RUGBY FOOTBALL UNION

At: On:



DISCIPLINARY HEARING Holiday Inn, Filton, Bristol



Tuesday 5 April 2016 JUDGMENT

Players: Club: Match: Venue: Match Date: Panel:



David Wilson and George Kruis



Bath Rugby/ Saracens Bath Rugby v Saracens (Aviva Premiership)



Recreation Ground, Bath

1 April 2016 Christopher Quinlan QC (Chairman) Gareth Graham and Derek Webster

Present:









David Wilson (‘DW’) Damian Brown QC, Counsel for DW Mike Ford, Head Coach, Bath Rugby Sophie Bennett, Bath Rugby Team Manager David Thompson, Performance Director, Bath Rugby George Kruis (‘GK’) Samuel Jones, Counsel for GK Mark McCall, Directors of Rugby, Saracens JP O’Reilly, Saracens Team Manager Steve Borthwick, England Rugby (character witness, GW)

Secretariat: Rebecca Morgan

1. Cases such as this generate a good deal of public interest. These are high profile players cited for serious acts of alleged foul play. The interest is significant and the stakes high. The public has a legitimate interest in such matters. The media has an important role in disseminating to the wider

Page 1 of 12

rugby public the decision and the reasons for it. Full and accurate reporting of such decisions is to be encouraged. Given the issues in this case and the decisions we reached we considered it appropriate to draft this fuller Decision. We do so in the hope that it will explain our analysis of the evidence and the reasons we reached the conclusions we did. 2. We record at the outset our gratitude to those who appeared before us. Naturally, that includes both Counsel for their helpful submissions. 3. In advance of the hearing the Chairman issued directions. All parties complied with those directions. The first of those directions was the Panel’s preliminary view that since the citing complaints arose out the same incident, they should be heard together. None of the parties objected to that course and it is the one we adopted. It is for the same reasons that we have drafted this single Decision. 4. Our conclusions were unanimous and this is the Decision of us all. Citing Complaints and Pleas 5. Each player was cited. The citing complaints arose out of an incident in the second half of the Aviva Premiership match played between Bath Rugby and Saracens at the Recreation Ground, Bath on 1 April 2016. Each player was cited for an act of foul contrary to Law 10.4(m). The incident occurred at 21.22 (BST). 6. The material part of the citing complaint against David Wilson reads as follows: "Bath in possession attacking the Saracens line after a lineout with ball held up in a driving maul. B18 (Dave Wilson) is to the fore and placed to the right but facing his own players and back towards the Saracens line. S5 (George Kruis) is placed to B18’s right and attempting to stop the drive. DW

Page 2 of 12

puts his right arm around the back of GK and pulls his hand backwards across the face/eye area. There is contact with GK in the eye area as part of the act which can be seen at 0.10 of the edited clip. I spoke to the match officials after the game who confirmed they saw nothing. However the TMO whilst not intervening at the time did in fact alert me to the possible offence when he saw the additional angles which became available to him later. In conclusion I have considered all the video angles and have determined there is sufficient evidence to say that this is an act of foul play which passes the red card test and therefore I cite David Wilson for contact with the eye/eye area contrary to Law 10(4)(m). It is of note that this very incident is the subject of a separate citing against GK for biting." 7. The relevant part of the citing commissioner's report in respect of George Kruis reads as follows: "Bath in possession were attacking the Saracens line after a lineout with ball held up in a driving maul. David Wilson (DW) (Bath 18) is to the fore and placed to the right but facing his own players and back towards the Saracens line. S5 George Kruis (GK) is placed to his right attempting to stop the drive. DW puts his right arm around the back of GK and pulls his hand backwards across his face area. At 0.10 of the edited clip one can see DW's right hand and in particular the little finger which is in or very close to GK's mouth. It is at this time when the alleged bite is said to have taken place. I spoke to the match officials immediately after the game who confirmed they saw nothing. The TMO did not intervene on this particular allegation either at the time or afterwards when we caught up. In conclusion I have considered the visual evidence, photo and oral statement from DW and have determined that this is a serious act of foul play which passes the red card test and therefore I cite George Kruis, Saracens RFC for biting contrary to Law 10(4)(m).

