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			Ambi Sitham — Lawyer, Media and Entertainment Expert


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	Noble Art of Self-Defence or Unlawful Barbarism? Picture the scene: two people in a public place punching the living daylights out of each other, crowds gather to watch and the fight comes to the attention of the police, resulting in the arrest of one or both of the fighters. The offences with which they would be charged would range from assault to battery to possibly grievous bodily harm. In other words their fight is clearly illegal. So why then is it that the same fight would be considered legal simply if the parties wear silk shorts, long lace up boots and throw their punches around a boxed ring? Because the fight then evolves from being merely a fight to being the noble art of self-defence otherwise known as boxing. This scenario raises the inevitable question, is boxing really a legal activity? The History of Boxing Boxing did not really evolve in England until the seventeenth century at a time when the upper classes became bored with weapon sports. Amongst the gentry, boxing was considered to be good exercise as well as an enjoyable form of public entertainment. Boxing became popular entertainment and drew large crowds who enjoyed the savage nature of the sport. The centre of boxing was considered to be Jack Broughton's London amphitheatre. It soon followed that the prize-fight was born and boxing matches began to be arranged (illegally) for money. However certain aspects of the sport retained the brutality of pugilism associated with Greek legend, hence the civilising process of boxing began. The Marquis of Queensbury's Rules In 1865 the Marquis of Queensbury's rules reviewed all aspects of boxing and drew up twelve famous rules that with only slight modification have been adhered to ever since. The advent of the Marquis of Queensbury's rules has often been quoted as evolving boxing from its barbaric origins into the noble art of self-defence. The most relevant rules are: The use of padded gloves Three-minute rounds with a one-minute interval Fighting had to be a stand up match in a 24 foot ring or as near that size as practicable. The prohibition of wrestling or hugging. If a glove burst or came off it has to be replaced to the referee's satisfaction. A count of ten seconds was introduced before the floored man would be declared loser. A man on one knee should be considered "down" and if struck would be entitled to the stakes. The last provision in particular signifies that these rules were introduced primarily to control the gambling and public order aspects of the sport as opposed to being directed towards the safety aspects of the sport. The Legal Evolution of Boxing The sport of boxing is an anomaly in English Law in that it is exempt from criminal liability and is immune from the rules of consent. There is no specific legal precedent for professional boxing and the basis for its exemption from the law is unclear. The leading case of R v Coney (1882 8 L. R Q.B.D 534) is cited as the authority for the legality of boxing, when in fact what it established was that prize-fighting was unlawful^[1]. Prize-fighting can be defined as a bare-knuckled contest organised for money with an unlimited duration. Boxing is defined as the art, act or profession of fighting with the fists. The issue before the court in Coney was whether the defendants who were part of a crowd watching the prize-fight were guilty of aiding and abetting a criminal offence. The chairman of the quarter sessions had directed the jury that prize-fights were ipso facto illegal. This direction was based partly on the decision in R v Young (1866 10 Cox C.C 371) where Bramwell B. held: "There is no doubt if death ensued from a fight, independently of its taking place for money, it would be manslaughter, because a fight was a dangerous thing and likely to kill; but the medical witness here had stated that this sparring with the gloves was not dangerous, and not a thing likely to kill" ^[2] The following extracts from the judgment in Coney illustrate the reasoning of the various judges as to why prize fighting is illegal and distinct from sparring.^[3] Hawkins J. held: "It is not in the power of any man to give an effectual consent to that which amounts to or has any direct tendency to create, a breach of the peace; so as to bar criminal prosecution". Lord Coleridge's reasoning was that, "In such a case as this the spectators really make the fight, without them and in the absence of anyone to look on and encourage, no two men, having no cause of personal quarrel, would meet together in solitary to knock one another about for an hour or two. The brutalising effects of prize-fights are chiefly due to the crowd who resort to them" ^[4] His comments illustrate how the essence of the judgment is concerned with the breach of the peace caused by the large crowds of (mainly) working class people who attended prize-fights and bayed for blood. Only the judgment of Stephen J. focuses on the dangerous nature of prize-fighting with severe injuries inflicted upon the contestants. He stated: "The injuries given and received in prize-fights are injurious to the public both because it is against the public interest that the lives and the