This weekend sees the first outing for the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.
The Scottish Executive has been publicising the changes, and a press release on 29th February was issued to remind us all of the new Act.
Some extracts from the release are below in bold, with my comments in plain text.
The Act will come into force on March 1 to stamp out offensive and religious hatred at football.
The long title to the Act is – “An Act of the Scottish Parliament to create offences concerning offensive behaviour in relation to certain football matches, and concerning the communication of certain threatening material.”
That differs from the stated focus of the Act as per the press release, as it is a wider range.
In addition, according to the release, the Act will stamp out offensive hatred and religious hatred at football. I am not sure if there is “inoffensive” hatred. And the Act extends far further than “religion”.
Indeed as I have said before, “religion” is not the problem, unless support, especially for Rangers and Celtic, is seen as “religious”.
It is good to see that the aim is high – stamping out hatred. Is “hatred” now illegal?
The legislation responded to calls from Scotland’s police and prosecutors and gives them additional tools to crack down on sectarian songs and abuse at and around football matches and threats posted on the internet or through the mail.
Graeme Pearson, MSP, is a former police officer, latterly head of the Scottish Drug Enforcement Agency. In the Committee stages of the Bill, he pointed out that the police would never decline greater powers. The same applies to prosecutors.
Is the position of the present Executive that the police and prosecutors will be given whatever powers they seek? Is the default position that, if the police and prosecutors ask for something, it is, by definition, necessary?
This is even more of a concern where the Crown Office, which is in charge of the Scottish prosecutorial system, is in the hands of career prosecutors. The present Lord Advocate, Frank Mulholland, and his predecessor, Dame Elish Angiolini, were both career prosecutors, working their way up through the ranks of procurators fiscal.
This trend (if two example can be considered a trend) is a change from the practice from before, stretching back hundreds of years. The Lord Advocate was appointed from the Scottish Bar, and whilst they would have had experience in Crown Office as a prosecutor, they would also have had a broader practice. They were independent of Crown Office, whilst heading it up.
As the great CLR James wrote in his book “Beyond a Boundary”, “What do they know of cricket, who only cricket know?”
What do they know of prosecution who only prosecution know?
The present and immediate past Lord Advocates are not unqualified for the role. However, the fact that they have had no experience elsewhere ought to have rendered them disqualified for the post.
The release also states that the new rules were needed as “additional tools” but surely the existing tools were sufficient?
This week has seen the imprisonment of David Craig for 14 months after admitting behaving in a threatening or abusive manner likely to cause fear and alarm by posting images and messages of an offensive, threatening and sectarian nature. He was dealt with under the “old” law.
Supt David Brand, head of the Football Coordination Unit Scotland, said: “On the day that the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 has come into force, this sends a strong warning to others who might think about posting such vile, abusive and threatening comments on Facebook, Twitter or indeed any other online site.”
I know that Supt Brand is a dedicated and excellent police officer. However, his statement seems to miss the point. Mr Craig is in prison as a result of the “old” law. That was sufficient to allow him to be prosecuted and imprisoned. The new Act makes no difference to that.
There have been regular reports of people being arrested for “offensive chanting”.
Where are the “criminals” who could not be prosecuted because of the new law not being yet in force?
The Act creates two new distinct offences, punishable through a range of penalties up to a maximum five-year prison sentence and an unlimited fine:
· The first offence targets any hateful, threatening or otherwise offensive behaviour expressed at and around football matches which is likely to cause public disorder.
· The second offence relates to the communication of threats of serious harm or which are intended to stir up religious hatred, whether sent by post or posted on the internet.
The Act covers regulated football matches, namely any match played by a Scottish senior football team or national team, whether in Scotland or elsewhere. It covers travel to and from a game, including overnight travel.
It covers pubs and other public places where matches are shown on TV, but not private houses.
It covers travel to and from such pubs.
It covers travel to and from matches, even where the accused had no intention of going to the match!
