An evaluation of Section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012
An Evaluation of the implementation and impact of section 1 of the Offensive Behaviour and Threatening Communications (Scotland) Act 2012
1. Scottish Government, Policy Memorandum on the Offensive Behaviour in Football and Threatening Communications (Scotland) Bill (SP Bill 1) as introduced in the Scottish Parliament on 16 June 2011.
2. Policy Memorandum, as above, p.1
4. These figures do need to be treated with some caution, as whether these 229 arrests in the wider Strathclyde police force area could genuinely be attributed to the Rangers-Celtic match is a contentious assertion. The same caveat applies to the figures reported for the Cup match on 2nd March 2011.
6. By way of illustration, two typical, well attended games between these two teams at Celtic Park in the 2006-07 season resulted in 10 and 16 stadia arrests respectively (ACPOS match reports figures for games on the 23th September 2006 and the 11th March 2007). However, by way of contrast the league championship decider on the 2nd May 1999 resulted in 113 arrests at Celtic Park (http://news.bbc.co.uk/1/hi/sport/football/scottish_premier/334291.stm), whilst the famous 1980 Scottish Cup final encounter on the 10th May at Hampden Park resulted in over 200 arrests.
8. See http://www.gov.scot/Publications/2015/05/4296
9. Scottish Government Policy Memorandum on the Offensive Behaviour in Football and Threatening Communications (Scotland) Bill (SP Bill 1) as introduced in the Scottish Parliament on 16 June 2011.
12. http://www.copfs.gov.uk/images/Documents/Prosecution_Policy_Guidance/Lord_Advocates_Guidelines/Lord%20Advocates%20Guidelines%20-%20The%20Offensive%20Behaviour%20at%20Football%20and%20Threatening%20Communications%20Scotland%20Act%202012.PDF (emphasis in original).
13. Amy Goulding & Ben Cavanagh Charges reported under the Offensive Behaviour at Football and Threatening Communications (Scotland) Act (2012) in 2012-13 Justice Analytical Services, The Scottish Government, 2013, 3.10.
15. See further HMA v Blance  HCJAC 131 https://www.scotcourts.gov.uk/search-judgments/judgment?id=098586a6-8980-69d2-b500-ff0000d74aa7
16. The majority of these resources were in fact introduced sometime before the enactment of the legislation which may account for the speed with which the new powers were used in courts.
17. A key area of concern focused on a test of offensiveness being based on the broad formulation of that which 'a reasonable person would be likely to consider offensive', and on the legislation relating to offences not only at a regulated football match, but also 'in relation to' a football match (with the single exclusion of offences committed within domestic premises). Among others, the Scottish Human Rights Commission expressed concerns over such elements on the ground that they made the application of the legislation unclear and imprecise, potentially contravening Article 7 of the European Convention on Human Rights. See http://scottishhumanrights.com/archive//footballconsultationAug2011 An Article 7 argument has since been considered and rejected by the Appeal Court in a recent case on s.1, Donnelly and Walsh v PF Edinburgh  HCJAC 35. It dealt however only with Article 7 in the context of a particular song, one already considered in other case law. No pronouncement was required to be made on the wider question.
18. For comments and responses, see the Justice Committee Report at http://www.scottish.parliament.uk/S4_JusticeCommittee/Reports/OFBTC_Bill_FINAL.pdf
19. See fn 3-6 above and http://www.dailyrecord.co.uk/news/scottish-news/student-convicted-under-controversial-anti-sectarian-3037633, 19th January 2014
20. MacDonald v Cairns  HCJAC 73 https://www.scotcourts.gov.uk/search-judgments/judgment?id=113686a6-8980-69d2-b500-ff0000d74aa7
21. See the Advisory Group's report at http://www.scotland.gov.uk/Resource/0044/00440386.pdf
22. Tom Devine presentation at the Scottish Religious Cultures Network, 5 March 2014 http://international.arts.gla.ac.uk/Main5thMarch2014.mp3
23. See for instance s 56 of the Police, Public Order and Criminal Justice (Scotland) Act 2006, dealing with football banning orders, and s.74 of the Criminal Justice (Scotland) Act 2003, dealing with religious aggravation of an offence. See also s.96 of the Crime and Disorder Act 1998 , dealing with racial aggravation of an offence; s.50A of the Criminal Law (Consolidation) (Scotland) Act 1995, dealing with racially-aggravated conduct and the Offences (Aggravation by Prejudice) (Scotland) Act 2009, dealing with aggravation of an offence by prejudice relating to disability, sexual orientation or transgender identity.
