The criminal law’s interaction with sports participatory violence dates back to the late 19th century (R v Bradshaw (1878) 14 Cox CC 83). From that point there has always been a tension between the intervention and non-intervention of the criminal law into sport. It is clear that only in the most serious cases will criminal prosecutions be warranted. In R v Lloyd (1989) 11 Cr App R(S) 36) the defendant was convicted of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Persons Act 1861, and sentenced to 18 months imprisonment, after repeatedly kicking an opponent in the head during the course of a rugby union match.
The non-interventionist approach is most apparent in English professional football where there have only been a handful of prosecutions. They have included, inter alia, attacks on supporters (R v Cantona (1995) The Times, 25 March), fighting with one’s own teammate (R v Bowyer (Unreported) Magistrates’ Court (Newcastle), 5 July 2005) and gratuitous “off-the-ball” violence against an opponent (R v Kamara (1988) The Times, 15 April). Even in amateur football the criminal law is reserved for the most severe of incidents. On-the-ball incidents with close proximity to the play are unlikely to result in criminality. The Court of Appeal in the leading case of R v Barnes  EWCA Crim. 54 at paragraph 15, summarises this non-interventionist approach: ‘In determining what the approach of the courts should be, the starting point is the fact that most organised sports have their own disciplinary procedures for enforcing their particular rules and standards of conduct. As a result, in the majority of situations there is not only no need for criminal proceedings, it is undesirable that there should be any criminal proceedings … A criminal prosecution should be reserved for those situations where the conduct is sufficiently grave to be properly categorised as criminal.’
This approach is corroborated by the Crown Prosecution Service’s publication, The ‘Protocol on the Appropriate Handling of Incidents Falling under both Criminal and Football Regulatory Jurisdiction’ which operationalises Barnes. The CPS paper and Barnes expressly accept the concept of playing culture which is a principle specific to sport. It allows for acts of injury-causing foul play to be included within the boundaries of legal consent to criminal assault. The approach of the England and Wales Court of Appeal and the CPS clearly allows for sport to be afforded special treatment and is an example of a sporting exception to the general law of the land that English law will not in allow for legal consent to apply to contacts which result in Actual Bodily harm or greater (R v Brown  2 WLR 556).