On 16 October 2003, at the Crown Court in Canterbury, after a 4 day trial before his Honour Judge Van Der Bijl, Mark Barnes (“the appellant”) was convicted by a majority verdict (11 to 1) on one count of unlawfully and maliciously inflicting grievous bodily harm upon Christopher Bygraves (“the victim”) contrary to Section 20 of the Offences Against The Person Act 1861 (“the 1861 Act”). On 12 December 2003, the appellant was sentenced. The Court made a Community Punishment Order for 240 hours and ordered the appellant to pay compensation in the sum of £2,609 to the victim, at £20 per week, commencing on 2 January 2004. He appeals against the conviction by leave of the full court.

The prosecution arose out of a serious leg injury sustained by the victim during the course of an amateur football match in December 2002. The prosecution contended that it was the result of a “crushing tackle, which was late, unnecessary, reckless and high up the legs”. The appellant admitted the tackle but claimed that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and that any injury caused was accidental. It was not disputed that the victim’s injury was the result of the tackle and that the injury to his right leg amounted to grievous bodily harm.

Seven different specific complaints are made in the grounds of appeal. They relate to specific aspects of the trial judge’s summing-up, but taken collectively they amount to the contention that the trial judge failed, in his summing-up and in response to a question asked by the jury after they had retired, adequately to explain to the jury the facts that needed to be established before the appellant could be convicted of the offence charged.

The issue which this appeal raises, is an important one. It goes to the heart of the question of when it is appropriate for criminal proceedings to be instituted after an injury is caused to one player by another player in the course of a sporting event, such as a football match. It is surprising that there is so little authoritative guidance from appellate courts as to the legal position in this situation. The explanation for this may be the fact that, until recently, prosecutions in these circumstances were very rare. However, there is now a steady but, fortunately, still modest flow of cases of this type coming before the courts, and thus the need for guidance.

In determining what the approach of the courts should be, the starting point is the fact that most organised sports have their own disciplinary procedures for enforcing their particular rules and standards of conduct. As a result, in the majority of situations there is not only no need for criminal proceedings, it is undesirable that there should be any criminal proceedings. Further, in addition to a criminal prosecution, there is the possibility of an injured player obtaining damages in a civil action from another player, if that other player caused him injuries through negligence or an assault. The circumstances in which criminal and civil remedies are available can and do overlap. However, a criminal prosecution should be reserved for those situations where the conduct is sufficiently grave to be properly categorised as criminal.

When criminal proceedings are justified, then, depending upon their gravity, the prosecution can be for: assault; assault occasioning actual bodily harm contrary to Section 47 of the 1861 Act; unlawfully wounding or inflicting grievous bodily harm contrary to Section 20 of the 1861 Act; or wounding or causing grievous bodily harm with intent contrary to Section 18 of the 1861 Act. If, unfortunately, death results from the assault, the charge could be one of manslaughter or even murder depending upon the defendant’s intent.

When no bodily harm is caused, the consent of the victim to what happened is always a defence to a charge. Where at least bodily harm is caused, consent is generally irrelevant because it has been long established by our courts that, exceptional situations apart, as a matter of law a person cannot consent to having bodily harm inflicted upon him.

To this general rule, there are obvious exceptions. A patient can lawfully consent to having an operation performed upon him by a surgeon, even though he will inevitably suffer bodily harm while the operation is being performed. Another exception is physical injury in the course of contact sports such as football or boxing. Boxing is different from football in that it is inherent in boxing that the combatants intend to injure each other. This should not be the position in football, albeit that taking part in a football match does give rise to a risk of injury and even grievous injury.

There is authority to support what we have said so far. The relevant authorities were exhaustively considered by the House of Lords in the course of their speeches in R v Brown [1994] 1 A.C. 212. Brown deals with a very different factual context, namely sado-masochistic activities between consenting adults. The speeches in that case make it clear that the rule and the exceptions to the rule that a person cannot consent to his being caused actual harm, are based on public policy. The position is dealt with, with particular clarity, by Lord Mustill in his speech in Brown at page 262 et seq. Lord Mustill deals first with prize-fighting and boxing and then contact sports such as the various codes of football. (While Lord Mustill dissented as to what the result should be of adopting a public policy test in that case, his analysis of the case law is still of the highest authority.)

The same public policy approach is adopted in the very recent decision of this Court in R v Dica [2004] Q.B. 1257. Dica considers the position where, as a result of having sexual intercourse with two women, a male defendant who is HIV positive infects them so that they both are subsequently diagnosed as being HIV positive. This Court held that the man would be guilty of an offence contrary to Section 20 of the 1861 Act if, being aware of his condition, he had sexual intercourse with them without disclosing his condition. On the other hand, this Court considered that he would have a defence if he had made the women aware of his condition, but with this knowledge because they were still prepared to accept the risks involved and consented to having sexual intercourse with him.

