The Legality Of Combat Sports – Are We Approaching The Final Round?
The pitching of one person against another in human combat is by no means a modern concept, having ties with ancient Greek and Roman culture. In the UK, combat sports have developed over the ages from fist-fighting to prize fighting and from traditional boxing under the Marquess of Queensbury rules to the more extreme martial arts, such as Mixed Martial Arts (MMA), where competitors fight using a mixture of martial arts techniques within a caged ring.
Over the last two centuries, the criminal and civil law has struggled to reconcile the legalisation of combat sports with the prevailing understanding of the law of consent. The Courts have traditionally taken the view that a person cannot consent to be the victim of an assault unless the activity which causes the injury is such that it is in the public’s interest to allow it to occur.
In this article, it will be suggested that the current legal approach to combat sports sits uneasily with the exception of sports generally. In other rough or dangerous sports, such as rugby or horse racing, the infliction of or resultant harm caused is incidental and accidental to the pursuit of the sport itself. In combat sports, the harm caused is deliberate and calculated.
It will be suggested that the legality of combat sports in the UK will only retain its exclusion from the criminal and civil law on assault as long as it remains perceived as being in the public interest. With our increasing knowledge of the harm caused by combat sports, are we now approaching the final round?
The Legal Starting Point
In Attorney General’s Reference (No 6 of 1980) the respondent, who was aged 18, and the victim, aged 17, quarrelled in a public street and agreed to settle their differences by having a fist fight. As a result of the fight, the victim suffered injury amounting to actual bodily harm.
In his judgment, Lord Lane CJ noted that, an essential element of a criminal assault is that the act is done contrary to the will and without the consent of the victim .
However, the courts will make an exception to this principle where the public interest requires it. Crucially, Lord Lane CJ adjudged that “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” .
Is sport a ‘good reason’?
In the Attorney General’s case, above, Lord Lane CJ stressed that assaults resulting from properly conducted games and sports are justified as the nature of the activity is such that they are needed in the public interest .
This follows a long line of cases which stress the various benefits of lawful sports as “manly diversions” which “tend to give strength, skill and activity” and for advancing the health and well-being of individual citizens .
Notably, the emphasis in these cases is that the harm occasioned is incidental to the pursuit of sporting endeavours rather than an intended action. The rugby player who tackles his opponent does not do so to injure him but to retrieve the ball for his team. As long as a player operates within the rules and regulations of his game then any resulting injury he may inflict on his opponents falls within the band of force which a player can reasonably expect .
This is neatly summarised by Judge Cave in R v Coney who noted that: “’the true view is, I think, that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely, nor intended to cause bodily harm, is not an assault…”
However, where a player behaves in a way which the rules and regulations of the game do not sanction or, indeed, intentionally inflicts harm on his opponent, then any injury inflicted will not be with his opponent’s consent and the player may be liable for assault.
The Exception of Combat Sports
“For money, not recreation or personal improvement, each boxer tries to hurt the opponent more than he is hurt himself, and aims to end the contest prematurely by inflicting a brain injury serious enough to make the opponent unconscious, or temporarily by impairing his central nervous system through a blow to the midriff, or cutting his skin to a degree which would ordinarily be well within the scope of s 20 of the 1861 Act. The boxers display skill, strength and courage, but nobody pretends that they do good to themselves or others. The onlookers derive entertainment, but none of the physical and moral benefits which have been seen as the fruits of engagement in manly sports.”
Nevertheless, as Lord Mustill went on to note, boxing is regarded as one of these special situations which, for the time being, stands outside the ordinary law of violence because society chooses to tolerate it .
Like boxing, other combat sports (and the injuries which result) seem to fall outside the usual law on assault and are at least tolerated as ‘special situations’. The latest version of extreme combat sport is Mixed Martial Arts (MMA), where competitors fight within a cage using a mixture of martial arts techniques, including Queensbury rules boxing, kick-boxing, ju-jitsu and Greco-Roman wrestling. Anything goes, except spitting, butting, eye-gouging, biting, hair-pulling, fish-hooking, groin attacks, putting a finger into any orifice or into any cut or laceration and joint manipulation and it is a sport which is becoming increasingly popular in the UK .
Reconciling the Exception?
Despite the apparent popularity of combat sports, advocates and participants of them would be well advised not to rely too heavily on remaining outside of the remit of the law on assault.
As Lord Templeman noted in Brown , duelling and bare knuckle fighting were at first lawful, then tolerated provided the participants were voluntarily participating and are now outlawed, reflecting the changing sensibilities and public policy considerations over time.
