CARDIFF METROPOLITAN UNIVERSITY Prifysgol Fetropolitan Caerdydd CARDIFF SCHOOL OF SPORT DEGREE OF BACHELOR OF SCIENCE (HONOURS) SPORT MANAGEMENT 2014-5 Exploring when Criminal Law ought to be applied to Sport Dissertation submitted under the discipline of SOCIAL-CULTURAL ROWENA JOHNSON ST20004945 Cardiff Metropolitan University Prifysgol Fetropolitan Caerdydd Certificate of student By submitting this document, I certify that the whole of this work is the result of my individual effort, that all quotations from books and journals have been acknowledged, and that the word count given below is a true and accurate record of the words contained (omitting contents pages, acknowledgements, indices, tables, figures, plates, reference list and appendices). I further certify that the work was either deemed to not need ethical approval or was entirely within the ethical approval granted under the code entered below. Ethical approval code: 13/5/186U Word count: 10,428 Name: Rowena Johnson Date: 18 March 2015 Certificate of Dissertation Supervisor responsible I am satisfied that this work is the result of the student’s own effort and was either deemed to not need ethical approval (as indicated by 'exempt' above) or was entirely within the ethical approval granted under the code entered above. I have received dissertation verification information from this student Name: Date: Notes: The University owns the right to reprint all or part of this document. TABLE OF CONTENTS ACKNOWLEDGEMENTS (i) ABSTRACT (ii) CHAPTER ONE: INTRODUCTION 1.0 Introduction 2 CHAPTER TWO: REVIEW OF LITERATURE 2.0 Introduction to Literature Review 5 2.1 Tort Law 5 2.2 History and the Development of Sport and the Law 6 2.3 Nature of the Sport 7 2.4 Condon v Basi 9 2.5 Negligence 10 2.6 Violence 11 2.7 Consent 13 2.8 Issue of Inconsistency Surrounding the Law 13 CHAPTER THREE: RESULTS 3.0 Introduction to the Case Studies 17 3.1 Case Study One: Carrol v Gravil 17 3.1.1 The Facts 17 3.1.2 Employment 18 3.1.3 Application to the facts 18 3.1.4 Conclusion 19 3.2 Case Study Two: Ashton v Tuilagi 19 3.2.1 The Facts 20 3.2.2 Application to the Facts 20 3.2.3 Conclusion 21 CHAPTER FOUR: DISCUSSION 4.0 Identified Themes from Comparing the Case Studies 23 4.1 Punishment 23 4.1.1 Violence 24 4.1.2 Moral Concern 24 4.2 Compare and Contrast of the Level of Punishment given to Sports Participants 25 4.3 Limitations 26 4.4 Insight into Implications to Practitioners 27 4.5 Reformation of the law 29 CHAPTER FIVE: CONCLUSION 5.0 Conclusion 32 REFERENCE LIST 33 APPENDICES Appendix A Ethics Form A1 ACKNOWLEDGEMENTS I would like to thank the following people for their help throughout the production of this thesis: Lisa Edwards and Alun Hardman for their time, commitment and assistance in advising me throughout the year. i Abstract The aim of this study is to critically evaluate where it is appropriate for the criminal law to intervene in order to regulate conduct between sports participants on the sports field. In more recent years (Gardiner, 2007) a quantifiable concern over this issue has emerged. Criminal prosecutions continue to be infrequent. This raises question over the complex and contested nature of the involvement of the criminal law. I will argue that where ‘illegitimate violence’ occurs there is need for legal intervention in some cases. The position this thesis adopts is that illegitimate violence poses a threat to the moral standard of society and therefore requires with it the need for consequence. A more stringent position is required. The findings reveal that specifically to rugby union, understanding the problematic concept of consent is of considerable influence when determining where and if the criminal law should intervene. The first chapter presents the argument. The second is a review of the literature. This chapter introduces a historical look at sport with insight into the change from amateurism to professionalism as well as the history of the sport law and the nature of sport itself. Following is an account that distinguishes the difference between violence and negligence. Chapter three examines two recent examples of case law involving similar incidents on the sports field. The discussion identifies themes from the case studies, in particular Justice, Punishment and Moral Concern. The next chapter discusses the implications to practitioners, this is followed by suggestions on how to reform the law and a look at the role the media plays and the messages they communicate to viewers. This thesis provides concern over the need to examine the application of criminal law to sports context. Evidence has been provided to show that the current legal framework is inadequate. The identified themes discuss the difficulties faced in finding a consistent approach to a contentious principle. Illegitimate violence on the sports field needs discouraging as much as illegitimate violence