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.

No comments:

Post a Comment