Combat sports are already notoriously difficult to reconcile with the treatment of other sports. Unlike injuries caused in rugby, football and the like, which are incidental and, normally, accidental to the normal playing of the game, the assault in combat sports is deliberate and calculated to cause a debilitating injury.
What’s more, history is littered with examples of participants whose lives have been shattered from their injuries sustained whilst in the ring (or cage). In boxing alone, examples include Paul Ingle, who suffered a blood clot in his brain after his fight with Mbulelo Botile in 2000, and Michael Watson, whose 1999 title fight with Chris Eubank caused him to suffer brain damage which confined him to a wheelchair for years. Nigel Benn’s fight with American Gerald McLellan left the latter blind, deaf and wheelchair-bound. Less lucky, welterweight Steve Watt, bantamweight Mark Goult, super-featherweight Bradley Stone and bantamweight Jimmy Murray are amongst British boxers who have died from injuries sustained in the ring .
These injuries correlate with our increasing understanding of the short and long term medical implications of severe blows to the head and upper body. In 2001, reseach at the University of Pennsylvania’s Center for Neurodegenerative Disease Research linked head injuries to the increased risk of the onset of Alzheimer’s disease and it is widely recognised that chronic traumatic brain injury or chronic traumatic encephalopathy (CTE) (also notably referred to as "punch drunk" syndrome and “boxer’s syndrome”) can occur years after a head injury has been sustained .
In the UK, the British Medical Association have campaigned since 1982 to secure a ban on boxing and other extreme combat sports on the basis of the medical damage which can be caused to competitors. Notably, the BMA distinguish boxing and MMA from “proper martial arts sports such as karate and judo where avoidance of harm is intended, and the onus is on technical ability with wins scored on points” .
Regulating Assault
It is suggested that it is unfair to group all combat sports under the same heading. Advocates of MMA state that it is a far less dangerous sport than boxing as their fights are limited to three and five rounds of three to five minutes in length, depending on the level and status of the competitors , rather than up to fifteen rounds in boxing. Due to the nature of MMA, participants are also less likely to suffer constant punches to the head.
Equally, proponents of boxing would no doubt seek to distinguish their ‘noble art’ from MMA which was famously described by John McCain as amounting to “human cockfighting” .
Dr. Jack Anderson has argued persuasively that what is needed is greater regulation of boxing, and he has proposed a twelve point plan of reform for British professional boxing including a unified UK governing body, greater medical controls and research, a ban on blows to the head and an underlying principle that the health, welfare and dignity of the boxer are at all times paramount . It is arguable that his reforms could apply equally to MMA.
The Final Round?
However, whether regulated or not, the irreconcilability of combat sports, like boxing and MMA, with the tenets of the law on assault and consent remains. No dramatic change in the law would be necessary to outlaw combat sports, rather the legislature or the judiciary would merely need to make a decision, as it did with prize fighting, that the sport no longer served the public interest and did not deserve its ‘special situation’ exclusion from the normal criminal law.
Despite the growing popularity of combat sports, fuelled in part by greater access to the sport on pay-per-view television, the medical evidence of the harm is increasingly overwhelming and all the more distasteful because of the knowledge that it has been deliberately inflicted. Various countries already have a ban on professional boxing, including Norway and Iceland.
It is arguable that it is only a matter of time before this debate is finally forced upon the legislature or the judiciary. Various attempts have already been made to introduce a bill banning boxing, including by Lady Summerskill in 1962 and Lord Taylor of Gryfe in 1981, 1991 and 1995 . Paul Flynn, the veteran Labour MP and ex-boxer has repeatedly campaigned for the sport to be banned, calling it "a degrading spectacle of gratuitous violence that exploits the least advantaged people" .
However, as Flynn notes, it is likely that change is unlikely to be forthcoming until a further boxing death or catastrophic injury reawakens the debate and spurs impetus for change.
Conclusion
The debate on the legality of combat sports is a controversial one. The sport is hotly defended by its advocators and it has clearly been a feature of human history for centuries.
However, as our understanding of the medical damage that can be sustained through physical blows to the head and body grows, it is arguably difficult to reconcile with Lord Lane CJ’s ‘no good reason’ test and increasingly hard to justify its status as one of Lord Mustill’s ‘special situations’ which take it outside of the general consensus on the law of consent.
Undoubtedly, the undercurrent of debate will continue and the ‘final round’ for combat sports is likely to remain at a safe distance until yet another death or injury forces the debate upon the legislature or the judiciary.
Published 03/03/2009
