High Court Confirms Draconian Nature of Offensive Behaviour Act re “Boys of the Old Brigade”

Today the High Court of Justiciary allowed an appeal by the Procurator Fiscal in Dingwall against the decision of a Sheriff to hold that there was no case to answer in relation to a charge under Section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. The decision by the court, which was made up of Lady Paton, Lord Brodie and Lord Philip in the case against Joseph Cairns, which can be read in full here, makes clear the full extent of the Offensive Behaviour Act, and confirms that, effectively, if the police give evidence that a particular song or chant is likely to be considered offensive by a reasonable person, then an offence is committed, whether or not there is anyone there who was, or indeed could have been, offended.

Whilst this decision is a correct interpretation of the legislation, and therefore the Court cannot be faulted for its reasoning, I think it shows the draconian extent of the legislation, and the scope for abuse of it which there could be, in the hands of unscrupulous prosecutors or police. It also shows the inconsistencies in the legislation and in deciding in what circumstances an offence can, and cannot, be committed.

In addition, it clearly, as far as I can see, runs into conflict with the rights to free expression which are enshrined in the European Convention on Human Rights.