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, 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
- Email: email@example.com
SECTION 2 – YOUR VIEWS ON THE PROPOSAL
Offensive behaviour at football (the section 1 offence)
- 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
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.
|Common assault of an emergency worker
|Breach of the peace
|Threatening or abusive behaviour
|Offence of stalking
|Offensive behaviour at football (Section 1 of Offensive behaviour Act)
|Threatening communications (Section 6 of Offensive behaviour Act)
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.
|Common assault of an emergency worker
|Breach of the peace
|Threatening or abusive behaviour
|Offence of stalking
The Act is Poorly drafted
The difficulty with this Act was that the Scottish Government, in the words of the Appeal Court judges, Lady Paton, and Lords Brodie and Philip in the case of PF Dingwall v Cairns ‘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 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 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’ 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. 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 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:
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 manin 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.
- 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’.
- 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.
- 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.
- 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.
- 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)?
- 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.
- 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. 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.
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.
- 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.
- 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.
- 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 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.
 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.
 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.
 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/
 Written Answer (S4W-13372), Scottish Parliament, Siobhán McMahon MSP