

137 [1963] 2 QB 43.

138 Blake v Galloway [2004] EWCA Civ 814, [2004] 1 WLR 2844, per Dyson LJ: 'One is to take a more generalised duty of
care and to modify it on the basis that the participants in the sport or pastime impliedly consent to taking risks which otherwise
would be a breach of the duty of care'. Clarifying, the court added that the 'more generalised duty of care' was that espoused in
Donoghue v Stevenson [1932] AC 562, namely Lord Atkin's 'neighbour principle'.

139 O'Brien v Cunard SS Co 28 NE 266 (Mass 1891): a person held up her arm in a line of people waiting for a vaccination
and was thereby held to have consented to the injection.

140 See the discussion of the public policy considerations below from n. 152.

141 R v Brown [1994] 1 AC 212.

142 R v Barnes [2004] EWCA Crim 3246, [2005] 2 All ER 113.

143 In Wooldridge v Sumner [1963] 2 QB 43, [1962] 2 All ER 978, this was seen to be a logical conclusion stemming from
the use of the maxim volenti non fit injuria. It was held that this 'presupposes a tortious act by the defendant' (per Diplock LJ).

144 [1985] 2 All ER 453, per Sir John Donaldson MR.

145 In trespass to the person, this is less clear. In Christopherson v Bare (1848) 11 QB 473 at 477, it was held that absence
of consent falls to be proven by the claimant.

146 As in the criminal law, the rules are not definitive. Barwick CJ said in Rootes v Shelton [1968] ALR 33 at 34: 'By
engaging in a sport ... the participants may be held to have accepted risks which are inherent in that sport ... but this does not
eliminate all duty of care of the one participant to the other'.

147 [1997] ELR 249.

148 Smoldon v Whitworth and Nolan [1997] ELR 249.

149 [2003] EWCA Civ 318.

150 McCord v Swansea City AFC Ltd, The Times (11 February 1997), per Ian Kennedy J. Therefore, contravention of the
rules will not in itself bring liability. Similarly, liability may be imposed for dangerous acts that are within the rules (Affutu-Nartey
v Clarke, The Times (9 February 1984)).

151 Gardiner et al., above n. 15 at 606-12.

152 For a full discussion of the legality of boxing, see M. Gunn and D. Ormerod, 'The Legality of Boxing' (1995) 15 LS 181.

153 Covered hereinafter by reference to boxing.

 Page 27

154 R v Brown [1994] 1 AC 212.

155 Ibid.

156 Ibid.

157 Lord Mustill cited the 'heroic attempt' to decipher the legality of boxing made by McInearny J, in Pallante v Stadiums Pty
[1976] VR 331.

158 R v Brown [1994] 1 AC 212.

159 Ibid.

160 [2005] All ER (D) 38 (Jul).

161 The defendant, a co-defendant and the victim, all aged 16, were in the same school year. After finishing their
examinations, they went drinking together by a local bridge. The co-defendant pleaded guilty to manslaughter and gave
evidence for the prosecution, ultimately being sentenced to an eight-month detention and training order.

162 R v A [2005] All ER (D) 38 (Jul).

163 The case concerned liability for unlawful dangerous act manslaughter, the basis for which can be found in: DPP v
Newbury [1977] AC 500, affirming R v Church [1966] 1 QB 59.

164 It is submitted that the same logic could, and would in the relevant circumstances, be applied to a case regarding an
assault.

165 In his summing-up, the judge at first instance directed the jury that the prosecution had to prove five points:

1 the defendant had taken some part in causing the victim to fall;

2 in taking part, the defendant had deliberately applied force without the victim's consent;

3 the defendant had not held a genuine or mistaken belief, whether reasonable or unreasonable, that the victim had
consented;

4 the fall was not an accident; and

5 all sober and reasonable people would inevitably have realised that the defendant's conduct must have subjected the victim
to some harm, regardless of whether the defendant realised that or not.

166 The Law Commission recommended that the category of 'horseplay' ceased to form one of the exceptional categories
(Law Commission, above n. 24 at 62).

167 [2004] EWCA Crim 3246, [2005] 2 All ER 113 at 113-14.

168 R v Barnes [2004] EWCA Crim 3246, [2005] 2 All ER 113.

169 A notable difference lies in the presumption that the rules create. In Barnes, behaviour within the rules was held to create
 Page 28

the presumption of legality, whereas the Law Commission emphasised that the rules could not in any way affect the legality of
an activity. The role of the rules, and the apparent disparity between the legal authorities, is explored in greater depth in Livings,
above n. 14.

170 It was famously declared by the 18th century Scottish judge Lord Mansfield that 'the common law works itself pure' from
case to case (Omychund v Barker (1745) 26 ER 15, 24). It appears that, in the realm of capacity to consent to violence, the
courts are wary of this approach.

171 Lord Mustill stated (R v Brown [1994] 1 AC 212):

'Once again it appears to me that as a matter of policy the courts have decided that the criminal law does not concern itself with
these activities [horseplay], provided that they do not go too far ... we shall expect to find that the assumptions of the criminal
justice system about what types of conduct are properly excluded from its scope, and about what is meant by going "too far",
will not remain constant'.

172 Lord Woolf CJ noted (R v Barnes [2004] EWCA Crim 3246, [2005] 2 All ER 113 at 117):

'... changing public attitudes can affect the activities which are classified as unlawful, as the judgment in Dica illustrates.
However, so far as contact sports are concerned, the recognition that public policy is the foundation of the defence should not
detract from the value of recognising that public policy limits the defence to situations where there has been implicit consent to
what occurred'.

173 R v Clarence (1888) 22 QBD 23.

174 Also arguably evidence of a shift in society's attitudes towards greater sexual autonomy.

175 R v Brown [1994] 1 AC 212. The House of Lords quoted Lord Lane CJ's judgment in Attorney-General's Reference (No.
6 of 1980) [1981] QB 715 at 719.

176 Law Commission, above n. 24.

177 For an interesting view of the argument surrounding the debate as to the law relating to the lawful chastisement of
children as punishment, see P. Booth 'The Punishment Of Children' (2005) 3(1) Fam LJ 33-5 and S. Parsons 'Human Rights
and the Defence of Chastisement' (2007) 71 JCL 308.

178 [2004] EWCA Crim 3246, [2005] 2 All ER 113 at 113-14, per Lord Woolf CJ.

179 As has been argued elsewhere by the author, it is submitted that the control these agencies exercise in formulating the
rules is a reason both for the court's acceptance of behaviour during sport that would otherwise bring liability, and for the
reticence in stating definitively the role that these rule-makers occupy; it is unlikely that the criminal law would view as
acceptable that sporting bodies are allowed to act effectively as legislators of the criminal code. See Livings, above n. 14.

180 Elliott and de Than, above n. 9.

181 As acknowledged in R v Barnes [2004] EWCA Crim 3246, [2005] 2 All ER 113.

182 Fafinski, above n. 89.

183 'One is to take a more generalised duty of care and to modify it on the basis that the participants in the sport or pastime
impliedly consent to taking risks which otherwise would be a breach of the duty of care' (Blake v Galloway [2004] EWCA Civ
814, [2004] 1 WLR 2844, per Dyson LJ).
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184 '... the great majority of errors of judgement, mistakes and even intentional fouls' (McCord v Swansea City AFC Ltd, The
Times (11 February 1997), per Ian Kennedy J).