A ‘Flowery’ reaction: Should Ben Flower be spending his six months on the sidelines or in the scrubs?

Friday 17 October 2014

Two years ago an amateur rugby player Jack Weston was jailed for six months after he punched an opponent so hard during an on-pitch row over a tackle that he broke his jaw. Contrast those facts with last Saturday’s Grand Final between St Helens and Wigan Warriors; Ben Flower punched Lance Hohaia with such vigour he knocked the New Zealander unconscious with a single strike.

Flower then proceeded to land a second blow on the defenceless Hohaia whilst he lay motionless on the ground.

Flower was charged by the Rugby Football League with a Grade F offence – the most serious in the sport’s disciplinary rules – of “violent and aggressive punching” and “punching an off-guard opponent”, a charge which carries a minimum of an eight-game ban. Flower has been given a six month ban which equates to the longest ban for such conduct in Super League history.

The incident has generated a massive talking point from those in the game, not least from one of the sport’s greatest players:- 

This statement raises the question as to why so few players have been prosecuted outside the laws governing their particular sport. The 44 days spent by Duncan Ferguson in Barlinnie prison in 1995 for headbutting Raith Rovers defender Jock McStay is one of the very few instances where an on-field incident in professional sport has resulted in a criminal conviction.

The police have confirmed they are examining the incident, although they have stated that they have not received any public complaints. Their investigation will require consultation between the relevant parties before deciding a course of action, which includes Hohaia, St Helens, the RFL and the Criminal Prosecution Service.

Criminal proceedings are generally reserved for the most serious situations as discussed above. The law is more commonly involved in civil claims where an action is brought by one player against another for negligence. In 2009 Everton striker Victor Anichebe settled out of court for a six-figure settlement in damages after instigating legal action over a tackle from Kevin Nolan that left Anichebe unable to play for 11 months.

The latin phrase Volenti non fit injuria means ‘no wrong is done who consents’. Therefore if you consent to the possibility of injury and you are injured then you cannot claim you have been wronged. This is a complete defence for a claim for negligence. So should the laws of the land be left on the touchline? Should consideration be given to the importance of protecting players from serious injury balanced against the reasonableness of finding another player liable? The case law surrounding these instances tells us that violent acts will trump an injured party’s consent. Where there is difficulty in application is across the spectrum of sports. What players will consent to in boxing, cage fighting and rugby is far greater than what players will consent to when they take to the field for a football match or game of cricket.

It is clear that away from the realms of professional sport there are clear examples of criminal sanctions intervening in cases of on-field violence. Rhys Garfield playing in the amateur Welsh leagues was jailed for 15 months for stamping on an opponent’s head back in 2006. Mark Chapman pleaded guilty to Grievous Bodily Harm in 2010 following a tackle made on opponent Terry Johnson and became the first Sunday league footballer to be jailed when he was sentenced to 6 months in prison.

It seems unlikely that Flower will face any criminal repercussions as on the day of the hearing at the RFL, Hohaia (who had earlier accepted a one-match ban for the forearm strike which sparked the incident) and his club St Helens made it clear there would be no legal action forthcoming.