How far can poor management amount to misconduct in regulatory proceedings? Increasingly, regulators are faced with referrals from employers because it is alleged that the registrant is responsible for management failings amounting to misconduct.

How far removed from the coalface must a manager be in order to absolve himself from the shortcomings of his subordinates? Indeed, is any distance far enough if his supervision is wholly inadequate? Does that failing, of itself, make the manager unfit to follow his profession thereafter or require an interim suspension order while his conduct is investigated? On the one hand, it appears to be an unattractive proposition that a manager several grades removed from the mischief should be held to account; but it is, perhaps, even less attractive that those who are badly managed and unsupported are left to face the consequences whilst their superiors walk away unscathed.

There is, unfortunately, a dearth of authority and a decision of the Administrative Court would be welcomed. In the meantime, regulators could do worse than rely on dicta from the First Tier Tribunal in Sonia West v General Social Care Council [2009] 1614.SW-SUS.

Sonia West, a social worker, successfully appealed against a decision of the Preliminary Proceedings Committee of the General Social Care Council to impose an interim suspension order for a period of six months. The appeal was determined on procedural grounds, but the Tribunal went on to consider the substantive grounds for the interim suspension order. The registrant claimed the issues raised were purely managerial, that she had gone to her managers with matters she felt she could not resolve on her own, for example, with respect to staffing. She explained the restructuring and changes that had taken place in recent years: two social workers left and all the referrals were coming to her team; she had no extra staff despite the workload referrals increasing. She was coping, in effect, with an increased workload and reduced staff. The registrant acknowledged that the head of social care and her line manager had tried to help but that the stress of the situation was building up and that she became unwell because of stress. She said she was referred to occupational health the day she went sick but the referral took six months to take place. She was trying to oversee everything and while she tried to delegate she was under considerable stress and aware that other staff had a heavy load work on them. By the time she was ready to come back to work there was an investigation into her conduct as a manager and she was placed on garden leave until the disciplinary hearing which she attended without representation.

The registrant worked as a social worker for 14 years, had a blameless employment record and no previous disciplinary proceedings. A reference from a consultant psychiatrist said that she did not have any concerns regarding the registrant’s abilities as a social worker. The employer’s disciplinary hearing found four allegations proved: that her standard of work as a senior social worker was seriously below that required by her manager and the GSCC; she failed to record whether a number of cases for which she had managerial responsibility were concluded and closed; she failed to follow instructions from her line manager to complete initial and core assessments despite being given reasonable timescales; she failed to use the systems and processes in place to record casework and in doing so failed to safeguard vulnerable adults.

The employer’s findings concluded that this would normally warrant a penalty of dismissal but it would be acceptable to demote the registrant from her current role as team manager. The registrant was offered an alternative position as a social worker, declined and was dismissed. It is perhaps not surprising therefore that the Tribunal felt this indicated that the employers did not regard the registrant as a risk to the public and it was in order for her to continue in practice as a social worker. In fact, the letter from the employer confirmed that they had no concerns about her practice as a social worker.

Of course, the Tribunal made no findings of facts (and it has to be remembered that this was an appeal against an interim order only) but the case may well be regarded as a clear indicator of the way this Tribunal will treat pure management failings when professional competence is not established or called into question.

The Foreign Secretary appealed against a decision of the Divisional Court to include seven short redacted paragraphs of its judgment notwithstanding the fact that the Foreign Secretary had stated in more than one Public Interest Immunity Certificate that such publication would lead to a real risk of serious harm to the national security of the UK:  The Queen on the application of Binyam Mohamed v The Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 65

An exceptionally strong Court of Appeal (Lord Judge CJ, Lord Neuberger MR and Sir Anthony May, President QBD) rejected the appeal and the Foreign Secretary’s contention that disclosure of the paragraphs would damage intelligence sharing with the United States.

If the redacted paragraphs contained genuinely secret material which would itself damage the national interest, the Court may have ruled differently.  But it considered the arguments in favour of disclosing the redacted paragraphs compelling.  There was no secret about the treatment to which Mr Mohamed was subjected while in the control of the US authorities.  Those facts were established by the judgment of a United States court.