health of the combatants should be endangered by blows and because many prize-fights are disorderly exhibitions, mischievous on many obvious grounds." ^[5] It appears that the main reasoning of the House in banning prize-fights is the fear of the breach of the peace caused by working class people who were drunk, disorderly, gambled and often fought amongst themselves. There is very little reference to the actual injury suffered by the protagonists, apart from the judgment of Stephen J. quoted above, although logically the salient reason for banning prize-fights should be the injury caused to the contestants. Since Coney prize-fighting has been banned as it is considered contrary to the public interest and thus illegal, whilst sparring for points has been deemed legal by default. The status of boxing has been discussed in cases dating back as far as R v Young in the nineteenth century, to R v Brown in 1993, though it has never been sufficiently examined by the courts. In Young the fact that the contestants were wearing gloves and that the fight took place in private proceedings precluded them from criminal liability, even though death ensued as a result of the contest. It seems that the fight was considered to be more akin to a sparring contest and thus a lawful sporting activity, as the fight was held in a private place and did not have the roar of the crowds encouraging animosity between the contestants and resulting in public order offences. However interestingly in this case (Young) Bramwell B stated obiter, that if the men fought to such a stage of exhaustion where it was probable that death would ensue, it may amount to manslaughter regardless of whether gloves were worn by the combatants. In R v Orton (1878 39 LT 293) these obiter remarks were followed and the defendants Orton and Burrows were found guilty of participating in a prize-fight despite the fact that they were wearing gloves, the reasoning being that "each combatant was severely punished". The two-step test The nineteenth-century cases and the dicta of Coney seem to have created a two-step test to establish the legality of a boxing match. Firstly, is the contest a breach of the peace? Secondly, does it endanger the health or lives of the combatants? If the contest in question does either of these then it is unlawful and no consent can render it otherwise. On a straightforward application of this test to professional boxing, one can argue that professional boxing is illegal. Consent The issue of consent has been examined further by the common law since these nineteenth-century cases. In Attorney General's Reference (No 6 of 1980) the issue before the Court of Appeal was whether there could be consent to injuries sustained in a street fight. It was held that, "It is not in the public interest that people should try to cause each other bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether bodily harm is intended and, or caused. This means that most fights will be unlawful regardless of consent. Nothing which we have said is intended to cast doubt on the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or as needed in the public interest, in the other cases." ^[6] Thus it appears that any injuries inflicted even where consented to will be subject to criminal liability, except for those injuries sustained in the course of a properly conducted sport. These properly conducted sports^[7] may enjoy exemption from the law because they are in the public interest. However, this raises the question of whether modern boxing is in the public interest, an issue long debated by Parliament and academics. In the case of R v Brown concerning sadomasochistic activities between consenting adult homosexuals, the House of Lords held that even where the defendants consented to injuries, the charges under section 20 and 47 of Offences against the Person Act 1861 should be enforced, for public policy reasons. However, it appeared that all of their lordships were of the opinion that boxing was lawful. Lord Templeman stated that: "Ritual circumcision, tattooing, ear piercing and violent sports including boxing are lawful activities." Lord Jauncey referred to Coney and concluded: "[it] is authority for the proposition that the public interest limits the extent to which an individual may consent to infliction upon himself by another of bodily harm and that such public interest does not intervene in the case of sports where any infliction of injury is merely incidental to the purpose of the main activity." Clearly the infliction of injuries is not merely 'incidental' in boxing and the law is indisputably inconsistent in relation to boxing. Whereas a boxer will not be subject to the force of the law upon inflicting actual and often grievous bodily harm, a football player who inflicts actual bodily harm upon another player during the course of play will be subject to criminal prosecution as has been established from the case such as R v Birkin and various others. In the debate in Brown Lord Mustill accepted the legality of boxing as being, "[another] special situation which for the time being stands outside the law because society chooses to tolerate it". Evidently modern professional boxing, an anomaly in the context of sports and the law, has derived from sparring. One of the main reasons why the courts allowed sparring to flourish was because sparring as a sport had less intent and likelihood to cause injury, than the prize-fighting that was banned in Coney. This is not apparent of professional boxing, which although has a point scoring system such as sparring, but where the surest way of succeeding against your opponent is to knock him out.