Could boxing be banned? A legal and epidemiological perspective

For some time the BMA has campaigned for stricter legal regulation of boxing.¹ Although two bills in the House of Lords to outlaw boxing for reward were defeated in 1995, parliament has never declared boxing illegal and no court has ever decided a case involving the legality of boxing. We reviewed the case law and the scientific evidence to determine whether boxing could and should be banned.

Summary points

• Scientific evidence shows that boxing—professional and amateur—endangers health

• Courts have never been asked to consider scientific evidence against boxing, as no case before them has involved boxing

• Two possible test cases could be considered in the event of a fight involving serious injury or death—a claim for compensation against the promoter or referee and a criminal prosecution presenting known scientific evidence

• Even without legislation the law can place limitations on the sport

• Since medical cover is a legal requirement at all boxing promotions, the profession could reconsider, in the light of its own ethical standards, whether members should participate

Can law change without legislation?

Judges sometimes make new law when their old decisions are overtaken by changes in public opinion or where there is a gap in the law. It was judges, not parliament, who overturned the old rule that a man could not be convicted of raping his wife.² Sometimes judges accept help from experts when making law: the House of Lords relied on medical opinion on the quality of life of a victim of persistent vegetative syndrome before declaring it lawful to withdraw life sustaining treatment.³

The law and violence in sport

The deliberate or reckless infliction of an injury normally has two legal consequences: the aggressor has committed a criminal offence and the victim can sue for compensation. We say “normally” because the law has always allowed exceptions. An assault can be legal because of consent—in the case of surgery, for example. Public policy can make an assault lawful or unlawful. For example “reasonable” parental chastisement and male circumcision are lawful. However, female circumcision is a criminal offence,⁴ and parents whose chastisement is excessive can—indeed now, must—be prosecuted.⁵

The relation in law between assault and contact sports is a matter of consent and policy. Public policy, as declared in case law, is that “properly conducted games and sports are needed in the public interest.”⁶ A rugby tackle carried out on a player who has consented to be involved is neither a crime nor a tort.⁷ But, as the box shows, there are limits to the sports violence which the law allows.

Beyond the rules of the game

• In R v Lloyd a player was convicted of assault because “what the appellant did had nothing to do with rugby football.” An appeal judge stated that while rugby is a physical game it is not a licence for thuggery⁸

• In R v Marsh a rugby player was convicted after an “off the ball” assault on an opponent⁹

• In a soccer case, McCord v Swansea City AFC Ltd, the court declared that if a player is injured as a result of play that goes beyond the rules (for example, an intentional foul tackle), the club or the aggressor can be made to pay compensation¹⁰

The law on violence in boxing

Boxing shares with other contact sports the fact that it has a set of rules. Contact and injury within the rules are consensual. Gross behaviour outside the rules, such as an attack on an opponent after the referee has stopped the fight, would go beyond what has been consented to. But boxing is different from these other contact sports. Physical contact in rugby or soccer, however risky, is not intended to cause injury. The rules seek to minimise risks of injury. Boxers, by contrast, do not breach any rules when they try to cause injury. The British Boxing Board of Control makes this quite clear in its submission to the Law Commission¹¹: “Nobody can take part who is not licensed, and all who wish to box are warned of the risks of the sport and are given thorough medical examination and tests. There are at least two medical officers present at each promotion who are conversant with sports medicine and boxing. There is a referee in the ring who has had considerable training to enable him to identify the circumstances in which to stop a contest to avoid injury. There is also an ambulance present at each promotion which is staffed by paramedics with instructions to go to a named hospital.” The submission goes on to point out that an anaesthetist is present at the ringside. In the same evidence the board claims that scoring points is the objective of the match, not an injury, but concedes that a person who is knocked out cannot score any further points.

How have the courts dealt with this difference between a sport where injury is incidental and one where it is deliberate? The answer is that they have not really considered the point. Three landmark English cases which show the development of the judges’ attitude to boxing are summarised in the box. Frustratingly, none of these cases actually concerned boxing, which means that the judges were making non-binding statements about the law, having heard no evidence or argument relating to boxing itself. Pronouncements of this sort are called obiter dicta and are not, in theory, binding in future cases. Only one of the cases even uses the word “boxing.” Yet these are the cases generally considered to prove that boxing cannot be a criminal offence.^12–14

Landmark statements from the courts

• In R v Coney,¹⁵ the defendants chanced on a bare knuckle prize fight. They were convicted of aiding and abetting an illegal fight. They were acquitted on appeal because there was no evidence of the aiding and abetting. But was the fight itself illegal? The view of one of the judges (Mr Justice Stephen) on this is often cited: “The consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as the person injured. But the consent of the parties to the blows which they mutually receive does not prevent those blows from being assaults ... in cases where life and limb are exposed to serious danger in the common course of things, I think that consent is a defence to a charge of assault, even where considerable force is used, as, for instance, in cases of wrestling, single-stick, sparring with gloves and the like; but in 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.” No attempt was made to define “sparring”

• In Attorney General’s reference No 6 of 1980, two men agreed to a street fight. At first they were acquitted because they had consented to assault each other.¹⁶ However, the Court of Appeal ruled that despite consent the fight was a crime if the intention was to inflict injury. Lord Lane went on to say, again without mentioning the word boxing: “Most fights will be unlawful regardless of consent. Nothing which I have said is intended to cast doubt on the accepted legality of properly conducted games and sports, lawful chastisement or corrections, reasonable surgical interference”

• In R v Brown and others, the defendants engaged, in private, in sadomasochistic activities such as piercing each other’s genitals.¹⁷ The House of Lords ruled that consent was irrelevant because these activities are contrary to public policy.¹⁸ Lord Templeman said that injurious activities are lawful if the injured person consents and the activity itself is lawful, and he continued: “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 injured person was participating.” He cited ear piercing, circumcision, and violent sports, including boxing, as examples of what is lawful

The box shows that consent cannot make legal something that, on public policy grounds, should not be happening at all. The judges do not approve of 19th century prizefighting, street brawling, and sadomasochistic pleasures in private. They approve, without defining or considering these activities, of “sparring” (1892), “properly conducted games” (1981), and “boxing” (1993).

