English appeal court takes a different view

Law in Sport: There was an interesting postscript to the GAA's fraught year in the courts in 2004. The case of Down All-Ireland medallist James McCartan received a great deal of publicity last November when he was found guilty of breaking the jaw of Westmeath's Kenny Larkin in a challenge match in May 2003.

But a recent decision in England has shed new light on the verdict of Judge William Early in the Dublin District Court. In a case (R v Barnes ) taken to the England's Criminal Division of the Court of Appeal, it was decided that a player injured by another player in the course of a match should bring criminal proceedings "only if the conduct was sufficiently grave to be properly categorised as criminal".

The facts arose in a soccer match where the defendant, Mark Barnes, inflicted injury on an opponent allegedly as a result of "an unnecessary reckless and high crashing tackle".

He was convicted but successfully appealed the verdict.

What will interest the GAA and other sports organisations is that the appeal court's view of what constituted criminal behaviour was adjusted to take into account that the alleged offence took place in the course of a sporting event.

In the course of the judgment it is stated: "Where the offending act was alleged to fall within the implicit consent derived from the victim's participation in the sport, the defendant could be said not to be guilty of the offence because his conduct was not unlawful."

Judge Early's verdict against McCartan was based on his statement that: "To strike someone without legal justification is a crime, whether it takes place in the street, in the family home, or on the football pitch or elsewhere."

The court of appeal, however, held because sports organisations had their own disciplinary procedures that "in the majority of situations there was not only no need for criminal proceedings, it was undesirable that there should be any criminal proceedings".

In the course of the judgment, the court re-stated that whereas, in general, the law doesn't allow people to consent to being caused bodily harm, one of the very few exceptions allowed by public policy was injury in the course of contact sports.

"However, so far as contact sports were concerned," continued the report, "public policy limited the defence to situations where there had been implicit consent to what occurred.

"If what happened went beyond what a player could reasonably be regarded as having accepted by taking part in the sport, that indicated that the conduct would not be covered by the defence."

The court went on to consider what might be reasonably regarded as accepted by players.

"In highly competitive sports, conduct outside the rules could be expected to occur in the heat of the moment and, even if the conduct justified a warning or sending-off, it still might not reach the threshold level required for it to be criminal."

Such a finding might have affected the McCartan verdict in that the prosecution case was that a punch was thrown following a tussle. According to the court of appeal the question that needed to be asked was: "Whether the contact was so obviously late and/or violent that it could not be regarded as an instinctive reaction, error or misjudgment in the heat of the game."

The appeal judgment is not a binding precedent in this jurisdiction, but given that there is comparatively little case law from the superior courts on the subject of violence on the playing field, it would certainly be of persuasive value in any future court cases.