Barnes, R. v

In contact sports, criminal proceedings should be confined to conduct sufficiently grave to be properly categorised as criminal. Participation implies consent to physical contact and accidental injury inherent in the sport, but not to conduct going beyond what a player can reasonably be taken to accept. Whether that threshold is crossed is objective and depends on all the circumstances, including the sport, level of play, nature and force of the act, risk of injury, and the defendant’s state of mind.

A breach of the rules, even one leading to a sending-off, does not of itself establish criminality. A jury must be directed to decide whether the contact was within the risks of normal play or was outside them.

The appellant was convicted at the Crown Court at Canterbury of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. The injury occurred when he tackled an opposing player during an amateur football match.

The prosecution alleged a late, unnecessary and reckless two-footed tackle from behind. The appellant maintained that it was a fair, hard sliding tackle during play and that the injury was accidental. He appealed against conviction, contending that the summing-up and the judge’s response to a jury question did not adequately explain the boundary between legitimate sporting contact and criminal conduct.

1. Appeal allowed. The summing-up was inadequate and the conviction was unsafe. The conviction and the associated orders were set aside.

2. Consent to injury is generally unavailable where bodily harm is inflicted, but public policy recognises an exception for contact sports. A participant implicitly accepts the ordinary physical contacts and risks of the particular sport. Conduct beyond what that participant can reasonably be regarded as accepting is outside the defence. The court approved the public-policy analysis in R v Brown [1994] 1 AC 212.

3. The criminal threshold is objective. Conduct within the rules and practice of a sport is a firm indication that it is not criminal. However, conduct outside the rules, including conduct meriting a warning or sending-off, may occur in the heat of competitive play without crossing that threshold. Relevant circumstances include the type and level of the sport, the nature of the act, the force used, the risk of injury and the defendant’s state of mind.

4. For offences under sections 18 and 20 of the Offences Against the Person Act 1861, contact falling within implied sporting consent is not unlawful. For section 20, malice requires either an intention to cause some bodily harm or subjective foresight of the risk of some bodily harm followed by taking that risk. In a football tackle, that mental element will commonly not be the real issue.

5. The jury should have been directed first to determine what happened at the critical moment. If the appellant’s account of an ordinary sliding tackle might have been correct, that would probably have resolved the case in his favour. Even if the contact was a foul, the jury had to decide whether it was an anticipated incident of normal football or conduct outside what could be expected in the game. They also required guidance on the significance of the ball’s position and the distinction between going for the ball, albeit late, and going for the opponent.

• Court of Appeal (Criminal Division): Allowed the appeal in [2004] EWCA Crim 3246, holding that the summing-up was inadequate and the conviction unsafe.

• Crown Court at Canterbury: On 16 October 2003, convicted the appellant by an 11–1 majority of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. On 12 December 2003, imposed a community punishment order and compensation.