The behaviour of Ben Flower three minutes into Saturday nights, Rugby League Grand Final between Wigan Warriors and St Helens has left many asking whether it is appropriate for Rugby’s disciplinary procedures to deal with the incident or whether in fact criminal charges should be brought by the Crown Prosecution Service.
TV footage clearly captured the violence wrought by Flower against St Helens player, Lance Hohaia who was knocked to the ground by Flower’s first punch. The second punch was delivered by Flower as Hohaia lay on the ground.
Whilst many a debate may now be had about the ‘cleanliness’ of the game, the lawyers amongst us look to the principles of implied consent to determine exactly how much physical contact can be justified in contact sports and when do matters cross from matters of discipline to matters of criminal prosecution?
Implied Consent
The principle of implied consent covers contact sports where matches are expected to include copious quantities of adrenaline fuelled physical contact between players and even injuries, some of which can be serious and life or career changing. It dictates that players offer their implied consent to such contact and associated risk by taking part in sporting events. A rugby player consents to the usual rough and tumble of the match, but arguably Hohaia could not have expected, nor therefore have consented to being knocked to the floor, and punched whilst led there entirely at Flower’s mercy.
So what is the difference between a, rough, illegal tackle and the actions of Flower during the match?
Sports commentators and fellow players seem to agree that the first punch was legitimate retaliation for Hohaia’s use of his elbow but that the second punch was unjustifiable. The law would suggest, in the absence of implied consent to this type of violence committed independently of any legitimate tackle, the matter crosses from a rough contact sport into a criminal act, one of assault.
Discpline or Prosecution
So who should be investigating and dealing with this matter? A similar incident on the street outside the stadium would clearly involve the police as investigators and the Crown Prosecution Service as decision makers and prosecutors of such matters before the Court system.
Prosecutions are brought against those in society for whom there is sufficient evidence to provide a realistic prospect of conviction in court and where it is in the public interest to prosecute.
The question here then becomes one of public interest.
That debate involves weighing up whether the public interest is served in criminalising such actions on the pitch or leaving rugby’s own disciplinary procedures to punish those responsible.
So far both players have been charged with offences that are being dealt with by the sport’s disciplinary panel. Flower faces Grade F charges of the most serious kind, ‘violent and aggressive punching on an off-guard opponent’ and faces an eight game ban. Hohaia is charged with a grade B offence relating to his initial use of his forearm in the face of Flower.
Would an appearance before the local Magistrates Court serve the public interest in addition to the professional disposals likely to be used?
Opinion will differ from person to person which highlights the potential difficulty generally in deciding what action is in the public interest when alternatives to prosecution exist. A wide range of factors can be considered alongside the stark evidence of the act itself when considering the public interest. These include the views of the victim and in this case may involve wider considerations including the nature and reputation of Rugby League as a sport.
In the meantime Flower has apologised for his actions.
An outcome to the disciplinary proceedings is awaited as is a decision from Greater Manchester Police.
Rachel Broughton,
Associate Solicitor
