Lewis urges immediate Code of Conduct review
The ICC's Code of Conduct has come in for strong rebuke from judicial commissioner Gordon Lewis. He had to overturn the ICC's original decision to not allow Ravindra Jadeja an appeal against the guilty Level 1 verdict handed out by match referee David Boon. Lewis has said the code needs to be clearer.
Lewis first shed light on why Jadeja was allowed an appeal. The original charge had been under Level 2.
Even though this was Jadeja's second Level 1 offence within 12 months, the ICC had initially disallowed an appeal because the two offences had been under two different codes. His first offence, in November 2013, was under 2.1.4 (Using language or a gesture that is obscene, offensive or insulting), but this one was under 2.1.8 (a 'catch-all' provision to cover minor breaches not specifically mentioned by the Code of Conduct).
However, eventually Jadeja was allowed an appeal, which came up for hearing in front of Lewis on the same day that he heard the Level 3 charge against Anderson.
Lewis's verdict said that because any appeal against a match referee's decision is heard afresh by a disciplinary commissioner, the appeal conditions of the original charge should apply, and not the one the player has been found guilty of. That was the reason why the appeal was granted.
"The Match Referee had reduced the level of the charge against Jadeja to level 1 and pursuant to Article 8.1.1 an appeal against a level 1 offence is not permitted," he wrote. "However, because any appeal from a decision of a Match Referee is heard de novo [as a fresh case] by a Disciplinary Commissioner, I ruled that any rulings by the Match Referee no longer had any effect and a Commissioner commences the Hearing of the appeal with a clean sheet, that is with the charge against Jadeja in its original form i.e. alleging a level 2 offence and was thus appellable."
His ruling, Lewis explained, follows the practice generally adopted in Australia where an appeal against any decision involves a hearing de novo. "However," he noted, "my ruling highlights the need for this article in the Code to be clarified."
Even if Lewis had not ruled so, there is ambiguity in the ICC's Code of Conduct. 8.2.1 of the Code mentions that players who are found guilty of a second Level 1 offence within 12 months can appeal the second decision, with no mention that the two offences must be under the same article for the second to be appealable.
Article 8.1.1 says: "Decisions made under the Code of Conduct by a Match Referee in relation to a first Level 1 Offence shall be non-appealable and shall remain the full and final decision in relation to the matter."
8.2.1. says: "Decisions made under the Code of Conduct by a Match Referee in relation to: (a) a second, third or fourth Level 1 Offence within the applicable twelve month period; or (b) a Level 2 Offence; or (c) a Minimum Over Rate Offence, may be challenged solely by appeal as set out in this Article 8.2. Such decision shall remain in effect while under appeal unless any Judicial Commissioner properly convened to hear the appeal orders otherwise."
The ICC's rule covering the determination of sanctions is far more specific than the rule covering appeals. It has referred to this rule - Article 7.2 - while explaining why Jadeja's previous indiscretion hadn't been considered when determining the sanction for the current case.
Article 7.2 says: In order to determine the sanction that is to be imposed in each case, the Match Referee or Judicial Commissioner must first consider whether the Player or Player Support Personnel has previously been found guilty of an offence under the same Article of the Code of Conduct (or any predecessor regulations that may have applied) within a period of twelve months prior to the date on which the alleged offence took place.
Even in the verdict's conclusion, Lewis criticised the Code of Conduct. "Finally, as a newly appointed Judicial Commissioner, I urge the ICC to conduct an immediate review of its Code of Conduct, as these proceedings have highlighted a number of inadequacies in the Code and situations with which it cannot easily cope."
Jadeja's charge was dropped altogether after his appeal because of conflicting witnesses, heavily biased towards their own teams, and with no proper audio or video evidence to prove anyone's guilt.
Sidharth Monga is an assistant editor at ESPNcricinfo