The New “Offensive Behaviour at Football” Act Comes Into Force on 1st March – Oh Dear

The Act has now received the Royal Assent. The Scottish Executive has indicated that it will lay regulations before the Scottish Parliament to bring it into force on 1^st March.

The first raft of fixtures after that date takes place on 3^rd March, when Celtic travel to Aberdeen, Rangers entertain Hearts, and some other games are played which will not be subjected to the scrutiny of those two.

The Scottish Executive website publicised this yesterday here.

I have planned a couple of pieces looking in depth at the Act and what I think is wrong with it, but I thought a few comments were relevant now.

The first thing I would say refers to the subtitle on the Scottish Executive news headline page – Approval for important new religious hatred legislation. (Emphasis added)

The focus in the debates on the Bill, both in Committee and in Parliament, was on the various different types of “hatred” which were to be stamped out. The “cancer” as Alex Salmond called it, of “sectarianism” was to be rooted out.

However, the point which politicians miss, either deliberately or accidentally, is that “religion” is not really the root of these problems, I think – unless one is going to treat Rangers and Celtic as religions (and interestingly a wise man pointed out to me this week that, as far as matters of orthodoxy, heresy and schism are concerned, there are certain similarities between religions and the following of football teams).

There is no doubt that there is “religious hatred” in Scotland. However the lazy assumption which appears to be made by politicians is that Celtic = Roman Catholic and Rangers = Church of Scotland.

I accept that, amongst the fans who bellow insults at each other at Old Firm matches, there might be an assumption (notice I did not use a capital letter) that the fans in opposing colours represent the “opposing” faith.

The famous, though probably apocryphal, story about Bertie Peacock, the Celtic player from the 1950’s, illustrates the point. During a Celtic v Rangers game, he is said to have complained to a teammate that the opposing fans were calling him a “Fenian b@%&#+d”. When re-assured that the other players got that all the time, Mr Peacock, a proud Ulsterman and not a Roman Catholic, is believed to have said “Aye! But you all are!”

I imagine that similar conversations, from the other side of the divide might have taken place involving some of Rangers’ recent foreign players who have been adherents to Roman Catholicism.

The focus of the various pieces of legislation regarding “hate speech” (an Orwellian phrase if ever there was one) is on the view of the offender. So, if someone had shouted and sworn at Pope Benedict on his visit to Scotland, and told him that “I hate all you @&%$£#* followers of Shinto!” Then this would have been libelled as an aggravated breach of the peace, even although, as is well known, the Pope is a Catholic.

Whilst it might be expecting too much to think that the fans whose main pleasure at games seems to be to bait the opposition would appreciate that football teams and religious belief are not synonymous, then surely the politicians are wise enough to see past that? Sadly not.

Minister for Community Safety and Legal Affairs, Roseanna Cunningham made the following comments, with my observations below each paragraph:

 

“These new laws will give Scotland’s police and prosecutors the additional tools they have asked for to extract poisonous songs of hatred from Scottish football and threats of harm being posted on the internet.”

First of all, as Graeme Pearson, MSP, said in the Committee stages of the Bill, the police have never been known to turn down new powers. Mr Pearson would know, having served with distinction as a police officer for 38 years, ending his career as Director General of the Scottish Crime and Drug Enforcement Agency, before turning to politics.

Ms Cunningham seems to be taking the view that, if the police and prosecutors want new powers, then they shall have them. That is surely a dangerous position. I intend no criticism of the present Lord Advocate, Frank Mulholland, nor of his immediate predecessor, but (and this is a point to be expanded upon in another piece) the fact that both of them are life-long prosecutors necessarily means that their views will have been impacted by the prosecutorial work they have done. Prior to the appointment of Eilish Angiolini as Lord Advocate, the appointment was usually politically based, but the job went to an experienced Advocate, who had the breadth of experience to come to the Crown Office with a view, in theory, from above the prosecution v defence fray.

As a headline, “Prosecutors and police want more powers” is up there alongside “Dog bites man”!

Ms Cunningham then states that the Act will be used “to extract poisonous songs of hatred from Scottish football”. The summary at the bottom of the press notice I have referred to above indicates of course that the new offence is far wider than simply “poisonous songs of hatred”.

I have, as may not surprise my reader, a great deal to say about the precise offences created under the Act.

However, the existing law of breach of the peace covered these matters exactly, which was one of the beauties of that offence as it had evolved. But even more so, the Criminal Justice and Licensing (Scotland) Act 2010 introduced a statutory offence of “threatening or abusive behaviour” in section 38.

As was repeatedly pointed out in the debates re the Bill, there had been no time to assess whether the creation of this new offence had been successful in clamping down on such conduct.

Usually it is the critics of legislation who are accused of coming up with ever more convoluted scenarios to show its ineffectiveness. Here though, the Minister and the Lord Advocate were the ones presenting the pretzel-contorted situations where neither s38 nor breach of the peace would apply.

In addition, despite the fact that the “Threatening Communications” part of the Act is not exclusively football-related, the fact that the Minister lumps both parts together, and that the Executive webpage re this story is illustrated with a football, seems to be saying, incorrectly, that it is.

And as far as the “Threatening Behaviour” part of the new Act goes, I find it hard to see how something might be caught by the new rules, but would have been legal under s38, for example.

