5 SHERIFFS AND PROCURATOR FISCAL DEPUTES
5.1 This chapter discusses the data which emerged from semi-structured interviews carried out with Sheriffs and Procurator Fiscal deputes from across Scotland that covered their perceptions of the banning order legislation.
Appropriateness of FBOs
5.2 In the context of this small sample, the one issue that seemed most germane to the Sheriffs' and Fiscals' approach to FBOs was whether they regarded themselves as football fans. Seven of the ten Sheriffs and all four Procurator Fiscal deputes defined themselves as such, usually being supporters of particular clubs and longstanding season-ticket holders. They were particularly knowledgeable about the history of their team, the 'problem' of football hooliganism and sectarianism, and the scope of the legislation. Indeed, one particular Sheriff who has granted "at least a dozen" FBOs since the regime came into force was quite explicit about how his knowledge of the game has impacted upon his approach to football-related cases:
"I'm a football man so I understand the dynamics of football behaviour, and I'm really against a lot of the behaviour that goes on... When there has been an opportunity, I have never not imposed an FBO. I'm very aware of them, I don't need to be told about it and it surprises me that there aren't more imposed."
5.3 This approach, where the granting of a banning order even for relatively trivial offences is the default position - and where a one-year ban is merely a starting-point - stands in marked contrast to the perceptions of all the other Sheriffs, most of whom had never imposed an FBO of more than one year's duration and all of whom felt a banning order would be unnecessary in the absence of aggravating factors. In every Sheriff interview the words 'Draconian' and 'disproportionate' were repeatedly used, regardless of where the interviewees were based or whether they regarded themselves as 'football fans' or not. They were certainly not comfortable with the idea that FBOs should be the norm upon conviction for all football-related offences:
"There's a distinction to be drawn between people who are involved in football clearly for the purpose of causing violence...and the majority of cases which tend to involve generally law-abiding people who've had a little too much to drink and have started behaving in a silly, childish way and done things they'd never do sober or if they weren't at the football. These people probably learn their lesson by being hauled before the court with a conviction for sectarian-aggravated breach of the peace or whatever...I don't think they necessarily require to have the full force of an FBO imposed on them."
"Banning Orders are a fairly Draconian response to what is pretty low-level stuff - sectarian chants, verbal abuse. I think they are too high up the scale unless that person has a history (of previous convictions)."
5.4 The Sheriffs' quite conservative approach to the legislation contrasts with the perceptions of the Procurator Fiscal deputes we have interviewed. From this limited interview data it appears possible to discern potentially significant differences of approach between the two groups. The Procurator Fiscal deputes had all been perplexed by cases where FBOs had been sought in respect of offences committed inside grounds, and guilty pleas secured, but the Sheriffs had declined to grant the Order on the grounds that they perceived them to be a disproportionate response to a relatively minor offence. The Procurator Fiscal deputes interviewed were largely of the view that the imposition of an FBO ought to be the norm - that any criminal offence committed inside a football ground, or which was otherwise football-related, should lead to an FBO unless there were very exceptional circumstances.
"I've been involved in two applications in the last couple of years, and on both occasions the Sheriff declined to grant the FBO even though the offence had taken place inside the ground. He did so on the basis that what I was asking for was a pretty Draconian measure for something that was pretty minor. So far as I was concerned, a crime had been committed - a crime of public disorder inside a football ground - and I couldn't see any reason as to why an FBO shouldn't be granted"
(Procurator Fiscal Depute 1)
5.5 The small number of persons interviewed means it is unwise to attempt to offer any general guidance on the circumstances in which FBOs are likely to be granted, at least until the perceptions of this cohort have been tested against those of a much wider sample through quantitative research. However, as a broad rule of thumb and while acknowledging the research's limitations we can say with some confidence that, in contrast to the Fiscals' general view, the Sheriffs' opinion was that individuals who have no previous convictions either for football-related offences or acts of violence in other contexts are unlikely to receive an FBO. That state of affairs will change if their offence has involved violence or the threat of it, running on to the pitch in circumstances which indicate something more sinister than an act of exuberance, or if missiles are thrown - or if the offender has the misfortune to be before one of the Sheriffs who takes a particularly dim view of football-related offences.
