Chapter 6. Criminal Liability, Ethics and Integrity in Sport

• Pages: 192-235

6.1 INTRODUCTION

The sporting arena, like any other area of human endeavour, is fraught with passionate pur-

suits, outright aggression and occasional instances of wonton violence. For this reason, some

injuries sustained in a sporting context are not immune from challenge in the criminal courts,

though, admittedly, there have been no reported prosecutions in the Caribbean to date and,

indeed, very few prosecutions worldwide. Part of the reason behind the general reluctance to

pursue criminal prosecutions where sporting injuries are sustained lies in the fact that sport-

ing bodies often have robust internal disciplinary procedures in place to deal with issues of

this nature, and, in any event, civil proceedings, as discussed in the previous chapter, oer a

more attractive, if not more favourable, prospect of success. That said, there has been a steady

increase in the number of prosecutions for injuries sustained in a sporting context, primarily

in Canada and the United Kingdom in recent years, which, among other things, has served to

shed light on the precise role of the criminal law in circumventing acts of violence and aggres-

sion that exceed a particular threshold. Indeed, as will be illustrated in this chapter, although

virtually any physical contact between players could prima facie fulfil the ingredients of the

various criminal oences for which a sportsperson may be prosecuted, the defence of consent,

though hugely contentious in practice, remains a fundamental cog in the wheel of criminal

prosecutions, preventing the opening of the proverbial floodgates whilst isolating lawful con-

duct from criminal conduct.

In the first part of this chapter, the focus will be on the circumstances where criminal

liability may arise in the sporting context, with an overview of the applicability of existing

legislation in the Commonwealth Caribbean. The second half of this chapter will examine the

twin themes of ethics and integrity in sport, with special focus being placed on the regulation of

sports betting in the Commonwealth Caribbean from a legal, historical and policy perspective.

This section will not only analyse the legislative regulation of sports-related betting, but will also

examine the relevant, albeit sparse, case law.

6.1 CRIMINAL OFFENCES IN THE SPORTING CONTEXT

A range of criminal oences may be committed by a player who engages in either ‘on the ball’

or ‘o the ball’ conduct that results in injuries being sustained by another player or, indeed, the

death of that player. These oences, though not strictly speaking hierarchical in their orienta-

tion, lie on a de facto continuum that ranges from mere physical contact to more pronounced

physical contact that results in death or serious injury.

6.1.1 Fatal oences

Naturally, murder and manslaughter are at the upper end of the continuum of criminal lia-

bility. There is no reported Caribbean case to date in which a player has been convicted of

murder for an oence committed ‘on’ or ‘o’ the ball, but, theoretically, the oence may be

committed where a player of sound mind and discretion (i.e. sane) unlawfully kills (i.e. not in

CHAPTER 6

CRIMINAL LIABILITY, ETHICS AND

INTEGRITY IN SPORT

Criminal liability, ethics and integrity in sport 193

self-defence or otherwise justified) another player with intent1 to kill or cause grievous bodily

harm (GBH).2 By contrast, in the sporting context, the oence of manslaughter has invariably

been successfully prosecuted in relatively more instances than murder, including in R v Moore,3

where the accused footballer was convicted of manslaughter after he had jumped at another

player, thereby throwing the latter violently against the goalkeeper’s knee, which resulted in

his death, and more recently in R v Forwood,4 where the accused footballer was convicted of

manslaughter in circumstances where he threw a single punch at another player resulting in

the death of that player in a Sunday league football game. In both of these cases, although the

charge of murder was proered, the jury could not find that there was an intention to kill or

cause GBH, though the courts found that the ingredients of the oence of manslaughter were

made out by the Crown.

Manslaughter may be committed in a number of ways.5 First, a player may commit man-

slaughter where he kills by conduct that he knew involved a risk of killing or causing serious

harm to another player (‘reckless manslaughter’); second, by killing another player by conduct

that was grossly negligent in all of the circumstances of the case, given the risk of death ensuing

(‘gross negligence manslaughter’); third, where he kills by conduct that takes the form of an

unlawful act involving a danger of some harm to the person (‘unlawful act manslaughter’); or

fourth, where he kills with the intent to murder, but in circumstances where a partial defence

applies, namely provocation or diminished responsibility.

