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Criminal Nuisance Prosecutions in Recreation: Cause for Concern?

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What counts as a crime is defined by legislation and by the courts, and the range of events considered criminal has recently been widening into the recreation domain. Section 145 of the Crimes Act 1961 states, under the heading “Criminal Nuisance”, that “Every one commits criminal nuisance who does any unlawful act or omits to discharge any legal duty, such act or omission being one which he knew would endanger the lives, safety, or health of the public, or the life, safety, or health of any individual” (Crimes Act 1961). Recent prosecutions under this section of the Act are of interest to recreation leaders and managers, but perhaps less so for the guidance they give than for the uncertainty they create. In this article I will refer to four recent cases (three prosecutions, and one police investigation that did not lead to a prosecution) and outline my reasons for considering the most recent prosecution (the Le Race case) to be particularly worrisome.

The Le Race Case.

Le Race is an annual, commercially organised, 100km cycling event that is pitched at suitably fit competitive and non-competitive adult cyclists who ride all or part of the way from Christchurch to Akaroa on Banks Peninsula (Le Race brochure, 2002). During the third Le Race, on March 31, 2001, a 31 year old female cyclist collided with an on-coming car and was fatally injured (Booker, 2002). The event organiser was convicted of criminal nuisance and fined $10,000.

The ‘nuisance’ with which the event organiser was charged was that, while she was in charge of a dangerous thing (that is, the cycling event), she failed to take reasonable precautions against endangering human life, an omission she allegedly knew to could be harmful to the public or any individual.

I am concerned about three aspects of this case. First, I am concerned that it signals a willingness by the police to prosecute in situations where there are no standard common practices to guide recreation organisers. To my knowledge, previous convictions for criminal nuisance arising from duties whilst in charge of dangerous things (i.e. recreation events) have focused on breaches of official safety requirements or commonly accepted modes of operation. These cases have involved tangible ‘things’, such as safety barriers and safety harnesses. In Le Race, there is no official requirement or standard common practice involved and the focus is on the safety briefings given to participants and how those briefings were, or could have been, interpreted by participants.

My second concern is with the issue of allocation of responsibility between the parties involved in recreational activities. Generally speaking, recreation and event organisers can and should be held primarily responsible for the activities they run but there are some things over which they may have little or no control. Who should take responsibility for the consequences of recreation that cannot be controlled by the organiser? This issue demands careful attention from all who have interests in recreation.

The final issue concerns the guidance that the recreation community can gain from the Le Race case. Fatalities in recreation are always a concern and deserve careful scrutiny, but it is not clear in this case that the public interest was best served by a criminal prosecution.

I hope that this article will stimulate wide public debate that results, eventually, in both greater safety for recreation participants and greater clarity for recreation administrators in how to ensure that safety without irrevocably compromising the recreational values of the activities they offer.

Significant Departure

The Le Race case represents a significant departure from other recent cases involving serious injuries in recreational activities. In the Queenstown motor-race case (Molloy, 2001), the volunteer officials were found to have failed to ensure that safety barriers were effective. A rally car came off the track and struck spectators, two of whom died and two of whom were injured. The volunteers were charged with manslaughter, criminal nuisance and injury by unlawful act. (The charges were later dropped and a new charge of criminal nuisance was laid against the national body, Motorsport New Zealand, who pleaded guilty). An important aspect of this case was that Motorsport New Zealand had issued a venue licence for the race to Queenstown Classic Car Club, although, as later revealed, the Club had not complied with the new safety requirements of the national body (Molloy, 2001). In this case, there had been a clear failure to meet an official safety requirement.

In the Queenstown parapenting case, the parapente instructor failed to ensure that the client’s harness was secured; the client fell at least 10m and was seriously injured (Booker, 2001). The instructor was charged with criminal nuisance. Again, the case involved a clear departure from standard safety procedures. Parapenting, parachuting, rockclimbing and mountaineering are all examples of activities in which checking the harness is a well-established safety routine.

By contrast, a double fatality resulting from a school trip did not lead to a prosecution. In October 2001, two primary school pupils died as a result of a canoeing accident on the Clarence River. A Maritime Safety Authority investigation found that the there was insufficient skill and experience in the client group for the grade of river tackled, and that the effective 1 instructor: pupil ratio was not met,. (Maritime Safety Authority, 2001), however, no charges were laid. A police spokesperson is reported to have stated that the ’procedural shortcomings and policy deficiencies’ identified during the police investigation were not sufficient to attract criminal liability” (Conway, 2002). The fact that this case did not attract a prosecution makes it more difficult to understand why the Le Race case was taken to court.