^[8] It seems that the exemption rendered by the courts to sparring has now been extended to modern professional boxing by default. Whilst professional boxing grew out of sparring, it is arguable that its contemporary nature is symbolic of the prize-fighting that was banned in Coney, whereas amateur boxing seems representative of sparring. Modern professional boxing remains exempt from the rules of consent that govern all aspects of everyday life and most sports, yet as I have argued it appears to have no specific legal precedent. Even then the issue of its legality is debated, the salient reason given for its status is because it is so firmly entrenched within our society.^[9] Thus it is necessary to examine the public policy reasons which allow boxing to exist in its current form. Public Policy and the Noble Art The public policy justifications are examined in the Law Commission Consultation Papers No.134 entitled "Criminal Law: Consent and Offences Against the Person" and No.139 entitled "Consent in the Criminal Law". They provide analysis of the role of consent to violence in sport and the exceptions provided for boxing through policy reasons and the common law. Law Commission Consultation Paper No.134 "Criminal Law: Consent and Offences Against the Person" The first Consultation paper was issued soon after the leading case of R v Brown in which it was held that consent was not a defence to criminal charges arising out of sadomasochistic activities between consenting homosexuals in the privacy of their own home. The Commission relied on the nineteenth-century cases that established boxing as legal and the contribution the analysis of these cases provide to the issue of consent. The case of Coney referred to the fact all 11 judges in the House of Lords had held that prize-fights were illegal and that consent to the infliction of blows did not offer any immunity from criminal liability.^[10] However, the Commission noted that the decision in Coney was due to the inherently unlawful nature of prize-fights, which were considered to be against the public interest as a result of the element of public disorder in the activity itself. This meant that no consent to injury could be effective in law. It was accepted by the Commission that: "..there might be exceptions to the general rule limiting the effect of consent in the case of lawful sports, or other activities in the public interest". The Commission discussed the leading case of R v Brown and the implications this judgment would have upon other areas of social activity and consent. The House of Lords reviewed the law in the Attorney General's Reference (No.6 of 1980), that as a general rule, consent on the part of the victim is irrelevant unless the activity in question falls into a special category. Lord Templeman stated: "Even where violence is intentionally inflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating." The majority of the Law Lords felt that sadomasochistic behaviour could not fall into a special category similar to that of lawful sports and games. The Commission noticed that whilst it is clear that the law allows people to do things to each other in sport that they cannot do in another context, the basis of this exemption is actually very unclear. The policy reasons offered in Brown to outlaw the consented infliction of serious injuries can be summarised as follows: The extent of injury rendered upon the participants was unknown. There were insufficient controls on the amount of harm inflicted and there existed a likelihood of serious long-term injury. There was a distinct possibility of the transmission of blood diseases such as HIV. The potential corruption of youth through involvement in such activities. Legally the participants could not consent to the infliction of such injuries. From examination of the facts of the case, none of the above reasons applied to the circumstances. These particular sadomasochistics were very careful in their activities, and controlled the degree of violence through the use of codewords. Additional protection was provided through a referee who regulated the activities. All of the participants were consenting adults thus there was no possibility of the corruption of youth. Lastly all participants willingly took part in the activities for the objective of experiencing and inflicting such injuries. Hence it appears that these policy reasons appear to be based on a misplaced sense of paternalism rather than any logical legal reasoning. Moreover it is evident that each of the policy reasons offered by Brown can be applied to boxing. For every punch thrown in a bout the degree of injury is unknown and there is a high risk of cross-infection in boxing. The medical evidence that exists in relation to punch drunk syndrome indicates that there is a high risk of serious long-term damage It can be argued that there are insufficient controls on the degree of violence inflicted in boxing that has resulted in fatalities such as