English cricket could be forgiven for feeling as if the Ghost of Christmas Past was visiting over the next few days.
Events that the game may well have wanted to put behind it – notably, the late-night brawl involving Ben Stokes and Alex Hales in Bristol in September 2017 – will be dragged up once again as the ECB’s Cricket Discipline Commission (CDC) considers whether Hales and Stokes have brought the game into disrepute.
There is no doubt it has been an ugly episode for the game and the individuals involved. Footage of high-profile players involved in a fight and the headlines that followed – headlines that alleged homophobic bullying, among other things – certainly showed the game in an unflattering light. And, coming at a time when the ECB are keen to underline their credentials as a family sport, they were damaging in every way. At first glance it may seem a straightforward case.
But first glances are sometimes misleading and this case is not as straightforward as is sometimes presumed. For a start, Stokes has already been cleared of the charge of affray at Bristol Crown Court and looks set to remain insistent that, apart from staying out later than was wise, he has done very little wrong.
For that reason, the CDC – which claims to be an entity independent of influence from the ECB or beyond – has assembled an especially experienced panel and permitted legal representation for the players; something it says it will do only in “the most exceptional case” in its own regulations.
The three-man panel comprises three highly-respected lawyers with a cricket background: former Derbyshire batsman, Tim O’Gorman, who is now general counsel for Halfords Group and chairs this panel; former Gloucestershire and England swing bowler Mike Smith, who is now an employment lawyer, and the judge, Chris Tickle, who was a long-time member of the Warwickshire committee.
They will hear the case – brought by the ECB (it is an irony that the ECB’s favoured law firm, On Side, will act as the prosecution, having sat in on Stokes’ trial in a supportive role) with the players’ legal teams providing the defence. While the court case was conducted in public, the CDC hearing will be conducted behind closed doors with no access for media.
The case will be heard – and hopefully concluded – over two days this week. Hales will appear before the panel on Wednesday morning, with the expectation that Stokes will appear later the same day, with the possibility his testimony will run into Friday. A verdict – and the announcement of any potential sanctions (fine and bans are both possible) – is also expected on Friday. It may or may not be relevant that the ECB are holding their Christmas party that day; an early announcement is anticipated.
There is no guarantee that that will be the end of the matter, though. All parties – both players and the ECB – retain the right to appeal the CDC verdict.
Stokes will argue, with the help of a QC and the team of the lawyers who supported him in Bristol Crown Court, that he became involved in the violence only to protect himself and others from harm. So while there is no doubt the footage widely distributed looked bad, further detail shown to the court may provide mitigation.
It may also be deemed relevant that the two men at the heart of the case, Kai Barry and William O’Connell, praised Stokes as “a hero” for saving them from homophobic abuse and attack. A key moment in the court case came when a fellow defendant, Ryan Ali, accepted that video footage showed him attacking Hales and Barry with a bottle. Stokes is therefore likely to argue his action were proportionate and responsible.
But both he and Hales may struggled to explain why they were out at a bar in the early hours of the morning. At that time, there were no curfews for the team, but they were midway through a limited-overs series against West Indies and the late night and amount of alcohol consumed does not fit well with the level of self-sacrifice expected of international sportspeople. Some censure, for that part of the night at least, looks inevitable.
It is worth noting, however, that several other members of the England squad have already been punished for their part in events that night. It is understood they received fines of between £1,000 and £2,000 and written warnings as to their future conduct. At least one of them is understood to have returned to the team hotel later than Hales. The CDC panel may struggle to justify substantially tougher penalties.
If there are suspensions, however, it seems they will apply only to cricket played under the direct authority of the ECB. So neither Stokes or Hales are likely to be barred from appearing in the IPL (or any other foreign league; there is some legal doubt over the jurisdiction the ECB would have in attempting to prevent players earning a living in such a way) though they could, in theory, be given suspensions from county and international cricket. There are, then, obvious potential consequences ahead of England’s tour of the Caribbean which starts in January. As a result, there may also be consequences for England’s World Cup planning.
There is an important distinction between the players, though. For while Stokes has already, in effect, been suspended for the Ashes series – he also lost the England vice-captaincy – Hales has missed only two ODIs (also missed by Stokes) at the end of the 2017 summer in the immediate aftermath of the incident. That could leave him a little more vulnerable to any further sanction, especially as he is currently not a first-choice member of England’s ODI side. Put simply, Stokes already has time served in the bank. Hales does not.
Furthermore, while Hales was not on trial in Bristol – he was never even arrested – some his actions on the night in question may well require explanation to the CDC, not least the suggestion that he had only arrived on the scene after the incident. Copious CCTV footage suggests that was not true.
There was also the suggestion, from Stokes’ defence team, that the most serious injury sustained in the episode – Ali’s broken eye socket – may have been caused by an apparent kick to the head by Hales.
In Hales’ defence (and, because he was not on trial, he did not have a chance to clear his name in court) it must be remembered that that moment in the fracas came after he had been attacked by a man wielding a bottle. It also came when Stokes and Ali were embroiled in a struggle on the pavement.
Hales may well tell the CDC that he was out of his depth, scared and trying to prevent his friend being hurt by an attacker who had shown he was prepared to use a weapon. Perhaps a dozen times, he tried to dissuade Stokes from continuing the fight it and even tried pulling him away at one stage.
So there is plenty for the panel to consider. And plenty at stake.