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. For example, it explains why boxing, despite the fact that participants intend to hurt each other, is ordinarily considered a lawful sport, whereas prize-fighting is not. It also means that changing public attitudes can affect the activities which are classified as unlawful, as the judgment in Dica demonstrates. 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.

The fact that the participants in, for example, a football match, implicitly consent to take part in a game, assists in identifying the limits of the defence. If what occurs goes beyond what a player can reasonably be regarded as having accepted by taking part in the sport, this indicates that the conduct will not be covered by the defence. What is implicitly accepted in one sport will not necessarily be covered by the defence in another sport. In R v Cey(1989) 48 C.C.C. (3d) 480, the Saskatchewan Court of Appeal was concerned with ice hockey which is a very physical game. Despite the nature of ice hockey, in giving the majority judgment, Gerwing JA (Cameron JA concurring), made it clear that even in ice hockey:

The general position as to contact sports was helpfully considered by the Law Commission in “Consent and offences against the person: Law Commission Consultation Paper No. 134.” The Commission indicated its approval of the approach adopted by the Criminal Injuries Compensation Board which we would also approve. This is that “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. However, such players do not consent to being deliberately punched or kicked and such actions constitute an assault for which the Board would award compensation.” (10.12)

Subject to what we have to say hereafter we would in general accept the view of the Commission that:

the intentional infliction of injury enjoys no immunity;

a decision as to whether the reckless infliction of injury is criminal is likely to be strongly influenced by whether the injury occurred during actual play, or in a moment of temper or over-excitement when play has ceased, or “off the ball”;

although there is little authority on the point, principle demands that even during play injury that results from risk-taking by a player that is unreasonable, in the light of the conduct necessary to play the game properly, should also be criminal.” (10.18)

On the other hand, the fact that the play is within the rules and practice of the game and does not go beyond it, will be a firm indication that what has happened is not criminal. In making a judgment as to whether conduct is criminal or not, it has to be borne in mind that, in highly competitive sports, conduct outside the rules can be expected to occur in the heat of the moment, and even if the conduct justifies not only being penalised but also a warning or even a sending off, it still may not reach the threshold level required for it to be criminal. That level is an objective one and does not depend upon the views of individual players. The type of the sport, the level at which it is played, the nature of the act, the degree of force used, the extent of the risk of injury, the state of mind of the defendant are all likely to be relevant in determining whether the defendant’s actions go beyond the threshold.

Whether conduct reaches the required threshold to be criminal will therefore depend on all the circumstances. However, there will be cases that fall within a “grey area,” and then the tribunal of fact will have to make its own determination as to which side of the line the case falls. In a situation such as we have on this appeal, to determine this type of question the jury would need to ask themselves among other questions whether the contact was so obviously late and/or violent that it could not be regarded as an instinctive reaction, error or misjudgement in the heat of the game.

In the case of offences against the person contrary to Sections 18 and 20 of the 1861 Act, it is a requirement of the offence that the conduct itself should be unlawful. Where the offending act is alleged to fall within the implicit consent derived from the victim’s participation in the sport (so that a defence to the alleged offence exists), the defendant can be said not to be guilty of the offence because his conduct was not unlawful as required by the 1861 Act. In the case of an offence contrary to Section 20, the 1861 Act also requires that the conduct be inflicted “maliciously”. In that context, “maliciously” means either intending to cause some bodily harm (however slight) or causing the harm recklessly. (See R v Cunningham [1957] 2 Q.B. 396). “Recklessly” in this context means no more than that the defendant foresaw the risk that some bodily harm (however slight) might result from what he was going to do and yet, ignoring that risk, the defendant went on to commit the offending act. (See DPP v Parmenter [1992] 1 A.C. 699). 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. This being so, in many situations, as Lord Diplock pointed out in R v Mowatt, [1968] 1 Q.B. 421 (at pages 426E to 427F) it will only confuse the jury to make unnecessary reference to the word “maliciously” and invite them to consider the improbability that the defendant did not foresee the risk. However, this is a subject which it will be prudent for the trial judge to discuss with counsel before he starts his summing-up.

It is now necessary to apply the legal guidance we have sought to give to the circumstances of this case. We have already summarised the contrast between the case for the prosecution and the case for the defence. The offence which is alleged, occurred on 7 December 2002 during a match between two teams in the First Division of the Thanet and District Saturday League. The victim played for Minster Football Club. The appellant played for the Punch & Judy team. The match took place at Minster’s recreation ground.