Would the public policy approval be the same if modern boxing were subjected to the tests of the judges in the Coney case (box)? For example, another of the judges (Mr Justice Cave) said: “A blow struck in anger or which is likely or intended to do corporal hurt, is an assault, but . . . a blow struck in sport, and not likely to cause bodily harm, is not an assault.” A judgment in a relatively recent Canadian case is consistent with this rationale for distinguishing sparring from prize fighting. The case of Pallante v Stadiums Pty Ltd,¹⁹ suggests that if a fight moves from being a “test of skill” to being a “fight” (the difference being that in a fight blows are intended to cause injury) it becomes illegal.

We know—as do the British Boxing Board of Control—that boxing is likely to cause bodily harm. But the courts have not been asked to consider any scientific evidence as no case before them has actually involved boxing. Their pronouncements on boxing are therefore of little value. The Law Commission is currently working on redrafting the law on assault and consent, but since it has refused to make any recommendations on boxing, its draft legislation legitimating boxing cannot be considered as persuasive. “We do not think it would be helpful for us to add to the already formidable public debate on the issue.”²⁰ It too has not considered the scientific evidence. However, its proposed reformulation of the law would be stark and realistic. In a statute recognising the legality of boxing “it will be necessary specifically to provide in any such legislation that it is not criminal to kill or intentionally severely injure another person in the course of a boxing bout.”²⁰

Research on boxing and injury

There has long been acceptance that boxing causes injuries. Acute brain injury is regularly reported in the press and a large body of research has been conducted on possible longer term chronic brain damage as a result of repetitive blows to the head. A Medline search from 1969 onwards, using the term “boxing” with snowballing search techniques, identified several studies examining neurological damage in boxers. In none of these studies did the design allow more than measures of association to be inferred. They measured different outcomes ranging from radiological appearances and neuropsychological tests to biochemical measures of blood brain barrier integrity (these are shown in the table on our website). Three of six prospective studies reported abnormalities in the boxers at baseline or follow up, six out of eight case-control studies showed damage, and abnormalities were evident in 12 of 14 cross sectional studies and four out of five case series. Thus all groups of studies provided evidence of neurological damage associated with boxing. Thirteen of the studies included professional boxers, but, more alarmingly, 27 included amateurs. Thus, the argument that amateur boxing is safer than professional boxing is challenged, particularly since far more people at younger ages are being exposed.

Could an injured boxer sue?

A recent case shows that organisers of sporting events must take proper steps to ensure the safety of participants.²¹ The logic of such a duty is that participants, while consenting to some risks, have not consented to referees or promoters disregarding their safety. Mr Smoldon, the plaintiff, broke his neck in a collapsed rugby scrum and is now paraplegic. In Smoldon v Whitworth he sued the referee. Although it was an opposing player who kept collapsing the scrums, the court decided the referee had a duty to protect the player’s safety in a situation where he should have known that intervention was necessary.

This ruling has caused clubs and referees to review their standards and their insurance arrangements. Boxing promoters are now on notice that to ignore known safety risks exposes them to compensation claims from boxers or their widows. A possible case could involve a claim against a referee who fails to stop a match when one of the participants is showing injury or fatigue.

Professional boxers have already publicly indicated that standards are inadequate. A headline in the Guardian of 27 February 1995, for example, states: “Big fight injury prompts attack on safety claim. Professional Boxers’ Association attacks safety standards.” While the organisers would not be sued for assault, they could be sued for negligence, in the same way as a doctor who fails to follow acceptable standards. “I didn’t know the risk” is a good defence only if the evidence suggests a reasonably competent boxing promoter would not have been aware of the risk.

Conclusion

It is accepted as if fact that boxing is legal. A reading of the judgments on which this view is based shows that pronouncements on the legality of organised fighting have been based on public policy. The justification, when attempted, has been on the grounds that properly organised fights are not intended or likely to cause injury. Analysis of law and science has been superficial or non-existent, for the straightforward reason that there has been no test case. We have so far touched on two possible test cases, both of which could be considered in the event of a fight involving serious injury or death:

• A claim for compensation against the promoter or referee on the ground that risks of injury were not properly minimised

• A criminal prosecution in which the known scientific evidence would be presented to the courts

• Both possibilities would require the cooperation of witnesses from the medical profession, but would not be initiated by them.

There may be a third option. Professional boxing events, as we have seen above, require doctors at the ringside and emergency services on standby. A promoter who fails to organise medical cover would be open to legal proceedings by an injured boxer or his personal representatives. The withdrawal of medical cover would, without legislation, make professional boxing impossible. The profession could reconsider, in the light of its own ethical standards, participation by its members in boxing promotions.

Figure.

No court has ever decided a case involving the legality of boxing