How to submit evidence to the Justice Committee re repeal of the OB Act

If you are planning to submit evidence to the Justice Committee by 18th August – and we would strongly encourage you to do so – then you might find the template and guidance below useful.  The template sets out the questions and the kinds of answers required.  At the bottom of the page are details of how to submit your evidence (remember to delete this from the document before you actually send it.)

The responses will be published on the Justice Committee’s website but if you have particular reasons for giving your evidence anonymously then you can indicate that on your submission.

Offensive_Behaviour_Repeal_Bill_-_proforma_for_written_evidence guidance July 2017

 

Justice Committee Evidence Gathering begins today!

Following the introduction of the repeal of the Offensive Behaviour Bill by James Kelly MSP last week, the Justice Committee appears to have got off to a flying start by beginning the evidence-gathering activity which constitutes Stage 1 of the process….yes, dear reader, we are now at Stage 1!

Justice Committee Call for Evidence

The call for written submissions will run from today until Friday 18th August 2017 after which there will be a number of Committee sessions where groups and  individuals will be invited to give evidence in person.  For those of you who have long memories, this is the same process that was used in  2011 when the original Offensive Behaviour Bill (then Act) was makings its own way through the system.

The format of the written submissions are similar to those used in the public consultation carried out by James Kelly before introducing his repeal bill.  If you made a submission to his consultation – and very large numbers of you did – then please do so again.  Your views expressed at that time will not be taken into account unless you submit evidence to the Justice Committee between now and August.

There is a template document which you can use to guide you and your evidence is not expected to be very long – maximum 6 sides of A4 – but most will be considerably shorter.

Offensive_Behaviour_Repeal_Bill_-_proforma_for_written_evidence

We will post further information and guidance about this process over the next week or so but thanks again to everyone who has supported this campaign to date and please keep up the good work over this crucial period.  We are nearly there!

 

 

Appeal to Scottish Government: You got it wrong – Let it go and move on

For those of you who did not see the opinion piece written by FAC activist, Jeanette Findlay, about the introduction of the repeal bill, in yesterday’s (25/6/17) Sunday Herald, here it is in a slightly extended version:

The announcement on Thursday by James Kelly MSP that he had lodged his Private Members’ Bill to repeal the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, is the latest stage in the long-drawn out demise of this much-despised and dangerous piece of legislative folly. Backed by the results of the largest public consultation response ever received by the Scottish Parliament showing 71% support for repeal, Kelly hopes to guide the Act to oblivion before the end of 2017.
The Offensive Behaviour Act, known universally by football supporters as The Act (the words usually spat out in disgust), was introduced in 2012. It was introduced, as is often stated, following a bad-tempered game between Celtic FC and Rangers FC in March 2011 at which the managers had a bit of a ‘set to’.

While this is undoubtedly true in a chronological sense, there is no causal relationship here. The idea that this not uncommon scene was sufficient justification for a bespoke piece of legislation is frankly ludicrous. Neither was the Act, which has impacted calamitously on the lives of thousands of football supporters (or as they are sometimes known, citizens), introduced to deal with a documented problem in Scottish football. The Scottish Government’s own statistics make it clear that that the rate of offending of any kind which takes place in football stadia was, and is, miniscule. I once amused myself by calculating the proportion of hate crimes which take place in a football ground and those taking place in society at large as a proportion of the relevant populations. I was not all that surprised to learn that Scottish citizens in general are 50 times more likely to commit hate crimes than those who, for the purposes of the data, are designated as football supporters. Indeed, I have often thought that many people are far more likely to be at risk in their own livingrooms than at any football ground that I have attended.

The true explanation for the introduction of this legislation lies much more in timing (coming, as it did, in the run-up to the 2011 election and two weeks after former First Minister Jack McConnell baited the then FM, Alex Salmond, about the issue of sectarianism); budget cuts (in response to which the newly appointed Chief Constable of Strathclyde Police, Stephen House, strategically and successfully targeted the Government’s anti-sectarian funding pot as well as the top job in the new Police Service of Scotland); and yes, personalities – House, Salmond and the then Justice Secretary, Kenny MacAskill would struggle to fit their combined egos into a detached villa in one of Edinburgh’s more affluent areas. The then Lord Advocate, Frank Mulholland, not only failed to offer wise legal counsel against the draft Bill, but he became its public face giving numerous bravura defences of the Bill/Act in press and television interviews. He even famously told STV’s Bernard Ponsonby that an ‘Irish republican identity’ could be unlawful under the proposed legislation! He was probably correct given the broad scope of the legislation which effectively made unlawful the offending in any way of any person, present or otherwise; aware of the action or not, in the context of a regulated football match ie in attendance, going to or from, during an overnight stop, in Scotland or outwith Scotland, in possession of a match ticket or not; or even while in a public house in which a game was being shown! The Act was and is the football equivalent of the old Not the Nine O’Clock News sketch in which racism was parodied by showing a police officer arresting a man for being in possession of thick lips and curly hair. Football fans became, by dint of simply being football fans, potential criminals.

Fans responded by forming a campaign, Fans Against Criminalisation (FAC), as soon as the idea was first mooted. The basis of our argument is that this legislation was poorly-drafted, unnecessary, illiberal and discriminatory, in that it could, and did, disproportionately target young (working class) men.

In the language of the National 5 Modern Studies syllabus – in which FAC has appeared for some years – we are an ‘outsider’ pressure group. This is, as I understand it, a function of our relationship with the government. Outsider pressure groups are those which are not ‘consulted by the government’. Given the repeated claim by spokespersons for the Scottish Government that the Act is there to protect football fans and to ensure that we can enjoy attending games in a suitable environment, you would think that our views on the Act would have been solicited by the government. But no, as even 14-year-old Scottish schoolchildren know, we are defined as being ‘not consulted’ and instead have had to rely on building support among the public. Luckily for us then, that the Scottish public, when properly consulted, agree in the overwhelming majority that the Act should go. They are joined by ‘insider’ groups such as the Law Society of Scotland, Liberty UK, the black and ethnic minority organisation BEMIS, anti-sectarian group Nil by Mouth, academics, children’s organisations and … well, every part of civic society except the Scottish Government and the Police Service of Scotland. I would imagine that even the latter must, by now, be wishing they had kept well away, given the near-irreparable damage that the Act has caused to the relationship between young football supporters and the police.

The consequences of the Act have been catastrophic for many people. Young people have lost out on jobs and promotions because of prosecution, far less conviction; some young trainee teachers and health service and other professionals have had to face the prospect of losing their entire careers before they had even started, for the same reason. For many, the fact that they were ultimately found Not Guilty (The Act has a very low conviction rate) did not mitigate the damage caused to them or the stress and anxiety which they and their families suffered. For every week that this Act remains on the statute book, more young people will suffer the same. In that context, it is disappointing that our Government, who are strong believers in the ‘will of the people’ and the ‘will of Parliament’, are still digging their heels in and refusing to accept the will of both people and parliament.

