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Not Knowing the Score – The Proposed Offensive Behaviour & Threating Communications Bill

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“By the beginning of the next football season, everybody will know the score. There will be no shadow or scintilla of doubt as to what is acceptable and what isn’t acceptable.”

So said a spokesperson for Mr Salmond following his new government’s first cabinet meeting back in May. It is hoped that “The Offensive Behaviour in Football and Threatening Communications Bill” would “crack down on sectarianism in Scottish Football, not society in general but just football.”

The Bill was published this week and it changes sentencing from one year, which was the maximum under the breach of the peace legislation, to a maximum of five years for those attending matches.

The proposed bill is not without its critics, including those of the legal profession, Holyrood’s Justice Committee and the Church of Scotland. Most of the concerns surrounding the Bill are that it’s being done to quickly without proper consultation.

The Bill’s objective is to: “tackle sectarianism by preventing offensive and threatening behaviour related to football matches and preventing the communication of threatening material, particularly where it incites religious hatred. These measures are intended to help make Scotland safer and stronger, and contribute to tackling inequalities in Scottish society”

Having read the proposed Bill, not once does it mention sectarian, sectarianism. In the policy memorandum of the documents it states that the term sectarian is not defined in Scots law and “What is crucial about the measures in the Bill is that they do not rest on any definition”.

So a piece of proposed legislation which has been hailed as anti-sectarian does not define it, has this ever happened in similar legislation?

What it does say is “offensive behaviour”, which it states if a person commits an offence in relation to a regulated football match a person engages that is:

a. likely to incite public disorder
b. would likely to incite public disorder

The explanatory notes state that there is five types of Behaviour which could trigger an arrest:

1. expressing hatred of, or stirring up hatred against, a group of based on membership (or presumed membership) of religious group. It gives the example of sectarian chanting or singing.
2. expressing hatred of, or stirring up hatred against, an individual based on membership (or presumed membership) of religious group. It gives the example of expressing hatred of particular player/manager because of the person’s presumed or actual religious affiliation.
3. Behaviour that is motivated by hatred of 1 and 2 above.
4. Behaviour that is threatening.
5. Other behaviour that a reasonable person would be likely to consider offensive and it is not limited to sectarian songs or chants.

The above includes such things as songs, chants, flags, t-shirts, hats, scarfs and badges, plus anything else you wish to think of.

At this stage it may be important to highlight what is meant by a “regulated football match”. Basically it is any game where a Scottish team is playing, whether it be the Scottish national team or club team from the SPL or SFL. In the nature of the bill it includes journey’s from and to the game, including over night stays.

I think it is now important to highlight some of the consequences of the new law. I tweeted yesterday if the following players or officials could have been arrested and charged under the proposed law.

i. Gazza playing his flute?
ii. Butcher, Woods and Frank McAvennie…. for being sent off back in the day?
iii. Craig Brown going for a chairman and come to think of it the earlier incident in the European game when he punched an Odense official?
iv. Any player that runs towards oppositions fans celebrating a goal?
vi. Graham Robert’s conducting his choir?
vi. A referee for having a stinker of a game and then giving a dubious decision such as a red card, penalty etc ( “this ref is going to start a riot with these decisions”!)
vii. Fans singing “if you hate the F*cking X clap your hands”
viii. A fan with F*ck the SFA on a scarf/t-shirt
ix. Artur Boruc’s Pope John Paul II T-shirt giving a two finger salute to fans
x. A player crosses himself while going onto the pitch

Now some of the above are more likely than others, agreed but all are possible given the correct circumstances and please remember it’s not just about incidents some might class as sectarian, but also those incidents that fall under the offensive behaviour tag. It is unlikely that a referee will be charged under the law but the possibility is still there. There is not a referee exclusion clause anywhere in the legislation.

There is no response as yet from the Players Union to the proposed law. As above illustrates there are a number of examples, that would lead to players being punished under the new legislation. It would be good to hear the opinions of the Players Union if or when one of their members falls foul of the new law.

Now for some practical examples which may hopefully highlight some of the more obscure workings of this law and if you have any ready answers please feel free to leave a reply.

1. If anyone attended the events reported in this piece from 2009, instead of being jailed for up to one year, they might have been facing up to five if they just happened to be going to or coming back from a “regulated football match”.

2. If someone attends an Orange walk on the day of a “regulated football match”, given the nature of the event and the organisations ethos when do they start committing an offence or do they?

3. At a “regulated football match” someone sings “Whose the Mason in the Black” and his friend shouts, “He’s an orange so and so”. Whose committing an offence and who is not?

4. Someone has a FTP/IRA tattoo on his or her arm and is wearing a short sleeve shirt, and attends a football game are they committing an offence under the proposed new law?

5. Ireland are playing Scotland at Murrayfield in the Six nations. Irish fans are over in numbers and some start singing Boys of the Old Brigade prior to the match. On the same day and at the exact same time some Celtic fans, after a football match, are in a pub in the Gallowgate and sing the same song. What’s the difference, is there a difference?

6. Scotland are playing the Republic of Ireland in an Euro qualifier, the Tartan Army start booing the national anthem – are they committing an offence?

7. Motherwell have managed to qualify for Europe, they have got a plum draw against Liverpool. By chance we have a Scottish born and bred Liverpool fan that lives in Motherwell and English-born and bred Motherwell fan that lives in Liverpool. After a very ill-tempered 0-0 draw at Fir Park there is some “bad blood” between some of the fans. The night prior to the match our two fans happen to meet and have a disagreement with some “offensive behaviour” occurring between both of them and were filmed by someone with a mobile phone. Whose committing an offence and who is not. Just one, two of them or all three?

So as you can probably guess with some of the above, the proposed bill does not in any way shape or form allow the fans to “know the score” of what is and what is not offensive behaviour. I am and I guess most the readers of this article are as well, but I would guess what you might find offensive and what I find offensive is completely different. It is my opinion that existing legalisation could have been altered if they wanted to change the length of sentences. The bill also completely misses the opportunity at giving the fans a hint of what they might or might not get arrested for. After all it was not long ago that the Secretary of Justice Kenny MacAskill MSP, was praising fans for their behaviour at the recent League Cup Final, despite sectarian singing and chanting being clearly heard. So until there is a case, and law has been established the public and the fans will be left in the dark.

Written by Peter Cowan

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