As is usual, the Court of Appeal circulated its draft judgment to Counsel before it was officially published.  Whilst agreeing with each other’s overall conclusions, the judge’s each drafted separate judgments with their own comments.  It appears that Lord Neuberger of Abbotsbury MR said that MI5 operated a culture of suppression and disregard for human rights, that it deliberately misled a parliamentary committee and that its assurances could not be trusted.  Jonathan Sumption QC, leading Counsel for the Foreign Secretary, wrote to the court before publication asking for those comments to be amended and describing them as ’sweeping criticisms not based on evidence which constituted an exceptionally damaging criticism of the good faith of the security service.’  Lord Neuberger’s criticism was subsequently amended in the published version of the judgment.

This has, unsurprisingly perhaps, led to media criticism of the Foreign Secretary for attempting to ‘nobble’ the court and suppress its criticism.  But these comments are both uninformed and unfair.  The real difficulty lies in the fact that our judges still insist on giving multiple-judgment decisions rather than agreeing a joint draft which they (or the majority of them) can sign up to and which will become the judgment of the court.  If we followed the style of the European Court of Justice which delivers a single judgment representing the views of the majority, excesses of this nature could be avoided and the integrity of the court safeguarded.

The kafuffle surrounding expenses claims by British Members of Parliament has raised the perplexing question of parliamentary privilege and whether it would afford a defence to a Member of Parliament charged with a criminal offence arising out of his own dishonesty.

Parliamentary privilege developed as a means of stopping a monarch from interfering with the working of Parliament and was sparked by the power struggle between King Charles I and Parliament.

Article 9 of the Bill of Rights 1689 provides the single most important parliamentary privilege:  that freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.  It affords legal immunity to members for what they say and do in parliamentary proceedings.

Legal argument will probably centre on what is meant by proceedings in Parliament.  That is likely to be argued ad nauseam in the coming months (and maybe years) and might well end up in the Supreme Court

Although each House has the right to administer its internal affairs within its precincts, it is clear that there is no law that prevents a Member of Parliament or a peer from being prosecuted.  That has long been recognised by the courts.  The court refused to intervene in Bradlaugh v Gosset (1883) 12 QBD 271 when the House of Commons refused to allow a member who was an avowed atheist to take the oath even though he was required to do so by statute.

But the phrase “internal affairs” is too loose and there is a real danger that attempts will be made to stretch it beyond its normal and natural meaning.  The right is intended to protect each House in respect of the conduct of its internal affairs.  It does not embrace and protect activities of individuals simply because the act complained of takes place within the precincts of Parliament.  It is respectfully submitted that unless the conduct is clearly protected by Article 9 as part of the proceedings of Parliament, speech and conduct of members generally enjoys no special privilege.  A criminal offence committed within the precincts of  Parliament is triable in the courts and neither is there anything to stop a Member from being arrested within the precincts.

It has been said that in order to carry out its public duties without fear or favour Parliament, its Members and officers need certain rights and immunities, Parliament needs the right to regulate its own affairs, free from intervention by the government or the courts, and Members need to be able to speak freely uninhibited by possible defamation claims.  That is undoubtedly correct, but if those who seek to take advantage of these privileges use Parliament as a sanctuary to avoid the consequences of their own criminality, then parliamentary privilege will fall into disrepute and it will add credence to the argument that there is one set of laws for parliamentarians and another for the public at large.

Most regulatory bodies have provisions in their rules for the interim suspension of registrants during the course of investigation (a) for the protection of the public, (b) where it is otherwise in the interests of the public or (c) is in the registrant’s own interests.

Suspension from a registrant’s profession pending determination of an investigation or proceedings is a draconian step which in itself will have serious consequences for a professional person.

An Interim Orders Panel convened to determine the professional body’s application will not make findings of facts, but must nevertheless ask itself if there is any credible evidence to support the allegation or whether the allegation comes from a credible source.  Furthermore, if the allegation were to be proved at a subsequent Conduct Hearing, would that Committee be likely at least to impose a period of suspension upon the registrant.  If not, an interim suspension order would not be appropriate.  Next, are there immediate public protection issues which require the registrant to be suspended?  If all those matters are satisfied, the Committee will need to consider if the order would be proportionate and, if there has been a delay since the alleged conduct took place, how the registrant has behaved in the meantime. 

