Mike Brearley, the respected former England captain, has called for a degree of clemency when the cricketing punishment is handed down to Ben Stokes.

Nearly six weeks have passed since Stokes was arrested and then released under investigation for his part in a late-night incident in Bristol on 25 September. Currently suspended from international duty, the Test vice-captain is still waiting to discover whether he will be charged.

Only once the police investigation has been completed will Stokes go in front of the Cricket Discipline Commission, chaired by the former Derbyshire cricketer turned lawyer Tim O’Gorman, to learn of any sporting sanctions he may face and thus whether he has a chance of joining England in Australia.

Brearley, considered one of the shrewdest England captains of all time and credited with extracting the best out of another great all-rounder, Ian Botham, hopes a sympathetic punishment follows for Stokes once the legal process has taken place.

Asked on the Analyst Inside Cricket podcast how he rated the chances of Joe Root’s tourists, Brearley, who led England to 18 wins and only four defeats in 31 Tests in charge, said: “A lot hangs on this one person called Ben Stokes, who I have a lot of time for. I’m very sorry and saddened by his eruption, whatever happened. I think the law should take its course like any other person and presumably it will but once it has happened, I don’t think the cricket authorities should get high and mighty with him. He’s a human being, and subject to forces which he has to learn to control.”

On whether England’s defence of the Ashes hinges on Stokes featuring at some stage, Brearley said: “I think it might, frankly. I think he’s key. He is one of the best batsmen, a very useful bowler and a brilliant slip or gully fielder. It makes a huge difference to the make-up of the side, as Botham did when I was captain.”

Brearley is encouraged by the early signs of Root’s leadership during his first year in the role, praising his “cheeky” attitude, a flexibility to take advice from others in the side and his authority with a bat in hand.

The 75-year-old, one of only three England captains to win the Ashes home and away, along with Len Hutton and the current team director, Andrew Strauss, has one query, however – the inclusion of Hampshire’s uncapped Mason Crane as the second spinner.

Brearley said: “I am all in favour of an exciting young leg-spinner but to take him as a second spinner to Australia seems to me a huge risk. He should have gone as a third spinner or gone with the Lions and been available if we have an emergency. They must rate his attitude and maturity highly and I’d love to see him succeed. But he’s 20 and hardly bowled.”