An evaluation of Section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012

Executive summary

This summary sets out key findings from a multi-method research study to evaluate the implementation and impact of new powers introduced in Section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. The research aimed to provide evidence as to the Act's impact on disorder and offensive behaviour at football matches.

Research Objectives

The objectives for the research as outlined in the Scottish Government research specification document were as follows:

• To assess the implementation of the legislation and to identify any barriers that may be impeding its effectiveness;
• To evaluate whether the atmosphere and behaviour at and around football matches has improved since the introduction of the Act;
• Relatedly, to assess whether the Act has also resulted in a reduction in offending at and around football matches; and finally,
• To examine supporters' perception of the legislation, in terms of their understanding of its content and acceptance of its objectives.

Research Methods

The key elements of the mixed methods study were:

• Two online surveys of supporters of Scottish football clubs were conducted as part of the study. The first survey was 'live' between 20 August and 20 September 2013, the second between 22 July and 5 August 2014.
• The surveys of Supporters Direct Scotland members and other football supporters may be considered a reasonable basis for hypothesising about the views of Scottish football supporters in general. In terms of sample characteristics, the vast majority were male, white and born in Scotland. There was greater diversity in terms of age. Responses were received from all 42 SPFL clubs, with the four largest Glasgow and Edinburgh clubs the best represented in the 2014 survey. There was a fairly even split between season ticket holders and non-season ticket holders.
• Interviews and focus groups with those involved in the implementation and enforcement of the legislation, including Sheriffs, Procurators Fiscal, Police Officers, and Club Security Officials.
• Meetings and focus groups with football fans and with representatives of supporters groups.
• Analysis of secondary data sources, including data held by the Crown Office, the Scottish Government and Police Scotland.
• Some limited observational research and informal interviewing in and around stadia on match days was also undertaken.

Key findings and recommendations

Resources and initiatives in support of the legislation

The implementation, impact and perceptions of s. 1 were intertwined with complementary initiatives relating to policing (the establishment of the Football Coordination Unit Scotland (FoCUS)) and prosecution (the establishment of Football Liaison Prosecutors). These resources were established prior to the enactment of s.1 and almost certainly helped facilitate the Act's quick adoption.

Because of these closely inter-related initiatives, judgements about the impact of s.1 are impossible to disentangle from judgements about how s.1 was implemented.

In terms of pre-Act resources, amongst police stakeholders FoCUS was well-regarded for helping local police divisions work through the operational and tactical implications of the legislation and for providing training and other forms of support. FoCUS was seen to have helped local divisions mainstream the operational tactics employed by FoCUS officers. As such FoCUS was no longer seen primarily as a unit that was regularly required to provide direct operational support. Rather, its value was perceived to be in providing central coordination, in particular around football-related intelligence and ongoing training, as well as being a centre for the development of relevant police policies.

The police highly appreciated the work of Football Liaison Prosecutors who were located in the Crown Office and Procurator Fiscal Service (COPFS). They were seen as being a readily approachable point of contact within their regions, and they were viewed as actively helping prepare and progress s. 1 cases.

The implementation and enforcement of the legislation

Fans and stakeholders alike remarked on the very visible and high-profile introduction and implementation of the Act.

A primary value of the Act for police stakeholders was that it gave them added purpose, and added clarity, when dealing with sectarian behaviour associated with football. In particular the greater clarity around offensiveness related to demonstrating support for terrorist organisations was seen as valuable.

In the enforcement of s. 1 the dominant focus was on offences occurring within stadia, though towards the end of this evaluation a number of high-profile cases outside stadia had received media attention. Given the recent evidence that football was the most commonly mentioned factor that people believe contributes to sectarianism in Scotland (Hinchliffe et. al., 2015), limiting the direct exposure of bystanders to any sectarian behaviour by individuals on route to (or from) a football fixture may be particularly appropriate.

Policing and stewarding was still considered to be very inconsistent at different grounds, with inexperienced police officers and stewards either failing to act on offensive behaviours, or enforcing the legislation in a manner that was viewed as adversarial by fans.

Fans and police officers alike placed value on experience, and on known police officers and stewards who could build up a rapport with fans. Such individuals were considered more likely to be able to 'head off' offensive behaviour through proactive interventions and influence.

