Independent review of hate crime legislation in Scotland: final report

Recommendations by Lord Bracadale to Scottish Ministers with analysis of his consultation exercise and an overview.

Chapter 8 - The impact of the repeal of section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012


8.1. This chapter is concerned with the impact on hate crime legislation of the repeal of section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 (the 2012 Act). In it I trace the history of the Act and its repeal. In relation to the hate crime aspects of section 1, I explore whether existing offences are adequate to deal with the conduct which was formerly prosecuted under the section and whether there is any gap in the law left by its repeal. I also explore a number of particular issues related to the repeal of section 1.

History of the 2012 Act

8.2. The Act was brought into force on 1 March 2012. It was introduced in the light of concerns about a history of football related events culminating in a number of serious incidents in 2011. The history is described in the consultation paper and the Academic Report. Suffice to say that these concerns led to a meeting in March 2011 involving Scottish Ministers, the police, football clubs and football associations. Subsequently, the Scottish Government introduced the Bill that became the 2012 Act.

8.3. As more fully discussed in the consultation paper, following its introduction there was significant opposition to the Act, including disapproval by opposition parties in the Scottish Parliament. On 2 November 2016, a motion by Douglas Ross MSP urging the Scottish Government to repeal the Act was passed. On 21 June 2017, James Kelly MSP introduced a member's Bill to repeal the 2012 Act. After the Repeal Bill passed through its parliamentary stages, the Act was repealed on 20 April 2018 and its provisions are no longer in force.

The view of Parliament in support of repeal of section 1

8.4. In the written and oral evidence submitted to the Justice Committee at stage 1 a wide range of conflicting and strongly held views were expressed about the proposed repeal of section 1 of the 2012 Act. This was also a feature of the consultation conducted by the review.

8.5. The central criticism of section 1 of the 2012 Act, repeatedly expressed in the course of the parliamentary process and reflected in the responses to the consultation paper, was that it focused solely on regulated football matches. Although some views were expressed that the singing of sectarian songs etc. should not be the subject of sanction under the criminal law, that view was not widely held. The Justice Committee unanimously condemned sectarianism, hate crime and offensive behaviour and considered that it was unacceptable. The majority view as expressed in evidence to the Justice Committee, in the parliamentary debates and in response to the review was that criminal sectarian behaviour should be the subject of prosecution, not just in relation to regulated football matches, but wherever it occurred .

8.6. The majority view expressed in the parliamentary debate was that the pre-existing criminal law adequately covered the conduct struck at by section 1. Reliance was placed by a number of MSPs on the evidence of the Law Society of Scotland that all convictions under section 1 in the previous year could have been prosecuted under existing criminal law, namely, breach of the peace or section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 ( CJLSA), which deals with threatening or abusive behaviour. I shall explore whether that contention is correct in relation to the hate crime aspects of section 1.

Section 1 and hate crime

8.7. Before doing so, it is necessary first to be clear as to which of the behaviours identified in section 1 fall within the remit of the review. Section 1 created an offence which is committed when an individual engages in behaviour in relation to a regulated football match which is likely, or would be likely, to incite public disorder. The section identifies five categories of behaviour:

  • behaviour expressing hatred of, or stirring up hatred against, a group of persons based on their membership (or presumed membership) of a religious group, a social or cultural group with a perceived religious affiliation or a group defined by reference to colour, race, nationality (including citizenship), ethnic or national origins, sexual orientation, transgender identity or disability (section 1(2)(a));
  • behaviour expressing hatred of, or stirring up hatred against, an individual based on the individual's membership (or presumed membership) of such a group (section 1(2)(b));
  • behaviour that is motivated (wholly or partly) by hatred of such a group (section 1(2)(c));
  • behaviour that is threatening (section 1(2)(d)); or
  • other behaviour that a reasonable person would be likely to consider offensive (section 1(2)(e)).

