Tag Archives: Roseanna Cunningham

Be Careful at the Football – the New Offensive Behaviour etc Act is in Force


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? Continue reading


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

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 1st March.

The first raft of fixtures after that date takes place on 3rd 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 25th 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.


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

Salmond v Cunningham – Match Postponed – Pools Panel Decide Home Win


Yesterday (Thursday) was unexpectedly one of the most dramatic of days at Holyrood since the Parliament came in to being.

The Stage 1 Debate on the Offensive Behaviour at Football and Threatening Communications (Scotland) Billhttp://www.scottish.parliament.uk/s4/bills/01-offbehfoot/index.htm was to take place, followed by First Minister’s Question Time. Many observers expected that (a) the Minister, Roseanna Cunningham, would attempt to mount a strenuous defence of her Bill, following her criticised performance at the Justice Committee earlier in the week http://bit.ly/knSjxc (b) there would be vigorous debate in the Chamber, some partisan and some not and (c) Mr Salmond would then have the other party leaders lining up to give him a kicking re the Bill and its numerous faults, or, to be neutral, areas of concern.

Parts a and b proceeded much as expected. Ms Cunningham’s defence of the Bill (when strictly I suppose she was there to promote it) seemed less than convincing, although avoiding the clear errors which seemed to be made at the Justice Committee. It was made clear that the Bill was going to go through, because it was essential that the new law be in force for the start of the football season, and that this was what the police and football authorities wanted. The Executive agreed and, whilst sharing the concerns re the accelerated Bill procedure, there was really no alternative to proceeding now. Indeed an offer by the Labour Party for members to sit over the summer break to deal with this matter was rejected. The Bill, like the Pony Express, had to get through on time.

When the matter was opened up for debate, one of the flaws of the Holyrood system was apparent. Bearing in mind that one of the many criticisms of the Bill was the haste with which it was being rushed through, and the consequent lack of Parliamentary analysis, it seemed ironic that the members who spoke were limited in time, at first to five minutes and then, by the end, to four. It is accepted clearly that Parliament has to manage limited time resources, but where time itself is the issue, this seemed inappropriate. However, matters seemed rather more organised than my re-collections of “guillotine” debates in the Commons, but that is for another day. (Thank goodness it’s not for now – Ed.)

Particularly impressive were Christine Grahame, the SNP MSP who is Convener of the Justice Committee, Graeme Pearson and Patrick Harvie.

The Convener, though not strictly supposed to speak in that capacity, donned her non-partisan hat and rattled through a number of her concerns regarding matters. Bearing in mind that she was, in effect, raising serious questions regarding her own party’s legislation, it was heartening to see a politician whose concern was that Parliament dealt properly with a vital issue, rather than simply following the mantra of “My party, right or wrong.”

Mr Pearson, former Head of the Scottish Drug Enforcement Agency, has seemed to my eyes anyway, ever more impressive with each contribution to the Parliament. Whilst only an MSP since the May election, he has taken his extensive experience of real life, and especially of policing, and applied it to the issues before him. His very frank comment in Committee that you would never see the police turning down more powers, but that that in itself was not a reason for granting them, was refreshing. Having seen Mr Pearson speak impressively in his previous role, it is good for Parliament that people of such expertise are available to provide their informed analysis on issues.

Mr Harvie made the very telling comment that the Parliament did not, and ought not to, run in line with the football season.

On the other hand John Lamont, the Conservative Justice Spokesman, who earlier in the week had asked two questions in Committee (re the National Anthem http://bit.ly/lmoMAG and how many prosecutions were expected http://bit.ly/jC74Dk ) which I had earlier posed on my blog (although I claim no credit for him asking the questions), went off on what lawyers would call “a frolic of his own” seeming to blame the existence of Catholic schools for sectarianism. This, not surprisingly, made headlines but was a distraction from the issues before Parliament yesterday. In any event, squeezing in an attack on such education as the third part of a speech only five minutes long is hardly the way the issue ought to be addressed in any event. I wonder if what he was saying was Conservative policy. I am sure someone will find out!

Interestingly, one SNP member asked the Labour spokesman whether, if the Bill was delayed, this would be treated by the Labour Party in a non partisan way, on the basis that this would be respecting the wishes of Parliament, rather than being subject of criticism as a “u-turn”. The response was, on the basis that there was no expectation of any delay, that of course there would be no political capital sought should there be such a pause for consideration. (I paraphrase on the basis that, as I type, the Official Report of yesterday’s proceedings is not yet online.) This seemed a throw away line, and may indeed have been so. It was to become relevant only minutes later.

The Minister summed up, just before First Minister’s Questions, by moving the Bill, and ruling out the calls for delays. Matters would progress, and the Bill would become law next week. Ms Cunningham sat down; I am sure greatly relieved that the debate was over.

A few minutes after that Mr Salmond stood up. There was no expectation of what he was going to say. In response to his first supplementary question from Mr Gray on the anti-sectarian Bill, Mr Salmond produced his rabbit. He had listened to the debate – serious issues had been raised – it was a mater of getting things right. He hoped the Parliament would approve Stage 1 of the Bill that afternoon, and then the following Stages would take place, however on the normal timetable, with an expectation that the Bill would be passed by the end of the year. Mr Salmond spoke quietly and in a reserved, and one might say, statesman-like manner. The TV feed I was watching happened to show Christine Grahame sitting behind Mr Salmond. As he spoke she at first looked annoyed, it appeared, as he asked Parliament to support the Bill, and then stunned as she realised that, in fact, the demands for more time had been heard. She could be seen turning to the person on her right (who was not visible in the feed at that point) clearly looking to see if that person’s understanding was the same.