Tensions around the introduction of the Act however - and in particular the extent to which certain sections of fans felt over-policed, and subject to disproportionate levels of surveillance, searches and public-order style policing - was considered to have placed a strain on police, club and fan relationships at certain clubs. This was commonly remarked upon by both fans and police officers. For some experienced police officers a consequence of this strain was that it made it harder to exert a positive influence on fans, and in particular to get information from fan groups about more serious criminal behaviour, notably violence associated with risk groups.

After a long period where football-related violence was perceived to be in decline, a number of football intelligence officers and senior police officers confirmed that there had been a notable upsurge in football-related violence by certain 'risk groups'. This activity was usually located well away from actual football stadia.

A concern of some police officers was that the focus of police resources on in-stadia disorder and offensive behaviour was at the expense of resources being available to appropriately monitor more violent risk groups. It was indeed notable within this research how groups of fans in stadia who were associated with enthusiastic singing and displays (and potentially offensive behaviour), were now commonly referred to as 'risk groups'. This conflation of groups of fans associated with potentially offensive behaviour with those engaged in much more serious, violent offences, is problematic if it implies specialist police resources (such as surveillance and intelligence assets) being diluted or diverted, or if it exposes fans who hitherto were not regarded as a 'problem' to less restrained policing strategies.

Intelligence resources were also, at a local level, still highly variable in terms of quality. Football intelligence officer roles, together with those other supporting roles that were key to this function (such as police match-day 'spotters') were still, as previously identified in Hamilton-Smith et al, (2011), subject to patchy investment.

Charges and prosecutions under section 1 of the Act

Fan perceptions that the Act primarily focused on sectarianism were borne out in official statistics and stakeholder interviews, with a majority of s. 1 charges in both of the first two years of the Act being made against supporters of Rangers or Celtic, and with over 50% of s. 1 sub-charges between 2012 and 2014 involving offensiveness associated with religion, support for terrorism or celebrating loss of life.

Both fan and some stakeholder respondents in our qualitative research spoke of disquiet at the extent to which the Act was perceived to be targeted at younger fans. Some felt that younger fans were not as responsible when it came to the 'transmission' of offensive songs that had been sung, and taught to them, by older family members and friends. Criminalising younger fans in these instances was seen as disproportionate.

Whilst younger fans (in particular those under 20) constitute a higher proportion of people charged under s. 1 over time (constituting 46% of charges in 2013/14 - 95 charges, compared to 36% in 2012/13 - 96 charges), this is only a proportionate increase not a numerical one, and would appear to reflect a steep fall in the number of older fans being charged. Charges against older fans (aged 31 and above) fell from 71 in 2012-13 (26% of all charges) to 24 charges in 2013-14 (12% of all charges).This may be due to older fans complying with the legislation more quickly, though some fan-respondents argued that it was because younger fans were an 'easy target' for enforcement.

The 'success' of the Act in terms of successful prosecutions under s. 1, has notably faltered in the last year, with the published rate for s. 1 prosecutions across Scotland dropping from 73% to 52%. Our analysis would suggest that this drop in convictions may not only be an issue for s. 1 offences, but also for other football-related charges such as breach of the peace.

The time taken, on average, to progress and conclude football-related charges, appears to be particularly lengthy. Again, this does not pertain exclusively to s. 1 charges. In our qualitative research the length of time taken to progress cases was perceived as a source of frustration and unfairness by some fans.

Sheriffs' views were divided on the Act, ranging from strongly in support to emphatically critical. Most often, though, they expressed a mixture of support for s.1 and criticism. Supportive comments focused on the aims of the Act, tackling what some viewed as a serious problem. Some sheriffs however were concerned about s.1's clarity and human rights implications. Some also felt that the quality of evidence in cases brought under section 1 was sometimes weaker than it could be, with one emphasising that he would appreciate expert witness evidence on the meaning of behaviours labelled as offensive.

Supporters' awareness and general perceptions of the legislation

Awareness of the Act was high in our fan surveys - at around four in five of all supporters (83% had heard of it in the 2014 survey) and higher still among supporters of Celtic and Rangers. Awareness was also several percentage points higher in 2014 than in 2013.

A slight majority of supporters surveyed in 2014 (55%) reported sometimes being offended by things they heard other supporters shouting, chanting or singing, but 50% also agreed that "people go to football matches to let off steam and that what they say should not be taken seriously".

