There was extensive debate recently when the SFA Compliance Officer, Vincent Lunny, referred a case against Celtic for investigation. This related to an allegedly offensive banner displayed at a Celtic game. The banner was presumably intended to be a humorous reference to the demise and revival of Rangers, depicting the reverse of the evolution process leading to a grave, and a zombie rising from the grave being shot by a man with a rifle. The descent to the apes, and the zombie all appeared as representations of Rangers.
Media coverage helpfully confused the matter, suggesting that the marksman was wearing a shamrock, although any pictures I have seen do not show that.
Was the banner an attempt at humour? Yes, it was. Was it actually funny? That depends on the eye of the beholder. Could it offend someone? Yes, it could.
There was a flurry of protest at the issue of a case against Celtic, with some suggesting that this was in some way the SFA showing itself as even-handed between Celtic and Rangers, by pursuing each of them over different issues.
Others argued that it was not for the SFA to be deciding what banners were and were not offensive, and that this was an overreaction to a joke.
The SFA clearly felt it had to clarify matters, issuing a statement on 24 September, as linked to here.
The statement read as follows:-
When the Compliance Officer receives complaints regarding the display of an offensive banner at a football stadium (with supporting evidence) he will open an investigation.
The first step is to gather further information from the club(s) involved and any other appropriate sources, including match delegates.
This type of investigation does not fall under the Fast Track time-scale.
It is worth noting that the Compliance Office does not determine whether one banner is more offensive than another.
His role is to assess whether there is evidence to suggest that one or more of the rules set out in the Judicial Panel Protocol may have been breached.
In this instance, the rules that clubs are bound by relate to whether “reasonably practicable” steps were taken to prevent a banner being brought into a ground and displayed.
In other words, clubs are obliged to ensure that banners that could cause offence are not brought into a stadium, and if they are, to have them removed.
More information on the relevant rules can be found at the bottom of this page.
If the Compliance Officer, after having examined all of the available evidence, forms an opinion that there is a case to answer by a club that may not have taken all reasonably practicable steps to prevent the display of such a banner, he will issue a Notice of Complaint and the club will be asked to formally present its case before an independent Judicial Panel.
The Panel will decide which sanctions, if any, should be applied.
The relevant rules quoted in the notice are found at the foot of this post.
The statement leads to the possibility, I think, that the Compliance Officer (CO) might find his in-tray filled with complaints about banners! There seems to be a cross-over with Part 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2011.
As the statement says, the CO will proceed with an investigation where he receives a report of an offensive banner at a football stadium, with supporting evidence.
Presumably that evidence will be photographic or video evidence of the banner? Does the CO need any evidence that the banner is actually offensive, or is it enough for someone to say that it is?
The rules do not define “offensive” thus giving it a wider meaning than then 2011 Act, where the Offensive Behaviour has to be linked to one of the protected characteristics, such as race, religion, sexual orientation etc. In the Act there is no actual need for anyone to have been offended. Instead it is sufficient that it would have been offensive to people, even if there was nobody there to be offended. So, as an example, an exclusively Celtic or Rangers, or Morton, or Aberdeen or whoever, gathering could be singing an “offensive” song about its rivals. The gathering might be 100% made up of adherents to the “offending” side. It might be heard by someone not offended by it, but if reported to the police, the fact that there was no one there to be offended is not a defence to the criminal charge.
In the same way, the SFA statement seems to jump across the issue of offence. It seems to be the position, from reading the rules and the statement, that offense exists where someone says that they are offended. Ergo, if one person who was not at the match sees the banner on the internet or in the media, and is offended by it, or claims to be, then ergo it is offensive. That conclusion seems corroborated by the statement that it is not for the CO to judge whether one banner is more offensive than another. By implication therefore the CO does not decide at all if a banner is offensive.
The elevation of offence to the level of an offence is a cause for concern amongst those conscious of civil liberties. Is there a legal right not to be offended? There is a difference between incitement to crime against a person or group, and something that is offensive. Mary Whitehouse’s National Viewers and Listeners Association used to carry the torch for the permanently offended, scouring the airwaves for things to be upset by – and this in the days when the Obscene Publications Act, with its test of something being liable to deprave or corrupt, rather than mere offence, was the benchmark.