Page 3 of 12

It is of note that this very incident is the subject of a separate citing against DW for contact with the eyes." 8. Each player denied committing an act of foul play. The Hearing Evidence 9. In advance of the hearing we had read the papers and viewed the footage of the incident. The clip prepared for us captured the incident from different angles and at full speed and slow motion. The incident occurred during a passage of play that ended with a Bath try. Immediately thereafter the footage shows DW approaching the referee. Over the referee’s microphone, he can be heard asking the referee, “you’re allowed to bite people’s fingers now are you?” He named GK as the culprit and showed the referee his hand. The referee told him he could not deal with it; it was a matter for the Citing Commissioner (‘CC’). 10. The CC gave evidence by telephone conference call. He did not wish to add to either report. The circumstances prevailing at the ground were such that he did not obtain a statement from GK. He was however able to interview DW, which he recorded. In summary DW said : “CC - …I’ve seen the video angles so far. I’d just like a statement from you. Was there a bite? And can you identify who did it? GK – Yeah, it was um George um George Kruis…but you know… …. CC – and the bite is where please Sir? GK – it’s only very small. It’s tiny mate... CC - …is it on the inside of the small finger of his right arm. Correct? GK – yeah yeah yeah…”

Page 4 of 12

11. The CC was asked a very few questions by Mr Jones on the subject of chronology. 12. There was no report from the referee. 13. DW gave his account. By reference to the footage, he expanded upon the written statement submitted in advance of the hearing. His case was that GK initially bit his finger when it was at about his (DW’s) waist level. In other words, hidden from the view of the various cameras. He tried but at first was unable to remove his finger. As he pulled his hand free it “accidentally made fleeting contact with [GK’s] face”. 14. Mr Jones questioned DW and explored apparent differences between his written statement and his oral account. One part of his statement read, “I felt what I thought was a bite…”. Mr Jones concentrated on the “I thought” part but DW pointed to other parts of the statement where he said unequivocally that he was bitten. He maintained before us that GK bit him. Asked about any apparent reticence in his account to the CC, he said he did not want GK “banned”. He maintained that after the match he asked GK why he bit him and said GK replied, “because your fingers were on my face”. He conceded that he might have said to GK, “you’ve got sharp teeth”. 15. He said he was not aware that he was the subject of a citing complaint until Saturday evening. He said when he got home after the match his wife told him the incident “did not look good” (for him) which was both her own view and that of the television commentators. 16. DW produced a photograph of his right hand which showed a red spot on the back of his little finger close to the knuckle furthest from the body. He relied upon a letter from Dr Rhodri Martin, the Bath Rugby team physician. In that letter Dr Martin said he saw DW after the match and observed a “small puncture site to the skin overlying his distal interphalangeal joint of his little finger”.

Page 5 of 12

17. Mike Ford provided a statement of DW’s good character. Good character is not a defence but it is not irrelevant either. We gave it due weight. It described DW inter alia as a “role model” “gentle giant” and one who plays hard but has only been suspended once before in a long and successful career for Newcastle Falcons, Bath and England. He added to that before us. 18. GK gave us his account. It is set out in some detail below. In summary he denied biting DW as alleged or at all. After the match he denied making any admission to DW. GK’s account of the post-match exchange was that DW observed that he (GK) had “sharp teeth” and he replied, ”you’ve got sharp fingers”. Thereafter they talked about “families”. That was not an admission that he bit him. 19. We heard character evidence called on his behalf. Properly in doing so Mr Jones informed us that GK had one matter recorded against him, namely a three-week suspension last season for a tackle contrary to law 10.4(e). The character evidence – which we gave due weight - came from: a. Mr McCall – he provided a statement that spoke in glowing terms of GK. He amplified that before us. He said GK was an honest man who had worked extremely hard for his success and was a highly valued squad member. b. Mr Borthwick – spoke of his experience of GK, playing along side him for Saracens and latterly with England. It was similarly glowing. Submissions 20. Following the evidence we heard submissions from both Counsel. They will understand that we mean no discourtesy to them by not repeating