This Act will go – making history as it does as the first piece of legislation enacted by the Scottish Parliament to be repealed. In the words of James Kelly, the ‘parliamentary arithmetic’ makes that almost certain. As ‘outsiders’ we don’t, by definition, expect to be listened to by the Scottish Government but, just in case they are listening, I say this: the least you can do now is to allow the process to be completed without undue hindrance. You got it wrong. Let it go and move on.

 

 

Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill

To all those football fans and non-fans out there who, over the past 6 years, have emailed your MSP, attended surgeries, joined demonstrations, donated to the FAC Legal Defence Fund, took part in banner protests, dished out leaflets, sang songs of support or just showed solidarity to any fellow football fan caught up in this legal nightmare, please take a bow – it is not buried yet but it is in the hearse and on its way to the cemetery!

The Repeal Bill has been lodged today and the process of scrutinising it will take place early in the next Parliamentary session.  According to the sponsor of the Repeal Bill, James Kelly MSP, it is likely to be voted on before the end of this calendar year.  At that point we won’t be taking bows, we will be dancing in the streets!

Offensive Behaviour at Football and Threatening Communication (Repeal) (Scotland) Bill
Offensive Behaviour at Football and Threatening Communication (Repeal) (Scotland) Bill

The Repeal Bill repeals the Offensive Behaviour at Football Act – obviously – but it’s provisions also mean that anyone who has an unconcluded case will have those charges dropped and nobody can be charged under the Act after the repeal date even if the alleged behaviour took place before it.

Offensive Behaviour Act  (Repeal) Bill 2017

Our task now, which we will be taking up from the start of the new football season (so watch out for that), is to make sure that any attempt to thwart the will of the people and the parliament by unnecessarily delaying the progress of the Repeal Bill will be vigorously challenged.  The Government should be in no doubt, we intend to have the OB Act repealed and to do so as a matter of urgency.  The best thing for them  to do now is to acknowledge the mood of the people and the parliament and work with James Kelly to progress the Repeal Bill with no undue delay.

This has been a long and difficult campaign but we are in the home strait – please continue to support the campaign and to keep up your vocal and visible opposition to the OB Act until it is dead and buried and the dirt is tramped down!

 

 

 

The Story of Ms X

 

You may be aware that there have been considerable efforts by many people both inside the Scottish Parliament and out to get rid of the dreadful Offensive Behaviour Act once and for all.  You may also be aware that we have very high hopes that those efforts will bear fruit in the not too distant future.  However, while we wait for the day that football fans are treated the same under Scots law as every other citizen, the Police Service of Scotland and the Crown Office Procurator Fiscal Service are continuing with the appalling hounding of football fans using the OBFA and other pieces of legislation.

Cases which would never has seen the light of day in any other circumstance, except those which are deemed to be ‘football-related’, are prosecuted to the fullest extent. The impact on those caught up in this nightmarish legislation can be devastating. For that reason, we intend to keep our foot on the neck of the authorities until this stain on the reputation of Scotland is removed.  Here is just one of the reasons why.

So as not to identify her and cause her further hassle in her life and work, we will call the young woman Ms X. Ms X was arrested in November 2014 as she queued to enter a football stadium to support her team. In her own words, she picks up the tale:

I attended the game with my 2 cousins we joined the “queue” but it was chaos no organisation at all. A police officer shouted and gestured for my cousin and myself to get to the back of the queue which we duly did.  He then approached me and asked if I had been drinking to which I replied I had had a couple.  He then said I was “steamin” to which I responded I was not.  He then said he could arrest me and I said for what, at that point he said “that’s it hands behind your back!” 

As you can imagine, I was shocked but I did not react.  Both my cousin and myself asked under what legislation I had been arrested; we got no response. My cousin asked for their badge numbers and they refused.  I was then marched, in handcuffs, around the stadium which felt to me like the police were trying to make a show of me which was humiliating in itself and lets just say I was put in the back of the van not too gently! 

I was then taken to the police station and my DNA and finger prints were taken. I was released 3 hours later. Still to this point I did not know why I had been arrested as I was not charged at any point. 

When I received my court citation I was shocked as I did not think the police would do anything else.  However, I was even more taken aback when I read the charge sheet and summary of evidence. It stated that I was drunk trying to enter a football stadium. The evidence said that I was so drunk I was slurring my words, that I was singing into the face of a police horse; that I stumbled into the police officer: that I refused to desist from the stadium and that the officer felt threatened that I would become violent. 

After about 6 months they offered me the ‘chance’ to pay a fiscal fine.  I refused to do this as I was not going to admit to being guilty of something I did not do. 

After almost two and half years and four court appearances, my case was dismissed in court. I was told that ‘the procurator fiscal put her pen through it’. At each of the previous court dates, each of fiscals who were in court stated that they didn’t think the case should be in court but because it was football related they had no choice. Just to note, I have never been in a single bit of bother in my life. 

As well as the stress of appearing in court, I faced lengthy disciplinary proceedings at work which caused a lot of stress as I did not know how significant the proceedings would be.  I then received a warning from work for bringing my work into disrepute and for my conduct even though I was adamant I had done nothing wrong and was arrested unlawfully.  

The amount of stress this has caused my family and myself has been overwhelming. It affected my work, I didn’t want to go back to the football, I was very emotional and lost quite a lot of weight. I knew I had done nothing wrong but that seems to go for nothing when you are an ordinary person going to watch the football.

This story, terrible as it is, is not unusual and has been replicated up and down the country for five years now.  In the coming few months, FAC will be calling on you all to support various initiatives in support of the Repeal Bill as it proceeds through Parliament. Please remember the story of this young woman and do whatever you can to help. Next time it could be you or your daughter/sister/girlfriend/wife/friend.

 

 

Ordinary Football Fan? Worried what info the police hold on you?

As James Kelly’s bill for the repeal of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 has gathered momentum behind the walls of Parliament, it is regrettable that Police Scotland’s campaign of intimidation, harassment and victimisation of football supporters has not subdued. Fans Against Criminalisation deem the conduct of the police in Perth before, during and after last Sunday’s match between St Johnstone and Celtic to have been entirely unacceptable. Indeed, the aggressive mixture of nakedly violent policing tactics and the Orwellian surveillance of fans should be a cause of concern for us all.

Having reviewed the evidence available from the day’s events, we have now concluded that Police Scotland deliberately set out to incite disorder, and we fear that the police may adopt similar tactics once again at future fixtures in their attempts to demonise football supporters in defence of the Offensive Behaviour at Football Act and the generous budget which comes with it. We call on all fans to remain vigilant at matches, to ensure that they know their rights if approached by officers and to continue the fight to end this harassment.

One particularly troubling aspect from the weekend was the picture which has surfaced showing a Police Scotland officer holding a paper sheet, appearing to be looking over a series of pictures of fans faces.

Cop with Photos St Johnstone Feb 2017

For any fan who is concerned about the information that the police may hold on them, we have attached below a subject access form which can be used to request any details that Police Scotland may hold on you. Fans can only request this at their own free will, though Fans Against Criminalisation would appreciate feedback from those who complete this, so that we can build a broad database of details which the police are collating to help us put an end to this oppressive culture of surveillance of football supporters. Subject Access Request form

Scottish Government include the Offensive Behaviour Act in Review of Hate Crime!