What You Say and How You Say It.

In Le Race, the prosecution argued that the safety instructions given to participants prior to the event were ambiguous. The event organiser had issued safety warnings in the literature given to all participants (and verbally on the day (Anon, 2002b))2. The event brochure listed the rules of the race, including the following: “Competitors must follow the course set in this programme and must abide by the road rules at all times” (Le Race brochure, 2001). The race pack information sheet reinforced this message. Its first paragraph dealt with the start procedure and told cyclists to stay on the left hand side of the road during the first part of the race on a major inner-city road. It also stated: “On the rest of the course you must obey the road code. Do NOT go over the centre line” (Le Race race pack information sheet, 2001; original emphasis).

The third section of the information sheet was headed ‘Safety First’ and said, among other things, “Obey the road rules”, “Look out for each other and be considerate of other traffic” (Le Race race pack information sheet, 2001). In between the first and third sections of the information sheet, there was a section on ‘Sneaky Cyclists’– riders who had not officially entered the event. This section referred to “an official road closure” to weed out unofficial cyclists (Le Race race pack information sheet, 2001), and it was this reference that the prosecution claimed was criminally ambiguous (Clarkson, 2002), despite the clear statements in the preceding and following paragraphs. At the time of the accident, the deceased was said to have been cycling “within a metre to the right of the centre line” on the road (Clarkson, 2002) and was approaching a right-hand corner (Booker, 2002). The suggestion made for her cycling behaviour was that she understood the road to be closed.

Clarity of instructions to participants is definitely important in event organisation, but there are degrees of clarity and degrees of ambiguity. What the Le Case case leaves in doubt is just where the line can now be drawn on just how clear and unambiguous instructions have to be. Ex post facto judgement is insufficient. Event organisers need reassurance in advance that their documentation will stand the test of the law. As the law in New Zealand stands at present, criminal nuisance can arise from ordinary errors of judgement. In Britain, Canada and Australia, gross negligence is required. Recreation event organisers have good reasons to be worried.

Whose Responsibility?

Regardless of the way in which the Le Race safety briefings were worded, it appears that recreation organisers are expected to take responsibility for all possible consequences that may harm participants. While it is reasonable to expect high degrees of safety management in organised recreational events, I have to ask if participants themselves should not be expected to shoulder at least some of the responsibility for the consequences of participation. Where instructions for participation and safety information are provided, should participants be expected to be familiar with, and abide by, those instructions and that information? If the answer to this question is ‘No’, then we need to radically rethink the way recreation activities are organised and run.

In situations where the recreation organiser cannot have full control over the recreation acitivity, and where the recreational values of the activity would be reduced if external control were possible, should not participants carry some of the responsibility for consequences? Mountain biking, ice skating and snow sports are examples of activities in which the participant’s actions cannot be externally controlled without serious disruption to recreational values such as sensation-seeking and self-expression. At what point should at least some responsibility shift from recreation managers onto recreation participants?

It is reasonable to accept that the greater the degree of organisation in recreation, the greater the responsibility that ought to land on the shoulders of the organisers. If the organisers are volunteers, though, they may be unwilling to accept that burden of responsibility, especially if they fear potential exposure to criminal proceedings as a result. One implication of this is that recreation organisations will have to ensure that volunteer organisers and staff are well trained for the tasks they have agreed to undertake.

Another solution is professionalisation of recreation management and recreation leadership. There is already a trend in this direction and it may be strengthened by the threat of legal action in cases of accidental injury. Professionalisation can aid safety management, but it also usually brings with it increases in costs of participation, and therefore increases in inequality of access to recreational opportunities. Is this what we want for New Zealand society?

In situations where recreational events are not highly organised, allocating responsibility for consequences may be particularly troublesome. For example, tramping, mountaineering and kayaking clubs often run trips to various locations throughout the year, each trip led by an experienced member of the club. In some cases, the entire trip is ‘controlled’ by the leader, and in others the ‘leader’ arranges transport only, leaving all other arrangements up to individual participants. In these situations, who should be held responsible for adverse consequences? Prosecutions in the Public Interest?