Once Mr Salmond finished, and it was clear that the Bill was to be delayed, he sat down to applause from his own members. However, the person to whom Christine Grahame had been speaking turned out to have been the Minister, Roseanna Cunningham, herself. She did not appear from the footage to be joining in the clapping! http://bbc.in/jhmkyk

Two issues arise (well many more, but let’s keep them at two for now).

First of all, Mr Salmond totally wrong-footed the other party leaders. Their prepared questioning withered on the vine. Mr Gray seemed, at first, not really to have noticed and his follow up questions still seemed premised on the Bill being rushed through next week.  Standing the comments from his party earlier in the debate, it was going to be very hard for him now to criticise the Executive for dong what he had been asking them to do!

Mr Rennie’s first supplementary question was simply a thank you to Mr Salmond, literally, and the wind had gone from his sails too.

Even Mrs Goldie could not divert herself too far from her planned attack.

Mr Salmond, who had stood up expecting to be caught in a barrage of criticism, with one bound, was free.

Politically it was the right thing to do, and hopefully time for reflection will lead to a far batter Bill than that presently before Parliament.

Secondly though, where does this leave Ms Cunningham?

This issue is discussed at length in an excellent post at http://lallandspeatworrier.blogspot.com/2011/06/laws-delays-insolence-of-office.html.

My tuppence worth is that Ms Cunningham has been left in a hole here – her credibility re the issue in tatters. Either she had to stand up to move the Bill, knowing that Mr Salmond was going to change tack 20 minutes later, in which case I can see why she would not be happy – the credit for the change going to the First Minister, not her (though, as a lawyer, fighting a case you know is lost is not uncommon) or she remained of the mind that the Bill was to go through as planned, and had the feet pulled from under her by the First Minister.

Either way, I suspect that Mr Salmond and Ms Cunningham will have, or will already have had, discussions about how her status might be restored. After all, she is the Minister specifically tasked with dealing with sectarianism. She will still be at the forefront of this Bill, and whilst I think Mr Salmond’s change of tack will see him fairly clear of criticism, I can well imagine that opposition MSP’s will find as many reasons as they can to remind Ms Cunningham of lunchtime on 23rd June 2011.

Bottom line though – it is a good thing that the Bill has been delayed. Better to get it right, than to cause even more problems by getting it wrong in haste.

Finally, as was commented by the blogger @loveandgarbage Mr Salmond, having succeeded in uniting Celtic and Rangers, and then the Law Society and the Faculty of Advocates, must now be headed for the Middle East to work his magic there!



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

Roseanna Cunningham Apparently Fails to Read her own Brief

Yesterday in the Justice Committee hearing on the Offensive Behaviour at Football and Threatening Communications (Scotland) Bil, reported at http://bit.ly/jmLzOK the Justice Minister, Roseanna Cunningham, was asked the following question by John Lamont, MSP.

“Given the history of the laws and your frustration that they are not working to achieve your objective, how many people do you anticipate will face prosecution once the bill is enacted? Clearly, that is not in the Government’s control, but you must have a feeling for how many people will face prosecution under the new laws who escape prosecution under the current regime.”

The Minister then proceeded to answer. I expected that she would repeat the statistics which are contained in the Explanatory Notes accompanying the Bill, and which I wrote about recently .

I was then astonished by her reply. (Emphases added.)

Roseanna Cunningham: I cannot possibly answer that, I am afraid, because it will depend entirely on circumstances that arise at matches and decisions that are made by match commanders and the police on the ground. If you were to ask me what the Government is hoping for, it is for there to be immediate and early arrests in situations where there is disorder, but we hope that, over the piece, the bill will act as a deterrent as much as anything else and that there will not be hundreds or indeed thousands of arrests week in, week out. We are hoping that the legislation will be used by the police in the early part of the season and that it will be needed less as time goes on.”

Mr Lamont then further pressed by asking:-

“With the greatest respect, minister, that is the critical point. Surely the point about deterrence is that it works when people fear the prospect of being arrested and prosecuted under new legislation. Currently, such deterrence is not there. If you are not able to tell me how many more people are going to be prosecuted, surely that is a fundamental hole in your proposal. If you are not able to say that X number of people are going to face prosecution, what is the deterrence?

The reply:-

Roseanna Cunningham: I am sorry, but how can I possibly answer that? I cannot possibly say. For the first three months there might be absolutely no disorder at any single football match...With the very greatest respect, I cannot answer your question. It would perhaps be better to ask the police witnesses what they believe is the likely extent to which they will be able to use the legislation. All I would be able to do is take a wild guess, but I am not in a position to do that. We are obviously not expecting the police to arrest 5,000 people, but if disorder of the kind that we have seen kicks off, we expect the police to use the legislation, where they consider it appropriate. It will still be a matter for the police on the ground to make those decisions, because they are operational issues. We hope that early use of the legislation will result in enough salutary lessons being learnt by football fans to ensure that its use is needed less in the future.”

Perhaps I misunderstand the reason for the Executive to issue additional information alongside its bills. Perhaps a Financial Memorandum referring to less than 700 cases being brought, including 500 fixed penalties, is nothing to do with what the Executive actually thinks.

Surely in that case the Minister could have made that clear. I would be very reluctant to suggest that any lawyer, particularly one as experienced as Ms Cunningham, forgot her brief (it can happen to anyone) but I can’t see any other reason for the discrepancy between the Justice Department’s own paperwork, and the Justice Minister’s words.

Hopefully she can clarify this wehn she appears again at the Committee next week.



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