"In respect of a first offender who loses the plot in response to some perceived injustice on the field of play, I can't see it being proportionate in the absence of an aggravating factor. If there was sectarianism or racism it wouldn't need much of a level of violence, or a threat of violence, for me to decide it would be appropriate and if we got to a position where violence actually happened I think I'd have a low threshold for an FBO to become a real possibility"
5.6 Whilst most respondents' views of the legislation ostensibly accord with ACPOS' assertion that " FBOs will target those who display the most extreme behaviour", there is the potential for differences of opinion among Sheriffs, the Police and the Procurator Fiscal deputes as to what amounts to 'extreme'. For example, several Sheriffs thought the recent trend towards "players badgering the referees, creating a disturbance inside the ground, can actually cause a greater problem than some ned shouting sectarian abuse" and they asserted a willingness to deal robustly with such incidents. Indeed, one intimated he would be perfectly willing to consider imposing an FBO on a player whose on-field conduct had resulted in their being convicted by the criminal courts (as occurred in Ferguson v Normand  SCCR 770 for example).
5.7 Clearly, it would be too simplistic to suggest that Procurator Fiscal deputes routinely advocate a more robust approach whereas the Sheriffs tend to be more cautious. The Procurator Fiscal deputes were well aware that few cases are ever clear-cut, and even the court's unwillingness to impose an FBO in the most high-profile case where one was sought but not granted (the case of Peter Wallace, see http://www.bbc.co.uk/news/uk-scotland-north-east-orkney-shetland-11084526) merits some degree of empathy. In this case, the Crown had accepted there had been no intent to injure (although the defendant's behaviour was clearly culpable and reckless), so consequently the Sheriff had grounds for deciding that an FBO would not reduce football-related violence or disorder as s. 51(3) of the legislation requires. The level of fine imposed on the defendant, Peter Wallace (with a twelve-month custodial sentence perceived by one of the Procurator Fiscal deputes as the only viable alternative), together with a £25,000 compensation order, reflected the severity of the incident; but no matter how egregious the offence or how heavy the penalty, that 'preventative' element of s. 51(3) - the concept of this additional sanction helping reduce violence or disorder associated with football - still needs to be established before an FBO can be regarded as a proportionate sanction.
5.8 All that said, it remains the case that many, perhaps most, Sheriffs would have imposed an FBO in the particular circumstances of this case. But there was at least the potential for a contrary view because the guilty plea had been tendered, and accepted, on the basis that there had been no intent to injure. In those circumstances, perhaps the decision not to grant an FBO is not as perverse as it may at first appear; but the fact that one was not granted despite Wallace's previous conviction for a football-related offence means the decision cannot be easily reconciled with the perceptions of most of the Sheriffs interviewed here, even though the incident took place some time after the match, on public transport and a considerable distance from the ground.
5.9 Most of the Sheriffs were alive to this need to be satisfied that granting an FBO will actually contribute to a diminution of violence or disorder at, or associated with, football matches as the legislation demands; they will not grant them if the FBO would simply be another aspect of the offender's individual punishment and has no wider effect. While one can argue that granting an FBO might 'deter' others from committing similar offences (and some of the Sheriffs made that point strongly), others were not comfortable with granting them in the absence of prior relevant convictions, unless it had been established that the individual was inciting others:
"I've never had occasions when the Fiscals have tried to convince me that the guy in the dock is some sort of ringleader or that the violence was orchestrated. It's always been individuals who have reacted badly to what's happened on the pitch, they've usually been drunk and they've not been leading anything...but I've still granted the Order"
5.10 This difficulty in establishing the link between the individual's behaviour and the s. 51(3) requirements can be further explored through consideration of the High Court's judgment in Walls v Brown  HCJAC 59, Here, in the course of a SPL match between Kilmarnock and Rangers, the appellant (a Rangers fan) had repeatedly sung one particular line from the infamous 'Famine Song' and had shouted sectarian abuse. No less important was Walls' making 'gestures' in the direction of the home supporters, ignoring repeated requests from stewards that he sit down and refusing to leave the ground when they asked him to do so. He was convicted of a breach of the peace aggravated by religious prejudice under s. 74(2) of the Criminal Justice (Scotland) Act 2003 and by racial prejudice under the s. 96(2) of the Crime and Disorder Act 1998. He was placed on probation for eighteen months and given a two-year football banning order.