On Thursday the Scottish Government announced that it had set up a review of hate crime legislation under the Chairmanship of High Court Judge, Alastair P Campbell (aka, for those who like this kind of thing, The Right Honourable Lord Bracadale):  Judge to examine Scotland’s Football Law

Quite incredibly, they have included the Offensive Behaviour Act in this review.  This is an Act which they claim to have reviewed fully as recently as 18 months ago (Scottish Parliament 16 June 2015 ) .  During his statement to Parliament, the then Community Safety Minister, Paul Wheelhouse, asserted:

I am satisfied that the evaluation meets our commitment to report to Parliament on the act’s effectiveness, and that it presents a strong, diverse and representative set of views, reflected through a robust and independent evaluation process.

At the time, FAC, disputed that this ‘review’ met the terms of the amendment to the Act when it was passed and petitioned Parliament for a full and transparent review.   The government, and its supporters, continually argued that they had done this.  Since that time, and particularly since the SNP lost their overall Parliamentary majority in the 2016 elections, the situation has moved on.

In particular, we how have a Private Members’ Bill proceeding through Parliament which would repeal the Offensive Behaviour Act.  It has already completed the public consultation stage in which anyone who had a view on the OB Act was invited to contribute.  This exercise, which elicited the largest response to a public consultation ever in the history of the Scottish Parliament, showed that over 70% of respondents were fully supportive of the repeal of the OB Act.

Perhaps more importantly, in early November 2016 we had a vote in Parliament on a motion put forward by the Tory, Douglas Ross MSP, to support the repeal of the Act which was supported by every opposition MSP (bar one who was ill) (Government defeated in Offensive Behaviour at Football Act Vote) .  While this vote was not binding on the Government it represented the clear view of Parliament and required a response from the Government.  To date no response to that vote has been given – the SG are acquiring a bad habit of ignoring votes in which they are defeated apparently.

In normal circumstances, Kelly’s bill would have made its way to a Parliamentary vote and the expected repeal of the Act by the end of this Parliamentary session – June 2017. Thursday’s announcement of a review which is expected to take a year from this Monday (30/1/17) then is quite shocking in this context as it appears to be an attempt to delay the process and thwart the will of Parliament.  The bare-faced cheek of a government planning to review a piece of legislation which it adamantly maintained it had already done in June 2015 is breath-taking.

Bear in mind, that a further year’s delay will mean more and more young fans receiving criminal records that they would not otherwise have done and all fans having to suffer the oppressive policing which this Act has engendered.

In announcing the ‘review’, the Community Safety Minister, Annabelle Ewing, spoke of the Government’s opposition to repeal of the OB Act because

Such a move would take away protection from some of our most vulnerable communities (Scottish Parliament Newsroom )

Strangely, she didn’t tell us exactly who she was referring to.  She then spoke of the need to defend ‘civil liberties and human rights’ knowing full well that Liberty, the foremost civil rights organisation in the UK and BEMIS, the national ethnic-minorities led umbrella body, both contributed searing indictments of the Offensive Behaviour Act to the public consultation in October 2016 – not three months ago!

The cherry on top of the cake of sheer effrontery of the Government is that they have appointed a judge who sat in relation to the leading case in terms of the Offensive Behaviour Act and openly interpreted the Act as being designed to focus on

the behaviour of certain Celtic and Rangers fans with their long standing attachment to opposing factions involved in the politics of Ireland, and Ulster in particular.  (Appeal Court Judgement 19 March 2015)

This interpretation of the Act goes way beyond anything the Scottish Government has said publicly ie that it is aimed at the fans of only two clubs and that it ‘focuses’ on their political views and, indeed, ethnic and cultural background.  Clearly the noble Lord has no problem with interfering with the civil and human rights of the two groups he identifies.

Let us be clear.  We are not opposed to a review of hate crime legislation and, indeed, all legislation should be reviewed periodically.  However, anyone who doesn’t see that this is yet another anti-democratic, spiteful tactic by the Scottish government, which penalises football fans yet again, simply doesn’t want to see it.

We demand that the Kelly Bill proceeds through Parliament as normal and we call on all democrats to raise questions with their MSPs if it does not.  For more than five years we have engaged with every democratic process and every peaceful means of protest in our opposition to the Offensive Behaviour Act.  We won’t be backing down now.

 

FAC submission to the Consultation on repeal of the Offensive Behaviour Act

Make yourself a cup of tea or open a bottle of beer.  Here we go….

Public Consultation on the repeal of the Offensive Behaviour Act

Submission from Fans Against Criminalisation

 

1 We are responding to this consultation as a supporters’ organisation. Fans Against Criminalisation was founded in 2011 as the Scottish Government, urged on by Stephen House, then Chief Constable of Strathclyde[1],  was attempting to enact emergency legislation which sought to curtail the rights of football fans.  This appeared to be a knee jerk reaction to a particular football match in which there was bad behaviour by players and managers but no disorder whatsoever from supporters. There were 34 arrests at that game out of a crowd of around 60,000.  Around half of these related to Breach of the Peace offences arising out of incidents of smoking in toilets, while a couple related to what were alleged to be sectarian offences.  None were related to any violence or disorder. No information has ever been placed in the public domain as to how many of these arrests resulted in convictions.

FAC initially consisted of the five main Celtic supporters’ groups: The Green Brigade, The Celtic Trust, The Celtic Supporter’s Association, The Affiliation of Registered Celtic Supporters’ Clubs and The Association of Irish Celtic Supporters Clubs. However, it was never intended that FAC be a Celtic supporters’ organisation and from the outset invitations to get involved were issued to supporters of other clubs. Just as importantly, offers of assistance and advice were made to, and accepted by, fans of any Club charged under the Act. At the current time we have supporters of Hamilton, Motherwell and Rangers, among others, involved in the planning of FAC activities.  Supporters of St Johnstone, Rangers, Falkirk, Aberdeen, Celtic, Hamilton, Motherwell, and Partick Thistle have been offered advice, assistance and financial support from FAC.

We are the only organisation devoted entirely to collecting information about this Act and its implementation.  We did this initially because we, like many others, expected this legislation to be reviewed after two years.  That commitment was reneged upon by the Scottish Government but we are now in a position to offer evidence based on this detailed information to this consultation.

2B We are a campaigning organisation on behalf of football fans of all professional clubs in Scotland and fans from outside of Scotland affected by this legislation.

 

3(i) We are content for this response to be attributed to Fans Against Criminalisation

 

  1.  Email: fansagainstcriminalisation@gmail.com

 

SECTION 2 – YOUR VIEWS ON THE PROPOSAL

 

Offensive behaviour at football (the section 1 offence)

  1. Which of the following best expresses your view of the proposal to repeal sections 1 to 5 of the 2012 Act?

We are fully supportive of the proposal to repeal Sections 1-5 of the Act.  Our reasons are set out below. We have provided sub-headings to aid clarity.

