I did not believe any referee, at any level of the game, could properly be held responsible for a series of collapsed scrums

Click to follow
From what I have read, it seems the Rugby Football Union was unworried by the prospect of a win in the law courts for the young, paralysed former player against the referee. The RFU thought it would not - could not - happen. Not for the first time, that body has been proved wrong.

On this occasion, however, my sympathies are entirely with the men in blazers. I did not think it would happen either: not because rugby possessed any immunity from the workings of the law, but because I did not believe any referee, at any level of the game, could properly be held responsible for a series of collapsed scrums.

Unless Mr Justice Curtis's decision is reversed on appeal, or unless the law as laid down by the learned judge is changed by Parliament, the consequences for the game are of the utmost seriousness. It is all very well for Brian Campsall and other leading referees to advise: "Carry on reffing." No doubt their intentions are good, but they are no protection against legal action.

True, the judge said his decision applied only on the facts of the case. These, as far as he was concerned, were principally that this was a youth fixture and that the referee had not even tried to enforce the crouch- touch-pause-engage procedure recommended by the RFU.

But this is not even part of the rules of the game. I am, I should explain, deliberately using "rules" rather than "laws" to avoid any confusion between the laws of rugby and the law of the land. The latter I shall now explain.

Any assault on another person is prima facie a crime. Consent is a defence only in certain defined circumstances. Thus sexual intercourse between consenting parties is not a crime, whereas if one of them objects it becomes rape or indecent assault. It is probably still a crime for one person, irrespective of consent, to cane or whip another for what the lawyers call "purposes of sexual gratification".

Sado-masochistic activities certainly do not count as what the lawyers also call "manly sports". These form the great exception to the law of consent being no defence. They include boxing, obviously, rugby almost as obviously, football and perhaps also cricket these days.

But there is one crucial qualification. The violence to which the participant consents must be inflicted within the rules of the game. This is so irrespective of whether we are talking about civil or criminal law.

Thus punching an opponent is outside the rules of rugby, as the perhaps unfortunate Simon Devereux of Gloucester has discovered. Some people think that a few swift uppercuts are part of the game's rich tapestry. But the law takes a different view. Not only can the puncher be prosecuted and fined or imprisoned like Devereux, but the punched can also take him to a civil court and demand damages.

So far, so straightforward. The developments of recent years are that the police have been more ready to prosecute, and injured players more willing to chance their arm in the civil courts.

The Ben Smoldon case, however, carries matters a good deal further. It does so in two respects. First, it was the referee, and not a player, who was held liable. And, secondly, no clear breach of the rules was established on the part of anyone - even though the opposing tight-head prop may consider himself a fortunate young man to have emerged from the court without a stain on his jersey.

But if judges (who may well have attended one of those supposedly superior English public schools which play football) are going to investigate what goes on in the front row, they are in for a difficult time. I am reminded of an exchange between the Irish prop Michael Fitzpatrick and a referee: "You're boring, Fitzpatrick." "You're none too entertaining yourself, ref."

A collapsed scrum can happen without fault on either side; a breach of the rules is often - even usually - difficult to spot. I have sometimes seen a scrum collapse on the defending side's 22 when that side has the put-in. The attacking side then kicks the penalty. I cannot understand the referee's decision. For what front row would deliberately collapse a scrum in those circumstances - which are quite different from collapsing one to avoid a pushover try?

I would, however, alter the rules to give the side with the put-in an indirect free-kick after the first collapsed scrum. This would avoid a series of them. I would also keep Her Majesty's judges well away from a subject which is too difficult for them. In the meantime, not only referees but also players will have to take out costly insurance. The only people who can be satisfied are our insurance companies - and, of course, the gentlemen in wigs, who never lose a single game.