5.11 Walls appealed by way of stated case, contending (inter alia) that the 'Famine Song' did not contain racist elements but was a legitimate expression of political opinion and the reference to 'Fenians' was merely a legitimate criticism levelled at the Fenian Brotherhood, a republican organisation founded in New York in the 1850s. He argued that if these references were seen in their proper context there could be no breach of the peace, given that there was no evidence of anyone actually being caused alarm or distress by what he said and that the swearing which accompanied his politically-inspired rhetoric was commonplace at a football match. Walls also sought to argue that the complaint against him was incompatible with his rights under Articles 8 and 10 of the ECHR. The appeal court refused to entertain that argument on the ground that neither argument had been pursued at trial, and that the first morning of a stated case appeal was neither the time nor the place to introduce it.
5.12 The High Court upheld the decision, confirming the Sheriff had been correct in her application of Smith v. Donnelly  SLT1007 to the effect that a breach of the peace may occur where the conduct complained of is 'severe enough to cause alarm to ordinary people and threaten serious disturbance to the community'. The High Court affirmed that the conduct of the appellant did amount to a breach of the peace because:
'Even in the context of a football match...presence inside a football stadium does not give a spectator a free hand to behave as he pleases. There are limits and the appellant's conduct went well beyond those limits.... It is a legitimate inference that persons in the crowd are likely to be alarmed and disturbed by such behaviour and that it does have the potential to cause or threaten serious disturbance'
5.11 The testimony of a police Superintendent to the effect that he, like most fans, knew the words of the rest of the Famine Song (which had not been sung by Walls), that he found those words offensive and that "sectarian and bigoted chants could have an impact on parts of a football crowd...were they to take offence" (paragraph 2) were combined with evidence from a Kilmarnock FC steward and a Rangers FC steward to the effect that they were 'bothered' by the potential for an adverse reaction from the crowd around him. There had in fact been no such reaction - to the contrary, Walls successfully exhorted some of them to join his refrain - but the stewards' evidence as to the totality of his behaviour took him comfortably beyond the bounds of what was acceptable, even in "the context of a football match". It was clearly sufficient in law for the Sheriff to convict and for the High Court to uphold her decision.
5.12 Adducing evidence that an offender successfully encouraged the others to follow suit has at least the potential to be an important aspect of a s. 51(3) application because the requirement that a banning order would 'help to prevent violence or disorder at or in connection with any football matches' can invariably be made out if it can be established that the defendant was a ringleader, and a number of Sheriffs spoke of occasions where the Crown had tried hard to establish the link between the offender's behaviour and its effect on those around him in order to strengthen the case for a banning order. On this occasion, however, Walls' long record of convictions for violent offences (which included at least one football-related offence and a period of imprisonment for possessing a knife) meant there was no need to show that he had incited anyone. Perhaps he had, but the court's approach in Walls reflects what the Sheriffs repeatedly indicated during the interviews: the strongest arguments for imposing a banning order will arise where a defendant has prior relevant convictions. Had Walls not been a serial offender many Sheriffs would have required clear evidence of a tangible link between his activities and the s. 51(3) requirements, and in those circumstances his effect on those around him would patently have been relevant. His conviction for breach of the peace reflected the totality of his conduct - both his sectarian bile and his repeated gesturing and posturing - while the consequences of what he specifically said were his convictions under the 1998 and 2003 Acts. The two-year banning order reflects his criminal history, which clearly illustrated that football grounds would be safer places if Walls was not allowed in them for a lengthy period.
