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.

Sunday, June 23, 2013

James Horwill Citing.

Three minutes the first Lions test, James Horwill, the Australian captain, kicked Alun Wyn Jones in the face.

He was then cited for it. The decision came out today, and this is, I must emphasise, very much by way of a holding post, as I have not been able yet to get a copy of the decision by Nigel Hampton QC. The citing was dismissed.

However, there is a phrase quoted from the decision in reports of the decisions which gives very significant pause.

I found that I could not reject as being implausible or improbable Horwill's explanation that as he was driving forward with his right leg raised he was spun off balance through the impact of Lions players entering the ruck from the opposite side.
In an endeavour to regain his balance Horwill brought his right leg to the ground unknowing that Alun Wyn Jones' head was in that area, due to having his sight impeded by the presence of Michael Hooper and Tom Croft who were beneath him and over the top of Alun Wyn Jones. Due to these reasons I cannot uphold the citing.
Leaving aside one's view of how one squares the explanation with the action, it is the first paragraph that seems off. The standard of proof in a citing is the balance of probabilities - more likely than not. "Possible, but not in the least probable" is the classic formulation from Denning J. (as he then was, in 1948), of the much stricter test for criminal cases, of beyond reasonable doubt.

Applying a test of whether something is "implausible or improbable" is the standard for beyond reasonable doubt. Something doesn't have to be improbable to be less likely than not: if it's 49% likely, 51% unlikely, it's not at all improbable, but it hasn't met the test of the balance of probabilities. If it was dismissed on the basis of the criminal standard, that would be a clear error.

I am, expressly, reserving comment on this until I have the full judgement to hand, at which stage I will return to this. But at first glance, the use of phrases one would associate with a different standard of proof than should have been applied is one that would make one even more curious to see the decision in full.

Edit: one typo in the last paragraph fixed.

Update: The full decision is now available. You may read it HERE. However, the IRB have, in a new departure, also announced that the decision is being appealed by the IRB. It therefore seems appropriate that, lest in some small way it unfairly queer the pitch for either party, that I hold off on commenting on the decision in full until that hearing has been held, and then deal with this decision, and that of the appeal, together.

Sunday, June 2, 2013

Liability of amateur referees - Australia.

A physiotherapist in Australia is suing the New South Wales Rugby Union and a referee for injuries sustained when players ran into her.

Alison Donnan, a physiotherapist with Manly, ran onto the pitch (without being invited on by the referee) to tend an injured player. In the meantime, a free kick was taken, and in the ensuing play, players ran into her and she sustained injuries including three broken vertebrae. She is now suing the NSWRU and the referee for those injuries. You can read more HERE.

The injuries are real, and I have no doubt as debilitating as made out. But the question is, liability for those injuries. As the article makes clear issues of contributory negligence (run into the middle of ongoing play, you take your own chances) and vicarious liability are very much in issue (and given Agar v. Hyde was also an Australian case, it's one whose progress I'll be watching with interest). My interest is piqued not just by this but as much by wondering about whether the Irish legislation, if transposed to Australia, would usefully cover the point.

I wrote about that legislation HERE. Manly and Penrith being (as far as I am aware, and subject to correction) semi-pro, it seems the referee is also amateur (were he an employee of the NSWRU, then then vicarious liability would not be in issue). If similar legislation were in place in Australia, then normal negligence would not be enough to attract liability; it would need gross negligence, a much higher threshold to cross. If not now, it may well be something to which NSW and other Australian states may direct their minds in future.

It's a case that I will return to as it develops, because it could be a very interesting pointer to how liability of referees will develop in the Common Law world.

H/T to for first bringing this to my notice.

Dylan Hartley - Red Card.

In a game where the referee's word is final, and the referee's interpretation can decide matches, you have to wonder what's to be gained by calling him a f***ing cheat.

But that's just what Dylan Hartley did to Wayne Barnes in the Aviva Premiership final, gaining himself a red card, probably costing his team the game, and definitely costing himself a Lions trip with the ban of 11 weeks that followed.