 

“The passing of this Act sends out an important message about the kind of Scotland we want to live in and tells the bigots in no uncertain terms that this behaviour will not be tolerated in a modern Scotland.”

This sentence is the key, I think, to the whole matter. A message is being sent out. As the saying goes, “Something must be done, therefore we are doing something.” It is proper for legislation to be used to “send a message”. The court system does so every day. I recall the late and greatly missed Sheriff Fitzsimons at Dumbarton regularly telling a person in the dock that a message needed to go out. This, I am sure, was his cue to make sure that the reporter from the local paper made a careful note, and that the front-page story for the next edition was on its way!

But the problem is that, the more precisely offences are defined, the more risk there is for confusion in the minds of judges, and much more likely, juries. We simply need to recall how, apparently due to the, in my view, unnecessary addition of a religious aggravation to the charge of assaulting Neil Lennon, Mr John Wilson found himself acquitted of an assault carried out on live TV!

Already supporters of each side of the divide pore over law reports to find which word has been criminalised. The danger is that, should there be a high profile case under the new Act, and at least at first all such cases will be high profile, then a decision made on the facts of the case regarding a particular word, phrase, chant or song will be treated, by media, police and opposing fans, as having set a cast-iron precedent.

In the case of William Walls v PF Kilmarnock, Donald Findlay QC attempted to argue that Mr Walls’ references to “Fenian  b@%&#+ds” at a Kilmarnock v Rangers match (!) was a political comment. As Lord Carloway put it, “The Court does not accept that the appellant was referring to members of the American brotherhood formed in the 1850s.”

No one wants bigots, but, in a free society, how far should the State go in preventing people being “offended”? That debate seemed to be ignored in the rush to “do something”.

 

“By all means enjoy the banter and passionate support for your football teams, even passionate opposition of other football teams – it is the lifeblood of football. But sectarianism and other expressions of hate are not acceptable and it is time for it to stop. Those engaging in it will face the full force of the law.”

In the Walls case referred to, Lord Carloway made similar comments. He said, “The Court has no doubt that the conduct of the appellant did amount to a breach of the peace, even in the context of a football match where at least shouting and singing, or hearing shouting and singing, are undoubtedly part of the match experience expected by all attending the stadium. As a generality, a complaint of someone shouting and singing could not ground a complaint of breach of the peace at a football match, as it might at other locations. Equally, occasional standing up and even leading communal singing are unlikely to amount to conduct severe enough to threaten serious disturbance. However, presence inside a football stadium does not give a spectator a free hand to behave as he pleases. There are limits and the appellant’s conduct went well beyond those limits.”(Emphasis added)

This case was an example of the sensible approach of the judiciary to these matters, even before s38 came into force. The more prescriptive the rules, the less discretion open to the courts.

In addition, the strict line taken by Crown Office on matters of this nature, including the insistence on going to trial and not accepting lesser pleas, means that there will undoubtedly be wasted court time, and unnecessary costs caused by prosecutions which, as Sheriff Cusine recently pointed out on stepping down from the Bench, should never have been initiated at all.

Finally, the timing of the introduction of the Act is interesting. In Committee last year, there was an initial effort to rush the Bill through in time for the start of the football season. As the Minister put it, the Act needed to be in place in time for the police to be trained in how to deal with it, and so that there was no confusion for police and for the fans caused by the law changing mid season. This necessity of course could only apply to the Offensive Behaviour part of the Act, as the Threatening Communications part is not exclusive to football.

Here we have situation where the new Act comes into force mid season, and therefore one would expect there to be a different attitude from the police and prosecuting authorities – after all, the existing law was repeatedly stated to have been inadequate.

The Lord Advocate published his draft guidance in connection with the Bill, as it was proceeding through Parliament. Ironically, this, together with police guidance to its officers, will be more important in what can, and cannot, be done by football fans, than the Act itself, and the guidance was not subject to debate.

I foresee many cases coming under the new Act, and a clear conflict arising in relation to the rights of free speech enshrined in the European Convention on Human Rights as opposed to the restrictions envisaged in the Act and the guidance.

As the guidance puts it:-

“The offence WILL NOT

 Criminalise singing national anthems in the absence of any other aggravating, threatening or offensive behaviour

 Criminalise making religious gestures in the absence of any other aggravating, threatening or offensive behaviour

 Criminalise football banter or bad taste in the absence of any other aggravating, threatening or offensive behaviour

Officers should have regard to proportionality, legitimate football rivalry and common sense when assessing whether the conduct would cause offence to the reasonable person.”

Therefore, singing national anthems, making religious gestures and “banter and bad taste” can be offences if there is other “aggravating, threatening or offensive” behaviour. The Minister referred in Committee to people “aggressively making the Sign of the Cross.”

On that basis, if a police officer, and then a fiscal, have the same view as Roseanna Cunningham of such an event, an accused would be tried for breach of the new Act.

In addition, as the Lord Advocate’s guidelines state, “Where there is evidence that an offence has been committed the accused should be reported in custody. Only in extenuating circumstances should an accused be liberated subject to an undertaking to appear at court.”

I suspect that the cells might find themselves rather full on 25^th March, after the Rangers v Celtic game that day.

And, as we have seen with the Twitter Joke case, a prosecution for what most people saw as a joke has resulted in a criminal conviction, and loss of employment, for the accused.

I fear that the Scottish justice system faces appearing ridiculous very soon.

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