The sectarian aspect
5.13 As intimated throughout this report, it is inevitably the case that any discussions about the behaviour of football fans in Scotland, and the policing thereof, will raise the spectre of sectarianism. Again, the dangers of making generalisations on the basis of such a small interview sample must be borne in mind, but it is fair to say that, with one clear exception, there was little enthusiasm amongst these interviewees for the proposition that a one-off sectarian utterance should result in an FBO, especially for a first offender. That certainly does not mean that any of the Sheriffs regard sectarianism as an insignificant issue, and while it is possible that many Sheriffs sitting in Glasgow will grant an FBO for a sectarian-motivated offence when those sitting elsewhere might not, the question of whether granting an FBO was a proportionate response to the circumstances of a particular case was always in the minds of even those least likely to grant them.
5.14 Sheriffs outside Glasgow who identified themselves as football fans were probably more attuned to the realities of the situations in which sectarian offences are likely to arise than were those whose leisure interests lie elsewhere, but we are not in a position to say if that means they are more or less likely to grant FBOs. The most that can be said is that most Sheriffs we interviewed were wary of deciding that granting an FBO against a particular individual who uses sectarian language is appropriate if they are surrounded by up to 50,000 other people who know what they are going to hear when they choose to attend Old Firm matches and would not be offended by it;  the others accepted that the legislation was not perfect but firmly believed "you can't condone and you have to start somewhere". While the Sheriffs in Glasgow might be more willing to look beyond that difficulty in interpreting the Act, most had yet to be convinced that banning one individual from grounds (particularly if he were a first offender) would help reduce the incidence of violence at, or associated with, football matches as the legislation requires:
"When you look at the type of people who are coming they tend to be overwhelmingly male, in their 20s, 30s and older, dyed-in-the-wool fans, who probably go to every game, go abroad...and if one individual in the middle of a group of […] fans shouts something it's not likely to upset too many people around him."
5.15 And some pointed out that there are other Orders which can be used in respect of sectarian offences, and these might be a preferable to FBOs:
"I might make a criminal Anti-social Behaviour Order which would be as effective, I think, and would be as specific because I'm saying 'your behaviour at this locus was disgraceful and you need a year or so away to think about it'."
5.16 As noted above, some Sheriffs sitting in Glasgow were markedly less troubled by these difficulties, and were clearly more likely to at least contemplate an FBO for a sectarian offence even in respect of a first offender. But the treatment of sectarian offences is clearly problematic and, as one might anticipate, it is an issue which attracts markedly different opinions in different parts of the country. Through further research it might be possible to ascertain whether a Sheriff's personal interest in football, and whether they sit in Glasgow, are the two factors which most influence their decision on whether to grant an FBO; our tentative conclusion is that this is so, but we will assert it with some diffidence until we are able to test it against a bigger sample. Perhaps of more immediate use for policy-makers and the game as a whole is the Sheriffs' intimation that while the Old Firm could perhaps do more to 'deal with' sectarianism (and it is not for us to say whether that is a fair criticism to level at the clubs), the 'problem' is Scotland's: like football hooliganism in 1980s England, football is merely the stage upon which the greater social ill is manifested
"This is all about education, trying to bring people up in their formative years to understand certain types of behaviour are not acceptable. I'm not trying to play down the problem, but what is behind (the legislation) is the grave concern in the central belt that sectarianism is a major problem which needs to be addressed, and I entirely agree with that. I'm just not sure an FBO for somebody who says something while surrounded by thousands of others is really going to achieve that objective."
The duties of the clubs
5.17 In that respect, several Sheriffs intimated that they are interested in how the clubs respond to offences committed within grounds, particularly on those occasions when they were contemplating the imposition of an FBO. It was our impression that Sheriffs (especially those in Glasgow) were more likely to grant an FBO if the club had already taken steps to ban an individual from the ground. It was acknowledged that actually being able to enforce such bans is usually an unrealistic proposition unless the individual draws attention to themselves or is recognised by stewards or the police (which is far less likely to happen in a crowd of 50,000 than in a crowd of 350), but it is perceived to be important in 'sending out the message' to the wider community- and for the Sheriffs, it is quite possibly a more significant guide to the seriousness of an incident than anything the Crown might say in what is often a fairly anodyne narration.
