Sport, Physical Recreation and the Law

Hazel Hartley

• Publisher: Routledge
• Year: 2009
• ISBN:
  9781134355709
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

It is important for anybody involved in sport and physical recreation to be aware of the legal context in which their activity takes place, to develop an understanding of their legal responsibilities and to know what might happen if something goes wrong. Sport, Physical Recreation and the Law is the first textbook on this difficult subject for students and practitioners in sport and physical recreation.

Covering a wide range of legal principles and cases, this textbook introduces the reader to legal systems, terminology, databases and the use of case law. Designed to encourage analysis, reflection and the application of examples and ideas from the reader's own experience, the book clearly and comprehensively explains key topics such as:

• socio-legal aspects of sports violence and criminal liability
• negligence and defences against negligence
• manslaughter by individuals and organizations in sport
• principles of natural justice, disciplinary tribunals and doping
• discrimination, harassment and child protection
• risk management, statutory duties, and breaches of health and safety
• criminal liability – recognized sports, hazing, and cage fighting.

Including over 300 exercises, hypothetical scenarios, investigative tasks and seminar activities, this book is an essential course text for all students of sport, recreation and the law, and an invaluable reference for coaches, physical education teachers and those who play, lead or organize sport and physical recreation.

1 Resources at your finger tips: a guide to legal sources, databases and organisations

Introduction

Library staff in universities often advise academic staff that students under-use the range of print, media and electronic sources available to support their studies. Academics also try to encourage students to increase their engagement in the recommended reading for their modules. In the area of law applied to sport, physical education and recreation, there are a range of academic disciplines or fields of study which can make a contribution – such a sociology, psychology, management theory, policy, philosophy, social work, sport science, leadership and coaching theory. The print, media and electronic sources which can support this area of study are very wide-ranging and might not be pigeon-holed in one subject or location. Sources do not have to be titled law, sport and physical education or physical recreation to be relevant to those areas of study.

This chapter is designed as a basic introduction to a range of print, electronic and media sources and databases. It can be used to:

• prepare you for the rest of the text – with exercises relevant to subsequent chapters
• orientate yourself with legal system terminology
• support distance learning in advance of, or part of, a course or module
• support directed learning within a module
• orientate you to legal databases and other sources as part of a specific library induction at course or module level¹
• build up your confidence and skills in the searching and use of print, media and electronic legal sources
• encourage you to find out about applied law by locating the people who work and teach in this very exciting and relevant subject
• encourage students, partners and practitioners to contribute ideas for resources which can be used for future modules
• identify sources and websites or locations which might be used in or as a link to Web CT or X-stream or other technology-enhanced learning.

This chapter is divided into three parts. Part one introduces criminal and civil law and the court systems and terminology. It introduces you to searching for legal cases and statutes, using such systems as Lawtel or Westlaw UK. It also covers the use of legal journals, and highlights some useful law study books and revision texts, which can help you to dip into clear summaries of topics where they need a concise summary of a more generic area of law. Part two lists some examples of sport, recreation, physical activity and the law, texts and journals in legal and other disciplines. Part three introduces you to some useful websites and other sources on organisations, people and the media. It will make the very pertinent point that one of the most important, valuable and relevant sources is you, your experiences, observations, reflections and the chain of thought and possible application to sport and physical education, which come into your mind as you read and discuss aspects of law with your peers and lecturers.

Part one: making sense of court systems, legal databases and law texts

Understanding court systems in criminal and civil law

’Definitions of crime and criminal law differ according to economic and ideological circumstances and may be influenced by prejudices and stereotypes’ (Fitzgerald et al., 1981; Edwards, 1984²). An obvious and minimalist definition of a crime is that which is ‘prohibited by the criminal code’ or ‘what the law says it is’ (Fattah, 1997: 30). A crime can partly be understood by the nature of the threat and who should deal with it. Criminal liability is imposed on ‘conduct felt to be against the general interests of society’ as we cannot have people attacking or killing other citizens, stealing their car, trespassing on or breaking into someone’s property and stealing their belongings (Elliot and Quinn, 2006: 1). Criminal conduct is ‘such a serious danger to society that, in the public interest, the state must bear the full responsibility and costs of providing a deterrent and following through all stages of implementation’ (Hartley, 2001b: 30). Crimes, usually categorised as offences against the person, property or the state, are not considered private matters which can be settled between parties (see Drewry 1975; Jefferson, 1992).