8.8. Not all the behaviour targeted in section 1 relates to hostility based on identity characteristics. The types of behaviour identified in section 1(2)(a)-(c) clearly do fall within the remit of the review. These behaviours involve expressing hatred of, or stirring up hatred against, a group of persons based on their membership (or presumed membership) of a specified group, or motivated (wholly or partly) by hatred of such a group. Section 1(2)(d) of the 2012 Act, which strikes at behaviour which is threatening, does not fall within the remit of the review as there is in relation to this particular subsection no qualification of hatred or prejudice. Subsection (2)(e) identifies "other behaviour that a reasonable person would be likely to consider offensive". Although this subsection is very widely drafted and consequently could include behaviour which has nothing to do with hostility, I took the view that I should include this subsection in the remit of the review. This was because, no doubt reflecting the Lord Advocate's Guidelines on prosecution of offences under section 1, the vast majority of prosecutions under this subsection related to songs, speech or gestures that glorify terrorist organisations such as the IRA. Whether such behaviour does come within the ambit of hate crime will be explored in more detail later in this chapter.

8.9. When the threatening behaviour charges are left out of account, the history of the operation of section 1 of the 2012 Act makes it clear that the conduct giving rise to these charges largely comprised singing, speech, waving of banners and making of gestures. The charges which were brought generally involved either the expressing or stirring up of hatred of the Roman Catholic or Protestant religions or offensive behaviour with a connection to Irish politics, particularly the politics of Northern Ireland.

Consequences of the repeal of section 1: relevant pre-existing law

8.10. As the majority view in the parliamentary debates was that the pre-existing law was adequate to deal with the types of behaviour falling within section 1, it is necessary for the review to explore the pre-existing common law and statutory provisions in order to test this view in relation to hate crime. This involves exploring whether breach of the peace and/or section 38 CJLSA aggravated by one of the statutory aggravations in relation to protected characteristics, would cover offences currently caught by section 1.

Breach of the peace

8.11. The common law crime of breach of the peace has evolved over many years. In 2002 the High Court was satisfied that the crime was formulated with sufficient certainty to meet the requirements of the European Convention on Human Rights. Its nature is now well understood. What is required to constitute the crime of breach of the peace is conduct:

severe enough to cause alarm to ordinary people and threaten serious disturbance to the community… What is required … is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person… [66]

8.12. The test is conjunctive: both elements (potential alarm and potential disturbance to the community) require to be present for the offence to be established [67] . The test is an objective one and must involve some public element [68] . The disturbance may arise directly from the conduct itself or may arise from the response of third parties to it: persons may be "tempted to make reprisals at their own hand" [69] ; or the conduct may be "likely to cause a serious reaction among other adults" ( Paterson). If there is no evidence of actual alarm, the conduct must be 'flagrant' in the sense of being alarming and seriously disturbing to any reasonable person. [70]

8.13. Breach of the peace may be subject to one or more of the statutory aggravations in relation to protected characteristics. The maximum sentence for breach of the peace is 12 months on summary complaint and, on indictment, life imprisonment.

8.14. An example of a conviction for breach of the peace in the context of a football match is found in Walls v Brown [71] . Mr Walls was convicted at the sheriff court at Kilmarnock on a summary complaint specifying racially and religiously aggravated breach of the peace committed at a Kilmarnock v Rangers game. He sang sectarian songs and made remarks of a racial nature: he sang the Famine Song which included the words, "The famine is over why don't you go home"; he was standing up and encouraging others to sing; he shouted "Fenian bastards" and "F*** the Pope". He persisted in his conduct after being warned by stewards. Although no one had complained to the stewards about his behaviour, in their evidence they described his conduct as being offensive and 'badgering' other supporters.

8.15. Applying the test in Smith v Donnelly, quoted above, the High Court upheld the conviction. It was in no doubt that the conduct of Mr Walls did amount to a breach of the peace, even in the context of a football match where at least shouting and singing, or hearing shouting and singing, were part of the match experience expected by all attending the stadium. What was shouted by the appellant was an expression of religious prejudice, or racial bigotry, or both. The court considered that the lyrics of the Famine Song were racist in calling upon people native to Scotland to leave the country because of their racial origins.

8.16. The court concluded that Mr Walls' behaviour would be considered by many people to be offensive. Such use of offensive and abusive language might in itself may be sufficient to merit a conviction for a breach of the peace since, even in the context of a football match, such conduct may be so flagrant that it can be regarded as severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community. It may be 'genuinely alarming and disturbing, in its context, to any reasonable person', given that there are many spectators at football matches who actually want to watch the game rather than spend their time abusing the opposition support.

8.17. In relation to the aggravations, the court held that the conduct displayed malice and ill-will towards those of the Roman Catholic faith and malice and ill-will towards people of Irish descent living in Scotland.

Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010

8.18. Section 38 of CJLSA provides for an offence of behaving in a threatening or abusive manner which would be likely to cause a reasonable person to suffer fear or alarm, either intending to cause that, or reckless about whether fear or alarm might be caused. The behaviour captured by section 38 can be of any kind, including, in particular, things said or otherwise communicated as well as things done. It may consist of a single act or a course of conduct. Thus, a wide range of conduct is caught by this provision. Again, a statutory aggravation can be applied to this baseline offence. A person guilty of the offence is liable on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

Conclusion in relation to protected characteristics

8.19. It seems clear, therefore, that singing and shouting words of a racist or religiously aggravated nature, or aggravated in relation to other protected characteristics may, in the context of a football match, constitute a charge of breach of the peace or a contravention of section 38, appropriately aggravated with a statutory aggravation. Thus, hate crime offences committed in the context of a regulated football match held in Scotland could be prosecuted in Scotland under pre-existing criminal law. This would extend to the circumstances provided in section 2(2) of the 2012 Act in respect of behaviour occurring outside the football ground or on a journey to or from a match.

Songs in support of proscribed organisations

8.20. The issue may become more problematic in relation to singing songs in support of proscribed organisations. The UVF, IRA and the INLA are all proscribed terrorist organisations under the Terrorism Act 2000. [72] A question arises as to whether, in circumstances where the singing of songs such as the 'Roll of Honour' constitutes an offence, an appropriate statutory aggravation in relation to a protected characteristic could apply. As was noted by the court in Donnelly and Walsh v PF Edinburgh [73] , the lyrics of the 'Roll of Honour' proclaim support for members of the Irish Republican Army and the Irish National Liberation Army who died during the hunger strike at the Maze Prison near Belfast in 1981. The lyrics contain such lines as "England you're a monster. Don't think that you have won. We will never be defeated while Ireland has such sons" and "Your souls cry out. Remember our deaths were not in vain. Fight and make our Homeland a nation once again". In prosecutions under section 1 this behaviour was prosecuted under section 1(2)(e), namely, behaviour that a reasonable person would be likely to consider offensive which is or would be likely to incite public disorder.

8.21. The singing of this song in the context of a football match or in certain other circumstances might well constitute a breach of the peace or a contravention of section 38 CJLSA. Many people would find the singing of it, or similar songs in support of proscribed organisations, offensive and alarming. At least one attempt has been made in the past by the Crown to argue that the Roll of Honour may be interpreted as being anti-Protestant and therefore come within the ambit of the religious aggravation in section 74 CJLSA [74] . As far as the review is aware, this issue has not been examined by the court of criminal appeal. Thus, a question arises as to whether singing an IRA song could constitute hate crime in the sense of being an offence targeting a protected characteristic.

8.22. In chapter 3, I rejected the proposition that hate crime should extend to political statements. If it is accepted that the words of the Roll of Honour are of a political rather than a religious nature, then in circumstances in which singing of the song would constitute a criminal offence, none of the statutory aggravations could apply and the offence would not come within the ambit of hate crime. The point about the IRA and the INLA is that they are proscribed organisations as, indeed, are the UVF and certain other loyalist organisations. Where the singing of songs in support of proscribed organisations constitutes a criminal offence, the common law aggravation of glorifying a proscribed organisation can be applied. I was advised by the police that this was the practice prior to the introduction of the 2012 Act.


8.23. In its report at Stage 1, the Justice Committee noted that scrutiny of the Repeal Bill had sparked a new debate on sectarian behaviour. It believed that this parliamentary process presented an opportunity to make progress on tackling sectarianism. The Committee considered that it was important that the Scottish Government gave consideration to introducing a definition of sectarianism in Scots Law, which, whether or not the 2012 Act was repealed, would help any future parliaments and governments in taking forward laws to tackle sectarianism. In response, at the Stage 1 debate the Minister explained that the government were working on a definition. The Scottish Ministers have appointed a working group chaired by Professor Duncan Morrow to take that forward.


8.24. A number of definitions have been advanced in the past. The Report of the Cross-party Working Group on Religious Hatred published in 2002 [75] suggested that in the context of football, "sectarian fan rivalry is a modelled combination of Catholic/Protestant religious differences, Northern Ireland politics and nationalistic iconography".