The OBA is and was unnecessary

When the 2012 Act was being introduced the only argument made in support of it was that the existing legislation did not give the police sufficient powers to deal with genuine problems within stadia.  This has to be addressed on two levels.  One relates to the issue of whether or not there is a problem of criminality of any significance within football stadia.  The second relates to the nature of the powers which the existing legislation gives to the police and whether the 2012 Act gave them additional/better specified powers.  We shall address each in turn.

In the meantime we note here that the Law Society of Scotland’s submission to the Justice Committee in 2011, during the scrutiny of what became the 2012 Act, directly contradicted the police argument saying:

“..the offence, under Section 1 does not improve on common law breach of the peace or section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. Rather than result in clarity, the new offences may cause confusion with particular reference to what type of behaviour is to be considered unacceptable at regulated football matches.”

This has proved to be a very accurate prediction of the ‘confusion’ which was indeed caused. Numerous sheriffs have indicated, both in court and in responses to the Evaluation Report commissioned by the Scottish Government, that the legislation was confusing and flawed.

http://www.bbc.co.uk/news/uk-scotland-tayside-central-22972013  Sheriff criticises confusing anti-bigotry law

http://www.heraldscotland.com/news/14493071.Rangers_fans_cleared_as_sheriff_criticises____flawed____sectarianism_law/

https://www.thecourier.co.uk/news/local/dundee/76436/dundee-sheriff-criticises-anti-sectarian-legislation/

 

Criminality was previously declining in football stadia

It is our contention, supported by all relevant official statistics, that the degree of criminality within football stadia has been on a long-term declining trend since the early 80’s and was, in the period leading up to the Act, almost non-existent in the context of the number of individual attendances at SPFL (or its predecessor bodies) matches. Football in 2011, when this Act was first proposed, was a very different experience from that of the period prior to 1980.

The public discourse leading up to the introduction of the Act and the language used by the Government, the Police and media commentators laid special emphasis on the issue of sectarianism.  Prior to 2012 the relevant legislation would have been Section 74 of the Criminal Justice (Scotland) Act 2003.  This allows for religious, racial and other ‘aggravations’ of Breach of the Peace, Assault and other charges.  The proportion of charges involving a religious aggravation which took place at a football ground in the two years leading up to the introduction of the 2012 Act were 12.9% and 7.6% respectively.  This compares with the first year of the 2003 Act in which 15% of all charges related to incidents at football stadia.  This constitutes, on any view, a downward trend in incidents at football grounds from a small base; and it is tiny relative to where most religiously aggravated incidents take place ie places unconnected with football.

There is no evidence of any significant problem with disorder in Scottish football grounds in absolute terms or, as it happens, in comparison with other similarly-sized public events eg concerts.   In terms of behaviour which could constitute hate crime either in terms of religion or other factors, clearly the overwhelming majority of this behaviour takes place in places other than football stadia. On that basis we are clear that there was never any genuine, substantive basis for new legislation which affected only football fans.

 

Police powers pre and post 2012

 

The argument made in 2011 by the Scottish Police Federation (accompanied by a plea for more resources); the Association of Scottish Police Superintendents, ACPOS and the Assistant Chief Constable of Strathclyde, Campbell Corrigan was that it was very difficult to obtain a conviction for Breach of the Peace since that charge required there to be evidence that the behaviour had caused ‘fear and alarm’ and that this was hard to prove in the setting of a football match.  Leaving aside the obvious conclusion that if no one was caused ‘fear and alarm’ then there was no cause for concern, the reality is that in attempting to extend criminal status to the subjective concept of ‘offensiveness’ the legislation actually made it more difficult for Sheriffs to convict.  We shall return to this when discussing the poor quality of the drafting of the 2012 Act but here we shall simply point to the conviction rates (see Footnote 2) of the Act and that of other comparable legislation some of which could have and would have been used prior to 2012 ie the common law offence of Breach of the Peace and Assault etc.

We also note at this point that there are a number of other pieces of legislation which could be used for behaviour which is more problematic, such as:

  • Section 74 of the Criminal Justice (Scotland) Act 2003 introduced statutory aggravations for offences motivated by religious prejudice and requires courts to take any aggravating factors into account when passing sentence.
  • Part 2, Chapter 1 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 allows for football banning orders of varying lengths to be applied to offences of violence, disorder and stirring up hatred towards a range of protected characteristics.
  • Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 introduces a new offence of threatening or abusive behaviour, punishable on conviction on indictment to up to five years in prison, or on summary conviction to up to 12 months and/or a fine. The offence has been in force since October 2010.

 

 

In Table 1 below, we can see the numbers of charges of each kind made in the period of the 2012 Act. It can be seen that the total numbers are very small indeed relative to the other kinds of charges.

Table 1

2011-12 2012-13 2013-14 2014-15
      12,757     11,649     11,218     11,758
Common assault     10,685      9,748      9,511     10,077
Common assault of an emergency worker      2,072      1,901      1,707      1,681
      12,544     12,961     13,731     15,580
Breach of the peace      5,491      2,852      1,768      1,601
Threatening or abusive behaviour      6,999      9,915     11,661     13,499
Offence of stalking           52         125         210         401
Offensive behaviour at football (Section 1 of Offensive behaviour Act)             2           67           86           76
Threatening communications (Section 6 of Offensive behaviour Act)           –             2             6             3

 

More importantly, however, if we look at Table 2 we can see that the conviction rate for most of charges are in the mid-70s to high-90s.  The conviction rates published for the Offensive Behaviour Act for the full years of operation (ie all three years except 2011-12) range from the low 50s to the high 80s.

At this point we must emphasise that conviction rates, as published by the Scottish Government, are not true conviction rate. The published rates show the number of convictions as a proportion of the number of concluded cases. They do not show the true conviction rate ie the number of convictions as a proportion of the number of charges in a given reporting period.  We have had email correspondence with the statistician responsible for these statistics and she confirms that the true rates are never published once all cases are concluded.  This matters because not all types of charges proceed through the system at the same rate.  The Scottish Government’s own evidence shows that Offensive Behaviour charges are dealt with relatively slowly and are therefore likely so spread over two or more reporting periods.  In addition, because those cases which have a guilty plea are likely to be concluded within one reporting period, the published statistics are likely to overestimate the true conviction rate.

 

A better estimate of the true conviction rate for the Act is to take all the convictions over the whole period of the Act and show them as a proportion of the total number of charges for the same period.  This figure cannot, of course, cover cases not concluded for the most recent year (2015-16).   The total number of charges over the period is 1018 and the total number of convictions up to June 2016 was 304.  This amounts to a conviction rate of just under 30%.  This is an extremely low figure for any crime.

