In this post, I want to contrast two one-week bans for players using the boot on an opponent, as much to highlight the importance of publishing decisions as anything else.
In what was, even by the high standards of that fixture, a remarkably bad-tempered West Wales derby between the Ospreys and the Scarlets, Rhys Webb, the replacement Ospreys scrum-half, stamped several times on a Scarlets player. You can see it HERE. Although missed at the time, it was cited later, and he received a one week ban.
The minimum ban for stamping is two weeks. Webb got less than the minimum. And the thing is, because the RaboPro12 does not publish decisions, we have no idea if the minimum ban regulation was properly taken into consideration, what was argued, whether they were just plain wrong in breaking the IRB Regulation in going below the minimum - we don't know. It's a black box, and remarkably unsatisfactory, not least for those in other teams who want to know where the boundaries of rucking as opposed to stamping are.
By contrast, the ERC is meticulous about publishing. So, let us contrast the opaque Pro12 with the transparent HEC. About seventy minutes into the Edinburgh-Munster game in round five of the HEC, Sean Cox of Edinburgh followed through and clipped Ronan O'Gara of Munster with a lateish shoulder. O'Gara promptly became furious, followed Cox, and threw a boot at him, bringing him down. You can see it HERE. O'Gara was cited for it, and received a one-week ban - less than the minimum ban for this offence.
I should, at the outset, repeat that I am an unabashed Munster supporter; at matches, probably unabashed at volume levels comparable with a 747 on takeoff. I have been a fan of O'Gara since he was playing for PBC, then UCC, and on up the rankings; for some 20 years now, the fortunes of teams I support have depended on him, and he has delivered time and again. Therefore, I am fully aware that I may well not be coldly objective on this, despite my best efforts; but the decision raises some very interesting issues, so it has to be discussed, warts on the discussion and all.
You can read the decision, by his Honour Judge Jeff Blackett, HERE. It's short, but very interesting. First, it accepts, in line with the Martyn Williams decision, that late shots, people swinging off you or those out to get a response can be provocation. It will not excuse retaliation - the learned judge makes that very clear at the end of the decision - but it will be taken into account. It's clear that this is an emerging viewpoint, and contrasting it with the approach taken by the same judge in O'Connell makes for a neat counterpoint.
Secondly, it deals with the question of what is "wholly disproportionate" under the new Regulation 17; indeed, it's the key issue in the decision, as from the outset, that was the plea made, that the minimum ban would be wholly disproportionate. The disciplinary officer submitted that this should be considered solely in light of on-pitch events. In that submission, he was, I would say, wrong; to go below the minimum, there is a two-part test, involving it being wholly disproportionate but also that there are compelling off-pitch reasons. In other words, it is not limited solely to what happens or happened on the pitch.
The learned judge started at the minimum ban of four weeks; so far, so good. He then reduced it by 50%, examined the remaining two weeks, felt it would be wholly disproportionate and reduced it to one week. This, I would say, was an error, because it was back to front. The maximum mitigation is 50% of the relevant entry point, but even then one cannot go below the minimum ban unless wholly disproportionate, at which point, if it is wholly disproportionate, one is at large on sentencing. The learned judge put the cart before the horse on this; it should have been:
Minimum - wholly disproportionate, Y/N? If Y, mitigation up to 100%, if N, minimum.
Instead, it was:
Minimum - Mitigation of 50% - Wholly disproportionate, Y/N? Y, so mitigation.
It ended up at the same result - if the learned judge felt that a sentence over 1 week was wholly disproportionate, gave his reasons and was not irrational, that's what the sentence would have been through either route - but through the wrong route. It is, however, a good example of what I've described as an error within jurisdiction; it was wrong, but it made no odds, so it would not be upset.
The main thing is, it sets out the reasons, and one can see them, and get guidance as to what may or may not be wholly disproportionate in the future. The contrast with the Pro12 could not be clearer.
There is no reason not to publish. If a decision is right, then let people see it, let them read it, and let them learn from the precedent. The ERC's success in largely stamping out tip-tackles in this year's HEC should be a testament to just how effective that can be.
Speaking of stamping out, there'll be another decision on the subject coming out of the Ireland-England Six Nations game. Of which more in due course...
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