Herald calls for review of the Offensive Behaviour Act

01/03/16 

In today’s editorial in which the public call by solicitors, academics and figures from the world of politics, media and culture for the scrapping of the Offensive Behaviour Act is carried (see below for the statement and list of those endorsing it), the Herald calls for the review of the Act.  We welcome this intervention and hope now that the tide is turning among the wider Scottish public against an Act which is already hated by football fans.  Below we carry the original version of an opinion piece, also in today’s Herald, by Jeanette Findlay.

In Scotland in 2016 football grounds are no longer solely arenas where the battle is for sporting honours. Instead they have become the place where our status as a modern liberal democracy is being tested.  Too many young citizens are now caught in the ‘extremely long reach’ of the Offensive Behaviour Act.  For an offence with an ‘extremely long reach’ is what Parliament created with this Act, in the words of Appeal Court judges Paton, Brodie and Philip. Its clammy hand reaches into pubs, clubs, streets and supporters’ buses as well as football grounds and the political views of those inside them.  Its extremely long reach is matched only by its extremely low evidentiary bar.  If a police officer thinks you might have been offensive and will testify, truthfully or otherwise, that someone might be incited to public disorder, then that is enough for a conviction.  That ‘someone’ is not the familiar ‘reasonable’ person but, in the words of the aforementioned noble Lords, is ‘a person likely to be incited to public disorder’ who is of ‘a more volatile temperament’. Moreover, this combustible chap doesn’t even have to know he has been offended for a crime to be proven.

Proponents of the Act claim it is intended to wipe out the scourge of bigotry, which is, on any view, a laudable aim.  Yet the government’s own statistics show that prior to the Act only a tiny proportion of ‘religiously aggravated’ offending took place in football grounds, begging the question as to why they directed their attention at us.

If the Act was used to target bigotry it would simply replicate existing legislation but be no more harmful than that – but it is not.  On the instructions of the Football Fiscals (yes, Scotland has special Fiscals – not for drugs, rape or other violent crimes – but for football), this Act is used on fans of all clubs for the most breathtakingly minor ‘offences’. It has been used to arrest young Hamilton fans for using the F-word when singing about their rivals.  It has been used to arrest other young fans who, rightly fed up with being constantly filmed, invited the police officers present to give themselves a colonoscopy with their own cameras.  It is the pretext upon which we see the ultimate irony of protests against the Act, and the heavy-handed policing which it engenders, being heavy-handedly policed.

This Act is not used to control hardened, thuggish, bigots who pose a threat to the harmony of Scottish society and the well-being of its citizens.  It is used to intimidate and criminalise young, possibly boisterous, often politicised, working class boys. These young men are overwhelmingly in full-time education or work – some losing their jobs as a result of being charged.  Most are, according to experienced solicitors, of unblemished character.  To be charged under this Act means some or all of the following:  up to four nights in police cells or being chapped up in what the police don’t like being called ‘dawn raids’ but are raids….at dawn; three or more visits to court (often in other parts of the country); disruption to studies or work; bail conditions which keep you away from your chosen (and already paid for) pastime for months, sometimes more than a year.  No wonder many young people plead guilty immediately to avoid the disruption.

Having said that, those who go to trial stand a very good chance of being acquitted, because the true conviction rate is low – less even than the notoriously low rate for rape.   Many of the uninitiated (or simply uninterested) among you may think I am gilding the lily.  I assure you, a lily-wearer I may be (joined this year, it seems, by one of the architects of the Act, Kenny MacAskill) but a lily-gilder I am not.  My problem was not in finding examples to shock you into rising up against this Act, but to select judiciously from among the many outrages and abuses that have been heaped on our young football-supporting fellow citizens.

Fortunately, the unhappy coincidence of self-interest and self-promotion that brought the Act into being began to dissolve when the door hit the backsides of Alex Salmond and Stephen House.  I do not believe it is beyond the wit of the current administration (or the next) to find a way to repeal it and I urge them, save whatever faces need to be saved if you must, but do it soon before any more young lives are ruined.

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