 

Table 2

  2011-12 2012-13 2013-14 2014-15
         
Common assault 76% 75% 74% 72%
Common assault of an emergency worker 92% 91% 92% 95%
         
  86% 86% 84% 84%
Breach of the peace 85% 83% 85% 82%
Threatening or abusive behaviour 87% 87% 85% 85%
Offence of stalking 78% 75% 79% 77%

 

The Act is Poorly drafted

The difficulty with this Act was that the Scottish Government[2], in the words of the Appeal Court judges, Lady Paton, and Lords Brodie and Philip in the case of PF Dingwall v Cairns[3]created a criminal offence with an extremely long reach’.  In attempting to create this offence the drafters described both the nature of what would be a criminal offence, and in what circumstances, so widely as to cover almost any behaviour as long as it could be described as being ‘in the context of a regulated football match’.  In the words of Paton, Brodie and Philip:

‘..it is to be noted that behaviour may be in relation to a regulated football match not only if it occurs in the ground where the match is being held on the day in which it is being held (irrespective of the time of day) or while the person is entering or leaving the ground but also if the person is on a journey to or from such a match. Moreover, in terms of section 2(4) of the Act a person may be regarded as having been on a journey to or from a regulated football match whether or not the person attended or even intended to attend the match.’

The notion that the law can regard you as being on a ‘journey to or from a regulated football match’ that you had no intention to attend is one that most citizens would struggle to comprehend. This has led to individuals being charged in circumstances some considerable hours before or after a match in venues unrelated to any football match and where no evidence has been led that they have actually been at a football match. Indeed, prosecution can take place in relation to events which are alleged to have occurred at any public place as long as a match took place at some point that day or any contiguous day and which the accused did not watch (live or on television) or was even interested in.  If this legislation was intended to deal with disorder or other problematic behaviour in football stadia then the very widely drawn boundaries around it make it virtually useless in this regard.

The 2012 Act embodies the concept of the reasonable person as do many other pieces of legislation.  However, in this case of this Act, the term has been defined by the same trio of Law Lords in a way which genuinely reasonable people would find shocking:

Thus, the Act distinguishes between, on the one hand, “a reasonable person” and, on the other, a person “likely to be incited to public disorder”. It may be that a person likely to be incited to public disorder is of a more volatile temperament than a reasonable person or, to use the language of the sheriff, an uninitiated member of the public. The person likely to be incited to public disorder may have particular interests and particular knowledge. He may have particular views about the two songs in question or those who sing them.

So, in other words the leading case in this regard makes it clear that if person A ‘in the context of a regulated football match’ behaves in a way that incites person B who is a ‘volatile’ person who already holds ‘particular’ views about person A, to public disorder then person A (not person B) is guilty of an offence.  We cannot accept that this is what the Government intended or, if it is, we say that this is a totally unacceptable way to frame a law in a modern democracy.

An additional layer of paralogism is added when they go on to say:

As section 1(5)(b) provides that such persons need not be present for the purposes of determining whether specific behaviour would be likely to incite public disorder, it cannot be relevant to the question as to whether there has been a contravention of section 1(1)(b) that particular persons in a football ground could not actually hear the words being sung. In other words the actual context within which the behaviour occurs is not determinative (our emphasis). Where behaviour falls within any of the categories specified in section 1(2) it is sufficient for conviction that persons likely to be incited to public disorder would be likely to be incited to public disorder by the particular behaviour, whether or not they were present in sufficient numbers and whether or not they were subject to measures put in place to prevent public disorder. As it does not matter whether persons likely to be incited to public disorder are there in sufficient numbers or are there at all it cannot matter whether or not the persons who are present (whether likely to be incited to public disorder or otherwise) actually became aware of the relevant behaviour.

So not only is context not everything, in this legislation it is not anything.  Moreover, a crime of offensiveness is committed even if someone (such as person B above) was present but could not hear it; or if they were not present and even if they did not discover later that the comment had been made We do not believe that the non-footballing public are aware of the ‘long reach’ of this legislation and would have serious concerns, as we do, if they did. This has resulted, as we show later, in there being a very large numbers of cases in which there are no actual, identifiable victims.

The Act is Illiberal

However much this Act was, and is, presented in public discourse as being an ‘anti-sectarian’ initiative, it is clear both from the way it is written and from the way it is enforced and prosecuted that it is nothing of the sort.  Not only does the word ‘sectarian’ not appear anywhere in the wording of the 2012 Act (and thereby cleverly avoids defining what that means) but the scope of what it covers has been left to the Police Service of Scotland (who we have already identified as being non-neutral with respect to this legislation) and to the Crown Office Procurator Fiscal Service.  The wide ranging definition of offensiveness in the 2012 Act – as described above – has allowed for an intrusion of the law into the behaviour,  beliefs and identity of large numbers of people simply because they are football fans as opposed to being fans of other sports or none.

On that basis the behaviours which have been alleged by the police and prosecuted by the Fiscals as ‘offensive’ range from

  • singing ‘fuck yer ‘well’ in relation to Motherwell FC
  • singing a song about the H-Block Hunger Strikers which reached No 33 in the Official Top 40 charts and, as such, was played on BBC Radio 1
  • wearing a t-shirt referring to oneself as an ‘unrepentant Fenian bastard’
  • gesticulating in an unspecified way to opposition supporters
  • arguing with stewards
  • arguing with police officers
  • holding a banner which showed Neil Lennon in a pose made famous by Vladimir Ilyich Ulyanov aka Lenin at Finlandia Station in 1917
  • singing a song which recounts a conversation between a father and son as they remember the 1916 Rising in Dublin – an event which has been celebrated by a number of Scottish politicians and other dignitaries in this centenary year
  • using a flare in a stadium
  • holding a banner with a line from the 90’s pop song 99 Red Balloons
  • as well as other charges of assault, racism, and religious bigotry (75-80% of charges most years) all of which could have been covered by other legislation but the COPFS instructed the Police Service of Scotland to use the 2012 Act.

 

In an Appeal Court judgement[4] delivered in March 2015, the Lord Justice Clerk, and Lords Bracadale and Boyd of Duncansby made clear their interpretation of the intention of the Act in the following terms:

The main, but not exclusive, focus is on the behaviour of certain Celtic and Rangers fans with their long standing attachment to opposing factions involved in the politics of Ireland, and Ulster in particular. The continuing relevance of such issues to sport is a source of some bafflement to many, even if their cultural origins are easily traced.

Here, one of the two leading cases in this area makes clear that what is being targeted is not what the public would normally perceive to be hate crime but the expression of political views in relation to the history of relations between Britain and Ireland.  However much many people in Scotland might not like particular views they are undoubtedly perfectly legitimately held in a democratic society.  Moreover, one should be allowed to express these views in a non-threatening and peaceful way as one pleases if Scotland is to call itself a modern democracy.

If the intention of the Act was to stop football fans having/expressing views on Ireland and the history of its relations with Britain, then this is, in and of itself, illiberal.  However, as could have been predicted, the use of the Act was extended to cover any behaviour, action, word, song, banner or t-shirt that the Police Service of Scotland do not like and in no case that we are aware of, did the COPFS demur from prosecuting once such charges were brought.

The second evidentiary bar in relation to this Act ie that it might incite public disorder, should have ameliorated the impact of the Act on freedom of expression.  However, the fact that the grounds for conviction did not require anyone to have actually ever known that a football fan had exercised their freedom of expression meant that no such protection was available.  To the best of our knowledge, no witness in an Offensive Behaviour case has ever testified that they were offended or that disorder might have ensued, other than police officers who rely on their ‘knowledge’ of such matters as opposed to any other more detailed expertise.  In the most recent year for which there are statistics the ‘victim’ in Offensive Behaviour are the ‘community’ (according to the Police) in 65% of cases and the ‘police’ in 14% of cases.  So in 79% of cases there is no identifiable victim.