24. In England under the Sporting Events (Control of Alcohol) Act 1985; in Scotland under s 18 of the Criminal Law (Consolidation) (Scotland) Act 1995. See also ss 19 and 20.
25. In England, ticketing touting in public is dealt with by section 166 of the Criminal Justice and Public Order Act 1994. Pitch invasions are dealt with by s 4 of the Football Offences Act 1991 and "racialist" chanting is dealt with by s 3.
26. Jones v Carnegie 2004 JC 136 http://www.bailii.org/scot/cases/ScotHC/2004/25.html
27. Wilson v Brown 1982 Scots Law Times 361.
28. Smith v Donnelly 2001 SLT 1007 http://www.bailii.org/scot/cases/ScotHC/2001/121.html
29. The European Court of Human Rights decided that the Smith test complies with Article 7(1) of the ECHR, which requires that an offence must be clearly defined in law. See Lucas v UK  ECHR 717 http://www.bailii.org/eu/cases/ECHR/2003/717.html
30. Dyer v Hutchison 2006 JC 212 http://www.bailii.org/scot/cases/ScotHC/2006/HCJAC_45.html
31. McIntyre v Nisbet  HCJAC 28 http://www.scotcourts.gov.uk/opinions/2009HCJAC28.html
32. Jones v Carnegie 2004 JC 136 http://www.bailii.org/scot/cases/ScotHC/2004/25.html
33. Dyer v Hutchison 2006 JC 212 http://www.bailii.org/scot/cases/ScotHC/2006/HCJAC_45.html
34. Frank Crowe "The test for causing alarm" 59(10) Journal of the Law Society of Scotland 28 http://www.journalonline.co.uk/Magazine/59-10/1014579.aspx
35. Rooney v Brown 2013 HCJAC 57 http://www.bailii.org/scot/cases/ScotHC/2013/2013HCJAC57.html
36. Paterson v Harvie  HCJAC 87 http://www.bailii.org/scot/cases/ScotHC/2014/%5B2014%5DHCJAC87.html
37. Jones v Carnegie 2004 JC 136 http://www.bailii.org/scot/cases/ScotHC/2004/25.html
38. Paterson v Harvie  HCJAC 87 http://www.bailii.org/scot/cases/ScotHC/2014/%5B2014%5DHCJAC87.html
39. Baxter v HMA 1998 JC 219.
40. English law abolished its common law offence of inciting the commission of another offence but does have an offence of "intentionally encouraging or assisting an offence". However, this requires proof that the person intended this to happen or believed it would. The Serious Crime Act 2007, s 59 abolished incitement to commit an offence; sections 44-46 contain the new offences.
41. The substantial increase in the size of the SDS network between these two surveys was due to the SDS receiving, and adding to its contacts database, a large number of additional supporters contact details. These details were voluntarily provided by respondents to the second National Fan Survey.
44. Figures from the Scottish Government indicate that in 2011, 75.5% of adults living in Scotland used the internet for personal use.
47. In the event we talked to fans from teams in the first four flights of the Scottish leagues.
48. Our meeting with representatives from FAC was not used to formally collect evidence, but the representatives gave us a broad overview of their experience of the Act and indicated the kind of evidence which they had collated.
49. It should be noted that under pre-existing legislation, namely s. 38, a conviction did not require the police to provide evidence that the appellant had actually affected anyone. In the case of Rooney v Brown it was determined that even the arresting police officers did not need to be affected: 'it did not matter that the officers were not themselves in a state of fear or alarm. The appellant's remarks were likely to cause a reasonable person to suffer fear or alarm' (https://www.scotcourts.gov.uk/search-judgments/judgment?id=6da6a1a6-8980-69d2-b500-ff0000d74aa7). However, for a variety of pragmatic considerations (see Hamilton-Smith and McArdle 2013 for a fuller discussion), pre-Act policing of such behaviour in stadia tended to focus on cases where either a clear threat of disorder could be evidenced, or where the offender was attempting to exhort others around them to join in the offence (i.e. they were acting in the capacity of a ring-leader).