In Shiekh v General Dental Council [2007] EWHC 2972 (Admin) a dentist changed his plea to guilty during the course of a Crown Court trial in respect of fraudulent travel claims by his associates.  The trial judge said that there was sustained dishonesty and a conspiracy to defraud, but he commented that it was unlikely that the dentist would indulge in making dishonest claims in the future.  He imposed a sentence of 12 months imprisonment which was suspended for 18 months.

After that conviction the General Dental Council  commenced regulatory proceedings  and its Interim Orders Panel suspended the dentist for 18 months.  It is important to note in this case that it was at all times accepted that Mr Shiekh posed no direct risk to the safety of the public.  The panel concerned itself only with the reputation of, and public confidence in the profession.   The dentist had also made reparation in financial terms to the tune of many hundreds of thousands of pounds, had secured a multi-million pound contract from the relevant local Trust, and the conduct complained of was over 8 years old.

Quashing the order for suspension, Davis J said:  The difficulty I have in this particular case is trying to get a purchase on why it was that the Panel thought that interim suspension was needed.  This was not a case of ongoing or future risk or anything like that.  He added that it did not seem to him that any principled decision had been given by the panel.

The more recent case of Sosanya v The General Medical Council  [2009] EWHC 2814 (Admin) concerned a doctor.  Dr Sosanya’s husband was an accountant charged with an advanced fees fraud to which he pleaded guilty and was sentenced to a term of imprisonment.   Dr Sosanya was later charged with money laundering.  The details of the offences, which she denied, were very sparsely set out.  The charges had nothing to do with her abilities as a doctor.  There was no suggestion that if she were to continue in practice she would be given access to moneys or might then become tempted into activities of the kind with which she was charged.

The Panel made an interim order of suspension against the doctor but did not identify in their reasoning any risk posed.  Again, the judge did not think that an interims suspension order was necessary or proportionate.

These cases give clear guidelines to panels.  It has to be remembered that there will be different risks in different professions.  For example, a doctor or dentist faced with serious allegations of dishonesty may not present the same risk to the public as a social worker.  A social worker faced with the same allegation may be looking after a vulnerable service user and have access to that person’s private possessions and bank accounts.  They are matters which panels must weigh carefully, and if they do decide to suspend must identify clearly what risks they are aiming to protect the public from and act proportionately in all the circumstances.

Supreme Court confirms standard of proof when considering child injury – the role of the Social Worker – balance of probabilities – whether a judge should seek to identify the perpetrators of harm if unable to decide on balance of probabilities

When considering who caused injury to a child out of a pool of two or more potential perpetrators, the standard of proof was the civil standard on the balance of probabilities and that standard did not vary according to the gravity of the injuries or conduct alleged:  In re S-B (Children)(Care Proceedings: Standard of Proof): Judgment 14 December 2009.

The Supreme Court so held in allowing an appeal by the mother against the dismissal by the Court of appeal of her appeal against care and placement for adoption orders in respect of her two children at the request of Trafford Metropolitan Borough Council.

The case, said LADY HALE who gave the judgment of the court, concerned two brothers, one of whom had been harmed and one who had not.  The first had been inflicted by one or both of his parents.  The trial judge had found it more likely that only of them had been the perpetrator.

In In Re B (Children) (Care proceedings: Standard of Proof) the House of Lords had reaffirmed that the standard of proof of past facts was the simple balance of probabilities, no more and no less.  A problem had arisen because of dicta which suggested that the standard of proof might vary with the gravity of the misconduct alleged or even the seriousness of the consequences for the person concerned.  Despite the care that Lord Nicholls of Birkenhead had taken in Re H to explain that he did not mean that the standard of proof was higher, others had referred to a “heightened standard of proof” where the allegations were serious.  In re B reaffirmed the principles adopted in In re H while rejecting the nostrum “the more serious the allegation, the more cogent the evidence needed to prove it” which had become a commonplace but was a misinterpretation of what Lord Nicholls had in fact said.  In re B was not a new departure in any context.

