Barnes, R. v

Facts

During an amateur football match the defendant tackled an opposing player and caused him a serious leg injury. The prosecution case was that the tackle was late and reckless and went beyond what is ordinarily expected in the game.

History

The defendant was convicted by a jury in the Crown Court of inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861. He appealed against conviction, and the Court of Appeal quashed it.

Issue

When injury caused in the course of a contact sport is a criminal offence, and how the jury should be directed on the effect of consent to the risks of the game.

Held

Appeal allowed and the conviction quashed. The directions given to the jury had not adequately explained that the conduct must be of a kind that goes beyond the risks which players accept.

Ratio

• In a contact sport, conduct that falls within the rules of the game will not usually be criminal, and even conduct outside the rules should result in a prosecution only where it is sufficiently grave to be properly categorised as criminal.
• Whether the conduct is criminal depends on factors including the type of sport and the level at which it is played, the nature of the act, the degree of force used, the extent of the risk of injury and the state of mind of the defendant.

Key reasoning

• The court reviewed the earlier cases, including Bradshaw (1878) 14 Cox CC 83 and Billinghurst [1978] Crim LR 553, which show that players are taken to consent to the risks inherent in a sport conducted within its rules.
• The court relied on the principle in Brown [1994] 1 AC 212 that consent to bodily harm is limited by public policy, but accepted that sport is a recognised area where harm falling within the expectations of the game is lawful.
• The fact that conduct is a breach of the rules of the game is relevant but not conclusive, since a foul in the heat of play may be an error of judgment rather than a crime.

Obiter

• Criminal proceedings are likely to be inappropriate in most cases of injury in sport, and the disciplinary system of the sport is generally the proper means of dealing with the conduct.

Where it fits in the module

In the Non-Fatal Offences topic the case is used to test the limits of consent as a defence, alongside Brown, and the claim that sport is an exception to the general rule that consent cannot excuse serious harm. It shows the court using the idea of implied consent and public interest to limit the reach of sections 18, 20 and 47.

Criticisms

• The factors listed are open ended and give little predictable guidance, so the line between a foul and a crime is left to the jury or the prosecutor discretion.
• The explanation by implied consent is artificial, since a player who is struck by a late tackle has not agreed to it, and it is arguable that a clearer policy justification, such as the social value of sport, should be stated.
• Treating sport differently from other activities involving harm, as compared with the position in Brown, raises a question of consistency about which risky activities the law will tolerate.