By the 70th minute of the game, Minster were two goals ahead. When the ball was passed to the victim, who was a striker, he, as he admitted, went to the corner flag simply to waste time. The appellant attempted to tackle him and in doing so committed a foul. The referee awarded a free kick to Minster. Heated words were exchanged between the appellant and the victim and the appellant was told to “grow up” by the referee. About ten minutes later, the ball was received by the victim approximately six yards from the opposition penalty area. He ran with the ball and, when he was about seven yards from the goal mouth, kicked the ball with his left foot into the net. After he kicked the ball, the appellant tackled him from behind, making contact with his right ankle. The victim said he heard a snapping noise and fell to the ground. The appellant was also on the ground but stood up and said words to the victim to the effect: “have that”. The victim suffered a serious injury to his right ankle and right fibula.

Witnesses were called for both sides. Perhaps the most important witness was the experienced referee, David Lawrence, who had been a football referee for 34 years. He said that he had a clear unobstructed view of the incident and, in view of what he saw, he sent the appellant off the field for violent conduct. He would not agree that the appellant had made a “sliding tackle”. It was his view that the appellant had gone in with two feet.

In his summing-up, after drawing the jury’s attention to the count in the indictment and the fact that it was not in dispute that the appellant had caused the victim’s injury, the judge made it clear that the jury had to consider “the quality of that action” by the appellant. He also made it clear that the appellant could only be guilty if the prosecution had proved that what happened was “not done by way of legitimate sport”. He indicated that what the prosecution were alleging was that the appellant’s action “for whatever reason it was that he took it, was so reckless that it could not have been in legitimate sport and it was tantamount to an assault”.

Having dealt separately with what conduct would be unlawful and what conduct would be reckless, the judge added:

Later, the judge said :

The judge then surveyed the evidence, during which he referred to the stark difference between the two cases. The jury, having retired, sent a note to the judge asking him “for a recap of the directions on points of law, saying that could be helpful in further deliberation”. The judge then gave the following further direction:

Mr. Robinson on behalf of the appellant, submits that the summing-up was inadequate. It had failed to identify the real issue, and in particular did not deal with the importance and relevance of the defence of consent where an injury had occurred in the course of a lawful sport. It had not been made clear to the jury that there could lawfully be breaches, even serious breaches, of the rules of the sport without there necessarily being the commission of a criminal offence.

On behalf of the Crown, Mr. Walker argues that the use by the judge of the phrase “legitimate sport” was straightforward and obviously embraced the issue of consent between players as to injury and could include play that is “outwith the laws of the game”. While he accepts that the rules of football may not have been the interest of every juror, he contends that such matters would have been within their collective general knowledge and experience and that, having been left to decide the issue by the judge, it was for the jury then to determine what was “legitimate sport” on the facts.

As to the suggestion that the judge should have directed the jury to consider whether what happened may have been an accident, Mr. Walker submitted that the accident in this case related to the injuries and not the action taken by the appellant. However, he did accept that it was “arguable” that the judge should have identified objective criteria which would have had a bearing on what conduct was “generally acceptable in a football game”.

We appreciate the difficulty that the judge had summing up this case because of the state of the authorities. The concept of “legitimate sport” in itself is not unhelpful. However, it required an explanation of how the jury should identify what is and what is not “legitimate” in the context of the relevant sport. The case called out for the jury to be given help as to the approach they should adopt in determining what is or is not “legitimate sport”. The judge should have given the jury a direction to determine for themselves what actually happened at the critical time when the injury was inflicted. Broadly speaking, were they satisfied that the case for the prosecution was correct? They should have been told that if they were not, and they thought that the appellant’s description of what occurred might be correct, then that was in all probability the end of the case. It should have been pointed out to the jury that even if the offending contact was a foul, it was still necessary for them to determine whether it could be anticipated in a normal game of football or was it something quite outside what could be expected to occur in the course of a football game. The summing-up should also have made it clear that even if a tackle results in a player being sent off, it may still not reach the necessary threshold to constitute criminal conduct.

The jury were not given any examples of conduct which could be regarded as “legitimate sport” and those which were not “legitimate sport” for the purposes of determining whether they were criminal. The jury did not need copies of the rules, but they did need to be told why it was important to determine where the ball was at the time the tackle took place. They should have been told the importance of the distinction between the appellant going for the ball, albeit late, and his “going for” the victim.

Having carefully considered the summing-up as a whole, we can well understand why the jury felt they needed further assistance after they retired. The further direction they received, did not give them that assistance. Without it, it is difficult to determine what they thought they had to decide in order to find the appellant guilty. This being the position, we are forced to come to the conclusion that the summing-up was inadequate, and that as a result the conviction is unsafe. Accordingly the appeal will be allowed and the orders made set aside.