The best way to start off this one is with some clips (with thanks to those on Gwlad who've put them together).
Sean O'Brien hits Yannick Nyanga in the HEC semi-final - not cited.
Gavin Henson hits Alex Moreno - banned for seven and a bit weeks on appeal.
Richard Yapp hits Mick O'Driscoll - yellow card, but no citing.
Paul O'Connell hits Justin Thomas - red card, banned for four weeks.
The offence in each of these is the same; striking an opponent under Law 10 (4). In three of the four, it was hitting a player holding the other player back off the ball.
The sentences - or, indeed, whether cited at all - are wildly at odds.
To make the point even clearer, you have the difference between the cases of Richie Rees of the Blues and Mark Cueto of Sale.
So, what to make of this? Is there any pattern at all? And what does this mean at law for players who are up before the disciplinary beak?
Consistency is important in any disciplinary system. If it's not consistent, it's arbitrary; and if it's arbitrary, it's unfair (I've dealt before with why a disciplinary system in rugby requires fair procedure). Consistency does not mean the same result in every case, though; one size fits all is also unfair, as it pays no attention to the individual case. So, what does consistency mean?
This is an issue that's come up a lot in Irish law over the past few years (I should enter a note here that I have been involved in some of those cases). The two competing elements can be seen in two cases, Fasakin, and Itaire. In Fasakin, the late O'Leary J. said.
In Itaire, McGovern J. said:
The synthesis between the two is a Supreme Court case called Atanasov. In essence; for fair procedure, outcomes will not be consistent, because as individuals vary, so will their case. But fair procedure also requires what is considered in those individual cases and the way in which those cases are dealt with must be consistent.
So, all fine and dandy; but what does that mean in terms of citings?
If the same things are to be considered, and the same treatment given to each case, that certainly suggests that the threshold for a citing - whether a red card could be justified - should be the same in each case; and once that threshold is met, then the player should (indeed, must, for reasons I'll get to in Part II) be cited. Never forget, at a citing, the citing can be upheld, but no further action taken - as witness Jerry Collins' recent case. If the disciplinary hearing considers after hearing all the evidence that no further action should be taken, that's fair enough; but the same offence should still lead to the same citing once the threshold is passed. If one player is cited, when another player committing the same offence is not, that's inconsistent treatment; and the player cited has good reason to feel aggrieved.
There's no question - none - that striking can be punished with a red card. It happens, of course; I would go so far as to say every player has probably thrown a punch at some stage. But in each case a player takes his chances of being sent off when he does it, and knows it. So; a punch can be a red. Throw a punch and connect, it can be a red; which means it meets the citing criterion; which means consistency and fairness requires you should have to explain yourself in front of a hearing just as everyone else who throws a punch should.
Similarly, if and when it comes to sentencing, the same matters should be considered in the same way; whether aggravating or mitigating. The disciplinary regulation, Regulation 17, has a list of them; what is aggravating for one player should not be mitigating for another for the same offence.
To give a perfect example of this; for Alan Quinlan, being "old enough and experienced enough to have known better" was an aggravating factor; yet Schalk Burger having 50 caps was treated as being a mitigating factor for the same offence charged (and it is noticeable that after that, the IRB itself was moved to protest over inconsistency). That's as good an example of arbitrary inconsistency as could be asked for (and it's one which, I regret to say, has been repeated in the Cueto case).
As to what weight those mitigating or aggravating factors are given, that depends on the individual case; again, fair procedure.
So, it would certainly seem that in at least some of the clips above, consistency would have required that players be cited who weren't. What that inconsistency means for an individual player up before a hearing is for Part II.