The decision is now available. What I want to do first is follow the classic legal structure, and, having set out the facts in the first part, set out the law in this one, before analysing the decision in the third (and I assure you, there's a reason why the turkey analogy leapt to mind).
The basic law on tip-tackles is Law 10 (4) (j). You can read it as part of Law 10, the law on foul play HERE. The law reads:
Lifting a player from the ground and dropping or driving that player into the ground whilst that player’s feet are still off the ground such that the player’s head and/or upper body come into contact with the ground is dangerous play.
So, to break that down into what criminal lawyers call the particulars of the offence - in other words, the pieces that must all be proven for the crime to be proven - a tip-tackle needs the following (and I've broken it down as far as possible, here, to give every opportunity to mount a defence):
1 - Lifting a player from the ground - and at this point I'll run ahead of myself and interject that it just says "lifting", not "lifting both feet"; and
2 - Dropping or driving the player into the ground; and
3 - While the player's feet are still off the ground - and this is why I ran ahead above; both feet must be off the ground, but not necessarily lifted by the tackler; and
4 - Doing it so the tackled player's head or upper body come into contact with the ground.
A couple of things: first, there is NO mention of "past horizontal" in the law. There used to be: it was changed back in 2009 in the new law 10 (4) (i) and changed again to the current Law 10 (4) (j) as of the start of December 2010. Now, there is nothing about past horizontal, vertical, or anything about the angle; it's whether the first contact is the the head or upper body while the feet are off the ground. "Upper body" includes an outstretched arm, as cases like Tuitupou and Cooper have decided.
Secondly, you do NOT have to lift both legs for an offence under this law, so long as both feet come off the ground. Just to take ERC cases in the last three seasons, cases where only one leg was lifted when the tackled player went off the ground include Bowe, Shingler, Marty, and Gough. Tuitupou and Brits were cases where no leg was lifted, but because the player was lifted off the ground, it was an offence.
Thirdly, and, crucially, you need to have all the elements for an offence.
So, to give an example: if I am the tackler and I lift the tackled player off the ground with the impact (1), and driving him into the ground (2) while both his legs are off the ground (3) and he comes down on his upper body (including hands) first (4), that's a penalty. Tuitupou is an example of that.
But if I lift the tackled player off the ground with by hooking a leg (1), drive or drop him towards the ground (2) while his legs are off the ground (3) but he comes down on his rear-end or flat instead of his upper body - well, he didn't come down upper-body first, so (4) is missing, so it's not a penalty. An example of a case just on that point is Tommy Bowe's case from December 2009, which you can read HERE (and to which I'll be returning in Part 3). And you can see a rather fine example of just that HERE on Quade Cooper in the RWC semi-final (in a digression, watching it again, it's great rugby by Kahui, and Cooper, who gets the ball back really well).
Similarly, if I lift both legs (1), drive to the ground (2) head or upper body first (2) and, by the time the head or upper body come into contact with the ground, one or both feet are on the ground, it's not a penalty, because (3) is missing.
Remember that checklist for part 3, because it will be crucial.
The next crucial piece of law is the 2009 memorandum on tip-tackling, which you can read HERE (and you'll note, by the way, the reference to Law 10 (4) (e) and "horizontal"; that's the old law, although the memo applies to the new one, 10 (4) (j), without any reference to "horizontal").
Crucial features of this would be first, intent is irrelevant; it is explicitly stated that referees and Citing Commissioners should not make their decision based on the intent. In other words, it is, in legal terms, a strict liability offence; an accidental one is as bad as an intentional one.
Secondly, one starts at a red card and works backwards: but if the particulars of the offence are there, it's never less than a penalty as a minimum.
Thirdly, there are three categories: what I'll refer to as Category 1 (driving into the ground - red card); Category 2 - (dropping with no regard for safety - red card); and Category 3 (all other offences - penalty or yellow card). Bowe is an example of a Category 3 case.
Those are the laws on the subject. They have been applied, with consistency and no small amount of rigour, since before the RWC. There are enough posts on this blog detailing that application; there have been five in the pool stages of the Amlin Cup and HEC alone, as well as the slew at the RWC.
One more crucial detail isn't strictly a law but a Regulation, Regulation 17. This is the Disciplinary Regulation, which sets out how citings are to be run, and you can read it HERE (and I'd recommend the full 65 pages if you're suffering from insomnia). The crucial point here is Regulation 17.11; the principle in the Laws that a referee's word is final is to be upheld wherever possible. If the referee has made a decision on-pitch, then under Regulation 17.11.4 (a), the citing hearing shall only make a different finding if it feels the referee was wrong in the reasons for that decision.
As the only reason they would make that decision is in upholding the citing, then the only reason a citing hearing can go against the referee is in upholding a citing. Now, remember that citings only arise when the referee has, at worst, given a yellow card (red cards are a hearing, not a citing); for a citing to be upheld, the offence must warrant more than that yellow card, it must be a red card offence.
So, if the hearing find that the offence does not meet the red-card threshold for upholding a citing, then it just dismisses the citing. It doesn't go into whether the referee's decision was right, it just dismisses the citing and moves on (again, Bowe give a flavour).
So, remember the four-part checklist; that you don't need to lift both legs so long as both feet come off the ground; the Bowe case; that citing hearings can only go behind the referee's decision; forget all about horizontal; and let's look at the decision in Part 3.