"If I'm told the club has taken away their season ticket, that gives me some sort of guidance as to how serious they perceive it - guidance that I don't get from the (legal) authorities. It helps me look at the whole package of the incident and the seriousness with which those involved on the ground consider it."
5.18 Most of these interviews took place shortly after a high-profile incident in which a section of the Celtic support had displayed banners condemning the club's decision to embroider the player's shirts with poppies for a home game ( http://news.bbc.co.uk/sport1/hi/football/teams/c/celtic/9168655.stm). In the immediate aftermath the club announced it would take steps to identify and ban those responsible. Whether such action is taken or appropriate in this case is still to be decided, but in general terms even relatively short bans imposed by clubs in circumstances like this can help make the case for a banning order, should the recipients of those club-imposed bans appear before the courts as a consequence either of the incident which led to the ban or in respect of future offences. It would be perfectly proper for the Crown to say, in the course of its narration, that a particular offender has received one or more short bans in the past, and to respectfully suggest that an individual whose past behaviour was so bad that the club felt obliged to take unilateral action along those lines is one for whom a banning order is eminently appropriate - that notwithstanding the absence of prior convictions, the s. 51(3) requirements are made out.
5.19 Banning Orders are part of a comprehensive initiative involving the police and the clubs, and the clubs' role in that 'comprehensive initiative' is of fundamental importance. Banning a fan for even a relatively short period is not an empty gesture regardless of how impracticable it may be to enforce it - it has the clear potential to influence the decisions that Sheriffs ultimately reach. To draw an analogy with the approach taken by the Sheriff in Walls, it helps illustrate the 'totality' of the offender's behaviour - a pattern of misconduct over a period of months or even years, together with a failure to respond appropriately to the clubs' unilateral action in respect of it, is a strong argument in favour of an FBO once an individual has crossed the line between club-imposed sanctions and the involvement of the criminal courts.
Attaching special conditions
5.20 Again, we are mindful of the difficulties in trying to discern general principles which may inform our understanding of the FBO regime beyond a very superficial level; but it was a great surprise to learn that none of the Sheriffs - even those generally minded to grant FBOs - had ever made an Order which prohibited an individual from being at other locales, such as specific public houses. These can be granted under s. 53 of the 2006 Act, but occasions where such orders have even been sought have been incredibly rare. Any possible reluctance to seek such orders may be understandable if one takes the view that an FBO has the clear potential to be a disproportionate sanction if used unwisely:
"I've never been asked to impose anything that covers a pub, a train station or whatever… It would be hard to make the link between what happens in the pubs and violence at football matches so, no, I've never been asked to make an order in those terms."
5.21 That said, it is not the case that the pre-arranged confrontations or large scale disturbances outside never arise (although they remain exceptional and they have never occurred in Scotland with remotely the same frequency as in England and Wales). One of these incidents, a prearranged confrontation between Celtic and Aberdeen fans which occurred at a public house to the north of Aberdeen at a considerable time prior to kick-off (with many of the protagonists having no intention of actually attending the match), has clearly been the subject of some high-level discussion as to why the Banning Orders had not been sought in the terms desired by the Police:
"This case was raised at a JSC training event because the police were clearly concerned that the banning orders hadn't been imposed, or that they related only to prohibiting participants from attending at grounds, (rather than) to keep out of a certain defined area. The point was made that if the trouble is not being caused in the ground there is not much point imposing an FBO to keep them away from grounds if they are going to be organising violence away from it."
5.22 One of the Procurator Fiscal deputes involved in that case illustrated how the reluctance to seek the Order resulted from how the legislation had been interpreted by COPFS: Strathclyde Police had wanted an Order which covered particular parts of Glasgow, the two 'Old Firm' grounds and the city centre - and also covering a 5KM radius of the ground in Aberdeen, but the Fiscal's understanding of the Act was that the reference to 'locations' precluded FBOs which covered general geographical areas rather than named pubs or grounds. While it is not for us to advise on how the legislation should be interpreted, there is clearly a degree of confusion as to the legislation's ambit and this may explain, in part, the lack of applications for FBOs covering anything other than a specific football ground (in respect of offences committed on public transport, for example). This may be one area where further training or written instruction (and, ultimately, guidance from the High Court) would be beneficial. There are clearly differences of opinion on precisely what the banning order regime allows Sheriffs to impose, and allows Fiscals to seek, and it ought not to be a major task to clarify precisely what the banning order legislation makes provision for.
