This summer, rugby has hit the headlines for many reasons – not all of them good. There have been a trio of incidents which have seen players charged with criminal offences, leaving something of a shadow hanging over the sport at a time when there has been plenty to celebrate.

Danny Cipriani (Gloucester Rugby), Amanaki Mafi (Melbourne Rebels) and Gordon Langkilde (Samoa 7s) have all come before criminal courts in the past two months, drawing much criticism. This article will seek to explain each of the charges, making a comparison with the level of violent conduct permitted on the field and considering the potential consequences that the players might face off it, both disciplinary and criminal.

Danny Cipriani

The most high-profile – though least serious – of the incidents was that involving England’s Danny Cipriani. The news that he had been arrested on a night out in Jersey was met by a collective sigh of disappointment, as many feared the worst.

It was reported that Cipriani was initially charged with “common assault, larceny, assault on police, resisting arrest and being disorderly on licensed premises”, but the fly-half ultimately plead guilty to ‘common assault’ and ‘resisting arrest’, and the other charges were dropped.

The Facts

The facts, as reported, seem to be that Cipriani was on a team night out when he became involved in a disagreement with a bouncer about taking his drink outside. The bouncer began filming Cipriani, at which point he pulled on the tie holding the camera. The police were called and tried to arrest him, to Cipriani’s confusion. In his own words, he sought “to hold off the police officers” for “a matter of seconds”, but “didn’t strike anyone”.

The Offences

The first offence, despite its general perception, does not necessarily require the defendant to have made any contact with the alleged victim. ‘Common assault’ was defined by the court in the case of Fagan v MPC [1969] as:

“intentionally or recklessly caus[ing] the victim to apprehend immediate unlawful personal violence”

It has been held that words or a merely threatening presence will suffice to make out this offence. It is the most minor of the ‘offences against the person’.

‘Resisting arrest’ is an offence under s.38 of the Offences Against the Person Act (OAPA) 1861 and will be committed where the defendant “assault[s] any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person”. With “assault” being defined as above, it is again clear that this offence can be committed without any real violence.

“Cipriani’s conviction consists of the sort of pushing and shoving which, on the pitch, is very much par for the course.”

The Consequences

As Cipriani pleaded guilty, his case was resolved quickly, and he was convicted of the two offences, handed a fine of £2,000 and ordered to pay £250 compensation to a police officer.

As the Sunday Times’ David Walsh wrote, the incident was really “the smallest storm in the smallest teacup”. While no criminal conduct can be condoned, and Cipriani was wrong to act as he did, the incident was perhaps not as serious as the length of the initial charge list seemed to suggest.

Of greater interest are the disciplinary consequences the player might face. Despite assuring Gloucester they would allow the club to conclude its own investigation, the RFU has charged Cipriani with “conduct prejudicial to the interests of the Game” under RFU Rule 5.12. The RFU has the power to do so by virtue of his registration as a player with the RFU.

There appears to be no precedent of individuals being charged with this offence after receiving a criminal conviction. No charge was brought by the RFU when Manu Tuilagi was fined for jumping off a ferry in New Zealand, nor when he was convicted of assault by beating, criminal damage and assaulting a police officer. Nor was the RFU involved when Cipriani and Danny Care were convicted of drink-driving.

It seems to be an unusual decision, therefore, for the RFU to charge Cipriani. His lawyers will certainly argue as such – until now, Rule 5.12 has been confined to incidents pertaining to the running of the game in the strictest sense. It is a particularly broad provision, so to extend its interpretation further would set a dangerous precedent.

Furthermore, it is arguable that the principle of ‘double jeopardy’ should apply – no one should be punished for the same or similar offence on the same facts. Strictly, this applies only to criminal law but, as a quasi-judicial body, it could be argued that the RFU should respect it too. Cipriani has been punished in a way the magistrate described as “more than sufficient”, so should be allowed to move on.

That said, Gloucester have exercised their power to discipline him, under his contract, by fining him £2000 and requiring him to undertake 10 hours of community service.

Under the RFU’s model player contract, Gloucester would have had the right to terminate Cipriani’s contract if they felt his criminal conviction “[did] or [was] likely to affect adversely the Club”, or if he was found “guilty of conduct which brings the Club or the game of Rugby Union into disrepute”.

Anything more than a slap on the wrist from the RFU now would, for this author, be disproportionate.

Amanaki Mafi

The Facts

Mafi’s case is altogether more serious. It was reported in July that Mafi and his Melbourne Rebels team-mate Lopeti Timani had been fined by their club for breaching protocol in a series of events which saw the former arrested in Dunedin, New Zealand. It subsequently emerged that Timani had been badly beaten by Mafi (see photo above).

According to Timani’s version of events, Mafi and Mafi’s brother attacked him after he said something rude in front of their sister. Timani was punched and knocked to the floor before fleeing the house bleeding. He tried to hide but was found by Mafi, who bashed him again before dragged him into a car. He eventually managed to escape but said “I thought I was going to die”.