The cudgels are now carried by such as the Daily Mail, which was responsible for the outcry about the Russell Brand and Jonathan Ross phone call to Andrew Sachs a few years ago. You might recall that they left rude voice mail messages for Mr Sachs about his grand-daughter, a burlesque artiste. Oddly Radio 2 broadcast some of the content, and it provoked an immediate reaction – 2 complaints. However the Mail picked up on it, and after whipping Mr Disgusted of Tunbridge Wells, around 40,000 complaints were lodged, 99.9% of them from people who had not heard the broadcast. The Mail helpfully obtained and published a full transcript, including matters that were not broadcast. This of course was merely reporting the event, and not in any way compounding the “offence”.
Bizarrely the number of complaints about this issue was exceeded a week or two later by people complaining to Ofcom about the voting off of an X Factor contestant.
The Brand/Ross/Sachs incident, whilst clearly tasteless in the extreme and upsetting to Mr Sachs hardly seemed to be something for the nation to be whipped into a moral frenzy over. But it was.
Now football seems to be going the same way.
The focus of the Act of 2011 was seen by many (including me) as being an unnecessary piece of legislation, being more symbolic of the Government being seen to do something than of practical use, both parts of the legislation creating offences which were already offences!
So the SFA justification for its proceedings in this case is that a complaint of an offensive banner was made. The offence is committed by failing to stop the offensive banner being displayed. There is no requirement for the club to have in any way approved the banner. The mere fact that a banner is displayed is enough.
It seems therefore that the only way the club can ensure it avoids a case being brought against it is to ban banners at all, or to remove them the minute they are unfurled, in case someone takes offence.
Indeed, as the prevalence of coverage both official and unofficial grows, the prospect of fans of teams scouring the coverage of their opponents so as to find something to be offended by increases exponentially.
The net effect is to tar every banner with the same brush, as it is not for the CO to decide grades of offensiveness.
The problem for the SFA is that, should it reject any complaint on the basis that the banner is not offensive, they would have become a judge of levels of offence.
This then leads to the situation where banners which are undoubtedly offensive find themselves lumped in with all of the rest, which detracts from the specific point of the rule.
The Judicial Panel of course ultimately decides these cases, and can decide that a banner is not offensive but potentially they could end up swamped with cases on banners. The SFA statement seems to imply that all these cases will be sent for investigation and a hearing.
One person’s humour is another one’s offence. The SFA hard line on this issue, now that it is published, risks making the policy a farce. The SFA should go the whole way and just ban all banners, and that would head off a problem it seems to be causing by its own actions.
Posted by Paul McConville
Rule 26: A club shall take all such steps as are reasonably practicable to ensure the safety, good conduct and behaviour of its supporters on any ground. A club playing at its own ground or allowing its ground to be used for a match in which it is not participating shall also take all such steps as are reasonably practicable to ensure the safety, good conduct and behaviour of all spectators at that ground.
Rule 28: Any misbehaviour by spectators before, during or at the close of a match resulting from the failure of a club or recognised football body to take all reasonably practicable steps to avoid the misbehaviour shall render that club or recognised football body liable to any combination of sanctions provided in this Protocol.
Rule 31: A club playing at its own ground or allowing its ground to be used for a match in which it is not participating must ensure, so far as is reasonably practicable, (i) good order and security; (ii) that policies and procedures have been adopted and are implemented to prevent instances of Unacceptable Conduct; and (iii) that any instance of Unacceptable Conduct is effectively dealt with, all at its own ground, on the occasion of a match.
Rule 32: Each club must ensure, as far as is reasonably practicable, that its players, officials, supporters and any person exercising a function for or in connection with the club do not engage in Unacceptable Conduct at any club’s ground on the occasion of a match. Any failure by a club to discharge a requirement to which it is subject by virtue of Article 28.6 and this Article 28.7 shall constitute a breach of these Articles.