The ambiguity of the Offensive Behaviour Bill


“….examining the new Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 showed that there were 268 charges in 2012-13. The majority of those were as a result of behaviour at football stadia.” – The Scotsman

Given that in Scotland levels of hate crime and sectarianism are deemed to be significantly high, 268 charges on the basis of “Offensive Behaviour at Football and Threatening Communications” seems to be relatively low.  Is this figure low due to the fact that the problem in Scotland is not actually as bad as the authorities would allow you to believe? Or is it low because the Act which considers such crimes is ambiguous, unclear and difficult to apply?

This Act was introduced to rid Scotland of hate crimes in relation to football, for me a smoke screen which attempts to cover over the real issues in Scotland. For me, as a football fan, it seems that my like-minded friends of the football family are being somewhat discriminated against. Why is it that we require an Act of Parliament which only considers football fans?  Do the Government believe that if we can reduce or remove sectarianism within our football grounds, that we automatically remove it from our society?

In reality, the question which we ask ourselves is: Why, in 2012 did the Government feel that legislation which only considered football supporters was required?

The Bill (prior to Royal Assent and incorporation as an Act of Parliament in Scots Law) firstly requires to attain several high standards before it can be incorporated and applied on the streets – or at football stadia as the case may be. Firstly, The Scottish Government must have the power to draft legislation on such as topic (given that Scotland is a devolved State, our powers are effectively granted by Westminster). Secondly, as per the terms of The Scotland Act 1998, all legislation must be drafted in line with the provisions of The European Convention of Human Rights (as incorporated into UK Law via the Human Rights 1998 and Scotland via The provisions of The Scotland Act).  So on the face of it, the fact that the Bill received Royal Assent on 19th January 2012, suggests in some part that the law was ‘good’.

It is worth mentioning that this Act was the product of the Government, i.e the SNP. The Government utilised its majority within the Chamber at Holyrood to pass this legislation. Football fans openly refuted the principle of the Act, and in my opinion, rightly so. I have been attending football matches for around 15 years, supporting my team both home and away and in Europe and I have experienced more sectarianism in the street, not in relation to a football match. This is where my main issue with the Act lies. Why is there a need for legislation which criminalises football fans, when the exact same behaviour not in relation to football matches is treated differently.

To the provisions of the Act themselves: (A full PDF of the Act is available from www.legislation.gov.uk)

A person, in relation to a regulated football match, commits an offence if they engage in behaviour which is likely to incite public disorder or would be likely to incite public disorder. S 1(a)(b).

The behaviour can be deemed to do so if a person expressed hatred, stirring up of hatred or hatred based on membership or presumed membership of; a religious group, a social or cultural group with a perceived affiliation or a group defined in Section 4 of the Act.

Section 4 of the Act defines other reasons for prosecution as  including “hatred” towards someone because of Colour, Race, Nationality, Ethnic or National Origins, Sexual orientation, transgender identity and disability.

My question to the Government is what exactly is public disorder? This is extremely unclear. Is there deemed to be public disorder if one person is offended by one person engaging in a sectarian chant? As we will see shortly, Scottish Court precedent suggests no. Do the rules of the crime of mobbing apply for public disorder? Does there require to be a certain number engaging in such behaviour before this crime is committed?  There was the incident last season where ESPN had to apologise at half time, for the audible sectarian singing at a game which was being broadcast live. How then do the Police apply this law when such behaviour is being engaged in by larger groups?

So what constitutes a football match? Any match regulated by a Scottish footballing authority in Scotland or any game abroad involving the Scottish National Team or team representing Scotland in Europe. It seems that the Government are quite committed to stopping such behaviour, so much so that they will travel abroad to rid Scotland of  sectarianism and football related hate crime. This is why it seems strange to me that with such apparent dedication to the cause, only 268 arrests were made?

You can also be charged under this legislation on the way to or from a football match, including if you stay overnight. As well as this you can also be deemed to be on route to a football match, even if you have no intention of going to a match. As far as I was aware, this legislation was introduced in order to stop such behaviour at football matches? The scope of the Act now seems to have increased from considering those going to a football match, to those who may be on a train which happens to be going to a city where a football match is being played? Can that really be deemed offensive communication at football? Doesn’t Scotland already have enough unclear and ambiguous public order and breach of the peace law, not to mention Football Banning Orders? Do the already unclear and wide provisions not consider such offences? Is it really any different if I abuse someone for their presumed links to a religious group at a football match, or if I make the same comment in the street whilst out shopping?

To put this in perspective, a person who is caught carrying a knife or offensive weapon could be jailed and released in 4 years. The maximum sentence for a crime relating to behaviour at football or threatening communications is five years.

So thus far we have seen how an unclear and ambiguous law, which is poorly constructed and appears to be riddled with ifs, buts and maybes is attempting to regulate football matches in Scotland. One alleged advantage of a statute is to avoid the unclear interpretation of common law and to allow lawyers, the judiciary and citizens alike, to be able to understand and interpret the law. In fact this is a fundamental human right, under the terms of Article 6 of the European Convention on Human Rights; to be told within a reasonable time in a language that you understand, why you have been arrested/charged. How is it possible to be told in a language which you understand, when the authorities who implement this legislation do not understand it?

The Act is not only ambiguous to us as sports fans but to lawyers and the judiciary alike. Only yesterday (20th June 2013) Sheriff Kenneth Hogg described the Act as “confusing” in the case of a male who was charged under the terms of the Act for an alleged sectarian remark to then Dundee United player Willo Flood.  The accused was cited for two incidents, the name calling of Flood and the singing of a Sectarian song. The accused was arrested after two Police officers alleged to hear him sing sectarian songs – a claim which the accused strongly denied. The charge was changed from Offensive Behaviour at football to breach of the peace, on the basis that Sheriff Hogg was not convinced that the actions of one man singing/chanting alleged sectarian phrases was enough to constitute actions which would be likely to cause public disorder. http://www.bbc.co.uk/news/uk-scotland-tayside-central-22972013

It may well be that the issue here is one of a constitutional, legal one, in that the separation of powers between those who make law and those who apply it means that there are gaps in the understanding. It may also simply be that the legislation was hastily drafted in attempt to show the Government as seeking to take action in relation to this issue.

Scottish football is already on its knees, gate numbers are dwindling, sponsorship is reducing, teams are suffering serious financial problems and there’s the issue of reconstruction. The Government would do well to remember that fans are the aorta of football, our passion and desire to support our clubs is the lifeblood of the Scottish game. In criminalising football fans the way the Government seem to be, they will succeed only in driving more and more fans away. The Government, the Police and the fans do require to take action to help reduce hate crimes but not only at football matches. This is a society wide issue and the only way which we can attempt to make any progress is through education, not criminalisation.

Written by Scott Kennedy


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