Minimum Bans - Dead Again?

Last year, the IRB announced changes to the disciplinary regulation, Regulation 17. You can read the press release HERE, and the new Regulation it linked to HERE. It announced, amongst other things, that minimum bans would mean minimum (and that all parts of Regulation 17.19 were core principles of the system); the relevant portion was Regulation 17.19.6 which said:

Subject to Regulations 17.19.7 and 17.19.8, for acts of Foul Play the Disciplinary Committee or Judicial Officer cannot apply a greater reduction than 50% of the relevant entry point suspension and nor can it/he apply a reduction that would mean the suspension imposed is less than the relevant lower end entry point suspension. In assessing the percentage reduction applicable for mitigating factors, the Disciplinary Committee or Judicial Officer shall start at 0% reduction and apply the amount, if any, to be allowed as mitigation up to the maximum 50% reduction. [Emphasis added]

I wrote several blogposts on this. In November last, Adam Thomson's one-week suspension was appealed by the IRB on the basis that it was less than the minimum ban, and that appeal was successful. That was discussed HERE.

Yet, looking at the latest IRB Handbook, which you can read HERE, and which is dated July 31st, and the Regulation 17.19.6, in that, it makes no reference to the minimum-means-minimum bit. It now says:

Subject to Regulations 17.19.7 and 17.19.8, for acts of Foul Play the Disciplinary Committee or Judicial Officer cannot apply a greater reduction than 50% of the relevant entry point suspension. In assessing the percentage reduction applicable for mitigating factors, the Disciplinary Committee or Judicial Officer shall start at 0% reduction and apply the amount, if any, to be allowed as mitigation up to the maximum 50% reduction.

As you will see, the reference, bolded in the first quote, to not going below the entry level has disappeared entirely.

Looking at decisions from the IRB Junior Rugby World Championship, those seem to be working on the basis that one can go below the minimum, entry-level ban. So, in the Luan de Bruin case, which I mentioned in THIS post and which you can read HERE, it talks about a reduction not below the entry level where it was wholly disproportionate, but below 50% of the minimum.

13. In respect of sanction, I accept Mr. Swart's submission this is an appropriate case whereby the Judicial Officer could have invoked Clause 11.10.7 of the Tournament Disciplinary Programme which permits the imposition of a sanction less than 50% of the lower end entry point sanction where there are both off-field mitigating factors and the sanction would be wholly disproportionate to the level and type of offending involved. 

And that was Tim Gresson, Chief Judicial Officer of the IRB, who pretty much by definition knows the regulations. Similarly, in the Hadleigh May case, which you can read HERE, the sentence was less than the minimum. Those cases were in June. In August, Leonardo Senatore of Argentina just got nine weeks for biting Eben Etzebeth of South Africa when the entry-level - what would have been the minimum - is 12 weeks.

If the minimum ban provision was in place in November, but not in June, then if it was changed it must, logically, have been changed between November and June. Back in February, in the Webb  and O'Gara cases, which I discussed HERE, the minimum ban provision was discussed in depth by His Honour Judge Jeff Blackett, so it must have been in force then. There may well have been an announcement which I missed; but I have looked through the media section of the IRB website back to last November when Adam Thomson's decision was appealed, and have seen no announcement that a core principle of the disciplinary system was being changed under a year after it was introduced.

So, one has to ask: first, has it been officially changed? Second, if so, why? Third, why so soon after the IRB took the unprecedented step of appealing a citing decision on the basis of the core principle? And fourth, if it was changed, why on earth was so important a change not announced the way that the change to that system was announced?

It is, to say the least, odd. If I find out any more on it, I will certainly update this.

Update: Brett Gosper, whose willingness to engage and respond to queries is, as always, exemplary, has confirmed that the minimum-means-minimum change was made at the IRB Council meeting on the 28th November 2012. It would seem that the reference to wholly disproportionate in the O'Gara case in February was in this light. The only seeming reference of any kind to this at the time, one week after the IRB had appealed a citing decision for the first time to enforce this minimum ban rule, was one paragraph tucked away in THIS:

The IRB Council also approved minor revisions to Regulation 17 governing illegal and foul play. The revisions address interpretation matters following the introduction of the restructured Regulation in June of this year.  

In terms of clarity, it's a long, long way from the clear announcement of five months earlier. In fact, it actually says nothing about deleting the product of the IRB Morality Conference that had, in Thomson case, been making headlines all that week, and which had attracted a fair degree of praise in turn when the IRB stood over making its regulations against foul play meaningful. Why this coyness, so soon after standing over the change, one cannot say. So, on the list of questions above, the answers would seem to be: yes to the first, and even more head-scratching as to the rest.