Saturday 1 October 2016

Time to drop the machismo act and co-operate

Investigation of Byrne incident must not be stymied by omerta

Niall Collins

Published 19/07/2015 | 17:03

GAA president, Aogan O Fearghail has requested further information on the Davey Byrne incident from both the Dublin and Armagh management.
GAA president, Aogan O Fearghail has requested further information on the Davey Byrne incident from both the Dublin and Armagh management.

Keynsham sits at the confluence of the rivers Chew and Avon in Somerset, south-west England. The town rose to fame during the late 1950s and early 1960s when it featured in a series of advertisements on Radio Luxembourg for Horace Batchelor's 'Infra-draw' betting system. During the Monmouth Rebellion of 1685, Keynsham was also the site of a violent tussle between royalist forces and the rebel Duke of Monmouth.

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In autumn of 2011, Keynsham hit the headlines again when the 'burly' Jack Weston of the local rugby club waded into a melee and landed two punches on Ben Staunton of Oldfield Old Boys. The first punch was described as a 'six out of ten' in force, the second a 'full ten out of ten'. The combination shattered Staunton's jaw.

Weston subsequently pleaded guilty to grievous bodily harm and was jailed for six months at Bristol Crown Court. Sentencing Weston, Judge Carol Hagen opined that "it is important everyone realises the consequences of the behaviour you engaged in on that November afternoon."

Earlier this month, Dublin's Davey Byrne stepped onto a playing field in DCU to participate in a behind-closed-doors challenge match against Armagh. Before a ball was kicked, Byrne reportedly suffered extensive facial injuries which resulted in him being hospitalised. The aftermath has featured manager Jim Gavin stating repeatedly that the players had a 'frank' exchange afterwards and that they were keen to concentrate on their careers in response to questioning from Newstalk's Colm Parkinson. Kieran McGeeney also felt that "most of the stuff that's reported was nothing near the truth of what happened, so you just have to leave it behind and move on".

But this is not Big Brother or the X Factor. Neither the Dublin or Armagh camps, nor Joe Public, get to decide what happens here.

There was an initial perception that GAA powerbrokers were sluggish in finding their voice on the matter. However, recent confirmation by GAA president, Aogan O Fearghail, that the Central Competitions Control Committee (CCCC) has requested further information on the incident from both the Dublin and Armagh management is laudable.

However, McGeeney was right in one aspect. We do not have the full picture of the circumstances of the incident and, on that basis, there must be no rush to judgement on the culpability or otherwise of either of the players involved.

That is the preserve of those now tasked with getting to the bottom of what happened. A line of legal authority dating back to a football match in Victorian times makes it clear that, in the context of sport, "[no] rules or practice of any game can make that lawful which is unlawful by the law of the land".

A similar mindset echoes from the comments of Mr Justice William Early in the Irish case of DPP v McCartan. The judge opined "to strike someone without legal justification is a crime whether it takes place in the street, in the family home, or the football pitch, or elsewhere".

In most jurisdictions, it is clear that foul play in the sporting amphitheatre may also be a criminal act. However, it is fair to say that most foul play, including violent foul play, is not prosecuted. Why is this? The reasons are many and varied.

Courts in a number of jurisdictions have demonstrated little desire to intervene in contact sports and have acknowledged that, in contests of physical fitness, strength and agility - some measure of aggression - is part of the game. Australian state courts have also articulated that the criminal law should "not confuse the risk of injury from hard play with the risk of injury from criminal assault". In the sporting context, there is also the question of where the line of demarcation should be drawn between consequential injury, which can be consented to, and injury which cannot be consented to.

Further, I think it is commonly accepted that unless incidents are sufficiently grave to lead to a finding of criminality, they are more appropriately regulated by internal disciplinary mechanisms. Sport has a long-established playbook of self-governance.

One of our leading sports law scribes, Jack Anderson, notes that prosecutions involving injuries sustained during GAA matches have been limited and spasmodic. He also notes that the level of co-operation from those within the sport has not always been what it might have been. This non-breaking from the ranks is key.

Anderson sums up perfectly when he states "this seems to be attributable either to a misguided machismo based on the maxim 'what happens on the field, stays on the field', or what might be called an ethos of 'sporting omerta' whereby members of individual sports communities appear reluctant to give evidence in criminal investigations (save as character witnesses for the accused!)".

It is time for the Dublin and Armagh camps to drop the machismo and co-operate fully with the CCCC. Players, supporters, parents and all those that immerse themselves in our national pastime deserve that.

Niall Collins is a former Laois footballer and a partner in Irish law firm Mason Hayes & Curran

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