Now, just under a year later, he must be wondering why the hell he bothered.
In this post, I want to look at three recent tip-tackle decisions, all cited, and all dealt with differently; to examine those citing decisions in terms of consistency; and to tease out what this means in terms of disciplinary systems.
The three are: John Afoa, on Felix Jones in the HEC quarter final, which you can see HERE, HERE and HERE; Carl Hayman on Takudza Ngwenya of Biarritz in the Amlin Cup Final, which you can see HERE, HERE and HERE; and Manu Tuilagi on Danny Care in the AP Final, which you can see HERE and HERE (my thanks, again, to the posters on the Gwlad forum for the files).
The first thing to comment on is the remarkable similarity between all three in terms of the tackle: the tackled player is lifted, turned (in two, turned upside-down), and the tackler drops on top of him. In the case of Hayman and Afoa, even the number on their back are the same.
The referees looking at the offence were, respectively, Roman Poite; Wayne Barnes; and Barnes again. The on-pitch responses, were, respectively: advantage to the tackler's team; a yellow card; and a warning.
In the first, John Afoa tip-tackled Felix Jones of Munster. It was clear at the time, and commented on at the time, but the referee - Romain Poite - not only did not punish it, but gave a scrum to Ulster and, according to the decision which you can read HERE, claimed at the hearing that he did not see the incident because the Ulster loosehead was between him and the tackle (on which claim, the pictures HERE and HERE cast an interesting light, given that Court isn't even in shot). Afoa fought the case. Of interest in the decision is that the same line that was run in the Ferris decision - of which more HERE and HERE - was run in this case and (rightly) dismissed. It's notable that the issue of "not driving" was addressed, and also dismissed: the JO found that the weight of Afoa dropping onto Jones constitued driving Jones into the ground. If you think about it, this is sensible: after all, a tight-head dropping onto you into the ground will drive you into the ground a lot harder than just being dropped on your own from the same height, and is therefore clearly more dangerous. In dismissing this argument, the JO relied on and followed the precedent of the Ian Gough decision, which you can read HERE.
In the second, Carl Hayman. You can read the decision HERE. It was, in many respects, a near copy of the Afoa incident. What is of note is that the very eminent JO, Christopher Quinlan QC, who handled these cases at the RWC analysed the submission that merely dropping onto a player wasn't enough to constitute driving into the ground for the purposes of the Memorandum. He rejected that submission at page 14 of the decision.
He [Ngwnenya, referred to in the decision as "TN"] was not dropped in the conventional sense of the tackler letting go. The Player remained in contact with TN as he descended. By his contact with and his weight upon TN, he accelerated his decent. That is to drive for the purposes of Law 10.4(j). It is of some note that the Player also went off his feet, ultimately landing on top of TN. [Emphasis added]
In the third, Manu Tuilagi lifted Danny Care of Harlequins and dropped onto him. He was cited for this; and the case was dismissed. The Decision can be read HERE. It is, in many respects, a very precise analysis of the law on the issue, by, again, Christopher Quinlan QC. What is of note, however, is that the reason the case was dismissed was that it was felt that Tuilagi did not drive Care into the ground, but just fell on him; and that this was not enough to consitute "driving" for the purposes of Law 10 (4) (j). The decision turned on this point, but it is an approach entirely inconsistent with the ERC cases of Gough, Afoa and Hayman, and, moreover, at odds with what the learned JO himself held in Hayman, despite the claims to the contrary. When the being in contact and accelerating the descent by being in contact is driving in Hayman, it is simply not possible to square the quotation from Hayman above with the statement that:
In passing, it should be noted that when the decision refers to a lack of response from Care being indicative at a time of heightened sensitivity to tip-tackles, it appears to miss the Harlequins player who can be seen in the first clip clearly remonstrating with the referee about the tackle.It is correct that he remained in contact with him: he had his right hand under his torso and his head appeared to be in contact with the right side of DC’s torso. However, we were not satisfied that was driving him, even within the meaning of the ERC decisions in Gough 27 December 2011 and Hayman, 26 May 2012.
What is certain is that there is now a markedly different approach on what constitutes "driving" for the purposes of the laws in this between European competitions and English domestic ones. When consistency is being stressed, this difference is one which would need to be sorted out as soon as possible, not least for the players themselves; it does a player no favours to be sent off or cited in Europe for what he is left do in the Aviva Premiership, and all because he has become used to a seemingly-looser standard in England.
Quite apart from the issue of inconsistency in the approach of the judicial officers, there is also a worrying trend developing on the issue of "horizontal" which may also land players in trouble.
Tuilagi claimed, after being cleared, that "Danny didn't go above horizontal". It should be noted that while the DC hearing this mention that Care is flat as he hits - which is different from saying he never went above horizontal - they did not fall into the error made in Ferris and take this as meaning no tip-tackle occurred. Instead, as noted, it was the absence of dropping or driving that was crucial (which is not to say that they do not flirt with this on page 6 of the decision).
However, while one might say this argues that England coach Stuart Lancaster may not only have to explain that the law on that has changed but also work on his outside centre's awareness of angles, the fact that someone who is now a settled professional player can be labouring under this misconception as to what the law is argues the deterrent effect is demonstrably not working.
And it is this that is worrying. The tip-tackle Memorandum specifically stated that the failure to award on-pitch red cards was not working to prevent demonstrably dangerous tackles, that these tackles "must be dealt with severely by referees and all those involved in the off-field disciplinary process": and "that the lifting of players in the tackle and then either forcing or dropping them to the ground is dangerous and must be dealt with severely." As Lancaster fairly pointed out, in agreement with the ERC and IRB, there must be a deterrent and these are "red-flag" situations (nor is it just an NH problem, as the suspensions in the Super 15 have showed). Clearly, if players consider these "good" tackles, they are not learning from citings. Only on-pitch sanctions will work - as was recognised by the admonishment to referees to deal with them "severely" on-pitch.
And this is the danger for the game. It has here a situation where there is a clearly dangerous pattern, unquestioned and acknowledged as such (and mentioned in Hayman); where there is a need for deterrence; where the only effective deterrence is on-pitch; where this is necessary for player safety; and where the referees are persistently failing to apply that, then they are failing to apply a law for player safety which players are entitled to rely on for their safety. That may sound a familiar list for any readers of this blog, and there is a reason for that: those are the tick-list questions for liability from Smoldon v. Whitworth and Vowles v. Evans.
There is no rugby reason to turn someone upside down for a good tackle: arguably the opposite. Hold him up and frog-march him backwards, like THIS; or if you lift to stop, bring him down arse-first, as this - superb - tackle by Julian Savea on Rob Kearney in the summer shows. If players persist in doing something dangerous that is not necessary in rugby terms, then it needs to be stopped for player safety. That is up to the referees and the Citing Commissioners, as the IRB have told them. And if they won't, then the day that an injured player points out this failing in Court comes closer.
Edit: tidied up some broken link and punctuation, a correction as to the cases mentioned plus one small addition about the Harlequins player remonstrating.