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First to the Punch: Out of Touch with Consent in Sports?

About The Author

Thomas Horton (Former Writer)

Thomas studied Law at the University of Birmingham, and graduated with a 2:1 in July 2013. In the elapsed time, Thomas has worked for law firm HowardKennedyFsi LLP as a paralegal in the property department. Thomas has also been awarded a Major Scholarship by the Honourable Society of the Inner Temple and will begin the BPTC with City Law School in September 2014.

St Helens RLFC won the Super League Grand Final on Saturday 11 October 2014. The final was a great contest between St Helens and Wigan; however, despite St Helens’ triumph, the post-match reports and resulting media attention of the final were focused on the irresponsible and shocking actions of Ben Flower.

Ben Flower was sent off two minutes after kickoff having punched St Helens’ Lance Hohaia twice in the face (once whilst standing, and then again as Flowers pinned Hohaia to the ground). Video footage of the incident reveals that Hohaia had struck Flowers with his forearm, sparking this disproportionate reaction from Flowers. The Rugby Football League (“RFL”) has subsequently punished both players following a tribunal hearing; Hohaia has been banned for one match, whereas Flower has received a six-month ban.

Despite the RFL Tribunal dealing with the incident internally, Greater Manchester Police has received numerous public complaints about the incident (as reported by the Guardian), calling for criminal proceedings to be brought against Flower. The incident brings into question how far “consent” can stretch within the sporting arena. This article will provide an analysis of sports operating within the boundaries of criminal law, and will explain the criminal charges that Flower could face.


There are numerous incidents that sporting fans can think of where the actions of sportspersons would normally amount to an offence against the person, either under common law offences of battery and assault, or the offences (depending on seriousness) detailed under the Offences Against the Person Act 1861 (OAPA 1861). As an avid Aston Villa FC fan, Dion Dublin’s head-butt on Robbie Savage during a local derby against Birmingham City FC back in 2003 is an occasion that sticks particularly in this writer’s mind. Other notable incidents include Mike Tyson’s hunger pangs whilst fighting Evander Holyfield in 1997, Lee Bowyer and Kieran Dyer’s fisticuffs (whilst both playing for Newcastle United FC) during the 2004/2005 Premier League season, Zinedine Zidane’s head-butt during the 2006 World Cup Final, and Luis Suarez’s wandering teeth during the group stages of the 2014 World Cup.

Each of these incidents have been shown to be contrary to the laws of the game with respective sending-offs and sporting bans being issued by sports match officials and governing bodies. Whilst it would be easy for a prosecution advocate to set out the elements of a criminal offence in regards to the aforementioned examples to make a jury sure that a criminal offences occurred, the defence of “consent” can remove the keystone to such a prosecution.

The defence of “consent” for incidents in the sporting arena has been defined by two key judgments, firstly, R v Brown [1994] 1 AC 212, and secondly, R v Barnes [2005] 1 WLR 910. In Brown, three of the Law Lords hearing the case in the House of Lords referred to a judgment of Lord Lane CJ in Attorney-General’s Reference (No. 6 of 1980) [1981] QB 715, where his Lordship stated:

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… [I]t is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/caused. This means that 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… (Emphasis added.)

The basic premise, therefore, is that incidents in the sporting arena that would normally be considered an offence against the person do not amount to a criminal offence where the incident was a result of ‘proper conduct’ of the game or sport being played.

In Brown, their Lordships referred to the legal developments that resulted in the banning of bare knuckle fighting and dueling for their sheer brutality, demonstrating the marked safety measures seen in boxing and rugby that ensure the safety of its participants. Lord Mustill (dissenting) noted that boxing is a ‘special situation… [that] stands outside the ordinary law of violence because society chooses to tolerate it’. Furthermore, in reference to football and rugby, Lord Mustill noted that there is a limit to the amount of potential physical damage that sports players consent to. The public policy arguments in favour of the sport, and the consent provided by the participants, therefore, appear implicit in determining whether or not criminal proceedings are necessary against an individual in the situation Ben Flower currently finds himself in.

Notably, in Brown, Lord Templeman referred to Stephen J in R v Coney [1882) 8 QBD 534:

… [I]n all cases the question whether consent does or does not take from the application of force
to another its illegal character, is a question of degree depending upon circumstances. (Emphasis added.)

The decision of Lord Woolf CJ in Barnes exemplifies this understanding. Lord Woolf’s decision concerned a defendant appealing his conviction for grievous bodily harm (s. 20 OAPA 1861) following the trial judge’s misdirection at the Crown Court as to the meaning of actions carried out “in legitimate sport”. In this instance, the defendant, an amateur football player, had inflicted a serious leg injury upon a player from the opposing team following a tackle. His Lordship referred to the need to only bring criminal proceedings against sports players where their conduct is ‘sufficiently grave to be properly categorised as criminal’. In deciding whether to allow the defendant’s appeal, Lord Woolf stated:

… [S]o far as contact sports are concerned, the recognition that public policy is the foundation of the defence should not detract from the value of recognising that public policy limits the defence to situations where there has been implicit consent to what occurred. (Emphasis added.)