The House in In re B had also recognised that courts and local authorities had different roles to play in protecting children from harm. Social workers were the detectives.  They put the evidence which they had assembled before a court and asked for an order.  The court subjected that evidence to critical scrutiny, found what the facts were, made predictions based upon the facts, and balanced a range of considerations in deciding what would be best for the child.

It should no more be expected that every case which a local authority brought to a court resulted in an order than it should be expected that every prosecution resulted in a conviction.

If every child protection case were to result in an order, it would mean either that local authorities were not bringing enough cases to court or that the courts were not subjecting those cases to a sufficiently rigorous scrutiny

The first question was whether it was settled law that the test to be applied to the identification of perpetrators was the balance of probabilities.  The observations In Re B at paras 15 and 73) made it clear that the same approach was to be applied to the identification of perpetrators as to any other factual issue in the case.

There was no necessary connection between the seriousness of an allegation and the improbability that it had taken place.  The test was the balance of probabilities; nothing more and nothing less.

It might be difficult for the judge to decide, even on the balance of probabilities, who had caused the harm to the child.  There was no obligation to do so.  Unlike a finding of harm, it was not a necessary ingredient of the threshold criteria.  Judges should not strain to identify the perpetrators.

The second and third questions which arose asked whether judges should refrain from seeking to identify perpetrators at all if they were unable to do so on the civil standard and whether they should now be discouraged from expressing a view on the comparative likelihood as between possible perpetrators.  Those appeared to be linked but they were distinct.

As to the second, if the judge could not identify a perpetrator or perpetrators, it was still important to identify the pool of possible perpetrators.  If the harm had been caused by someone outside the home or family, for example, at school, or in hospital, or by a stranger, then it was not attributable to the parental care unless it would have been reasonable to expect a parent to have prevented it. 

In North Yorkshire County Council v SA  it was held that it was wrong to apply a “no possibility” test when identifying the pool of possible perpetrators.  That was far too wide.  Dame Elizabeth Butler-Sloss (President) preferred a test of a “likelihood or real possibility”  There were real advantages in adopting that approach.  The cases were littered with references to a ‘finding of exculpation’ or to ‘ruling out’ a particular person as responsible for the harm suffered.  That was, as the President had indicated, to set the bar far too high.  It suggested that parents and other carers were expected to prove their innocence beyond reasonable doubt.

If the evidence was not such as to establish responsibility on the balance of probabilities, it should nevertheless be such as to establish whether there was a real possibility that a particular person was involved.

As to the third question:  while it was helpful to have a finding as to who had caused the injuries (if such a finding could be made) it was positively unhelpful to have the sort of indication of percentages of likelihood that the judge had been invited to give in the present case.

It was established in In Re H that a prediction of future harm had to be based upon findings of actual fact made on the balance of probabilities.  It was only once those facts had been found that the degree of likelihood of future events became “the real possibility” test adopted in In Re H.

Protective measures imposed by the trial court hampered the conduct of the defence in a manner and to an extent which was unlawful and rendered the trial unfair said Lord Bingham in R v Davies [2008] UKHL 36 – 18 June 2008.  The House of Lords unanimously invited the Court of Appeal to quash a murder conviction and decide, if application were made, whether to order a retrial.

This ruling led directly to another murder trial (R v Johnson & Austin) being halted at the Old Bailey today.  Judge Paget said the trial had been “derailed” by their Lordships’ decision.  A senior police officer claimed that upwards of 40 other cases may be affected.

Reacting almost immediately, the Justice Secretary, Jack Straw, is reported as saying that there was a real need for some witnesses to have their identities protected and vowed to change the law as quickly as possible to allow the right of anonymity to be restored.

That, of course, begs the question whether English law has ever recognised a right of anonymity and, if so, to what extent.

In Davies the trial judge had ordered a number of protective measures:

(1)   The witnesses were each to give evidence under a pseudonym.