The subjective concept of offensiveness should never have been used as the basis for a criminal charge.  It leaves football fans completely at the mercy of individual police officers and what they find offensive or thought the ‘community’ would find offensive. The COPFS compounded this by proceeding with every single Offensive Behaviour charge that was brought to them even when there was very little chance of a conviction.  We assert that no actual person should have the legal right not to be offended but also that people should not be subjected to criminal proceedings for offending a hypothetical person.  The scope for the individual bias of officers and fiscals is so great as to present a genuine danger to civil liberties.

The Act targets and criminalises largely young men with no previous contact with the criminal justice system

The most recent set of statistics for 2014-15 show that 75% of those charged under the Act are under 30 and 46% are under 20.   This has consistently been the case throughout the existence of the Act.  The Evaluation[5] of the Act commissioned by the Scottish Government in 2015 also highlighted the fact that young people in particular were being targeted.  The Scottish Government announced in 2015 that, in response to this concern, they had instigated and funded, to the tune of £67000, a ‘Diversion from Prosecution’[6] scheme which would seek to ensure that young people would not be saddled with a criminal record for relatively minor offences.  This is a clear recognition that the Act was criminalising young people who had no business being near a police station or a court.  A Freedom of Information request submitted by us to the COPFS has, however, revealed that the option of diversion has been offered to only 2 people as at 27 September 2016.

Since June 2015 2 referrals have been made to the scheme for sectarian offences under the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 directly by the Crown Office and Procurator Fiscal Service (COPFS).

There are no published statistics on the previous convictions of those charged under the 2012 Act, but our own work with those charged and from our dealings with a number of solicitors who have dealt extensively with these cases, we are aware that they are overwhelmingly people of previous good character with no prior contact with the law.

To create an Act which criminalises young, mainly working-class, men who would not otherwise be criminalised is entirely at odds with the Governments’ own policy positions in a number of significant respects. On this basis alone, we support the repeal of the 2012 Act.

 

The Act Has created unnecessary and preventable tensions between the Police Service of Scotland and football fans

As football fans ourselves and in talking to other football fans, we can say that the harmless pastime of attending a football match has become somewhat of an ordeal since the 2012 Act was introduced.  Football fans experience near constant filming throughout matches, we are followed, searched, monitored and generally treated as though we are a threat to society.  Elderly people and children are treated as though they are potentially dangerous criminals and the whole atmosphere of football has become one of antagonism – not between opposing fans groups – but between fans and the police.  In the week in which this is being written almost every newspaper is carrying statements from senior police officers issuing threats to football fans attending the League Cup Semi-Final at Hampden.  One would almost think they were trying to provoke trouble rather than police citizens going about their lawful business.

As an organisation offering support to fans caught up in the Act we have witnessed a complete breakdown in trust between the police and the fan groups.  Long-standing supporters’ organisations now refuse to enter into discussions with the police because of the complete resentment which has been created by their behaviour.  In the past it was quite normal to meet with the police from time to time to discuss any issues but this now does not happen to anywhere near the same extent.  Given that the Act has targeted the young we have an even greater level of distrust in the 15-25 age group.  This is a very dangerous situation when you have young people who feel a very great sense of injustice about how they are treated by those charged with keeping us safe.

The practice of police officers engaging in ‘dawn raids’ – a fact conceded by the Police Service of Scotland in evidence to the Petitions Committee of the Scottish Parliament in 2016 – has further exacerbated the feeling of grievance and mistrust among young football fans and the police.  This is particularly the case in circumstances which have occurred recently when solicitors have offered to bring people who are wanted for questioning to a police station and had that request refused in favour of turning up at 5.30am at someone’s door[7].  The petty vindictiveness of arresting people on a Friday (often several weeks after the alleged offence) in order to hold them for three nights instead of one in a police cell is not lost on football fans – even those not actually subjected to this treatment.

This kind of policing has been evident from the very early days of the Act.  A notable example is the actions of the then Strathclyde Police in 2013 in the Gallowgate[8] in Glasgow when a peaceful demonstration of Celtic fans (numbering about 100-150) was attacked by a force of hundreds of police officers drafted in from various force areas using dogs, helicopters and horses.  A Section 12 Notice under the Public Order Act was read out by the senior officer that day (ACC Ruaridh Nicolson) and used to restrict the movement of people who were trying to go about their business including attending a match at Celtic Park. 13 people were arrested for public order offences and Stephen House, in response to numerous letters from MSPs concerned about the scale of that operation, assured them in the following terms:

house-letter-re-gallowgate

Despite his assurances and despite the amount of filming from the street and the sky no such video footage has been shown and, more importantly, of the 13 people arrested that day, who allegedly carried out these crimes in full view of hundreds of police officers, precisely none were convicted of any public order offence or any violence or indeed anything that would have in any way justified the assault on them. Indeed, two police officers were subsequently investigated for perjury as a result of the evidence they offered in court against one young man[9]in the Gallowgate and another for a later incident.  For these reasons many young Celtic fans do not trust the police.  However, there are many other incidents, almost on a weekly basis, involving fans of other clubs which have stoked the fires of resentment and which are part of what is seen to be a war on football fans which this Act has heralded.

When you take all of this together with the appalling treatment of children in terms of ‘consensual’ stop and searches the fears and resentments of young football fans seem more than justified.  It is clear that the effort to repair those relationships will take a very long time but that process will not even begin until the 2012 Act is abolished.

 

The Act has led to a blurring of lines between politicians, prosecutors and police which is dangerous to democracy

In monitoring the use of the 2012 Act we have become aware of numerous instances of what appear to be unusual interactions between the politicians, the police and the COPFS.

These include:

  • The behaviour of the then Lord Advocate, Frank Mulholland, in assuming the role of the largely silent (on this matter) Justice Secretary of the time, Kenny MacAskill. Mulholland gave numerous press interviews and justifications of the legislation in what we are advised is a departure from the normal role of the Government’s senior law officer. This included telling Bernard Ponsonby in an STV news bulletin that in certain circumstances ‘an Irish Republican identity could be illegal’[10].
  • The behaviour of the COPFS in appealing, or threatening to appeal a number of verdicts and sentences in Offensive Behaviour cases when they normally only do this for very serious cases like murder and rape and usually only at the rate of one or less a year. We have been told, although we have no proof, that in at least one of these cases it was at the request of a prominent Scottish Government Minister.
  • The fact that the COPFS have taken the decision to prosecute Offensive Behaviour cases to the absolute limit in respect of always proceeding with charges in all circumstances; demanding special bail conditions in all football cases but not in the case of violence or drug offences which appear in the same court on the same day; forcing fiscal deputes to refer every decision upwards as opposed to making day to day decisions by themselves and assigning three fiscals to cover the whole of Scotland for football cases alone in an act designed to elevate the prominence of the 2012 Act.
  • The discussions between COPFS and the PSoS regarding which ‘songs’ they would prosecute; police officers then giving evidence that they ‘learnt’ the songs online and then the COPFS instructing the police to use the 2012 Act in every case.
  • The behaviour of police officers in giving evidence which Sheriffs have criticised and which have led to allegations and investigations of perjury (see Footnote 7).