50. In table 3.6 this figure adds to 29% - the difference is due to rounding
51. During the game, England fans were heard to be singing abusive 'anti-IRA' chants within the stadia, though no reports were made to Police Scotland at the time. See 'Seven arrested after Scotland v England' Herald Scotland, Wednesday 19th November 2014.
52. Though a counter argument might be that the level of arrests at Ibrox and Parkhead are proportionate and merely reflect the much larger fan bases associated with these two clubs.
53. A football banning order is a 'preventative order' that may accompany a criminal sanction (such as a fine or a community sentence).
54. MacDonald v Cairns  HCJAJ 73 https://www.scotcourts.gov.uk/search-judgments/judgment?id=113686a6-8980-69d2-b500-ff0000d74aa7
55. 'affiliation' does not imply that there was a specific identifiable victim, or that the victim was in some way affiliated to the club in a formal capacity, just that the offence was clearly aimed at Celtic supporters.
56. There is some overlap between different these categories as a single charge could incorporate a number of different elements of offensiveness, e.g. a person could be charged both for singing an offensive song and making an offensive comment during the same incident.
57. Though the majority of hate crimes relating to religion were presumably associated with abuses directed at Catholicism or Irish-Catholic identity, clearly some of this offending also relates to offensiveness targeted at other religions (e.g. Judaism, Islam etc.).
58. though these figures exclude more minor offences such as being 'drunk and incapable' or alcohol- related offences covered in the Criminal Law (Consolidation) (Scotland) Act 1995, or more 'indirectly' related offences such as domestic violence. The figures do include religious and racially aggravated offences which prior to the Act would have been prosecuted under Section 74 of the Criminal Justice (Scotland) Act 2003 for religious aggravation, whilst racial aggravations could be prosecuted under a variety of different legislative instruments, such as Section 96 of the Crime and Disorder Act 1998. Precursor legislation also covered offences aggravated by expression of hatred on the basis of sexual orientation, disability and transgender identity.
59. Racial offences are included here, as before the Act some offences directed at a group or person's Irish background or heritage may have been coded as 'racial', though in including this category it has to be acknowledged that a number of other racial charges non associated with sectarianism will have been counted.
60. The post-Act figures can only be seen as approximate primarily because insufficient time has elapsed for all the charges made during this period to have reached some sort of conclusion in terms of judicial outcomes.
61. Though a number of multiple charges against young fans at one fixture partly accounts for this proportionate increase.
62. Where cases were unresolved the 1st March 2015 was used as the 'latest date' by which we estimated a time elapsed figure. Given that an unknown proportion of the 'pending' case will have been concluded, it is likely that the estimates for total time elapsed are exaggerated (the mean average time elapsed for such pending cases is 394 days, with s. 1 cases having a mean average of 451 days). Conversely, where cases are shown as concluded and only a date for the first court appearance is provided (the 'intermediate diet' appearance), the earlier date has been used as the conclusive date. Whilst, some of these cases may have been concluded at this earlier date (with a guilty plea and immediate sentence) in other instances it is clear that the final disposal date is missing, and in these instance the estimates for time elapsed are likely to underestimate the real time taken.
63. For instance, statistics in England and Wales showed that in 2011 the mean time elapsed between the offence and case disposal for common assault and actual bodily harm was 127 days, with a median average of 94 days (Ministry of Justice 2012). This cannot be used to make a judgment about the efficiencies of Scottish processes, as the two criminal justice systems are very different, but regardless of this, the accused may reasonably be presumed to feel the effects of slow case progress in similar ways.
64. Though we worked out case times from the data of offence rather than the date of arrest (due to the former date record being more complete) in the large majority of cases (circ. 70%) the arrest date was the same as the offence date.
65. See 'Ten Rangers fans in court over alleged sectarian incident', BBC News, 9th December 2014. http://www.bbc.co.uk/news/uk-scotland-edinburgh-east-fife-30404056
66. This is a common contraction representing the insult "F*** the Pope".
67. footnote: police figures do not provide reliable trends for this crime type given that only 13% of victims are estimated to confide in the police, and in total only 21% of all incidents come to the attention of the police by some means (MacQueen, 2014 , p. 33)
68. though excluding offences such as being 'drunk and incapable' or alcohol- related offences covered in the Criminal Law (Consolidation) (Scotland) Act 1995
69. Though it may be, of course, that in the Scottish jurisdiction offences of equivalent seriousness that are not football-related, take equivalent periods of time to be concluded.
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