(2)   The addresses and personal details, and any particulars which might identify the witnesses were to be withheld from the appellant and his legal advisers.

(3)   The appellant’s counsel was permitted to ask the witnesses no question which might enable any of them to be identified.

(4)   The witnesses were to give evidence behind screens so that they could be seen by the judge and the jury but not by the appellant.

(5)   The witnesses’ natural voices were to be heard by the judge and the jury but were to be heard by the appellant and his counsel subject to mechanical distortion so as to prevent recognition by the appellant.

Although the defendant’s counsel was not precluded by the protective measures from the opportunity to see the witnesses as they gave evidence, he regarded it as incompatible with the relationship between counsel and client to receive information which he could not communicate to the defendant in order to obtain instructions, and he therefore submitted to the restriction imposed upon the defendant.  It was not suggested before the House of Lords that he should have acted otherwise.

Crucial to the decision in the case is that without the three witnesses whose evidence was subject to the protective measures, the defendant could not have been convicted.

Lord Bingham’s Opinion deals extensively with the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence.  This common law right to be confronted by one’s accusers was included within the colonial constitutions of several North American colonies and, by the sixth amendment to the United States constitution adopted in 1791 it was provided “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him …” That rule had been strictly applied.

There had been long recognised exceptions to the right of confrontation in this country examples of which were dying declarations and statements forming part of the res gestae, and further exceptions had been enacted by statute.  But there had until recently been no precedent for protective measures of the mind under consideration in the instant case even when the problem of witness intimidation had been extreme.  A Commission chaired by Lord Diplock reported in 1972 of the problem of witness intimidation in Northern Ireland but could see no way of keeping the identity of witnesses secret without gravely handicapping the defence or exposing counsel to a conflict between his duty to his client and a duty to the state inconsistent with the role of the defendant’s lawyer in a judicial process.

In other countries such as New Zealand and South Africa the right to confrontation had not achieved constitutional protection but had been treated as an important right.

Lord Carswell added that an important consideration was the relative importance of the witness’s testimony in the prosecution case.  As a general rule it was unlikely that the trial would be fair if a very substantial degree of anonymising of evidence was permitted where testimony of the witnesses concerned constituted the sole or decisive evidence implicating the defendant.

Their Lordships agreed with Lord Mance’s analysis of the jurisprudence of the European Court of Human Rights in the context of the Convention of Human Rights.  That court’s starting point was “the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them.  The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which the evidence was taken, were fair.”   The Court had repeatedly stated that the use of anonymous evidence “is not under all circumstances incompatible with the Convention.”  In Doorson it added that principles of fair trial also required that in appropriate cases the interests of the defence were balanced against those of witnesses or victims called upon to testify and that a conviction should not be based either solely or to a decisive extent on anonymous statements.

Their Lordships recognised that it was not for the courts of this country to change the law and it may well be a matter for parliament to consider.  Lord Mance observed that there was in the present Strasbourg jurisprudence nothing that required states in their national law to balance anonymity against defendants’ rights, the primary question being whether English domestic law permitted anonymous evidence in any circumstances.  He felt there was a limited flexibility in exceptional circumstances.

There is little doubt that parliament will be called upon shortly to consider this issue but whatever legislation ensues should not be the subject of a knee-jerk reaction.  As Lord Bingham said in Davies, it cannot be assumed at the outset that the defendant is guilty and all that he says is false.  The common law has evolved over centuries to protect the innocent as well as to convict the guilty.  It may be better for a Royal Commission to be appointed to examine the issues with an instruction to report by an early date.

It was at least surprising that FIFA’s President, Sepp Blatter, should go as far as proposing that football clubs field a minimum of six domestic nationals given the plain European Community rules on free movement of workers.  It was perhaps astonishing that FIFA’s governing body endorsed that proposal.

The basic principle in the European Union is that citizens have the right to work and live in another Member State without being discriminated against on grounds of nationality.   It is enshrined in Article 39 of the EC Treaty and protects the right of a citizen to look for a job in another Member State; the right to work in another Member State;  the right to reside there for that purpose;  the right to remain there;  the right to equal treatment in respect of access to employment, working conditions and all other advantages which could help to facilitate the worker’s integration in the host Member State.

