Should Scotland Repeal the Offensive Behaviour at Football and Threatening Communications Bill?

Date: 13th July 2017

The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 (the Act) came into force in March 2012. The legislation applies to watching, attending or travelling to and from football matches. 

The Act contains two offences. (1) It is an offence for a person, at a regulated football match, to engage in behaviour which is hateful, threatening or offensive and likely to incite public disorder. (2) It is an offence to engage in any communication that contains a threat of serious violence or threats that are intended to incite religious hatred.

The Act has been particularly controversial since its introduction in 2012 and has been the centre of criticism particularly from fan groups who see the Act as being discriminatory by its criminalisation of football fans only. Criticism has also been voiced by some MSPs as well as judicial figures with some claiming it was poorly written and others arguing it was unnecessary in light of other pre-existing criminal legislation. However, there has also been praise with some arguing it has been successful in reducing offensive incidents in football settings.

In June 2017 after much debate on the topic a Bill was officially lodged with the Scottish Parliament to repeal the Act by Labour MP, James Kelly. The Scottish Government, in particular, are concerned about the repeal as they consider there is no suitable alternative legislation to take its place and to repeal the Act would send the wrong message.  

Supporters Direct Scotland are interested in your views on the repeal of the Act and want to collate those views in a submission to the Scottish Parliament so that supporters’ comments will be taken into account when determining whether the Act should be repealed.

• You can complete the survey here.

To assist you in providing your answers to our poll, we have put together some brief comments.

What does it mean to repeal the Act?

A repeal of the Act would mean the total removal or reversal of the legislation. Offences, previously contained under the legislation, will no longer be capable of conviction under that legislation, from the date on which the repeal takes effect.

Are there pre-existing criminal law provisions that such offences may be prosecuted under?

Common law breach of the peace is likely to be capable of tackling offensive behaviour and indeed there have been several cases of football fans who have been successfully prosecuted under those provisions. Breach of the peace offences are wide in scope and may include shouting, swearing, singing offensive songs, displaying illicit banners, wearing clothing with offensive slogans to violent conduct and brandishing weapons.

One such case, involving a football fan, was taken all the way to the European Court of Human Rights where he attempted to argue that prosecution for offensive behaviour (relating to Irish politics) was an infringement of his freedom of expression. The Court held, however, that sectarianism was recognised as a societal problem in Scotland. The decision to convict was not unreasonable as in the particular circumstances and settings, the actions may have incited public disorder. In relation to freedom of expression, the Court stated that it was important to underline that the defender was not convicted for expressing the views that he did or even for expressing them in strong language. The conviction was a narrow one in respect of particular conduct at a particular time in a particular place. The Court recognised that there were and are many suitable opportunities in Scotland to express views or participate in protests, without contravening the criminal law. The Court concluded that even if they had found that the defender’s conviction and sentence represented an interference with his exercise of his freedom of expression, the reasons provided by the State to justify such interference were relevant, sufficient and the interference complained of met a pressing social need.

For those reasons, it may be argued that existing legislation is sufficient to tackle offensive behaviour without the need for a statute written with a particular focus on football fans.

Quotes:

“Clumsy political response to one football match”

“Stain on the reputation of the Scottish legal system for fair dealing”

“Somehow the word mince comes to mind”

“Serves to unjustly criminalise football supporters”

“”Since the introduction of the Offensive Behaviour at Football and Threatening Communications Act, religious crimes are down, race crimes are down, crimes in relation to individuals’ sexuality are down and we’ve seen a decrease in crimes of offensive behaviour at or in relation to regulated football matches in Scotland showing the Act has delivered real improvements.”

“The Act sends out a clear message that Scotland is a country which will not tolerate any form of prejudice, discrimination or hate crime, and it gives police and prosecutors an additional tool to tackle this behaviour”

 

The SPFL’s Rules on Unacceptable Conduct:

One additional question within our survey  relates to the SPFL’s implemented Rules on ‘Unacceptable Conduct’. Unacceptable Conduct extends to a wide range of Violent and Disorderly Behaviour within stadia and the SPFL brought in a raft of new rules to tackle it in January 2017. The rules SPFL clubs must now abide by in relation to this include:

• Issue and publish a written statement in all forms of Club communication to its supporters, including on any Club website, by email and by all forms of social media used by the Club, that it condemns and will not tolerate any form of Unacceptable Conduct by any person at Official Matches at its Home Ground and by or amongst its supporters, Officials, Players and others connected with the Club at Away Matches
• Make announcements over the stadium public address system at every Home first team Official Match and at every other Home Official Match at which the number of supporters present exceeds 250, condemning all forms of Unacceptable Conduct.
• In relation to all Official Matches, make it a condition of its Season and all match day tickets and its ground entry conditions and/or regulations that purchasers and holders of such tickets and all other entrants to its Home Ground:- (i) must not engage in Unacceptable Conduct at an Official Match; (ii) adhere to the ‘Fans’ Charter’ published by the Scottish FA at www.scottishfa.co.uk/scottish_football.cfm?page=3441 and any amended or replacement version of that Charter; and (iii) agree to be subject to being searched on seeking entry to and whilst in its Home Ground for any flag(s), banner(s) and the like which may contain offensive or otherwise unacceptable material and/or flares, fireworks, devices capable of emitting smoke or the like and/or any other object which may cause or be part of Unacceptable Conduct and that any such item(s) brought into or attempted to be brought into its Home ground shall be liable to be confiscated.
• Take disciplinary action against any Official, Player or other employee or contractor of the Club who engages in or contributes to Unacceptable Conduct at an Official Match.
• As soon as reasonably practicable and, in any event, before the next Official Match at its Home Ground, remove from its Home Ground any and all graffiti, propaganda or the like which constitutes, encourages or promotes Unacceptable Conduct.
• Develop pro-active programmes and make progress towards raising awareness of the prevention and, where present, elimination of Unacceptable Conduct in stadia in which Official Matches take place; in conjunction with, amongst others, supporters, schools, voluntary organisations, local authorities, local businesses, sponsors, police, players, Officials and players’ representatives

The full rules relating to Unacceptable Conduct can be seen here.

You can complete the survey below.

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