8.25. In its final report published in 2015 the Advisory Group on Tackling Sectarianism in Scotland [76] suggested a definition in the following terms:

…Sectarianism in Scotland is a mixture of perceptions, attitudes, actions, and structures that involves overlooking, excluding, discriminating against or being abusive or violent towards others on the basis of their perceived Christian denominational background. This perception is always mixed with other factors such as, but not confined to, politics, football allegiance and national identity...

8.26. Another view that was expressed to the review sees sectarianism in Scotland as purely a political and cultural phenomenon, rather than a religious one. While historically sectarianism may be rooted in religious prejudice, the argument is that it has developed into a political and cultural divide between a relatively small number of protagonists. On this view it would be wrong to conflate sectarianism with hostility directed at a religion and it would not be appropriate to apply an aggravation of religious prejudice to an offence of a sectarian nature, even if expressed in anti-religious language.

8.27. The view that there is a political aspect to sectarianism is not universally held. Giving evidence in 2011 to the Justice Committee considering the Bill founding the 2012 Act, Professor Tom Devine contended that the phrase 'political sectarianism' was a contradiction in terms. The professor told the review that the definition which he considered to be appropriate was based on that advanced in 2004 by Bruce and others in Sectarianism in Scotland:

An extended and general culture of improperly treating people in terms of their real or assumed religious belief.

8.28. The group identity had been informed by historical religious divisions.

Prosecution practice in Scotland

8.29. When section 1 was in force the practice of the Crown in Scotland was to prosecute cases involving hostility towards either the Roman Catholic or Protestant religions as behaviour motivated by hatred of a religious group, or expressing hatred of, or stirring up hatred against, an individual because of the individual's membership of a religious group. Behaviour which comprised glorifying a proscribed organisation, such as the IRA or the UVF was prosecuted as "other behaviour that a reasonable person would be likely to consider offensive". Prior to the introduction of section 1, the practice was to prosecute an offence, such as breach of the peace, aggravated by a statutory aggravation of religious prejudice or a common law aggravation of glorifying a proscribed organisation.

Northern Ireland

8.30. Section 37 of the Justice Act (Northern Ireland) 2011 creates an offence of chanting at a regulated football match where the chanting is of an indecent nature; a sectarian or indecent nature; or is threatening, abusive or insulting to a person by reason of colour, race, nationality, ethnic or national origins, religious belief, sexual orientation or disability. As is explained in the Academic Report, the reference to sectarian chanting was not included in the Bill as introduced but was added at a later stage. There is no definition of the term 'sectarian' in the Act, although in the course of the parliamentary procedure an attempt was made to introduce one in the following terms: "chanting is of a sectarian nature if it consists of or includes matter which is threatening, abusive or insulting to a person by reason of that person's religious belief or political opinion".

8.31. When the Police Service of Northern Ireland ( PSNI) record hate crime they distinguish between 'sectarian' hate crime and 'faith/religious (non-sectarian)' hate crime and maintain separate records for each. In the annual bulletin of PSNI statistics on hate crime published 12 January 2018, Trends in Hate Motivated Incidents and Crimes Recorded by the Police in Northern Ireland 2004/05 to 2016/17 sectarianism is described in the following terms:

The term 'sectarian', whilst not clearly defined, is a term almost exclusively used in Northern Ireland to describe incidents of bigoted dislike or hatred of members of a different religious or political group. It is broadly accepted that within the Northern Ireland context an individual or group must be perceived to be Catholic or Protestant, Nationalist or Unionist, or Loyalist or Republican. However sectarianism can also relate to other religious denominations, for example, Sunni and Shi'ite in Islam.

8.32. In relation to religiously motivated crimes the document states:

A faith or religious group can be defined as a group of persons defined by reference to religious belief or lack of religious belief. This would include Christians, Muslims, Hindus, Sikhs and different sects within a religion. It also includes people who hold no religious belief at all.

8.33. There is no statutory aggravation in relation to sectarianism in Northern Ireland. The Public Prosecution Service ( PPS) take the approach that, where applicable, offences motivated by sectarianism may be considered to be aggravated on the basis of either race or religion, depending on the circumstances of the case. Some offences, which are considered in broad terms to be sectarian, do not fall within either statutory category of race or religion. In such situations the offence can still be prosecuted, but the legislation relating to the aggravation element will not apply.