5.23 Other provisions can also be used to exclude people from particular licensed premises but the Aberdeen case clearly illustrates i) the Sheriffs' difficulty in regarding an incident which may be quite removed from a football match (either in time or in space) as sufficiently closely linked to that match to justify making an Order; ii) the utility of making an Order against somebody who has no intention of actually attending matches; and iii) the feasibility in banning somebody from named pubs given the perceptions that under the Act individuals cannot be excluded from general geographical areas. That does not mean Sheriffs would never make an order in those terms if they appreciate that the legislation provides for it, and if there were more confrontations outside the grounds, it is very likely that the number of FBOs granted in those terms would increase:
"We don't live in ivory towers and we do respond to what's happening in the wider world. We are aware of what's happening and if it became a major problem then I'm sure you'd see more FBOs being applied for, and more of them being granted."
5.24 However, despite the evidence that pre-arranged confrontations outside the grounds cause a particular challenge for the judiciary there is evidence that Orders might be granted in those broader terms (as indeed they have been on at least one occasion). And perhaps more FBOs would be granted generally if there were a greater degree of proactivity from the Procurator Fiscal Service than has been the case hitherto.
The contribution of the Crown
5.25 The complex working relationship between Procurator Fiscal deputes and Sheriffs, in the context not only of FBOs but of analogous Orders, is one of the more surprising aspects to have arisen in the course of these interviews (though the imposition of an FBO is entirely a matter for the Sheriff). These interviews suggest that different perceptions exist of what the role of the Procurator Fiscal deputes should be, how proactive they should be when seeking FBOs and, no less important, the Sheriffs' perceptions of the Fiscals' relationship with the police when Banning Orders are to be sought:
"It came as a matter of some surprise at the FBO training event, where we were all told that in any case where an FBO was in contemplation there would be liaison between someone from Strathclyde Police and the local Fiscals' office, so that not only the question of whether an FBO should be sought would be discussed but also the precise terms of it would be finalised - so that when the court was asked to make an Order it would be on the basis that the specification was set out in advance and the Sheriff knew precisely what he was being asked to do."
5.26 This degree of liaison between Procurator Fiscal deputes and the police, and the Sheriffs' perceptions of it, needs to be considered in the light of ACPOS' assertion that approximately seventy Sheriffs (out of about 150 in total) have attended one of the two FBO training events for Sheriffs. If those figures are correct, and if the Sheriff's recollection of the training event is accurate, it means almost half Scotland's Sheriffs have been explicitly advised to expect a clear steer from the Crown when it considers an FBO to be appropriate. If that perception has thereafter been communicated to other Sheriffs - whether through informal channels, via the Sheriffs' intranet resources or in the written documents disseminated by the Judicial Studies Committee after those events - it will be held even more widely. One can therefore understand if Sheriffs are not disposed to make an Order because that degree of robustness has not been forthcoming, although there have been many occasions where s/he does so ex proprio motu. That said, one Sheriff indicated that "if you're suddenly confronted by one of these ( FBO) applications in a busy court, well, a bit of guidance wouldn't go amiss" while another asserted that:
"So long as it's done in the proper form, without the Crown substituting its view for the sentencing judge's, I quite favour it."
5.27 Some Sheriffs thought the perceived lack of robustness might be indicative of factors other than the legislation's drafting ("the traditional reticence to do anything more than move for sentence"), while others thought (and at least one Procurator Fiscal depute agreed) that this 'traditional reticence' was perhaps compounded by a desire not to appear to usurp the function of the court. This was considered most likely to happen in particularly complicated cases, but of course it is in these cases where a greater degree of input from Procurator Fiscal deputes would most likely be quite welcome:
"If (the police) think it's necessary, they should explain why to the Fiscal and the Fiscal should explain why to me. And, ideally, have a clear draft (Order) prepared in advance that can be handed to me."
