Firstly, as promised on Monday, let me revert to Bundee Aki. As the ‘tackle’ went in I noted: “That’s bad”. On the replay: “Damn, it’s definitely a red card, no choice here.”
The judicial committee have listened to the arguments and decided.
There is an appeal process but I hope Ireland will accept things now. Maybe there's a legal loophole, I doubt it, but there certainly isn't a rugby one.
Over the last few days we have heard the Irish management suggesting the judicial committee might say “sending off sufficient”. That was the longest of long shots. It’s only been used once – for a red following two yellow cards.
For a proven red card at this level, it’s basically one choice for the judiciary – dismiss the card, or agree with it. They agreed and a logical suspension of six weeks, mitigated to three, followed.
I know some people aren't convinced. But, really, what would the opinions be if Johnny Sexton had been concussed out of the competition in a similar incident? I think I know the answer.
This, and other recent red cards, citings and player suspensions have brought the workings of Citing Commissioners (CCs) and Judicial Committees (JCs) into sharp focus.
It works as follows . . .
Whereas the TMO is the ‘sweeper’ for the referee, the CCs are the ‘sweepers’ for the TMO on foul play. But not every incidence of foul play is citable. The CC must decide that it passes the ‘red card test,’ i.e. would it have resulted in a red card if picked up by the match officials?
Once he cites, the CC has no further involvement. It goes to the judicial committee. These usually will be chaired by a QC or a judge. It’s high level stuff, designed to ensure equity.
Terms of suspensions are not hit and miss. Offences are categorised into levels of seriousness – low, mid, and high, each has a predetermined sanction.
The first decision is to decide if the citing is correct. Piers Francis of England saw his citing dismissed.
Is the system ‘fit for purpose’? I’m not so sure and unquestionably there are question marks. Some of the judgements astonish.
Consider that dreadful spear tackle by two Italian props. It was dealt with by an eminent committee made up of James Dingemans, Justice of the High Court, former Scotland coach Frank Haden, and former Wales player Olly Kahn.
Swallowed whole
Amazingly, they decided that this was low range because, among other reasons: “The dynamics of the tackle were affected by the actions of the other player for both players”. You’ll need to read that again.
In other words, neither knew what the other was doing – as if, and it’s an excuse? Apparently.
Worse 'because' follows – "and that there was no lasting injury to SA No.8 who was able to continue play". So, pure good fortune becomes a mitigating factor.
Actually, if they believe their own reasoning, then serious injury should not influence them. But, in that event, would they reason in the same way? I’ll bet.
The so-called tackle was also deemed to be ‘reckless’ not ‘intentional’. Yes, believe it, that was also in the judgement which ran to eight pages.
It all looks like a well cooked-up defence, chewed over, and swallowed whole by the judiciary. If there was a public prosecutor, he’d appeal. World Rugby could have, but haven’t.
Full mitigation of 50 per cent was then applied netting each player a paltry three-week suspension.
Mitigating factors were: both players said sorry to the SA player, and were genuinely remorseful.
Well, I’m sorry too – that can’t be right. And one of them contested that his involvement was not a red card offence.
So, all a player has to do is to be full of remorse, admit the offence (not much alternative when 15 cameras have you on CCCTV), and apologise. Be nice to the JC, and they’ll be nice to you, 50 per cent mitigation.
Players may not always admit the error of their ways. A Sydney QC arrived for Reece Hodge’s defence. That didn’t work, yet full mitigation was applied.
Every one of these high tackles have been judged as reckless, not deliberate; they have all had mitigation applied – even when the player has a failed appeal that has not been changed.
Samoan player Motu Matu’u contested on the grounds that his tackle on Russian Vasily Artemyev did not meet the red card test. He appealed, and lost. Yet, full mitigation applied.
The 10-page judgement included: “Where a player does not accept that the red card test has been met it might be thought wrong to allow a full discount . . .”
However, to be consistent with the Hodge case, full ‘discount’ was allowed,
“It might be thought wrong.”
That’s right – it is wrong.
Mitigating factors
Argentinian Tomás Lavanini's offence was mitigated also. The judgement states he apologised – texted Owen Farrell, pleaded guilty, showed remorse, and was of good character; while being probably the most carded player in Argentine history.
It’s all very admirable, and maybe sincere, but there’s a good outcome to it.
Hanging judges are not necessary, but procedures need to be robustly reviewed. Mitigating factors are too simple, and easy to meet.
The insistence that these tackles are ‘reckless’ but not ‘deliberate’ needs consideration. It’s a convenient way of keeping away from high-end sanctions. It’s bad policy to wait for a serious injury, which is the way it can be interpreted though, I can accept, not intended.
The process, involving referee, TMO, citing, judicial, cannot fall – or be seen to fall – at the final hurdle.
Meanwhile, the referee appointments for the quarter-finals have followed what we anticipated. Barnes, Garces, Peyper – and Nigel Owens will referee Ireland v New Zealand. Congratulations and all the best to them. Let's hope for great rugby, devoid of controversy.
The tournament needs it.
Owen Doyle is a former Test referee and former director of referees with the IRFU. He will be writing for The Irish Times throughout the World Cup