8.34. From the material examined above a number of points may be noted. First, it is clear that the concept of sectarianism extends beyond hate crime. The references to 'exclusion' and 'discrimination' in one of the definitions emphasise that sectarianism is not restricted to crime at all. It is a broader societal issue. In addition to criminal offences, it may feature in non-legislative contexts and in circumstances governed by the civil law. Thus, many aspects of sectarianism are beyond the remit of this review.

8.35. Secondly, there is a range of strongly held views as to what is meant by the term. There are sharp divisions of opinion as to whether it is a religious concept, a political and cultural concept or involves a mixture of religion, politics and culture.

8.36. Thirdly, the Justice Committee, by referring to 'future parliaments and governments' clearly contemplated a developing long-term debate in relation to laws to tackle sectarianism.

8.37. Fourthly, the working group has been established to work on a definition of sectarianism and they are best suited to take that forward.

8.38. It may be that as a result of the labours of the working group and future discussion and debate a specific bespoke means of dealing with offences of a sectarian nature may emerge. In the meantime, I am satisfied that criminal conduct in the context of a football match, which gave rise to prosecutions under section 1 when it was in force, can be prosecuted under the existing law. In relation to an offence characterised by religious prejudice a statutory aggravation may be applied. In relation to an offence with a political aspect, while, as I have explained above, I have concluded that hate crime should not extend to political identity, where the offence involves glorifying a proscribed organisation, a common law aggravation may be applied. The same approach can be adopted in relation to offences of a sectarian nature outwith the context of football. The majority of respondents to the consultation paper considered that it was appropriate to deal with sectarian singing, chanting etc in the same way wherever it occurred.

8.39. In these circumstances, I am satisfied that there is no gap in the law and am content to leave the issue of sectarianism to be taken forward in the manner suggested by the Justice Committee and currently being implemented by the Scottish Ministers.

Extraterritorial jurisdiction

8.40. The one feature of section 1 which does not exist in relation to breach of the peace or section 38 is the extraterritorial jurisdiction provided in section 10(1) OBFTCA which permitted prosecution in Scotland of an offence under section 1 committed outside Scotland by a person who is habitually resident in Scotland. It appears that the Scottish Parliament, by repealing section 1 in the knowledge that the existing offences did not have extraterritorial jurisdiction, was prepared to accept the loss of that power. In any event, the evidence available to the review did not indicate that the extraterritorial provision was much used.

Football banning orders

8.41. Sections 51 to 56 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 provide for the making of football banning orders. Subsection 51 makes provision for the making of such an order where a person aged over 16 years is convicted of an offence related to a football match and the offence involved violence or disorder. 'Related to a football match' is defined as including: an offence committed at a football match or while the person is entering or leaving, or trying to enter or leave, the ground; an offence committed on a journey to or from a football match or "otherwise, where it appears to the court from all the circumstances that the offence is motivated (wholly or partly) by a football match".

8.42. Football banning orders may be imposed following convictions for any offence provided that the offence relates to a football match and involves violence and disorder. The definition of 'disorder' in section 56 specifically includes stirring up hatred against groups of persons or individuals based on their membership of protected groups.

8.43. A football banning order prohibits the person from entering any premises for the purposes of attending any regulated football matches in the United Kingdom. It also has provisions in relation to regulated football matches outside the United Kingdom. It may extend to maximum periods of 3, 5 or 10 years, depending on the circumstances. The evidence in the fact-finding stage of the review indicated that football banning orders were an effective deterrent as persons did not wish to be prevented from attending a match.

8.44. Under section 52 of the 2006 Act there is provision which allows the police to apply to the sheriff by summary application for a football banning order on a person who has not committed an offence. As some football clubs had expressed the view that a similar provision which would allow a football club itself to apply for a football banning order would be a useful tool in maintaining discipline, the consultation paper sought views on that suggestion. Although there was considerable support in principle from those who responded to this question, I am not inclined to recommend this approach. In the next section I consider the Unacceptable Conduct Rules developed by the SPFL and the SFA. These have recently been revised. The range of sanctions available against a supporter who has engaged in unacceptable behaviour includes: exclusion from the home ground of the Club concerned; exclusion from all forms of club organised and/or supported travel; confiscation, without compensation, of any season tickets held by the person for a period, or periods, of time, or indefinitely and/or exclusion from being able to purchase tickets for away matches.