Although, in theory, the oences of murder and manslaughter play an important role in

circumscribing intentional or reckless acts that cause the death of another player, it is clear from

even a cursory review of applicable case law that these charges are rarely proered in practice,

which might be on account of the inherent diculty of proving, beyond a reasonable doubt, an

intention to kill or cause GBH, as well as the fact that, in most instances, serious injuries, rather

than death, ensue from dangerous ‘on’ or ‘o’ the ball conduct. By contrast, non-fatal oences,

where they occur in the sporting context, have more frequently been prosecuted in the criminal

1 The intent for murder is the intention to kill or cause grievous bodily harm (GBH), nothing less. Foresight is

no more than evidence from which the jury may draw the inference of intent, cf R v Woollin [1999] 1 Cr App

R 8 (HOL). In contrast to the oence of murder, attempted murder requires the existence of an intention

to kill, not merely to cause grievous bodily harm: R v Grimwood [1962] 3 All ER 285. The requisite intention

to kill can be inferred by the circumstances: R v Walker and Hayles (1990) 90 Cr App R 226.

2 Sections186 and 188 Anguilla Criminal Code (life imprisonment); section3 Antigua Oences Against the

Persons Act (death); section2 Barbados Oences Against the Persons Act (death); section287 Bermuda

Criminal Code (life imprisonment); sections290 and 291 The Bahamas Penal Code (death); section106

Belize Criminal Code (death); section150 British Virgin Islands Criminal Code (life imprisonment); sec-

tions181–182 The Cayman Islands Penal Code (life imprisonment); section2 Dominica Oenses Against

the Persons Act (death); section230 Grenada Criminal Code (death); section101 Guyana Criminal Law Act

(death); section2 Jamaica Oenses Against the Persons Act (death); section149 Montserrat Penal Code (life

imprisonment); section2 StKitts and Nevis Oenses Against the Persons Act (death); section85 StLucia

Criminal Code (death); section159 StVincent and the Grenadines Criminal Code (death); section4 Trini-

dad and Tobago Oenses Against the Persons Act (death).

3 (1898) 14 TLR 229.

4 Unreported Central Criminal Court,6 July2009.

5 Section191 Anguilla Criminal Code (life imprisonment); section5 Antigua Oences Against the Persons

Act (life imprisonment); section6 Barbados Oences Ag ainst the Persons Act (life imprisonment); sec-

tions293–294 Bermuda Criminal Code (life imprisonment or up to four years in the case of gross negligence

manslaughter on indictment); sections293 The Bahamas Penal Code (life imprisonment); section108 Belize

Criminal Code (life imprisonment); section153 British Virgin Islands Criminal Code (life imprisonment);

sections180 and 183 The Cayman Islands Penal Code (life imprisonment); section6 Dominica Oenses

Against the Persons Act (life imprisonment); section232 Grenada Criminal Code (five years in the case of

gross negligence or up to 15years otherwise); section95 Guyana Criminal Law Act (life imprisonment); sec-

tion9 Jamaica Oenses Against the Persons Act (life imprisonment); section154 Montserrat Penal Code (life

imprisonment); section5 StKitts and Nevis Oenses Against the Persons Act (life imprisonment); section93

StLucia Criminal Code (life imprisonment); section163 StVincent and the Grenadines Criminal Code (life

imprisonment); section6 Trinidad and Tobago Oenses Against the Persons Act (life imprisonment).

194 Criminal liability, ethics and integrity in sport

courts, though, as will be discussed hereafter, the courts appear to show a certain reticence to

entering convictions for these oences, typically countenancing the defendants’ reliance on the

defence of consent.

6.1.2 Non-fatal oences

In the Commonwealth Caribbean, the principal statutes that deal with oences of violence

committed in the sporting context are the respective Oences Against the Person Acts and

Criminal/Penal Codes. In general, these Acts prohibit various non-fatal oences that are com-

mitted in the sporting context, including common assault;6 assault occasioning actual bodily

harm;7 malicious wounding or infliction of grievous bodily harm;8 and wounding or causing

grievous bodily harm with intent.9 As an elementary matter, it should be remembered that

each of these oences require satisfaction of certain ingredients/elements,10 which the prose-

cution/Crown must prove beyond a reasonable doubt.

