In 1823, William Webb Ellis first picked up the ball in his arms and ran with it. And for the next 156 years forwards have been trying to work out why. - Tasker Watkins VC, LJ.

Tuesday, August 28, 2012

The Strange Death of the Minimum Bans - Hartley.

Some games, I never want to watch again. This may explain the gap in dealing with incidents from them.

In this post, I want to return to a topic I've dealt with previously, the apparent death of the minimum ban - and what has happended since. You can read the previous posts on that HERE, HERE and HERE. These decision involves the England-Ireland 6 Nations game.

In the first, Dylan Hartley was charged with biting Stephen Ferris. Ferris complained about it on-pitch to the ref, Nigel Owens, who - quite reasonably - pointed out that he could see the marks, but he hadn't seen the incident, and he could only ref what he saw. After the game, which all went horribly wrong for Ireland, Hartley was charged with biting. You can read the decision HERE. There is a noticeable clash of evidence, and not one the decision makes any clearer, as it tries to accept two inconsistent accounts at the same time; however, despite the way in which the defence was run, it is clear that Hartley DID bite Ferris, and was so found to have bitten him. The interesting part is the sentencing.

Hartley has a previous sentence of six months for gouging two players in the one match. He denied the allegation, and fought it, hard, with no expression of remorse. A previous example of the sentence one would expect for this offence would be Danny Grewcock, convicted of biting Kevin Mealamu's fingers in the first Lions test in 2005 and who served two months as a result (Grewcock is now a member of the IRB's Morality Panel).. The minimum ban for this offence is 12 weeks; and a lesser ban than this minimum can only be imposed in exceptional circumstances, which I have dealt with in the earlier posts.

Now, the minimum ban has been under considerable attack for quite some time. But in this case, there was a new and dramatic departure. Despite the fact that previous offences must be taken into account, the Disciplinary Committee disregarded Hartley's previous six-month ban entirely. To put this into context, Paul O'Connell's case, the Appeal Hearing expressly found that full mitigation could not be given where there was a previous suspension and the allegation had been fought or there was no expression of remorse. In that case, the previous suspension was seven years beforehand, of three weeks; Hartley's was five years beforehand, for six months (and the East Terrace was somewhat droll on the topic).

Not only does this depart from the requirements of the previous judgements on minimum bans, as well as the plain wording of Regulation 17 as it the stood that the previous bans must be taken into account (there was discretion as to whether to regard them as aggravating, but all bans as an adult player had to be taken into account), it is so inconsistent with the manner in which mitigation has been applied in the past that either it is regarded as an outlier and entirely inconsistent, or else this style application of mitigation has now become entirely arbitrary and inconsistent between hearings. If it is this latter, that would be an open invitation for players whose livelihoods are, or could be, affected by such arbitrary hearings to go to Court on the matter.

Matters have, however, since changed. And it is this change that I want to look at in the second part of this post.