How much use will be made of the new anti-sectarian law?
The Offensive Behaviour at Football and Threatening Communications (Scotland) Bill has been introduced in a rush to get it on to the statute book. The reasons for this have been addressed at length, but it is clear that, whether or not there is a need for it to be passed in a hurry, the SNP majority at Holyrood will ensure that the Executive meets its goal of having the new offences in place in time for the football season.
On the basis that it will be passed into law by the SNP majority, what are we likely to see when the police are left to enforce it?
Anyone who has been at a Scottish Premier League match, particularly, but not exclusively, involving the” Old Firm” is likely to have heard songs and chants which would be felt to be offensive by at least some of the spectators there.
The Bill seeks to attack “offensive” behaviour of a sectarian nature, though the word “sectarian” does not appear in the Bill. It might be asked why the Bill therefore seeks to go further in criminalising conduct than the politicians promoting it have indicated?
We have a piece of legislation which has been described by the eminent QC Paul McBride as “the most important piece of legislation to be passed in Scotland in the past 30 years” http://bit.ly/mbUymH .
The build up from the Executive together with the labelling of the Bill as one of such gravity, and the emphasis on the serious nature of the “parasitic” and “cancerous” problem of sectarianism would suggest that the job of the police will be to pull large numbers of singing and chanting fans from crowds in or near football grounds, or in pubs and clubs broadcasting the games, when the level of offensiveness gets too high.
It is also the case, as identified in the Policy Memorandum to the Bill, http://bit.ly/kyBvLn that much of the newly criminalised conduct is already covered by Scots Law, the aim of the Bill being for “clarity”.
Let’s do a quick calculation then – there are 228 SPL games each season (ignoring the larger number of lower league games), together with internationals, European matches and domestic Cup ties. In addition friendlies played by Scottish teams, whether at home or abroad, are covered. There are therefore going to be hundreds of games each year at which the new regime will apply. Of those games, at least four will involve Celtic playing Rangers, with a combined crowd of around a quarter of a million fans attending those matches alone. Whilst clearly the vast majority of spectators are not indulging in such offensive behaviour, a “small minority” in percentage terms can still add up to a significant number.
How many prosecutions are there likely to be each year for a breach of the Bill, once enacted?
In light of the seriousness of the problem to be eradicated, and the number of serious incidents publicised, we must surely be looking at thousands of prosecutions and fixed penalties in an effort to clamp down on this unacceptable behaviour?
We are able to see how many the Executive thinks there will be, as this is helpfully included in the Explanatory Notes to the Bill http://bit.ly/jivL9T .
Paragraph 45 states “It is crucial to the estimates that follow that much of the behaviour that the provisions cover is already criminal and therefore liable to prosecution. There is well-established case law on the use of breach of the peace, for example, in cases similar to those set out in these provisions. The new measures do, however, bring clarity and strengthen the law.”
Paragraph 48 tells us “A basic assumption in preparing this Memorandum has been that there is an increasing social problem in relation both to offensive behaviour associated with football and, more widely, certain threats communicated in a variety of ways.”
Paragraph 52 recognises that “Another crucial assumption concerns the very wide potential scope of the new offences and thereby the prospect of a very considerable number of prosecutions etc., with all the consequential costs. In relation to the offences covering offensive behaviour at football matches, this means everything covered by the definition of a “regulated football match”, along with travel to and from those matches and wherever such matches are being broadcast. In relation to the “threatening communications” offence the scope is potentially even wider, given that any relevant threatening communication could include threats communicated from outside Scotland, which can be seen or heard in Scotland. The potential costs of enforcing all such instances of the offences would be unsustainable.” (All emphases added.)
Looking at the “Offensive Behaviour” charge Paragraph 65 deals with the more serious cases to be prosecuted at the Sheriff Court before a jury. “The Scottish Government anticipates that the new measures set out in the Bill will in large part be used in place of existing offences including breach of the peace. Given this, it is anticipated that the new measures will lead to a relatively small additional number of the most serious cases being prosecuted in the Sheriff Courts under solemn procedure, with the expectation that a substantial custodial sentence would be imposed on conviction. It is difficult to predict exact levels of activity at this stage, but the Scottish Government has prepared estimates which assume that between five and 10 additional cases would be tried each year in the Sheriff Solemn court.”
So, in addition to existing cases prosecuted as breach of the peace, the Executive expects 5-10 cases per year at the serious level.
Dealing with more minor summary matters, tried by a Sheriff sitting alone, we have Paragraph 66 which states “Given the Scottish Government’s stated intention of tackling and eradicating offensive behaviour at football matches, it considers that a realistic estimate of new prosecutions would lie between 50 and 100 additional cases per annum.”
At the less serious end of the spectrum therefore one to two cases per week only?
Paragraph 67 deals with fixed penalties, which can be issued by the police without the need for a prosecution. “The police will have the option of issuing fixed penalty notices (FPNs) for relatively minor offences under the new offensive behaviour provision. Such offences might be targeted at chanting or other offensive behaviour at a less serious level. … It is anticipated that between 200 and 500 FPNs might be issued directly by the police each year. … However, even the upper estimate of new FPNs issued should be seen in the context of some 60,000 FPNs handed out for antisocial behaviour more generally each year.”
There, as regards offensive behaviour, you have it. Five to ten additional serious cases, fifty to one hundred less serious ones, and up to five hundred fixed penalties. At the top end therefore just over six hundred cases per year.
On one view, the less this legislation is used the better, but there seems to be a large difference between the intended impact the publicity indicates the Bill is meant to have, and the actual number of expected cases. I have not heard Roseanna Cunningham mention in the interviews she has done the expected numbers of cases (and if she has, I apologise for suggesting otherwise.)
Looking at the threatening communication offence, a similar exercise is carried out in the Explanatory Memorandum.
Paragraph 73 states “It is anticipated that there will be between two and five new Solemn cases through the courts each year.”
Paragraph 74 tells us “For less serious offences dealt with through Summary procedures, it is expected that there could be between 20 and 50 new cases a year.”
There is no mention of fixed penalties for threatening behaviour.
In total, taking account of both offences, we are looking at under 700 cases in total each year.
Is it likely that a Bill introduced for such a serious purpose, and to effect a change in a prevalent social “evil” will do so with so few cases? Comparisons have been made with the change in attitude brought about with drink driving for example. I suspect that prosecutions for that offence came in far larger numbers, and it still took years to change attitudes!