Criminal liability for injuries in Sport – when does it arise?

It is reported that a man has been arrested on suspicion of manslaughter following the death of ice hockey player, Adam Johnson, on 28 October 2023, during a game between the Nottingham Panthers and the Sheffield Steelers at Sheffield’s Utilita Arena.

Mr Johnson, who played for Nottingham Panthers, died as a consequence of a fatal neck injury sustained during the game. There has been little said publicly about the precise circumstances of the injury.

Leaving the particulars of Mr Johnson’s injury aside, it does raise the question of when it is appropriate for criminal proceedings to be instituted after an injury is caused to one player by another in the course of a sporting event.

Civil claims

In March 2023, we commented on the case of Czernuszka v King [2023] EWHC 380 (KB), which concerned a civil claim for damages following a dangerous tackle during an amateur rugby game; the tackle left the claimant victim paralysed from the waist down. During cross-examination, the defendant’s expert witness accepted that the tackle was “the very epitome of dangerous tackling.” The tackle itself was reckless and the injury entirely foreseeable. The judge concluded that it was a “deliberate, gratuitous action by the defendant to take (the claimant) out of the game”. The defendant was found liable as she had failed to exercise such degree of care as was appropriate in all the circumstances. 

Despite the circumstances in Czernuszka, the defendant did not face a criminal prosecution in addition to being sued for damages. The circumstances giving rise to civil and criminal liability can overlap. However, prosecutions following injuries arising from sporting contact are extremely rare. Prosecutions for assaults occurring on a sports field, but well away from the sporting action (“off the ball”), are, however, not uncommon.

Criminal Prosecutions

When it comes to injuries which arise within the flow of the game (“on the ball”), the English courts have been very reluctant to find competitors criminally liable. The leading authority remains R v Barnes [2004] EWCA Crim 3246. The defendant seriously injured an opponent as a result of a late sliding tackle from behind. He was found guilty of inflicting GBH under s.20 of the Offences Against the Person Act 1861, but the conviction was quashed on appeal.

In his judgment, Lord Woolf observed that most organised sports have their own disciplinary procedures and so there would generally be no need for criminal proceedings. A criminal prosecution should be reserved for situations where “the conduct is sufficiently grave to be properly categorised as criminal”.

Furthermore, Lord Woolf confirmed that “when no bodily harm is caused, the consent of the victim to what happened is always a defence to a charge. Where at least bodily harm is caused, consent is generally irrelevant because it has been long established by our courts that, exceptional situations apart, as a matter of law a person cannot consent to having actual bodily harm inflicted upon him.”

Exceptions, he noted, would include physical injury in a contact sport. Different sports gave rise to differing assessments of the reasonable boundaries of non-criminal conduct. The assessment of criminality would always require consideration of all of the circumstances, including: the nature of the sport, the level it was being played at, the nature of the act, the degree of force used, the extent of the risk of injury and the state of mind of the defendant.

Once considered, the question would be whether the defendant’s actions went beyond what might reasonably be expected in that sport. Importantly, breaches of the rules, even serious breaches, would not necessarily meet the threshold of criminality.  

Interestingly, given recent events, one of the authorities referred to by Lord Woolf, R v Cey (1989) 48 C.C.C. (3D) 480, a case heard by the Saskatchewan Court of Appeal, concerned ice hockey. Whilst noting that ice hockey was a “very physical game”, the court observed that even in ice hockey, “some forms of bodily contact carry with them such a high risk of injury and such a distinct possibility of serious harm as to be beyond what, in fact, the players commonly consent to, or what, in law, they are capable of consenting to.”

Comment

It seems unlikely that the “non-interventionist” approach of the court to allegations of criminal conduct in contact sports will change any time soon. Barnes provides a degree of authoritative guidance, but the requirement to consider all circumstances of the case to determine whether the act is “sufficiently grave” so as to be categorised as criminal will make confident predictions about criminal culpability extremely difficult.

What is clear, however, is that whilst the criminal courts may be reluctant to stray onto the pitch, or ice rink, individuals who injure opponents cannot assume they will invariably avoid a criminal charge regardless of the recklessness and consequences of their conduct.