8.45. As explained in the next section, the implementation of the Rules is being monitored. I consider that a better approach would be to allow the effectiveness of these non-legislative Rules to be monitored and tested rather than to introduce an additional sanction at this stage. I also note that over the years very few summary applications for a football banning order have been made by the police in respect of a person who has not committed an offence. I think it unlikely that there would be many such applications made by football clubs. In any event, if in a particular case a football club considered that it was unable to achieve the desired result through the Unacceptable Conduct Rules, it could raise the matter with the police and invite them to seek a football banning order.

Non-legislative interventions

The Scottish Premier Football League Limited ( SPFL) and the Scottish Football Association ( SFA): Unacceptable Conduct Rules

8.46. I note certain steps taken by the governing bodies of Scottish football. Each has developed Unacceptable Conduct Rules which were revised for the current football season. The bodies have identical codes and similar structures for dealing with unacceptable conduct in relation to the football matches falling within their jurisdictions. In the consultation paper I described the Rules in some detail.

8.47. Unacceptable conduct is defined as that which is violent and/or disorderly. Disorderly conduct includes that which stirs up hatred against listed groups or against individuals based on their perceived membership of such groups. The listed groups are: female or male gender; colour, race, nationality (including citizenship) or ethnic or national origin; membership of a religious group or of a social or cultural group with a perceived religious affiliation; sexual orientation; transgender identity; and disability.

8.48. For the 2017-2018 football season particular stress has been placed on the responsibility of each club to maintain discipline among its supporters. Clubs will be expected to take steps such as examining CCTV footage to identify persons engaging in unacceptable conduct such as singing sectarian songs. It is expected that such persons will be disciplined, for example, by being deprived of their season ticket. Clubs require to report incidents to the governing bodies.

8.49. I note that these rules appear to be comprehensive and well-structured. A wide range of groups is covered by the rule against stirring up of hatred. Significant sanctions are available in relation both to individual supporters and the clubs. Much will turn on successful implementation.

8.50. In relation to implementation, in the consultation paper I noted the report and subsequent review conducted by the Advisory Group on Tackling Sectarianism in Scotland, chaired by Professor Duncan Morrow, to which I have already referred. The Group published a report in 2015 and a review in 2017. In relation to the Unacceptable Conduct Rules, in the 2017 review Professor Morrow observed that evaluation and monitoring of unacceptable conduct should begin by the start of the new 2017-2018 football season. While expressing a degree of scepticism as to whether these proposals would be sufficient to change what he described as "the evident sectarian behaviour in Scottish football", he went on to state that in keeping with the spirit of the Advisory Group's Report that changes should be evidence-based and collaborative, the sincerity and effectiveness of the proposals must now be explicitly and fully tested. He identified a number of outcomes which he considered would require to be supported by evidence. These included measurable evidence that sectarian singing at football matches had reduced and been replaced by other forms of identification.

8.51. For the purposes of this report, I simply draw attention to these ongoing developments which will, no doubt, be the subject of further monitoring.

Views expressed in the Scottish Parliament

8.52. In the debates on the repeal of section 1 of the 2012 Act calls were made for a collaborative approach. The police, football clubs and football fans needed to work together to promote good behaviour at football. It was particularly important that the issue of sectarianism should be tackled through education, particularly of young people. Cultural change was required in homes, classrooms and communities.


8.53. The will of the Scottish Parliament was clear that in repealing section 1 of the 2012 Act, it considered that pre-existing law was adequate to deal with criminal behaviour at regulated football matches in Scotland. From a review of the cases, I consider that, in relation to the hate crime aspects of section 1, that contention is well founded, with the exception of the extraterritorial jurisdiction. The statutory aggravations in relation to each of the current protected characteristics may attach to an existing offence. In addition, in chapter 5 I recommend that more general stirring up offences should be introduced. I have noted the non-legislative interventions such as the regulations introduced by the governing bodies in football. It seems to me that taking all these considerations into account it is unnecessary to recommend any statutory replacement for section 1 of the 2012 Act.

Recommendation 19

No statutory replacement for section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 is required.

I do not consider it necessary to create any new offence or statutory aggravation to tackle hostility towards a sectarian identity (insofar as that is different from hostility towards a religious or racial group) at this stage. The conclusions of the working group which has been appointed to consider whether and how sectarianism can be defined in law will provide Scottish Ministers and Parliament with the basis to debate how best to deal with offences of a sectarian nature in due course. That debate might include consideration of whether any such offences should be classed as a form of hate crime or treated as something distinct.


Back to top