Accordingly, a professional sportsperson, participating in a sport that inherently involves violence that is tolerated by the public, provides their consent to a certain amount of harm being incurred via their participation in the sport. Lord Woolf was careful in pointing out that ‘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 [of consent]’ (emphasis added). This test is representative of the Court of Appeal’s acceptance in Barnes of the Law Commission’s consultation paper: ‘Consent and Offences against the Person’ (1993) (Consultation Paper No 134), which can be summarised with the following three points:

  1. the intentional infliction of injury enjoys no immunity;
  2. when deciding whether the reckless infliction of injury is criminal will be influenced by whether the injury occurred during actual play, or in a moment of temper whilst “off the ball”; and
  3. injury that results from risk-taking by a player that is unreasonable during play (“on the ball”), in the light of the conduct necessary to play the game properly, should also be criminal.

When a judge is directing a jury, and the prosecution is faced with the evidential and legal burdens of proving the criminal offence, reference should be made to all the circumstances of the case to determine whether the criminal threshold has been met. In making this determination, Lord Woolf emphasised the need to consider the type of sport, the level at which it is played, the nature of the act, the degree of force used, the extent of the risk of the injury, and the state of mind of the defendant.

These evidential matters should be left to the tribunal of fact (the jury) to determine whether or not the sportsperson’s actions are worthy of criminal punishment and are outside the realms of “legitimate sport”. The jury should be provided with examples of what is and what is not within the realms of legitimate sport; Ben Flower’s actions provide a perfect opportunity to put this method into practice.

R v Flower?

In light of the injuries sustained by Hohaia (rupturing of the skin and a concussion) following the two punches landed by Flower, and in accordance with CPS Legal Guidance, one of two charges could be brought against Flower. Firstly, assault by beating (otherwise known as ‘battery’) under s. 39 of the Criminal Justice Act 1988 (“CJA 1988”) (DPP v Little (1992) 1 All ER 299), or, alternatively, should the injuries sustained be deemed serious enough, Actual Bodily Harm (“ABH”) under s. 47 OAPA 1861.

The offence of assault by beating is committed when a person intentionally or recklessly applies unlawful force to another, and where the injuries are of the sort sustained by Hohaia (if not considered serious). If found guilty of an offence under s. 39 CJA 1998, Flower could be liable to a fine up to £5,000 and/or imprisonment for a term not exceeding six months.

The offence of ABH is committed when a person assaults another, thereby causing ABH. ABH means any hurt calculated to interfere with the health or comfort of the victim (R v Miller [1954] 2 QB 282). The hurt sustained need not be permanent, but must be more than transient and trifling (R v Donovan (1936) 25 Cr. App. R. 1). The decision in R v Roberts (1972) 56 Cr. App. R. 95 demonstrates that a concussion sustained by the victim as a result of an assault can amount to ABH. An offence of ABH is triable either way; depending on which court the case is heard in, and if found guilty, Flower could be liable for a maximum prison sentence of 6 months (Magistrates’ Court) or 5 years (Crown Court).

There are two requirements for proving that Flower is guilty of either offence: the actus reus (i.e. the action) and the mens rea (i.e. the intention or recklessness in carrying out the action). Counsel for the prosecution will be faced with the legal and evidential burden of proving these two elements of the offence, in addition to the legal burden of proving that the defence of consent does not apply to the incident.

The actus reus of either offence is evident from the video footage of the incident, as they show the act of hitting Hohaia, and the injuries sustained. The mens rea of either offence can either be proved on the basis of intention, i.e. Flower intended to hit Hohaia, or, alternatively, the mens rea can be proved on the basis of recklessness, i.e. irrespective of the harm caused, Flower foresaw the risk that some harm might result from his actions (R v Cunningham [1957] 2 QB 936). This element of the test, again, should be a fairly simple task given the circumstances: any rugby player proceeding to tackle another player, let alone hit them in the face, is expected to have the necessary intent to cause some harm regardless of whether it is or is not within the ambit of the consent provided by the victim’s participation in the sport. Furthermore, if the injury sustained by the victim falls under the offence of ABH, the injury does not need to be proved to have been foreseeable, as this element of the offence is one of strict liability (R v Savage [1992] 1 AC 699).

The difficult aspect of the case naturally falls on determining whether Flower would have a significant defence of consent that would allow a jury to return a verdict of ‘not guilty’. Rugby League is a tough, physical game; it is expected that a significant amount of harm will be incurred when playing a professional rugby league match, even more so when the particular match is a championship-decider, as was the case here. As mentioned at the beginning of this article, Flower retaliated to Hohaia hitting him with his forearm. Whilst the first punch could, at the very least, be seen as a mere retaliation to that incident, the brutality with which Flower proceeded to issue a second punch to Hohaia whilst having him pinned to the ground is evidence of the excessive force of the punch, in addition to demonstrating an intent to apply unlawful force. Flower’s first punch, and Hohaia’s initial forearm hit when Flower was in possession of the ball can be expected in the nature of the game; however, Flower’s second punch went outside the reasonable expectations of Hohaia’s consent when participating in a Rugby League match (R v Gingell (1980) 2 Cr App R. (S.) 198).


On application of the facts to the legal framework, it appears that even from this position there is a strong possibility of Flower being found guilty for an offence of assault by beating under s. 39 CJA 1988, or for ABH under s. 47 OAPA 1861. This eventuality, however, is dependent upon the Crown Prosecution Service deciding to prosecute; given the evidential weight, and the public complaints received by Greater Manchester Police, prosecution is a possibility.

Notwithstanding the next course of action, this incident and this article have highlighted the occasions where, despite punishment from a sport’s governing body, there are instances where criminal prosecution is necessary as a result of public policy.

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Tagged: Criminal Law, Sport Law

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