This is intended to deal with a person going with a group headed to a game, but where the person themselves does not intend to go, but engages in “offensive” behaviour on the way. They become subject to this Act as a result of the company they keep.
However, if a group of football fans intended to travel, for example, from outside Glasgow for a match there, but none of them were actually going to the game, and the match was not on TV, then the new law would not apply, even if they proceeded to chant “offensively”.
The answer given would be that the existing law covers them, which is exactly my point!
Minister for Community Safety and Legal Affairs, Roseanna Cunningham said:
“The overwhelming majority of football fans who have been supporting their teams in the true spirit of the game for years have absolutely nothing to fear from this legislation. In fact it is designed to improve their experience, ensuring they can focus on football and not be distracted by the mindless, hateful prejudices of a small minority.
“This legislation will have no impact on the banter and passionate support that goes hand in hand with supporting football teams. It is not about discouraging the competition and rivalry that is the lifeblood of football, it is about eradicating sectarianism and other unacceptable expressions of hate from our national game.”
Football fans sometimes express dislike of other fans. That goes with the rivalries. However, it is disingenuous to say the rules are “designed to improve fans’ experience”.
Almost all supporters’ groups have expressed concern over the impact of the new Act. I am unaware of any who have welcomed it. The football fans themselves do not want these rules.
Some oppose them because they want to sing offensive songs. However most are concerned that what they view as legitimate will be criminalised.
“We listened to Scotland’s police and prosecutors when they told us they needed greater powers to take a hard line on sectarianism at football and threats of harm being posted on the internet. These new laws make it very clear that religious hatred will no longer be tolerated and there should be no mistake that those who promote sectarianism will feel the full force of the law.
Was religious hatred tolerated? That seems a surprising comment, and if it was “tolerated” and was, as Mr Salmond described it “a cancer on our society” why has it taken the SNP Executive until now to legislate?
The question then arises about “promotion of sectarianism”. What is that? It is not mentioned in the Act. To whom is she referring?
Does Ms Cunningham mean that, for example, certain football teams promote sectarianism? Does she blame certain fans’ organisations?
Part of the problem with this Act is that, far all the fine words about what it relates to, specifics are hard to find, at least in the Act itself.
In Committee, Ms Cunningham made a comment about seeing hundreds of fans “aggressively” making the Sign of the Cross. This was given as an example of a gesture which could be criminal.
Equally, for all her protestations, singing of national anthems could be criminalised, depending on the manner in which it is done.
What is going to happen if a Celtic, or any other, supporter breaks into the “Soldier Song”? This was the Irish anthem since 1926. It might well be offensive to some. Is it criminal to sing it in certain contexts?
The same could apply to “God Save the Queen”. Some loyal followers of Her Majesty could be offended by someone singing the Sex Pistols’ version. Is that criminal?
“I think we have already made progress around the kind of behaviour that is deemed acceptable at and around football matches and this legislation cements the message about the kind of Scotland we want to live in – bigots have no place in modern Scotland.
“Bigots” have no place in Scotland. Few would argue with that. But what is a “bigot”? What is “sectarianism”? These terms are not defined in the Act.
Is Scotland a place where unpalatable political opinion is to be criminalised?
To many the views of the BNP are “offensive”. Should BNP supporters gather at a football match, and sing, chant, or display banners or clothing putting forward its political views, to the offence of other people nearby, will that be criminalised?
Such a view is consistent with the new Act.
This puts the Act directly into conflict with the European Convention on Human Rights and the rights, which are not unbounded, to “free expression”.
“The majority of Scots, 91 per cent, supported tougher action to tackle sectarianism. I am under no illusion, this legislation will not be the one-stop solution to all our problems and that is why I recently announced £9 million over the next three years to continue work to tackle sectarianism across society. Attitudes change over time and this marks the beginning of the end of the shame that has blighted our glorious game for too long.”
Sectarianism is not exclusively a football problem. Football might be where it most clearly manifests itself, but connecting it with football seems to be abdicating society’s response to it. If it is just those nasty football fans, that statement seems to say, well we can all agree to clamp down on them!