elsewhere. ii CHAPTER 1: INTRODUCTION 1 1.0 Introduction ‘Almost 80 per cent of all violent offences analysed went unpunished’, which is why the law ought to penetrate the sporting environment. Action of which Grayson (1999) believes should be with urgency. The 1861 Offences Against The Person Act defines the offences of Actual Bodily Harm (Section 47) and Grievous Bodily Harm (Section 20); as criminal offences punishable by imprisonment. ‘When one person intentionally or recklessly hurts another person, then his conduct is a violate breach of criminal law’ (Grayson & Bond, 1993; 77). The purpose of this study is to investigate the relationship between sports participation and criminal liability. It will evaluate the debate around when it is appropriate for the legal system to intervene in order to regulate violence in sport today. There is a law established for violent conduct in sport. However as it stands there is a level of inconsistency concerned with its application. Surely the level at which the law is determined should have a clear and consistent framework surrounding it. The study will focus specifically on violence in Rugby Union and will take a look at case studies involving incidences of violent behaviour. These will be compared in order to highlight key themes and identify problems and limitations. Examining these case studies will contextualise the inconsistencies the law currently holds. Sport over the years has become of increasing importance within peoples’ lives and plays a major role in society today, whether it is played at a recreational, amateur or professional level. ‘Sport is a significant human activity’ (Reid, 2012; xi) that with it instils a variety of essential ingredients to individuals who take part in it mentally, socially and physically. The definition surrounding that of sport brings with it a level of uncertainty; it in some ways defies definition. However according to Coakley, ‘sports are institutionalized competitive activities that involve rigorous physical exertion or the use of relatively complex physical skills by participants motivated by personal enjoyment and external rewards.’ (2001; 20) Comparable to this definition, Singer understands sport as ‘a human activity that involves specific administrative organisations and historical background rule which defines objective and limit pattern of human behaviour.’ (1976; 33) Although lacking in distinctiveness it is clear there are some common themes behind the definition of sport itself, for example the existence of rules and the use physical exertion. Identifying these themes allows for recognition that through participation in sport there is an element of risk involved, risk of which Bahr and Holmes (2003) believe can lead to injury. Injury can of 2 course be attributed down to a variety of causes most of which could be deemed an accident, for example tearing a muscle running or suffering a wound from a tackle. However injury can also arise from negligent behaviour performed on the sports field, from this Schot then goes on to state that ‘where there is negligence there is scope in the sporting arena for those harmed to take legal action’ (2005; 1). The commercialisation and commodification surrounding sport is forever increasing, so the need to distinguish the level of involvement from the criminal law is becoming more important. Sport could potentially run the risk of portraying negligence and violent behaviour as somewhat acceptable. These concerns only highlight further problems over the legitimacy and involvement there currently is, or ought to be from the law. James states ‘in the space of little more than 20 years, sport has moved from a position where it operated almost unhindered by legal regulation to a situation where almost any decision of a governing body, or any action of a player, can result in the threat of, if not actual, litigation.’ (2006; 15) For that reason, there is an issue of when is it appropriate for criminal proceedings to intervene when incidences result in injury because of one players’ actions towards another. There is obvious need to regulate conduct between sports participants and this has emerged as an increasing concern over recent years. In light of the recent case of R v Barnes and a recent restatement of prosecution by the Crown Prosecution Service (CPS) there have been questions to arise over the involvement of the criminal law. For it is more often than not that injuries occurring from acts of violence during contact sport are excused as ‘special categories’ (Brennan, 2010; 1). Since the case of Condon v Basi the law has had a need to develop rapidly. Gardiner (2005) emphasises this need when he states that there is a growing feeling among the public that players are getting away with crime and therefore escaping punishment by criminal justice. Responsibility for an incident must be held accountable for.