 

The extent of these and other incidences of apparent collusion has blurred the lines between politicians who make laws, police officers who enforce them and fiscals who prosecute breaches of them.  There appears to be a much greater degree of co-operation to make this particular Act look more effective and successful than should be the case in our legal system.  On this basis, we support a repeal of the Act and hope for a return to the proper and clear distinction between the various elements of our governance, police and justice system.

 

  1. In your view, what would be the advantages and disadvantages of repeal to:

 

(a)   the police and justice system

 

Our answer to this question should be apparent from the evidence above. In short, we have presented evidence that the 2012 Act has given the police far too extensive powers and a degree of discretion in defining offensiveness which is dangerous; made their work more difficult in terms of causing a degree of distrust within sections of the community; diverted resources from the detection and prosecution of offences in which there are genuine victims; and has hamstrung Depute Fiscals needlessly in the carrying out of their normal duties.

 

(b)  football clubs

 

The repeal of the 2012 Act will allow football clubs to get on with the business of running our national game for the enjoyment of those who pay for it, free from the encumbrance of unnecessary dealings with, and constant interference from, the police and politicians.

 

(c)   football supporters?

 

Our answer to this question should be apparent from the foregoing.  We believe there are no disadvantages for football supporters of the repeal of the 2012 Act and that football fans should be treated by the police and the justice system in exactly the same way as other citizens and subject to the same laws.

 

  1. Leaving aside the issue of whether sections 1 to 5 of the 2012 Act should be repealed, what do you think needs to be done to reduce offensive behaviour at football matches (including, for example, by politicians, the police and the wider justice system, clubs, fans and other interested parties)?

Our position is that football grounds are overwhelmingly safe and crime-free environments where many thousands of people enjoy the game on a weekly basis.  The nature of the environment,  and the sometimes robust expression of support and opposition, is not necessarily to everyone’s taste but that is not a justification for additional and bespoke legislation.

Where there are particular problems in particular grounds that is for clubs and supporters’ organisations to resolve. In addition, there is a whole raft of powers which the police have at their disposal to deal with genuinely problematic behaviour.  Football fans are not asking to be exempt from the law, they are asking to be treated equally and not have additional legal restrictions which do not apply to other citizens.

4.  Which of the following best expresses your view of the proposal to repeal sections 6 to 9 of the 2012 Act?

We are fully supportive of the repeal of Sections 6-9 of the Act and our reasons are set out below.

In the first four years of the Act for which statistics are available there have been 46 charges under this Section of the Act.  Up to the last full year for which statistics are available there have been 12 convictions. This is an incredibly small number of charges and convictions and there appears to be no genuine need for this legislation given that there was already legislation which could deal with this kind of offence eg the Communications Act 2003.

 

  1. Leaving aside the issue of whether sections 6 to 9 of the 2012 Act should be repealed, what do you think is the most appropriate way of tackling threatening communications while upholding freedom of expression (for example, use of other legislation)?

See above.

 

  1. Would you support measures to penalise football clubs for offensive behaviour by their fans? If so, should it be necessary to show that the club was at fault (for example, by failing to take reasonable steps to control fans’ behaviour) – or should “strict liability” be applied?

We do not support attempts to introduce a ‘strict liability’ measure to counter fan behaviour, for a number of reasons. Firstly, individuals and only individuals should be held accountable for their own behaviour. To punish clubs, players and fans for the actions of another person or persons is wrong. We suspect that political parties would oppose any proposed rules stating that they might lose seats in the houses of Parliament if any of their members were to engage in offensive behaviour related to their political beliefs and we do not see why the rules should be any different for football clubs and their supporters. We would also contend that such a proposal would be wholly impractical, and that a sensible, working definition of offensiveness would be impossible to reach. As we have previously argued, offensiveness is subjective, and we do not believe that people have the right to ‘not be offended’. We fundamentally believe that attempts to curtail expression in this way are illiberal and infringe upon civil liberties, notably the civil liberties of citizens who also happen to be football supporters.   Finally, we find the continued political emphasis on exaggerating the extent of the apparent misbehaviour of football fans and then attempting to create capital out of this, to be irresponsible and immature. The hysteria which now dictates the narrative when discussing the behaviour of football fans stands as a barrier to dealing with the very serious issues of hate crime, violence and prejudice. The government does not eagerly wade in to discussions of the behaviour of fans of other sports, or indeed enthusiasts of any other pastime, as far as we can see, and we think it would be beneficial if they chose a similar approach to football fans and refrained from patronising or bullying us – or indeed using us as a convenient scapegoat for deep-rooted and long-standing societal problems which they find difficult to resolve.

  1. What transitional arrangements do you think would need to be included in a Bill to repeal the 2012 Act? [Possible options are set out in the consultation paper at page 23].

We believe that it is only just that if the 2012 Act is repealed, all charges made under this legislation should be dropped and that no further charges should be brought against individuals using it. If Parliament, on behalf of the Scottish people, determines that this law is not fit for purpose then it would be unjust and unnecessary for fans to face further hardship as a result of it. We also believe that all fans convicted under the law, who could not have been convicted under any other legislation, should at the very least have the opportunity to appeal these convictions and perhaps a transitional arrangement could allow for such a process to take place.

8. Taking account of both costs and potential savings, what financial impact would you expect the proposed Bill to have?

From the outset, the Police Service of Scotland have used this Act as a mechanism to source additional funding streams from the Scottish Government.  In 2011-12 alone the Football Co-ordination Unit Scotland (FoCuS) Group were allocated £1,022,035 from the anti-sectarian budget.  This constituted a staggering 91% of the budget[11].  In 2012-13 they were given a further £707, 793 from the same budget. A recent Freedom of Information request from STV revealed that the Unit has spent over £2.1 million in the current and previous two operational years ie since 2013.[12]

Given this and the other evidence set out here, it is clear that repeal of the 2012 Act would result in a significant reduction in cost to the tax-payer. We do not believe that the current outlay for additional officers and equipment, the cost of housing fans in police cells and of funding three full-time football Prosecutor Fiscal’s is a prudent use of public money. In the last week, we have seen an instance whereby a unit of officers were waiting outside of a teenager’s house for a week in order to arrest him over an allegation for which we believe it will be impossible for a conviction to be reached. This is but one example of the squandering of public funds without meaningful return which emanates from the 2012 Act and we believe that this bill would enable Police Scotland to better distribute their resources towards more serious crime.  Given their own recently publicised complaints about lack of money we hope that they will welcome this suggestion.[13]

  1. What overall impact is the Bill likely to have on the following protected groups (under the Equality Act 2010): race, disability, gender (including transgender), age, religion and belief, sexual orientation, marriage and civil partnership, pregnancy and maternity?