There is clear authority that professional sportsmen are not exempt from the provisions of Community law.  In Bosman the European Court of Justice held that the player had accepted an offer of employment in another Member State and that Article 39 applied.  Professional football was an economic activity to which the Treaty applied.  The transfer fee system between clubs which was aimed at compensating the former club for the training invested in the player who wished to leave, was incompatible with the free movement of workers.  It also held that Article 39 precluded rules which limited the number of professional players from other Member States who could play in football competitions.  The Court also held in Slovak  that a rule which limited the number of professional players who may participate in matches related to working conditions and was also discriminatory.

One may wonder why the FA and UEFA have reportedly backed the FIFA scheme in principle when it would be indefensible if a legal challenge were to be mounted.  Why would anyone wish to be shielded from legitimate competition?  Far from the short term illusory gains which may be envisaged, a fair playing field, as contemplated by European law, will ensure a raising of standards and equality of opportunity between all EU citizens.

The Appellate Committee of the House of Lords has once again sought to clarify the burden of proof in civil proceedings:  In Re B (Children) (Fc) [2008] EWCA Civ 282.  It also decided that if a legal rule required a fact to be proved (”a fact in issue”), a judge … must decide whether or not it happened.  “There is no room for a finding that it might have happened.  The law operates a binary system in which the only values are 0 and 1.  The fact either happened or it did not.  If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof.  If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened.  If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”  (per Lord Hoffmann)  Lady Hale added that if the judiciary in this country regularly found themselves in the state of mind where it could not [applying the appropriate burden and standard of proof] reach a conclusion, our civil and family justice systems would rapidly grind to a halt.  A judge was not permitted to sit on the fence.  He had to find for one side or the other.  Sometimes the burden of proof would come to his rescue:  the party with the burden of showing that something took place would not have satisfied him that it did.  But generally speaking a judge was able to make up his mind where the truth lay without needing to rely upon the burden of proof.

The standard of proof in civil cases, that is to say, the degree of persuasion which the tribunal must feel before it decides that the fact in issue did happen is that the occurrence of the fact in question was more likely than not. 

Some confusion had been caused by dicta which suggested that the standard of proof may vary with the gravity of the misconduct alleged or even the seriousness of the consequences for the person concerned.  Lord Hoffmann thought the time had come, once and for all, to say that there was only one civil standard of proof and that was proof that the fact in issue more probably occurred than not.

On the notion of inherent probabilities which Lord Nicholls had referred to in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, Lord Hoffmann emphasised that Lord Nicholls was not laying down any rule of law.  The learned Lord had said, “the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.  Fraud is less likely than negligence.  Deliberate physical injury is usually less likely than accidental physical injury.  A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her.  Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.”  There is, however, only one rule of law:  namely, that the occurrence of the fact in issue must be proved to have been more probable than not.  Common sense, not law, requires that in deciding this question regard should be had to whatever extent appropriate, to inherent possibilities.  Therefore, if a child alleged sexual abuse by a parent, it was common sense to start with the assumption that most parents do not abuse their children.  But that assumption may swiftly be dispelled by other compelling evidence of the relationship between parent and child or parent and other children.

Lady Hale drew attention to Lord Lloyd’s opinion in In re H:  “In my view, the standard of proof ought to be the simple balance of probability however serious the allegations involved …”  He did not find it useful to use expressions such as the cogency of the evidence needed to tip the balance because, firstly, they were no more than statements of the obvious and, secondly, there was a danger that repeated use of the words would harden into a formula which, like other formulas (especially those based on metaphor) may lead to misunderstanding.

Lady Hale added that Lord Lloyd’s prediction proved only too corect.  Lord Nicholls’ nuanced explanation left room for the nostrum “the more serious the allegation, the more cogent the evience needed to prove it” to take hold and be repeated time and time again in fact finding hearings …”  It was time for us to loosen its grip and give it its quietus.

