The Justice Committee Further Considers the “Anti-Sectarian” Bill

Today we had a further session of the Justice Committee considering the  Offensive Behaviour at Football and Threatening Communications Bill.

This can be seen at

Today’s session was rather less messy for the Executive than yesterday – perhaps because Roseanna Cunningham was nowhere to be seen.

Principally we heard from Frank Mulholland, the Lord Advocate, wearing his hat as head of the prosecution service

Perhaps, as a life long prosecutor, it was not surprising to see him, despite the bafflement at the Bill shown by some Committee members, commend it for its clarity and the fact that it would make matters easier for prosecutors.

Mr Mulholland made reference to various cases where he clearly felt defences had been run by solicitors to allow their clients to escape justice in connection with breach of the peace charges. He made reference to cases where, what seemed to be clear cases of breach of the peace did not result in convictions. He did not consider it appropriate to mention details of these cases, even where the decisions of the court had been reported – in one instance he quoted at length from the Sheriff’s judgement. Quite why he did not consider it appropriate to mention reported cases was not clear.

If the Sheriffs in question had made what Mr Mulholland appeared to be suggesting as such egregious mistakes, then one wonders if any of the cases were subject to Crown appeals, if appropriate.

These cases were prayed in aid of the need for this new legislation, designed to “clarify” matters.

Mr Mulholland also pointed out that the crime of breach of the peace was narrowing as a result of European Convention on Human Rights issues. He criticised it for its lack of specification. It was not appropriate, under the ECHR, for citizens not to know the definition of a crime, and if what they did was criminal or not.

He indicated that this Bill was short and made things clear.

When various hypothetical situations were out to him, he was reluctant to address these on the grounds they were hypothetical, but, when it suited him to do so, he was happy to refer to hypotheticals.

One particular sign of the lack of clarity was the confusion of the Convener of the Committee, Christine Grahame. She was herself an experienced lawyer prior ro becoming an MSP. She was tied in knots by the definitions relating to attending regulated football matches, and whether this included “attending” such a game on television in a pub or club.

She asked the interesting logical question about how a person could be said to be travelling to a match to which they had no intention to go! She also asked if a supporters’ club, where there were entirely fans of one team only, could be the locus for an offence if offensive songs were sung in relation to the absent team’s fans. The Lord Advocate, despite the “clarity” of the Bill decided he needed to reflect on the question, and would write to the Convener with an answer.

All in all, whilst he did a far better job defending the Bill than the Justice Minister, it remains clear that the Committee, and not split on partisan grounds, is gravely concerned by the Bill and its haste.

He also promised the Committee to issue to them his draft guidance to Chief Constables on the Bill and its day-to-day operation.

Whilst Mr Mulholland made it clear that there is always guidance issued by the Crown Office when new offences are created, it is interesting that, whilst Parliament decides what the Act will say, there is no control over the Lord Advocate’s interpretation of the Bill as will be shown in his draft guidance.

Equally, the courts will enforce the Act, as they interpret it, not the Lord Advocate’s guidance.

The remaining witnesses today all added, to some degree or other, to the fun.

The “football witnesses” being representative from the Scottish Premier League, Scottish Football League, Celtic and Rangers showed a clear divide. The “Old Firm” representatives both criticised the speed of the legislation which had prevented any meaningful discussion with their own supporters. There was a great deal of pragmatism, especially from Mr Martin from Rangers who pointed out that the “Game of Shame” had been the 1980 Cup Final where Old Firm fans fought with bottles on the pitch at Hampden, as mounted police tried to restore order. As he rightly said there has been an almost infinite improvement since then. It was also noted that the response of the Government of the day had not been to rush through legislation in two weeks.

Mr Martin even made reference to the fact that marches in Glasgow, Lanarkshire and Ayrshire over the summer are likely to have as much, if not more, sectarian abuse shouted at them, but this Bill, as far as “offensive behaviour” goes, only deals with football matches. If sectarianism, rather than purely football-related sectarianism, is the problem, why does the Bill not address these issues?

The football authorities expressed themselves disappointed about how the clubs had reacted, and were entirely in agreement with the Executive re the need for the new laws now. I imagine there would have been some interesting discussions between them should they have shared a train carriage back to Glasgow together!

There is clearly much more ink to be spilt considering this matter even in the short time left in its Parliamentarylife – what further joys await?

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Filed under Bills, Criminal Law, Offensive Behaviour at Football and Threatening Communications (Scotland) Bill

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