6 Section 221 Anguilla Criminal Code; section48 Antigua Oences Against the Persons Act (two years’

imprisonment); section25 Barbados Oences Against the Persons Act (two years on summary conviction

or 10years on indictment); section 314 Bermuda Criminal Code (one year); sections133 and 264 The

Bahamas Penal Code (three months); section44 Belize Criminal Code; section183 British Virgin Islands

Criminal Code (one year); section215 The Cayman Islands Penal Code (one year); section43 Dominica

Oenses Against the Persons Act (two months); section81 Grenada Criminal Code (three months); sec-

tion43 Guyana Criminal Law Act (one year); section39 Jamaica Oenses Against the Persons Act (two

months); section184 Montserrat Penal Code (one year); section40 StKitts and Nevis Oenses Against the

Persons Act (two months); section115 StLucia Criminal Code (three years); section192 StVincent and the

Grenadines Criminal Code (one year); section30 Trinidad and Tobago Oenses Against the Persons Act

(two years).

7 Section 222 Anguilla Criminal Code; section48 Antigua Oences Ag ainst the Persons Act (two years’

imprisonment); section26 Barbados Oences Against the Persons Act (two years on summary conviction

or 10years on indictment); section309 Bermuda Criminal Code (two years on summary conviction or four

years on indictment); section266 The Bahamas Penal Code (one year); section79 Belize Criminal Code

(one year); section184 British Virgin Islands Criminal Code (five years); section216 The Cayman Islands

Penal Code (five years); section48 Dominica Oenses Against the Persons Act (one year); section205 Gre-

nada Criminal Code (three years); section49 Guyana Criminal Law Act (five years); section43 Jamaica

Oenses Against the Persons Act (one year); section185 Montserrat Penal Code (five years); section45

StKitts and Nevis Oenses Against the Persons Act (two years); section97 StLucia Criminal Code (two

years); section193 St Vincent and the Grenadines Criminal Code (five years); section30 Trinidad and

Tobago Oenses Against the Persons Act (five years).

8 Section 204 Anguilla Criminal Code; section22 Antigua Oences Against the Persons Act (five years’

imprisonment); section17 Barbados Oences Against the Persons Act (10years on indictment); section306

Bermuda Criminal Code (seven years); section271 The Bahamas Penal Code (18 months); section80 Belize

Criminal Code (two years); section164 British Virgin Islands Criminal Code (five years); section204 The

Cayman Islands Penal Code (seven years); section22 Dominica Oenses Against the Persons Act (two

years); section206 Grenada Criminal Code (five years); section50 Guyana Criminal Law Act (five years);

section22 Jamaica Oenses Against the Persons Act (three years); section164 Montserrat (five years); sec-

tion19 St Kitts and Nevis Oenses Against the Persons Act (two years); section174 StVincent and the

Grenadines Criminal Code (14years); section14 Trinidad and Tobago Oenses Against the Persons Act

(five years).

9 Section 203 Anguilla Criminal Code; section 20 Antigua Oences Against the Persons Act (15 years’

imprisonment); section16 Barbados Oences Against the Persons Act (10years on indictment); section305

Bermuda Criminal Code (10years on indictment); section 270 The Bahamas Penal Code (seven years);

section81 Belize Criminal Code (five years); section163 British Virgin Islands Criminal Code (life impris-

onment); section203 The Cayman Islands Penal Code (life imprisonment); section20 Dominica Oenses

Against the Persons Act (10years); section208 Grenada Criminal Code (15years); section57 Guyana Crim-

inal Law Act (life imprisonment); section20 Jamaica Oenses Against the Persons Act (life imprisonment);

section163 Montserrat Penal Code (life imprisonment); section17 StKitts and Nevis Oenses Against the

Persons Act (10years); section99 StLucia Criminal Code (20years); section173 StVincent and the Grena-

dines Criminal Code (life imprisonment); section12 Trinidad and Tobago Oenses Against the Persons Act

(14years).

10 See, for example, R v Sloane (2010) ONCJ 58 (CanLII). Here, the accused player, in the context of a football

match, was attempting to play the ball, when he lost his balance eectively when he put his leg forward