According to McGonigle (1996), there is little public scrutiny of police decisions to prosecute, but there has been some critical commentary on prosecutions in recreation since the Queenstown motor-sport case. As Molloy (2001) asks, should the police be actively testing the limits of criminal liability for sport and recreation in the way they are? In her own words: “Should sport officials and administrators be protected from liability unless there is a gross and/or intentional breach of safety standards?” (Molloy, 2001).

The Le Race conviction has resulted in many recreational events either being cancelled or curtailed, at least temporarily. This means that some popular recreation opportunities for New Zealanders have been reduced. While it is in the public interest to prevent serious accidents from occurring, I have to ask if criminal prosecutions are the best means to achieve this in cases like Le Race? Is it in the public interest to curb physical recreational activities such as cycling, running, and mountain biking?

An alternative course of action, in cases where there are no defined safety standards is for investigative bodies other than the police to use their influence to get safety standards or guidelines established, and then for the police to prosecute those who fail to conform to the standards and guidelines. This would provide better guidance for recreation organisations and give them an opportunity to adopt the standards before being challenged by the law.

The Le Race conviction carried a warning for all who organise recreational events. I suggest that two important courses of action should be taken up. The first is to work towards ensuring higher standards of safety management in recreation, without compromising recreational opportunities. The second is to press for a review of the legislation relating to criminal nuisance. Readers are welcome to send comments on this article to Dr Lynch at lynchp@lincoln.ac.nz.

References

Anon (2002b) “Video shows safety talk”. The Press, 29.8.2002, Page A5.
Booker, J. (2001) “Pilot May Face Jail Term”. The Press, 25.9.2001, P1.
Booker, J. (2002) “Cycle Race Director ‘Threatened’”, The Press, 12.4.2002.
Clarkson, D. (2002) “High Interest in Case”, The Press, 28.8.2002, pA9.
Conway, M. (2002) “No Police Action on Drownings”, The Press, 13.8.2002.
Crimes Act 1961. (See also: www.legislation.govt.nz)
Le Race race pack information sheet, 2001. In the author’s possession.
Le Race brochure, 2001. In the author’s possession.
Maritime Safety Authority (2001) Report No. 01 2766, “Vessel Name: Lynne Cee”. Maritime Safety Authority website REPORT NO: 01 2766 - Lynne Cee (PDF 73KB)
McGonigle, S. (1996) “Public Accountability for Police Prosecutions”. Auckland University Law Review, 8(1).
Molloy, T. (2001) “Criminal Liability for Sporting Accidents”. The ANSLA Commentator (Australia and New Zealand Sport Law Association), November.

1 The adult:pupil ratio, per se, was appropriate, but two of the adults had insufficient skill and experience to be considered ‘effective’ instructors on the water. As a result, the standard instructor: pupil ratio was not met.
2 All participants signed an entry form saying that they agree “to abide by the event rules and conditions” (Le Race brochure, 2001).

Note

This article was written in 2003. Some information may become obsolete over time. Dr Lynch is currently collating a list of events which have been cancelled or otherwise changed due to liability issues. She adds the following note:

I am compiling a list of sport and recreation events that have been cancelled or altered since August last year after the conviction of Astrid Andersen for criminal nuisance. I would appreciate your assistance with this task.

If you know of any events (of any sort) that have been affected, I will be grateful if you would send the details:

  1. What the event is ? e.g. Le Race, cycling event
  2. Who the organiser is (or the organisation responsible for the event). Contact details will be appreciated.
  3. How the event has been affected ? e.g. cancelled, postponed, event activity altered, entry cost increased, sponsorship lost, etc.

Positive effects are also of interest.
The purpose of compiling the list is two-fold:

  1. To prepare material to support a possible future approach to change the law so gross negligence will be required before a conviction can occur (rather than ordinary negligence as in the Le Race case).
  2. For research purposes. It may be that you know of someone else also compiling a list of event affected by the Le Race decision. If so, please let me know so that the work involved is not duplicated.

If you have any questions about this message or compilation of the list, please contact me.

Many thanks,
Dr. Pip Lynch
Senior Lecturer
Environment, Society and Design Division
P.O. Box 84
Lincoln University

Comments

Attention Dr. Pip Lynch, I am

Noble Kiwi's picture

Attention Dr. Pip Lynch,

I am exceedingly interested in your paper and have posted a letter.

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