The offside law appears to be clear:  A player in is in an offside position if he is nearer to his opponents’ goal line than both the ball and the second last opponent.  A player is not in an offside position if he is in his own half of the field of play; or he is level with the second last opponent;  or he is level with the last two opponents.  The words nearer to his opponents’ goal line mean that any part of his head, body or feet is nearer to his opponents’ goal line than both the ball and the second last opponent.

According to this definition, when Ruud van Nistelrooy opened the scoring against France on Monday night he was clearly, as he appeared to believe himself, offside, because only the goalkeeper stood between him and the goal line when the ball was last played.  So the hundreds of thousands of fans who witnessed the incident at the stadium or on television screens around the world could be forgiven for thinking that the assistant referee had blundered.

Amazingly, therefore, officials have now sprung to the defence of their colleague.  It is said that Christian Panucci, the Italian defender who had seconds earlier stumbled off the pitch after a collision with his goalkeeper and was then lying next to the goal, was keeping van Nistelrooy onside.  David Taylor, the EUEFA General Secretary, is reported to have said, “This defender is still considered part of the game.  If we did not have this interpretation, what could happen is the defending team could step off the pitch to play offside and that is clearly unacceptable.  As a defender, you are in play unless you have permission to be off the field.”

This appears to be a wonderful piece of retroratiocination to justify an appalling error.  FIFA’s rules say “If a defending player steps behind his own goalline in order to place an opponent in an offside position, the referee shall allow play to continue and caution the defender for deliberately leaving the field of play without the referee’s permission when the ball is next out of play.”  That, of course, was not this case.  The player was injured.  He did not “step” off the field of play.  It was not ungentlemanly conduct and he was not awarded a yellow card as a caution.  And by no stretch of the imagination could it be said that van Nistelrooy was not nearer to his opponents’ goal line than his second last opponent.

Laws of society or rules of a game are useless if they are not clearly expressed and uniformly and fairly applied.  This law, far from being clear, was certainly not fairly applied and France have every reason to complain that they were unfairly treated.  The Netherlands went on to win the game handsomely with a fine and entertaining performance, but who knows what would have happened if this decision had been correctly made.

It is an accepted fact by legal practitioners in our courts of law that alcohol related crime keeps most criminal lawyers in business.   Anecdotal evidence that crimes of violence and public disorder are almost always fuelled by alcohol is overwhelming, but there seems to be little political will to accept or tackle the problem.  Politicians, for example, blandly deny that the extension to licensing hours has aggravated the situation, but ask the police officer who is frequently called to scenes of public violence at all night drinking establishments, ask the defence solicitor who crawls  to the police station in the middle of the night to attempt to take instructions from an inebriated client, or ask a prosecutor who is required daily to prosecute whole lists of drink related violent crimes.

And it is not just men who are responsible for these offences.  The Youth Justice Board has revealed figures to show that crimes carried out by girls between the ages of 10 and 17 have risen by 25 per cent in three years with violent attacks rising by 50 per cent, much of it drink related.

The unhappy result for the law abiding public is that there are fewer safe areas which can be visited on foot in our cities and towns, particularly in the hours of darkness.  The danger is that an individual may be set upon merely because another, whose judgment is clouded by alcohol, perceived an unwelcome glance in his direction; or it may be that an attack will happen just because the victim happens to be on the street and for no other ascertainable reason.

If we are to go about our daily lives in relative peace and safety, sooner or later these issues must be faced and dealt with.  It is tempting to suggest a raft of new legislation to deal more severely with alcohol related crime, but there is little in the welter of various measures which have been introduced in the last 10 years to indicate that would have any real effect.  A starting point may well be to limit licensing hours to those in force before the ill-advised 24 hour drinking laws were introduced.

A better view, however, would be if the Home Office initiated urgent empirical research into the number of drink related crimes which came before the courts so that the true scale of the problem could be assessed.  Although new legislative measures may then be considered, the fundamental task will be an enormous public relations exercise to re-educate the general public about the dangers and the overall effects on each of our lives of over-consumption of alcohol.  It must be a long term exercise:  it must start in our schools and in our places of worship, and it must infiltrate every aspect of our being because unless there is a real change to society’s attitude as a whole, the outlook will remain bleak.