There has been plenty written in this last week, in the run-up to the rugby-in-a-sauna first Lions game in Hong Kong, on Hartley's travails. Having written on deterrence of serial offenders before - HERE - a lot of it has already been covered. What I want to do in this post is look at three aspects of the decision, which you can read HERE. First, is the conduct at the hearing and how that was treated by the Tribunal; second in the light of that previous post, is deterrence; and third, which will link into the next post on Schalk Brit's embarrassment on creasing his Saracens team-mate Andy Farrell in Hong Kong, is the status of pre-season games for suspensions.

Hartley didn't deny saying the words, "f**king cheat"; he claimed he had simply said "f**king cheat", not "you f**king cheat", and that it was comment on the play of Leicester hooker Tom Youngs for an early drive (in passing, most rugby fans would acknowledge for Northampton to comment on an early drive from anyone is, in the immortal phrase from Apocalypse Now, like handing out speeding tickets at the Indy 500). Wayne Barnes was under absolutely no doubt that the comment was aimed at him by Hartley, whom he had warned about his conduct and comments as captain some two minutes previously.

Now, even if directed at Youngs, it's one of those comments that, when you've been warned, you might think, but shouldn't say. You certainly shouldn't say it looking at the ref, because that's asking for trouble. But the account given, in the words of paragraph 10 of the decision, "changed subtly"; at the hearing, Hartley there claimed not that he was speaking to Youngs, but that he was speaking to his loosehead prop about Youngs. The Tribunal was trenchant on this: "in our view, this is not a credible explanation". When one allows for the subtle manner in which judges with the experience of His Honour Judge Jeff Blackett couch matters, it's pretty damning: a comment like "the Player, on the other hand, has every reason to give an alternative explanation" is scathing, especially followed by:

We observed that this explanation changed subtly, no doubt after after he had examined the DVD footage showing that his eyes were not looking downwards.
In layman's terms, this is basically to the effect of: you're making this up. What is interesting in this light is the finding on sentence, where the Tribunal held:

By pleading not guilty the Player has not demonstrated any remorse nor can he claim any benefit from any of the other matters listed at mitigating factors. His conduct at the hearing was, however, impeccable – and that does deserve some credit because the Player was under enormous emotional pressure facing, as he was, a suspension which is likely to lead to him missing the Lions tour to Australia. That credit is one week.
This strongly suggests that when looking at the conduct at the Tribunal element of mitigation, what counts is not what one says, but how one says it. This would be to align rugby citing hearings very strongly indeed with an adversarial model of hearing, like a Common Law trial, and that's something to which I hope to return in the future. It certainly does not give any disincentive to running somewhat stretched cases as defences.

On which note of deterrence, the contrast between Hartley's previous two citings and this hearing is notable. His solicitor, Max Duthie - who presented the ERC case against Hartley in December when he was cited for striking Rory Best - made a plea in mitigation:

However, Mr Duthie suggested that the Player was not an offender against the laws of the game within the meaning of RFU Regulation 19 and there should be no increase in sanction from the entry point. 
This was the manner in which Hartley had been treated at his previous two citings. It didn't wash this time; he was treated as an offender, with brisk despatch.

We considered adding to that entry point on the basis that he is an offender of the laws of the Game. However, we determined that the positive aspects of his character should offset any increase.

It would have to be said that when a player has just been found guilty of his third red card-worthy offence in 14 months, it would fly in the face of reason to regard him in any other light.

Thirly, on the question of what matches are to count for suspensions, there was an interesting discussion in the decision about the Lions, in that players can frequently play more than one game a week and the Lions tour agreement requires citing hearings to reflect this. Although the Lions cover six weeks, the hearing found that "the Player may have expected to play in six of the matches and we have assumed that he might also be part of the match day squad for two other matches. This period, therefore, represents 8 of the 11 weeks of the suspension imposed." This is one that at first glance seems too light, but on reflection makes absolute sense. The aim of the Regulation on minimum bans is to reflect real bans from playing rugby. When a player, as on the Lions, is playing almost non-stop, then a shorter ban in time can actually be a much more severe ban in terms of rugby lost than a nominally longer one in time. It's sensible, and just; and some flexibility in a system is needed, a subject to which I intend to return in the future.

The interesting thing is that Northampton's pre-season games are assumed, automatically, to be meaningful ones which should count towards the sentence. This may well be the case, but it is that assumption to which I intend to turn in the post on Schalk Brits.