5.28 Ironically, the Sheriffs' general view is closer to COPFS official guidance, which explicitly encourages Procurator Fiscal deputes to raise the possibility of a banning order with Sheriffs. A closely-related aspect concerns the Procurator Fiscal deputes' role in marking up a case for presentation to the court, and in narrating the circumstances of the offence (which is a separate function from moving for sentence). Several Sheriffs thought this could be particularly important in respect of those incidents that did not arise inside the ground.
5.29 The interview data rather gives the impression that an individual has to be quite unlucky to be visited with a Football Banning Order in anything other than the most egregious of cases. A club steward would need the courage to get involved in an incident when self-preservation would lead most of us to turn the other cheek, and then to perceive the incident as sufficiently serious to justify drawing it to the attention of a police officer; the police would need to regard the matter as sufficiently serious to justify arresting the offender rather than just evicting them from the ground (a decision which is in turn influenced by what other problems the police may have to deal with at that time), and thereafter to liaise with the Procurator Fiscal deputes and to persuade them that i) court disposal is necessary and ii) they should mark up the case as one where an FBO should be sought. Crown Office guidance states that the prosecutor's role is to advise the court that an offence may be considered to be football related and that the imposition of an FBO or the making of the relevant declaration may be appropriate in all cases where such information is contained in the prosecution report. However, contrary to Crown Office policy on FBOs, one respondent took the view that they would not seek an FBO if doing so were to threaten their credibility in court ( e.g. if they took the view that the application was ill-founded in law or unattainable).
5.30 This relationship between the various actors is clearly a problematic one and it would be far too simplistic to suggest that the will of Parliament is being wilfully stymied by "Sheriffs who simply refuse to do what it is we want them to do". But several Sheriffs were at pains to point out that even if the work of the other actors did result in an FBO application being made, they alone would decide if such an order was proportionate.
"Sheriffs take an oath to do justice in a particular case … we have to decide whether making an Order is necessary in public interest terms - and is it an appropriate punishment? If it is excessive, then it will not be imposed regardless of what the Crown or the Police might want."
Training and informal learning
5.31 Not all of the interviewees have been among the 70-odd who have participated in the Sheriffs' FBO training events, but those who had attended all spoke very highly of the people who delivered them and were impressed by their understanding of the law and their ability to argue cogently in favour of FBOs being granted in appropriate cases. Those who did not have that direct experience of attending the course had become familiar with the FBOs through alternative sources, most notably a discussion document that was circulated in connection with a domestic violence seminar. The author of that document had surmised that, in appropriate circumstances, FBOs could in principle be sought if a link could be established between a football match and an incident of domestic violence.
"As a domestic abuse Sheriff a course on FBOs wouldn't be high on my agenda, but I can see why there might be a domestic abuse paper which covers the connection... We have online resources, the judicial studies website, papers like the domestic violence one and that's how I know whatever it is I know about FBOs."
"I don't regard myself as a football fan...training is done by JSC but I'm not aware of this being covered, and that's probably because it's not coming up with enough regularity. FBOs are not particularly relevant - that's not to decry them, I'm sure they have their place for the bad guys that are regularly doing it - but they're not the most pressing judicial problem."
5.32 On the basis of the interview evidence, the recent training courses have been very well received and should certainly be repeated, perhaps prior to the 2014 Commonwealth Games, so that FBOs can be covered in conjunction with other offences and sanctions which might arise in connection with a major sporting event; but there is no evidence to suggest that any unwillingness on the part of the Sheriffs to grant FBOs can be ascribed either to inadequate training or a lack of awareness about the legislation's scope, with the possible exception of their utility in banning offenders from particular geographical areas or named public houses. Clarification of those matters, together with a more consistent, robust approach on the part of the prosecuting authorities, may yield dividends; but it will not overcome what appears to be a widely-held perception (among these interviewees at least) that FBOs will only ever be appropriate in exceptional circumstances.