Page 6 of 12

them in this document. The submissions were helpful and we had regard to them. Approach 21. Paragraph 15, Appendix 4 to RFU Regulation 19 provides that where there is a citing complaint the function of the Disciplinary Panel is to determine (1) whether the player committed the alleged act of foul play and if so (2) did it merit a red card. 22. The standard of proof is the balance of probabilities. 23. We considered the case for and against each player separately. We considered all of the evidence. It came in the form of direct oral testimony, written statements, a still photograph and moving imagery. The moving imagery (‘footage’) was considered with necessary caution. First, it may not record the whole incident, as here proved the case with the alleged bite. Second, it is two-dimensional. Third, distances are foreshortened, so - for example – things can appear to be closer to each other than in reality they are and there can appear to be contact when there is not1. Fourth, with this footage, when magnified there was some loss of image definition that was not insignificant. Decision – David Wilson 24. A player cannot lawfully play an opponent’s head. That was not the allegation here. It was that he made contact with an opponent’s eye or eye area. They are different things. 25. First, contact with the eye: The footage (with all the caution identified above), did not capture the whole incident. However, on that which it 1

Think, for example, the close-to-the-ground ‘catch’ taken by a cricket wicketkeeper or fielder

Page 7 of 12

showed, (and on the copy with which we were provided), we could not see definitive evidence of contact between DW’s hand/fingers and either of GK’s eyes. 26. GK told us that he drove between DW and the jumper (David Attwood). He lifted DW’s leg in an attempt to destabilise him. He said it was in that context that DW’s hand was across his face. He said that DW’s hand was across and in contact with his face. DW’s hand was approximately horizontal; index finger accords the area of the bridge of his nose and little finger in the general area of his mouth. Asked the direct question from the Chairman whether there was contact with either eye, he said, “there wasn’t”. He added that his eyes were shut, that the incident was very quick and “I did not feel like there was any contact with my eyes, no”. He also said he was not gouged (properly understood). 27. It is perhaps therefore unsurprising that we were not satisfied that there was probably contact with GK’s eye(s). 28. Contact with the eye area: To understand what this means one needs to start with the decision in Alan Quinlan (ERC Appeal Committee 2009). The ERC Appeal Committee found that in the context of Law 10.4(m) “eye area” meant contact by a player in respect: “Any area of the face in close proximity to the eye, where contact would cause a victim to fear for the safety of his eye or where there is a substantial risk that there could be contact with the eye.” 29. On 24 October 2014 the IRB (as it then was) issued a Memorandum issued to all IRB Judicial Personnel and Citing Personnel. That memorandum is entitled “Contact with the Eye(s) or Eye Area”. It is clear what its primary purpose was. Paragraph 3 thereof reads:

Page 8 of 12

“It is important that Judicial Officers and Citing Commissioners clearly understand that the Foul Play of contact with the eye(s) or eye area, to occur, does not require proof of what has been colloquially referred to as gouging, that is, intentional digital penetration of the eye socket. Although the term remains widely used in the media, it is not an accurate reflection of this category of Foul Play which essentially consists of contact with the eye area; i.e. it does not necessarily involve the additional element of “gouging”. 30. Paragraph 4 cites the above passage from Quinlan. It does so with clear approval. In any event, the reality is that the definition had been accepted to be the correct definition of the “eye area” since the Quinlan decision in 2009. The test is this: a. Was there contact by DW in respect any area of GK’s face in close proximity to the eye? b. If so, i. would that contact cause GK to fear for the safety of his eye or ii. was there a substantial risk that there could be contact with the eye. 31. That is the test we applied. We considered the correct approach to be this: apply that test to the facts we find proved from the available evidence. 32. In commendably candid evidence GK said this about the contact between DW’s hand and his (GK’s) face. He said that when his head was down (as he attempted to split DW from DA) DW’s hand was across and in contact with his face. The hand was approximately horizontal, index finger across the area of the bridge of his nose and little finger in the general area of his mouth. He expressed the opinion that it was not an “aggressive action”. Given that an aspect for us to consider is whether the ‘victim player’ would (or did) fear for the safety of his eyes this seemed to us pertinent. As is clear from the summary above, he said DW’s hand went across his face “almost as a support for him” as he lifted his leg. Dealing with the

Page 9 of 12

footage where DW appears to drag his head back he said he did not feel he was “gripping into my eyes are anything like that”; 33. Questioned by Mr Brown QC he said that DW’s was “more a grab to be stable than anything else”. At no stage did he feel under “threat or think I had to retaliate or be concerned”. In answer to a specific question he said he did not feel at the time that his eye area was under threat. 34. Questioned by the Chairman he said the “anchor point” of DW’s hand on his face was his nose. He did not feel at anytime that his hands were digging into his face or eyes; it felt like a grab to be secure, he said.