The Offences

Mafi has been charged with the offence of “injuring with intent” under s.189 of the (New Zealand) Crimes Act 1961. This offence is committed where the defendant “with intent to injure anyone, or with reckless disregard for the safety of others, injures any person.” It is a serious criminal charge carrying a maximum prison sentence of five years.

The Consequences

At 28 years-old, the maximum punishment would almost certainly see the end of the Japanese international’s career. Of course, there could be many reasons why the maximum sanction is not given, and it is difficult to speculate as to what it will be.

Away from the criminal law, the player has already been fined A$15,000 by the Rebels, despite his departure to Japanese Top League side NTT Communications Shining Arcs. Indeed, he has also been suspended from team activities by his new club pending a verdict in the criminal case.

Australia veteran George Smith was sacked by Top League club Suntory Sungoliath earlier this year after being arrested for allegedly punching a taxi driver. He eventually wasn’t charged by police, but the ‘shame’ brought on the club was deemed sufficient to terminate his contract. If Smith’s case is anything to go by, Mafi stands little chance of remaining a Shining Arcs player, even if he avoids a lengthy prison sentence.

His international career, too, could be over, judging by the tone of this statement by the Japanese Rugby Football Union:

“Japan Rugby Football Union sincerely apologises for causing trouble and concern for all the rugby fans and others. We, as a governing body of the game in our country, have been working on educating and communicating [with] all people involved [in] the game of rugby in our jurisdiction to ensure compliance and integrity. We will do our best to prevent [a] recurrence [of] such incidents and pursue thorough[ly] the integrity policy continuously.”

It seems that the JRFU take a stronger stance on misconduct than the RFU. In 2009, Christian Loamanu was given a life ban by the JRFU after testing positive for Cannabis after a game, though it was lifted after five years.

If the player is found innocent – unlikely though it seems – such draconian punishment would, for this author, be disproportionate. However, if Timani’s allegations are found to be true, and Mafi is convicted, it would be difficult to argue with.

“I thought I was going to die.” – Lopeti Timani

Gordon Langkilde

The Facts

The final incident occurred in the tunnel at the Rugby World Cup Sevens in San Francisco after Samoa’s game against Wales. Langkilde allegedly assaulted three Welsh players, causing Tom Williams to suffer a broken nose and cheekbone and leaving two others injured.

Williams’ team-mate, Luke Treharne, said the attack was “unprovoked” and described it as “pretty shocking”. He claimed a couple of the Welsh players were “pretty seriously injured”. Luke Morgan, one of the players allegedly injured, said it was a “shot from behind”.

The Offences

According to the San Francisco Examiner, Langkilde has been charged with two counts of felony battery, one count of felony assault and one count of misdemeanour battery. The player has pleaded not guilty.

Under the California Penal Code, ‘battery’ is defined (at s.242) as:

“any wilful and unlawful use of force or violence upon the person of another”

This need not result in injury and need only consist of ‘unwanted touching’.

‘Felony assault’ or ‘aggravated assault’ is much more serious than ‘common assault’. In California, aggravated assault involves a clear intent to commit serious bodily injury to another.

The Consequences

The felony/misdemeanour distinction in US criminal law means that the penal consequences could vary greatly. If convicted of felony battery, Langkilde could spend up to three years in state prison. If found guilty of only misdemeanour battery – the less serious alternative – he could spend one year maximum in county jail. Felony assault could also lead to a prison sentence of over a year, while fines are also likely for each charge.

In disciplinary terms, Langkilde has already been suspended by the Samoan Rugby Union (SRU), and by World Rugby. Given the incident took place in the context of a rugby tournament, albeit not during a match, it is likely the player will also receive a playing ban – either from the SRU or World Rugby – depending on the outcome of the criminal proceedings.

However, an interesting point emerges: how does this incident differ from one of on-field violence?

In English law, following the case of R v Barnes [2004], violent on-field conduct outside of the rules of a sport will not necessarily be criminal. Lord Woolf CJ stated:

“In making a judgment as to whether conduct is criminal or not, it has to be borne in mind that, in highly competitive sports, conduct outside the rules can be expected to occur in the heat of the moment, and even if the conduct justifies not only being penalised but also a warning or even a sending off, it still may not reach the threshold level required for it to be criminal.”

This decision brought clarity to the law, even if it does leave a large grey area. Punches, even those which draw blood, are not necessarily criminalised when they take place on the field of play. Indeed, Cipriani’s conviction consists of the sort of pushing and shoving which, on the pitch, is very much par for the course.

The distinction is one of consent. Courts have consistently held that “conduct outside the rules can be expected to occur” and, as such, by choosing to play the sport, players consent to this, making it non-criminal.

But Langkilde’s case poses an interesting question: does this consent end once the whistle has blown? It is not uncommon for on-field punch-ups to carry on after the referee’s whistle – so maybe consent evaporates once the players have shaken hands? Or is it when they enter the tunnel? It poses a rather arbitrary distinction: something which may have been legal one minute previously can suddenly attract criminal punishment.

The answer is probably that, by the time the players are back in the tunnel, attacks of the nature seen here are not to be expected and, as such, should be criminalised. Nonetheless, the line is a difficult one to draw, and one with which the court in Langkilde’s case will have to grapple.