Chris Ashton was yesterday handed a seven-week suspension by the RFU. It came as a result of the red card he received in a pre-season friendly match between Castres Olympique and his new club, Sale Sharks, on Friday 17 August, for a tip-tackle on opposition scrum-half Rory Kockott. Ashton pleaded ‘not guilty’ to breaching World Rugby’s laws on dangerous play.

This article will set out the facts before assessing the sanction given and the reasoning deployed, with regard to the circumstances of the case and existing precedents.

The Facts

In the 46^th minute of the game, Ashton caught the ball from a Castres box-kick and was promptly brought down (legally), before the opposition rucked over the ball, winning a turnover in the form of a penalty.

Ashton didn’t immediately release the ball despite attempts by Kockott to wrestle it from him. It is unclear from the footage whether there was any foul play by the Castres No.9, but he, too, was red-carded and has been banned for one week.

Clearly disgruntled, Ashton rose to his feet, deliberately picking up the scrum-half as he stood, flipping him over and throwing him to the floor. In other worlds, he tip-tackled him. Kockott landed on his shoulder, before also hitting his head on the ground.

A melee ensued (during which there was no further clear foul play) before the referee showed a red card to both players.

Footage of the incident is available here.

The Charge

The RFU charged Ashton with breaching law 9.18 of World Rugby’s Laws of the Game, which states:

“A player must not lift an opponent off the ground and drop or drive that player so that their head and/or upper body make contact with the ground”

The sanctions for disciplinary breaches have recently been reviewed, with the new guidelines effective from 1 August 2018 (RFU Regulation 19 Appendix 2). The bans for law 9.18 range from six weeks to 14+ weeks, with the maximum being 52 weeks.

The Decision

As stated above, the RFU’s independent disciplinary panel (“the Panel”) found Ashton guilty of the above charge, despite his plea of innocence, and gave him a seven-week suspension. He is free to play again on 9 October 2018, meaning he will miss the first six games of the Premiership and will be left with precious little time to impress England head coach Eddie Jones ahead of the November internationals.

The Panel held that the player’s actions had the potential to cause “serious injury” and, given the importance of preventing injury to others in the regulation of the sport, it was conduct which demanded sanction.

Given “the absence of injury and that the action was a result of a level of provocation”, the Panel found the offence to be at the low-end entry point for sanctions, meaning the starting point was six weeks. It found there to be no mitigating circumstances, while the player’s poor disciplinary record counted as an “aggravating feature”, which added an extra week.

Analysis

Overall, the reasoning of the Panel – to the extent that it was published – is sound, albeit that Ashton can perhaps count himself lucky not to have been banned for even longer.

Firstly, it is worth pointing out that the new sanctioning guidelines have increased the low-end entry point for this offence from four weeks to six weeks. As such, existing precedents – such as Freddie Burns (three weeks, 2017) and James Chisholm (three weeks, 2017) – are of limited relevance. Indeed, in both of those cases, the players also had good disciplinary records and pleaded guilty.

In Ashton’s case, the first point of note is that he did not admit the charge; he pleaded ‘not guilty’. Given the video evidence available, and the off-the-ball nature of the incident, this seems a bizarre decision. To this author, it seems clear that he was always going to receive a ban and, by pleading guilty, Ashton could have had it shortened by a week. As it is, he will now miss over a quarter of the regular Premiership season.

An interview from Sale’s director of rugby, Steven Diamond, suggests that Ashton’s legal team argued that he acted in self-defence, and that he was provoked. It is reported that Sale believe contact was made with Ashton’s eye area. The defence also seemed to note that Kockott was not actually injured in the incident.

The Panel stated that “provocation is not a defence to foul play”. This must be the correct position: it is one mirrored by the criminal law. Nonetheless, the criminal law also makes self-defence a “complete defence”. In other words, it results in a complete acquittal. However, its criteria are, therefore, restrictive.

To mount a successful claim of self-defence in English law, a defendant must show that, in response to an immediate threat of unlawful violence, they defended themselves by:

“us[ing] such force as [was] [objectively] reasonable in the circumstances as he [subjectively] believes them to be” (R v Owino [1996])

In Ashton’s case, two points stand out. Firstly, there is no clear evidence of what Kockott did to provoke him – there is certainly no evidence that contact was made with Ashton’s eye area. Secondly, the video shows that Kockott had stood up and did not appear to be engaging by the time Ashton tackled him. Therefore, at the time Ashton acted, there was no longer any immediate threat of violence; any supposed ‘attack’ was over.

As the Privy Council stated in Palmer v R [1971]:

“If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence…”

This must be the case here. It cannot have been “reasonably necessary” for Ashton to tip-tackle Kockott to the floor as, by that time, there was no need to defend himself. It was an act of retaliation, rather than self-defence. As such, the Panel were plainly correct to find that he had no defence. In any event, it is far from clear that a tip-tackle is a “reasonably necessary” or proportionate response to ‘contact with the eye area’.

Turning to the lack of injury; though the Panel used this factor to find that the offence was ‘low-end’, it is in truth of limited relevance. Ashton was lucky that Kockott was not injured. From the evidence available, it is clear that he either intended to injure him or at least was entirely reckless at to that possibility – it showed a total disregard for the player’s safety. The laws exist primarily to discourage foul play; conduct which is intentionally or recklessly dangerous. This author would argue that the Panel should have paid greater attention to the player’s mental state than the outcome.

It is also arguable that other aggravating factors were not taken into consideration. The ‘tackle’ was off-the-ball (an offence in itself under law 9.14), and it was also after the whistle, showing disrespect for the authority of the referee (an offence under law 9.27).

Furthermore, though some might consider the ‘friendly’ nature of the fixture to mitigate Ashton’s conduct, there is an argument to suggest it is actually aggravating. In a test match, for example, the players are under such pressure and tension that cracking and committing a rash act of foul play is almost more excusable. In a pre-season friendly, there was absolutely no excuse for Ashton to lose his head in such a way.

Of course, the Panel did consider there to be an aggravating factor: Ashton’s poor disciplinary record. Prior to the hearing, the Sale Sharks man had been banned for a total of 30 weeks throughout his (rugby union) career. When Dylan Hartley was given his latest ban in 2016, he was given an extra two weeks because of his record. The England captain did have an even worse ‘rap sheet’, with a total of 54 weeks, but Ashton can still consider himself fortunate not to have had a further week added.

Owing to the aggravating circumstances mentioned, and the player’s disciplinary record, this author would perhaps have added a further week or two to the ban. However, the Panel’s decision is certainly reasonable.

• This article has been amended to correct a publishing error. The original article suggested that the RFU does not publish fully reasoned decisions. However, this was an editorial oversight. The RFU does publish reasons after the initial press release, albeit often in a ´short form´ table format. It is submitted that these satisfy any requirements of a ‘duty to give reasons’, although a ‘long form’ written judgment is easier to follow and understand.