Bradley Stone and James Murray. It is undeniable that participation in boxing leads to quite severe cuts, therefore there is a distinct risk of the transmission of blood diseases. Although most boxers are required to have a medical certifying that they do not have certain diseases, it is likely that some "slip through the net" as it were, and thus risk transmitting disease to their opponents. It can be argued that boxing corrupts youth. Underground boxing matches are common and are simply organised violence. Young men who cannot participate in the sport officially are sometimes drawn to such contests. While boxers can legally consent to the blows inflicted in a bout the reason for this exemption is simply that the immunity of boxing is firmly enshrined in the criminal law. Hence all the policy reasons in Brown are applicable to professional boxing. Nonetheless, boxers are permitted to beat each other senseless within the sanction of the law whilst consenting homosexuals are not allowed to participate in their chosen sexual activities within the privacy of their own homes. This demonstrates the inconsistency of the law in allowing boxing that suggests a fault in the logic of Brown. The Commission made the observation that boxing is clearly unique and is the only sport in which: "The intentional infliction of serious injury is not only something that is permitted in the rules but in reality is the essence of the sport". In summary, the Commission concluded that the only explanation for the immunity of boxing from the criminal law was that it was so firmly embedded in the law that only special legislation could change the position. The Law Commission Consultation Paper no.134 concluded that the legality of boxing could not be resolved by an appeal to the general law. It would require Parliament to determine whether or not boxing should remain legal, and then to enact specific legislation that it is not criminal to kill or intentionally injure another person in the course of a boxing bout. Law Commission Consultation Paper no.139: "Consent in the Criminal Law" The Law Commission issued its second Consultation Paper due to the influx of responses it received concerning the first paper. The attitudes of the majority of respondents reflected that of Baroness Trumpington, that boxing should not be criminalised. The Commission stated that in the context of sport the criminal law should not take up an excessively protective approach but should: "signal the state's entitlement to guard against the dangers of uncontrolled brutality and excessive violence"^[11] The Commission stated that boxing and certain martial arts should enjoy exemption from criminal liability to survive as sports. There was a retreat from the original standpoint that the essence of the sport is the ultimate infliction of serious injury. It was decided that the objective is to win by accumulating a greater number of points that one's opponents. However, the easiest way to accomplish this is to knock your opponent out, which involves inflicting a serious amount of blows. This implies that the serious infliction of injury will obtain the quickest knockout, consequently winning the match. The Paper retained the view of the previous consultation paper that the legality of boxing is an issue that can only be debated and changed by Parliament: "[the] continuing legality of boxing, amateur or professional, is a matter for Parliament to decide". Thus it is indisputable that public policy allows boxing to remain legal. The public interest arguments are well established and are consistently used by the pro-boxing lobby to maintain the legality of the sport. They can be summarised as follows:^[12] Boxing is a sport and people should be allowed to participate in a sport of their choice. Protagonists endure a training regime that improves their health and general fitness and discourages drug taking, smoking and drinking. Thus boxing encourages a fit and healthy society. Boxing is a sport that requires self-discipline because of its strict training regime, thus it instils self-discipline amongst protagonists. It provides an opportunity for self-advancement for young men from poor backgrounds. Whilst the above are of some merit, there are arguments to counter-balance the pertinence of some of the public interest arguments in favour of boxing. Whilst amateur boxing is undoubtedly a sport, it is arguable that professional boxing is glorified violence used for entertainment value as opposed to having any sporting value. It is true that boxers must be fit and healthy to participate in the sport. However this is true of many other sports such as football and rugby, that equally demand a high level of fitness. Clearly any strict training regime requires self discipline, however it is not necessary to box to have self-discipline. There are many other activities that instil self-discipline, for example certain religious orders. The last argument is rather patronising and is also a sad indictment of contemporary society if the only route of self advancement for poor young men is to box and potentially cause themselves brain damage, purely for a better standard of life. Conclusion The exemption granted by the common law to sparring has been extended to professional boxing and it has been presumed since Coney that professional