We believe that if the legislation was to be repealed it would have a positive impact on those protected groups such as age, gender and race and on those discriminated against on the grounds of socio-economic status. As pointed out earlier in this submission, this legislation disproportionately criminalises young men.  Concerns regarding the ages of those who tend to be charged are clearly expressed in the Evaluation Report of the legislation published by the Scottish Parliament and conducted by the University of Stirling in 2015.   It has been further noted by BEMIS, the national Ethnic Minorities-led umbrella body, that there is genuine and merited concern within Scotland’s Irish community that this legislation ‘disproportionately targets those who identify as Scots Irish’ and that ‘interpretations of the Act could infringe upon their ability to express their political and cultural identity’. This is perhaps highlighted by a recent case in which a police officer, acting as a witness in court, suggested that the person on trial should be convicted for expressing Irish Republican views, which the officer clearly believed to be, in and of itself. a crime. Perhaps not surprisingly given the comments of the previous Lord Advocate, Frank Mulholland mentioned earlier. It is also worth noting that the Scottish Government were reported to the United Nations by the Scottish Human Rights Commission, partly due to concerns regarding the Offensive Behaviour at Football Act, specifically questioning whether restrictions placed on expression by the Act were genuinely required in a democratic society.

  1. In what ways could any negative impact of the Bill on any of these protected groups be minimised or avoided?

We don’t think there will be a negative impact on any protected groups as there is sufficient legislation which ensures that behaviour which targets or discriminates against protected groups is unlawful. We have noted the submission put forth by Stonewall regarding the proposal to repeal the 2012 Act and find it regrettable that they assert that the repeal of this legislation would negatively impact upon the LGBT community, without offering any evidence to support this claim. The numbers of arrests made under this legislation are minimal in the extreme – only six charges relating to sexual orientation have been made in the entire life of the Act. The argument being made that a repeal ‘sends the wrong message’ is something which we cannot agree with. The legislation has failed against any measure; it is discriminatory by nature and we believe discussion regarding the Offensive Behaviour Act detracts from the serious issues of hate crime and prejudice. We as an organisation are fully supportive of action to tackle hate crime and we stand in solidarity with those groups at the forefront of that struggle.  However, it seems absurd to cling to a law which is ruining lives, discriminating against various groups of people and costing the public a considerable sum when even those who support it concede that in terms of the law, there is sufficient legislation to deal with behaviours which actually merit criminal charges.  Perhaps when this Act goes, groups like Stonewall and other equality groups will be asked to comment on newly-released hate crime statistics instead of us.  This would put this serious issue in it proper perspective and remove the distraction of football – and the football-obsessed press – from the equation.

  1. Do you have any direct experience of the Act in practice that you would

We know from our own work and networks that a considerable proportion of football fans in Scotland have had negative experiences of the Offensive Behaviour Act over the last four and a half years. The manner in which football fans are perceived and treated by law enforcement has meant that fans will not necessarily have had to have been arrested and charged under the legislation to feel the ill-effects of it, as fans are routinely filmed, harassed and intimidated and treated as criminals.    The law itself is repressive and we as a campaign have also experienced repressive police tactics which sought to limit our ability to peacefully protest against it, as is our democratic right. We have had several complaints[14] made against Police Scotland upheld, due to the way in which police officers have treated our activists. Our activists have been harassed in court rooms, at football matches, at peaceful, legitimate demonstrations and even at their homes. One of our most prominent activists has also been charged under the legislation, for an alleged offence which dated back six months prior to a citation being issued against the individual, and disturbingly right in the middle of the current consultation.  We as an organisation believe this to be nothing more than a vindictive attempt to undermine our campaign, discredit our activist and intimidate those who dare stand up to the police on this, or indeed any, issue. This incident sadly fits in to a historical timeline of harassment and intimidation which we have had to contend with since the very inception of our campaign.  It yet again speaks to the attitude which has been created between police officers and football supporters even when we are not attending football matches.

 

[1] Stephen House oversaw the policing of the first three years of the Act before demitting the office of Chief Constable of Scotland in November 2015 and earlier than planned due to numerous failings in that role.  Included among those failings, for which he was heavily publicly criticised, was the excessive use of stop and search powers on young people.  We argue that this ties in closely with the authoritarian and heavy-handed treatment of young football fans by the Police Service of Scotland under his leadership and that this was facilitated by the wide discretion embodied in this Act.

[2] We deliberately say Scottish Government here rather than Scottish Parliament because the 2012 Act was passed using only the governing party’s votes.  All other opposition MSPs voted against the Act.

[3] https://www.scotcourts.gov.uk/search-judgments/judgment?id=113686a6-8980-69d2-b500-ff0000d74aa7

[4] https://www.scotcourts.gov.uk/search-judgments/judgment?id=e84dd2a6-8980-69d2-b500-ff0000d74aa7

[5] http://www.gov.scot/Resource/0047/00479022.pdf

[6] http://www.sacro.org.uk/thinking/news/tackling-sectarianism-across-scotland

[7] http://fansagainstcriminalisation.com/here-is-how-the-police-service-of-scotland-keep-us-safe/

[8] For a detailed report of this incident see ‘Citizens’ Report into the Policing of Football Fans: Kettling on the Gallowgate, 16th March 2013’ which can be accessed here: http://fansagainstcriminalisation.com/citizens-report-into-the-policing-of-football-fans/

[9] http://fansagainstcriminalisation.com/the-last-man-standing-from-the-gallowgate-goes-to-trial/

http://www.heraldscotland.com/news/13789612.New_football_law_perjury_probe_as_police_accused_of_lying_in_court/

 

[10] http://www.celtictrust.net/index.php?func=d_home_article&id=425

 

[11] Written Answer (S4W-13372), Scottish Parliament, Siobhán McMahon MSP

[12] http://stv.tv/news/politics/1363267-police-scotland-spend-baffling-2m-on-football-crime-unit/

[13] http://www.thetimes.co.uk/past-six-days/2016-07-22/scotland/scottish-police-cuts-mean-officers-have-to-buy-gear-in-charity-shops-says-federation-rlhgwprfs

[14] http://fansagainstcriminalisation.com/?s=police+complaints

http://fansagainstcriminalisation.com/?s=SNP+Spring+Conference

 

 

2 days left to scrap the Act!

The public consultation on the repeal of the Act closes on Sunday 23rd October.  Please don’t miss out on the chance to have your say on the appalling, illiberal legislation which has wrecked the lives of so many young fans.

If you don’t think you have time to do a full submission simply go to the survey http://www.smartsurvey.co.uk/S/FootballActRepealBill/ and give your basic details, which you can ask not to be made public if you wish, and answer Q1 which relates to Sections 1-5 of the Act ie the Offensive Behaviour at Football part.  Either Strongly Support or Support the proposal to repeal this section.  Then just keep hitting ‘Next’ at the bottom of the page until you get to the final page and then hit ‘Submit’.  This should take no more than a few minutes of your time but it is vitally important.  Don’t leave it to everyone else please.

If you do want to leave a fuller submission and need a few pointers there is a crib sheet on our site under the Post ‘Your submission counts’,