Friday, 8 June 2012
An ignoble day for the noble art
For Halsbury's Law Exchange
Recently on Halsbury’s Law Exchange Simon Hetherington wrote a thoughtful piece on boxing. He stated candidly at the outset that he was not a boxing fan. For my own part, I admit to being an inveterate fan of the sport, although I haven’t followed it closely for a few years now. Even the most avid boxing fan, however, has to admit that the activity gives rise to serious moral and legal questions. And even if one finds satisfactory answers to those questions in principle, no-one can be happy – from a legal, moral or sporting perspective – with the way in which boxing is run, as the embarrassing saga of the planned fight between David Haye and Dereck Chisora demonstrates.
The first question a lawyer might ask is why boxing is legal at all. Ordinarily, hitting someone with the intention to render them unconscious would amount to a serious criminal offence. The immediate riposte is that boxing is done by consent. But consent is usually no defence to a serious criminal offence, as the law student favourite of R v Brown  2 All ER 75 demonstrates. In that case the House of Lords found that the fact that the defendants had consented to sado-masochistic sexual activities was no defence to charges of unlawful and malicious wounding, and assault occasioning actual bodily harm (offences under ss 20 and 47 of the Offences against the Person Act 1861).
Is there a moral difference between damaging genitals for sexual gratification on the one hand, and damaging brains for sporting enjoyment, money and the entertainment of spectators on the other? If there is, it is not obvious. Of course, other activities (smoking or drinking for a start) and indeed other contact sports involve a risk to one’s health. But only in boxing (or the various forms of full contact martial arts, which incidentally are usually regulated even more badly than boxing) is damaging another person’s health the whole point of the activity rather than a risky side effect.
R v Brown was and remains a controversial decision, and one reached by a bare majority. For what it is worth, I think it was wrongly decided, and it would be interesting if someone challenged it with reference to the European Convention on Human Rights, under the right to a private life guaranteed by Art 8. But the case remains good law at least for now, and it is hard to square the underlying principle with the continuing legitimacy of boxing.
We therefore start with the fact that boxing is a moral and legal anomaly. How has it survived in an age of health and safety? I suggest there are four main reasons. First, it has the veneer of respectability conferred by the fact that it is a regulated activity. Secondly, it has been sanitised in the public eye by the Queensbury rules. Thirdly, it has a long history and accompanying tradition, which means there has been little public call for its abolition (though centuries of history and tradition did not save fox hunting). Fourthly, there is the natural resistance, particularly in England, to state paternalism - if people box voluntarily and with knowledge of the risks involved, most consider that it is not the state’s business to stop them (this being the chief reason why R v Brown remains controversial).
A side note should be made about the Queensberry rules. They were not the first attempt at boxing rules (for example, in 1743 a set of rules known as the London Prize Ring Rules were published), but they were the reason why boxing took on its modern form, with a fixed number of rounds for each bout, restricted target areas and forms of striking, and compulsory gloves. Ironically these were only partially successful. Although potential injuries must have been reduced by the restrictions on possible forms of hitting, it is generally held that the use of gloves has actually increased the risk of death or serious injury. This is because in bare knuckle fights contestants would damage their hands quite quickly, especially with head punches, which thereafter limited the effectiveness of their blows (and thus explains why fights would last for dozens of rounds). Conversely, with gloves hand injuries are rare, even over 12 round fights, meaning punches can be thrown with maximum force throughout. While gloves cushion blows they do not reduce their force; the same brain injury will occur even if superficial injuries such as cuts will be reduced. Thus the Queensberry Rules are a good example of the law of unintended consequences.
Then there are the boxing associations which act as the sanctioning bodies and award titles in each weight division. Nowadays there is any number of competing associations, whose proliferation has led to a sometimes comical devaluation of the concept of “world champion”. Many boxing fans will have never even heard of some of the fighters and some will not have even heard of all the soi-dissant authorities. So too with weight divisions: once upon a time there were only three (“heavyweight” started at ten stone ...) which was manifestly too few; nowadays there are manifestly too many.
Of greater legal interest however are the licensing authorities. In Britain the chief authority is the British Boxing Board of Control (BBBoC). Theoretically, only fights sanctioned by a recognised authority are lawful, although there are exceptions. The authorities seem to turn a blind eye to some forms of bare knuckle fights, for example, whilst two people who put on gloves and spar in an unlicensed gym will not likely attract the authorities’ attention either.
But let us return to licensing authorities and the gaping regulatory hole which Simon Hetherington identifies. His article was prompted by the forthcoming fight between Haye and Chisora. The fight is not being sanctioned by the BBBoC. Nevertheless it is taking place in Britain, apparently legally, because it is being sanctioned by another board, that of Luxembourg. Can it be right, Mr Hetherington asks, that one country’s authority can license a fight in another country, particularly when that other country’s authority has explicitly refused to sanction it?
One thinks immediately of the tragic end to the greatest of all boxing greatest careers, that of Muhammad Ali. By 1981 he was a washed up has-been, a shadow of his former self, yet continued to rage against the dying of his sporting light, like so many boxers before and since. He wanted to fight the journeyman Trevor Berbick. No regulatory authority in America would have anything to do with it. But the shameless Bahamian boxing authorities did sanction the fight, which went ahead and was, as everyone predicted, an horrific spectacle as the once-great Ali was hammered by the young journeyman Berbick. To add to the disgrace the Bahamian organisers were so inept that no stopwatch or bell had been officially provided: a watch had to be borrowed and then someone improvised with a cowbell.
That “contest” was bad enough as an instance of greed above all else. But imagine how much worse – indeed, absurd – it would have been if the fight had been held in America under the auspices of a foreign authority, against the wishes of the duly constituted American authorities? That is the scenario that is threatening to occur with the Haye/Chisora fight.
Admittedly Haye against Chisora does not have the feel of an imminent disaster in the way that Ali v Berbick did; both fighters are presumed competent. But it has only come about because someone has managed to persuade the Luxemborg authority (which has no professional fighters under its jurisdiction) to licence the fight and a German company to promote it – on British soil. The British board does not want the fight to happen. Its reasons are not the point – if one disagrees with them, then one should appeal, or apply to review the decision by way of judicial review. One certainly should not have the option simply to rope in some other licensing authority to circumvent the inconvenience of one’s own regulator.
If boxing is to have any credibility as a sport, let alone as an activity forming a glaring exception to the criminal law, then it has to be conducted in a respectable fashion. It does no one any credit or respect to be able to dodge the appropriate British regulatory authority on British soil with a small country’s equivalent organisation. It would be embarrassing in other sports, if one could find one in which it would happen. But in boxing it should also be illegal – not simply unlawful, but as illegal as organising a criminal activity, which, after all, is precisely what unregulated boxing amounts to.
According to recent press reports, the European Boxing Union has threatened Luxembourg with expulsion for licensing the fight. Let us hope it is prepared to carry through with that threat, and that the whole tawdry affair is thereby brought to a swift and appropriate conclusion.