boxing is allied to sparring as opposed to prize-fights. However, this supposition is debatable considering the nature of modern professional boxing. Amateur boxing seems representative of the sparring deemed legal in the nineteenth-century cases, yet there are unequivocal similarities between professional boxing and the prize-fighting that was deemed unlawful. The increasing similitude of modern professional boxing and prize-fighting suggests that the former has gained a deceptive exemption from the law. This assertion has been confirmed by the inexplicable attempts made by the courts to justify the existence of the noble art. For example, in Pallante v. Stadiums Pty Ltd (1975 Supreme Court of Victoria), an Australian case, the issue before the court was whether or not a boxing match was in fact a prize-fight. If the court held that the match was a prize-fight then the plaintiff could claim damages for eye injuries sustained during the bout. McInerney J. rejected the contention that a boxing match was a prize-fight. His judgment vindicated boxing as being: "not unlawful or criminal activity so long as whether for reward or not, it was conducted by a contestant, not for motive of personal animosity, but predominantly as an exercise of boxing skill and physical condition in accordance with the rules, so long as the infliction of boxing harm is kept within reasonable bounds as to preclude or reduce as far as is practicable, the risk of either contestant incurring serious head injury and to ensure victory should be achieved in accordance with rules by the person demonstrating the greater skill as a boxer" This justification appears flawed when applied to professional boxing. Many highly publicised boxing matches are promoted as 'grudge matches' where the protagonists appear to have a great deal of hostility towards one another. Although these are often publicity stunts by promoters trying to entice audiences to the bout, it is undeniable that this creates a degree of animosity amongst the contestants. The Gerald McClellan and Nigel Benn bout was hyped by the media and promoters to be a grudge match. The match resulted in McClellan suffering a blood clot to the brain and severe injuries. Whether or not this was a result of pre-match hostility is debatable, yet it is another illustration of how professional boxing is of a similar nature to prize-fighting. The barbarity displayed by Mike Tyson in the infamous bout between himself and Evander Holyfield is yet another illustration of how modern professional boxing is far removed from the noble art of self-defence. Tyson, renowned for being aggressive, bit a chunk out of Holyfield's ear. Such brutality can hardly be described as fighting in accordance with the rules. Despite his unrepentant aggression both in and out of the ring, it is unlikely that he will be excluded from the sport. It is startling that the aggression and hostility that the judges wanted to eliminate through banning prize fighting is undoubtedly present in professional boxing. In the course of his judgment in Pallante, McInerney J. attempted to define prize-fighting, relying on the Shorter Oxford English Dictionary that describes a prize-fight as, "a public contest between prize fighters, a boxing match for money". He later tries to rebut this definition by stating that modern boxing is clearly not prize fighting because it "will often not take place in public" or "excite terror in the minds and hearts of those present" nor will it "ordinarily constitute a riot". However, all of the characteristics of prize-fighting can be said to be true of professional boxing. The lures of professional boxing matches are the glory of a title and the substantial financial rewards. Thus such bouts satisfy the definition of prize-fights by McInerney J. While professional boxing matches do not take place in public as prize-fights did, they are still in a public arena where spectators can watch and place bets on the bouts. In trying to justify the legality of modern boxing, the learned judge has undermined its status by likening it to the prize-fighting that was banned in the nineteenth century. It is evident that the distinctions between prize-fighting, sparring, and both amateur and professional boxing have become blurred over the years, with all of the above often being simply referred to as "boxing". At present the sport remains lawful as its immunity is so firmly enshrined in the criminal law. However, for modern professional boxing to continue legitimately, it is imperative that Parliament enacts specific legislation giving the sport an unambiguous immunity from the law. [1] As recognised by McInerney J. in Pallante v Stadiums Pty (1975) Supreme Court of Victoria at p.322, col.25 [2] At col.432 [3] At col.553 [4] At col.569 [5] At col.549 [6] Per Lord L L.J. [7] See M and Ormerod D., “The Legality of Boxing” (1995) Legal Studies 15(2) [8] Law Commission Consultation Paper No 139 “Consent and the Criminal Law” (London, HMSO) [9] James, M., Sports Law Ch. 10, p.451 [10] The Law Commission Consultation Paper No.134 “Consent and Offences against the Person” London, HMSO 1994, para. 5.3 [11] Hansard, H.L., Vol.563, col. 306. [12] Op.cit. 7. Ambi Sithamparanathan — ENTERTAINMENT LAW REVIEW, December 2002
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