35. In the light of the footage and GK’s evidence, we were satisfied DW’s hand made contact with GK’s face. In part that contact was made in close physical proximity to both eyes. However that contact was not such as “would cause GK to fear for the safety of his eye”. His unequivocal evidence was that at the time of the contact it did not cause him to fear for his eyes (or either of them). Further given the nature of the contact and GK’s description of it, we are not satisfied that there was a substantial risk that there could be contact with the eye. In those circumstances we were satisfied that there was an act of foul play as alleged and so dismissed the citing. 36. Our decision is not a criticism of the citing complaint, still less the vastly experienced and (if we may say so) accomplished CC. He had the footage. Unlike us he did not have the benefit of GK’s account. That was of considerable assistance to us in arriving at our conclusionn that there was not a substantial risk that there could be contact with the eye.

Page 10 of 12

Decision – George Kruis 37. The citing complaint alleged: “At 0.10 of the edited clip one can see DW's right hand and in particular the little finger which is in or very close to GK's mouth. It is at this time when the alleged bite is said to have taken place.” 38. The CC was not to know that in fact DW said the bite started before that point. As is clear from what we have summarised of his account, DW said the bite started when his hand was low, not visible to the cameras. He told us that he could not really recall how his finger came to be in GK’s mouth. We found it improbable that GK decided (apropos of nothing) to have a gratuitous bite thereof. 39. DW was adamant that GK bit him. Looking for potential support of that, we considered other evidence: a. The footage provided to us did not show a bite. It did not show definitively the little finger in the mouth. At most it appeared close to the mouth. b. The photograph showed a mark. Dr Martin spoke of its nature but not causation. c. DW appears to react to something during the maul. It is clear from the footage that immediately after his right hand moved from GK’s face, DW punched GK in the face with his left hand. He then appears to have followed that up by punching him to the side of head with his right hand. d. DW made an immediate complaint to the referee. Clearly he was complaining that he had been bitten and may very well genuinely have believed he had been. e. There was issue as to what was said between the players after the match. Whatever it was, it involved reference to fingers and teeth, 40. On the other hand we had GK’s evidence. He was an impressive witness. We assessed his account in respect of DW’s conduct to be one of candour

Page 11 of 12

rather than (a) an attempt to protect DW (why would he given that he had just heard DW say he bit him?) or (b) a disingenuous attempt to present as honest on DW’s conduct in the hope he would thereby bolster his credibility on his own conduct. He said that at no point was DW’s finger “inside” his mouth. It dragged across his mouth as DW’s hand moved over his face. He was adamant that he did not clamp down on the finger nor at any point did he bite him. He said this: “in the better [quality] version of the footage you can see…for me to bite him and him feel it, his finger would have to be inside my mouth and it is clearly not”. He said that DW did not “fishhook” him and he said, “100 per cent [I did] not bite him”. 41. We considered with care this citing complaint. There was a head-on conflict of evidence between the two central witnesses. The other evidence did not, taken with DW’s account, satisfy us that GK probably bit DW. That being so we were bound to dismiss the citing complaint, which we did. 42.Plainly this conclusion is not a criticism of the CC. He had a complaint of

biting, with a statement from DW, which he was bound to follow up. He was right to do so. He did not have GK’s account or evidence. A hearing of the kind we conducted is self-evidently the appropriate forum for resolution of such matters. It enables all the relevant material to be tested and considered properly. It is only then, after due process, that such matters can fairly be resolved.

Christopher Quinlan QC Chairman 6 April 2016 Signed by the Chairman on behalf of the Disciplinary Panel

Page 12 of 12