The Crown Prosecution Service, provided with relevant evidence by the police, can recommend whether or not to proceed with criminal charges and usually bases such decisions on three prosecutorial principles. It should be in the public interest to proceed with the prosecution. In addition, there should be sufficient corroborated evidence and a realistic chance of a conviction. Once a crown case proceeds, the alleged victims and defendants cannot change their minds and withdraw the charges or stop the proceedings. A crime has three elements. The mens rea is latin for ‘guilty mind’ and refers to the mental element, or state of mind of the person committing the crime, such as intention or recklessness (Elliott and Quinn, 2006). The actus reus requires proof that the defendant’s conduct caused the harmful result, related to the circumstances and consequences. Finally, there is no lawful justification, defence or excuse (such as consent, provocation or diminished responsibility, depending on the offence).

In criminal cases the prosecution must prove their case, in both the mens rea and actus reus so that the magistrate or a jury are satisfied ‘beyond reasonable doubt’ of their existence (Elliott and Quinn, 2006: 9³). The punishment by the state can be a range of things from imprisonment, fines or community service, depending on the offence and sentencing policy and guidelines at the time. A selection of illustrative crimes in sport and recreation contexts will be covered in Chapters 4, 6 and 7 of this text. A range of crimes of assault arising from the Offences Against the Person Act 1861 will be covered in Chapter 4. Breaches of statutory duties in health and safety (criminal offences) are applied to sport, physical education and leisure contexts in Chapter 6. Manslaughter by individuals and corporations in sport, education and leisure contexts is the main focus of Chapter 7. The terminology in criminal cases is different from civil law cases. For example:

R v Kite, R v Stoddart, R v OLL Ltd (unreported, 9 December 1994, Winchester Crown Court, Ognall J)

R stands for ‘Regina’ – the Queen [the embodiment of the State] v (versus) the named defendant. Sometimes the report of the case will just name one of the parties, for example R v Kite or R v Kite and others. This is then followed by the date the case was decided, the court where it was heard and the name of the judge; for example, Ognall J or Mr J (Justice) Ognall. The criminal cases covered in this text are usually heard in a court of the first instance – one of the crown courts divided into six ‘circuit’ courts, heard by circuit judges or recorders (part-timers). The Queen’s Bench Division (QBD) of the High Court can hear appeals from a magistrates’ court. The Court of Appeal (Criminal Division) has 37 Lord Justices of Appeal (LJJ) and cases are usually heard on matters of fact, law and sentence, by one Lord Justice (LJ) and two High Court judges, although five judges hear very important appeals (Darbyshire, 2007: 3⁴). The Civil Division of the Court of Appeal hears appeals from the Chancery, Queen’s Bench and Family Division, county courts across England and Wales, as well as appeals from certain Tribunals (HM Courts Service see http://www.hmcourts-service.gov.uk/).The highest court in domestic criminal law is the House of Lords Appellate Court where there are 12 Lords of Appeal. These ‘Law Lords’...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• List of cases
• Foreword
• Acknowledgements
• Abbreviations
• Introduction
• 1 Resources at your finger tips: a guide to legal sources, databases and organisations
• 2 Taking reasonable care? Principles of negligence in sport, physical education and recreation
• 3 Taking care of ourselves in sport: volenti non fit injuria, contributory negligence and occupier’s liability
• 4 Sports violence and criminal assault: a socio-legal perspective
• 5 Discrimination, harassment and child protection in sport and physical recreation
• 6 Safe in our hands? Risk management and breaches of health and safety: learning from cases and incidents
• 7 Causing and investigating death: an overview of selected manslaughter cases
• 8 Natural justice principles, sport disciplinary processes and key doping cases
• 9 Unfinished business? Legal reform on offences against the person: implications for sado-masochism, sport, hazing and cage fighting
• Personal reflections of a book journey: opportunities for applied teaching of legal aspects of sport and physical recreation
• Notes
• Bibliography