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Fighting and the Law

Fighting and the Law

Combat sports are an anomaly in the law. They require that fighting, which would in any other circumstance be deemed unlawful, be deemed lawful in the name of sport. Most of us can recall a time where we have either seen or been part of a heated affair in which punches, kicks and other such violence was the method by which people chose to resolve their disputes. The criminal law imposes sanctions on those who engage in this behaviour and stresses that those who touch another with the intent to harm will suffer consequences.

A difficulty lay people have over this approach is that the same behaviour, in an entirely different context, is considered lawful. If Person A punches or kicks Person B in the street then they have committed a battery, and depending on the level of harm caused, they might have committed a more serious offence. In the course of sporting activity, if Person A punches Person B then such an action is lawful. How, and why does the law exempt one form of violence and punish another? Why is this the case?

It isn’t prize fighting

The first reason why violence, in the context of sport, is considered differently is down to the historical development of the common law. During the 19th century, prize fighting was considered a societal wrong that required not only the participants of the prize fighting contest to be prosecuted, but also anybody involved in its organisation or involved in witnessing it. Justice Cave attempted to explain the difference between boxing and prize fighting, and why boxing was not an assault, in R v Coney (1882) 8 QBD 534 and wrote:

A blow struck in a prize-fight is clearly an assault; but playing with single-sticks or wrestling do not involve an assault; nor does boxing with gloves in the ordinary way, and not with the ferocity and severe punishment to the boxers deposed to in Reg v Orton (1878) 39 LT 293.

Consent

Lord Chief Justice, Lord Lane, in Attorney-General’s Reference (No. 6 of 1980) [1981] QB 715 made the distinction between violence on the street and violence in the pursuit of sport – that properly conducted games and sports are lawful as an accepted proposition of law. Additionally, he said that there was no public interest in allowing actual bodily harm without good reason. In his view dispute resolution was not a good reason to allow violence. Writing for the Court of Appeal, Lord Lane said:

It is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason.

Most fights will be unlawful regardless of consent. Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in the other cases.

The most significant case in this area is the leading authority on consent R v Brown [1994] 1 AC 212. It is well known that the activities brought before the House of Lords in Brown were not sporting in nature, but their Lordships did remark on the relationship between violence and consent in relation to sport, specifically boxing and why it was lawful. Lord Templeman wrote in his speech in Brown that:

The brutality of knuckle fighting, however, caused the courts to declare that such fights were unlawful even if the protagonists consented. Rightly or wrongly the courts accepted that boxing is a lawful activity.

The next development after Brown was R v Barnes [2005] 1 WLR 910 in the Court of Appeal twelve years later. The effect of the Barnes decision was that sportspeople do not commit an assault whilst playing a legitimate sport unless the conduct goes reasonably beyond what is expected of people playing that sport. For the Court of Appeal, the Lord Chief Justice, Lord Woolf, wrote:

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.

This statement is unlikely to have any direct application to boxing because it is a legitimate sport and its legal status is not in doubt, and it is reasonable to expect that a fighter would accept being punched in the face during the bout. Potential liability could arise where a fighter punches another fighter between rounds or where a fighter headbutts another. These potential avenues of liability, however, have not been explored by the courts.

Special situation

Lord Mustill in Brown, following his analysis of the prize fighting authorities, offers another explanation as to why boxing is different to violence performed in other capacities:

I intend no disrespect to the valuable judgment of McInerney J in Pallante v Stadiums Pty Ltd (No. 1) [1976] VR 331 when I say that the heroic efforts of that learned judge to arrive at an intellectually satisfying account of the apparent immunity of professional boxing from criminal process have convinced me that the task is impossible. 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.

Lord Mustill draws attention to boxers having immunity from criminal prosecution because society has chosen to tolerate the activity, therefore the law should accept that the activity is lawful. This is an unusual view of the law. Much of the authority that the law has is down to its origins whether that be because it is an Act of Parliament or because it is a judgment of the courts and the exemption afforded to boxing is seemingly because it is a British custom.

Conclusion

The attitude of the courts is to punish those who perform violence for no good reason and, though the reasons why have yet to be clearly and thoroughly articulated, it is clear that certain forms of violence in the name of sport are lawful. For those of us searching for the elusive, intellectually satisfying account for why boxing is different, however, it seems unlikely that we will receive any further reasoning other than what has already been discussed.

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