What Might Go Wrong With The Act?
A law which is ridiculed, or seen to be flouted with impunity, is bad law.
A law which seems to punish disproportionately is a bad law.
A law which, when applied in terms of the Act, creates ridiculous results is a bad law.
When courts are left to deal with these issues, and to make the best of a bad job with hasty or ill-drafted legislation, that creates a lack of confidence in a law.
I fully expect defence lawyers to raise numerous technical points whenever the first of these cases comes to court. A logjam of legal debates and appeals, potentially all the way to the UK Supreme Court and the European Court of Human Rights is clearly possible.
There are inconsistencies too. A couple of examples:- a football match on TV involving England and a team which is not Scotland would not be a “regulated” match, even though feelings could run very high. The fact that a match is on TV in the pub or club changes the way behaviour is dealt with, even if no one is watching it!
Statements could be criminal under the new Act because the pub landlord switches over from Eastenders to a “regulated match”.
In addition, the offence is created even where there is no one there to be offended!
So if the members of a club, whilst watching a game there on TV, with 100% of the people there being supporters of the same team, started singing “offensive” songs, then the evidence of two passing police officers (and if Lord Carloway’s proposals are passed, only one) could be sufficient to convict.
It is therefore an offence to say “offensive” things in private, if en route to or from a match, or if a regulated match is on TV in the background!
What Will Happen This Weekend?
We have already seen instances where matches are televised and on the radio, and opposing fans hear “offensive” songs or chants. The reaction is to start emailing or ringing the local constabulary asking them to investigate.
In addition, at a football match from now on, if a fan is “offended” by what the opposition is singing and reports this to the police, what will they do? Refusal to act there and then might be seen as condoning criminality. Wading into a crowd to pick out one or two offenders might cause trouble and might get the wrong people. Making mass arrests can do no good at all, as far as I can see.
The police therefore potentially find themselves caught between Scylla and Charybdis. It will take a tightrope walker’s balance to avoid being accused of heavy handedness on one hand, or ignoring the new Act on the other.
Bearing in mind the problems at the last Rangers home game, that is likely to present the greatest problems for the police this weekend. The SPL is investigating the last match and the singing that went on there. Rangers’ own security staff are left in a terrible opposition – to protect the Club they need to be seen to act, but that will only provoke more anger amongst an already fraught band of supporters.
In addition, as various fans debate how to sing “their” songs inoffensively, the task for stewards and police gets even harder.
I have seen it suggested that, for example, the phrase “up to our knees in Fenian blood” should be replaced by the phrase “up to our knees in Celtic blood” as the former could be seen as sectarian, and the latter would not. I cite that as an example of something I am sure only a tiny minority of Rangers fans are thinking about, and I am sure the choirs of all other teams are reviewing their own songbooks similarly.
Prior to the Rangers game, Celtic play on TV at noon. I fully expect that keen eared Rangers fans will be tuned to the TV and radio ready to make complaints if they consider that “offensive” songs are being sung.
Potentially therefore the police and football clubs are going to be left poring over CCTV footage of every game to identify people singing these songs. Perhaps there will be huge new opportunities for lip readers!
What I Hope Happens
I hope that fans do consider others. I hope that the clearly offensive songs and chants are silenced. I hope that spectators, as they already do, are pro-active when their fellow fans cross the line.
I fear though that a “tit for tat” battle will start, and that tomorrow’s papers will be filled with complaints about the police’s failures to act.
What Should Fans Do?
Don’t pay attention to the Act. Instead go by the Lord Advocate’s guidance to the police!
As it says:-
“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.”
Fans should not take risks. As the guidance states:-
“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.”
So anyone arrested today under the new Act should spend the weekend in custody for court on Monday. This could have dramatic and serious effects on jobs and futures.
The fear is that this law becomes a new version of the old offence of “annoying a police officer” or “breach of the peace” as it is known.