Where offence was likely to be taken, surveyed supporter dislikes were broadly in line with the objectives of the Act. There was broad consensus that it is offensive to sing songs or to make remarks about people's religious background or beliefs (85% agreeing with this statement), or which celebrate the loss of life (90% agreeing), or which support terrorist organisations (82% agreeing).

The formal aims of the Act were to focus on a range of offensive behaviours, typically conceived as hate crime, such as offensiveness targeted on the basis of religion, sexuality, race, or professing support for terrorism. However, the Act was developed and introduced in a political and media environment where the legislation was primarily seen as a tool to address sectarian offensiveness. Fans and stakeholders in our qualitative research largely viewed the Act in this way.

In our qualitative research, fans who did not follow Rangers or Celtic often described the Act in terms of being focussed on supporters of those two teams, and for many this seemed justifiable. However, it is to be noted that some of these same fans also described behaviours and 'banter' occurring elsewhere that would just as appropriately merit attention under the Act (e.g. racist and homophobic remarks and singing). Indeed, our supporters' survey demonstrates that fans did sometimes encounter such offensiveness. For instance in 2013/14, 22% of supporters attending away games heard negative references to a person's sexuality and 16% heard negative references to a person's skin colour.

Fans in the qualitative research also provided slightly contradictory responses when characterising their understanding of the s.1 offence. It was often claimed that what songs or behaviours fell under the remit of the legislation was ambiguous and uncertain. When probed however, it did appear that most respondents knew exactly what behaviours would potentially contravene the Act. This ambiguity seemed to refer to disagreements about whether certain 'borderline' songs, words or gestures should fall under the Act (and a desire for this to be definitively clarified) and second, uncertainty about whether songs or behaviour would lead to enforcement action in different locations and/or at different football grounds (i.e. their uncertainty referred to inconsistencies in enforcement).

Where songs or other acts were disputed in terms of their offensiveness, grounds for dispute rested on two areas of ambiguity. First, songs, chants or displays that made mention of organisations or movements that, at some point, could have been associated with terrorism, but which at other points in time could be associated with legitimate organisations and/or political standpoints. Second, expressing a cultural identity, which whilst it could not be said to explicitly communicate any hatred or opposition to another's culture, ethnicity, politics, or religion, could nevertheless be construed as offensive simply because that cultural identity was viewed as intrinsically 'oppositional' or provocative by others.

The role of clubs

In the qualitative research, fans had different perspectives on the role of their clubs in relation to the legislation. Whilst some fans had received helpful communication from their clubs when the Act was introduced, others felt that their club was unclear or 'hedged' their advice on the implications of s.1. Conversely club officials felt unable to offer advice in some instances in the absence of legal precedent.

Whilst acknowledging that clubs had done good work in the past, in particular around sectarianism, some fans felt that clubs needed to take more responsibility for addressing these issues amongst their fan base.

Impact of the Act - perspectives and experiences

It was acknowledged by fans and stakeholders alike that the Act was introduced in a way that gave it a high profile and made a rapid impact. Whilst this generated hostility amongst some fans, it was also acknowledged by some fans and stakeholders that this had an immediate impact on behaviour.

In terms of the prevalence of specific forms of potentially offensive behaviours (whether those 'criminal' or not) encountered by surveyed supporters, by far the most common was swearing at players and officials, followed by swearing at other supporters.

Around a third (28%) of home supporters said they had heard negative reference to a person's religious background during at least one game in the 2013/14 season, higher than the proportion that had heard negative reference to a person's skin colour (8%), country of origin (19%), gender (10%) or sexuality (19%).

The reported prevalence of these verbal behaviours was broadly stable between the 2012/13 and 2013/14 seasons. There was an increase, however, in potentially offensive non-verbal behaviours in 2013/14 - especially letting off flares, throwing of missiles and the displaying of offensive banners (see Table 4.1 for more details).

A better measure however of long-term changes in behaviour were questions that asked fans to judge the prevalence of certain behaviours in relation to 'previous seasons.' With the sole exception of letting off flares, in both surveys, supporters were likely to view each specific type of behaviour as being less common than in previous seasons, as opposed to being more common. For example, 40% of home supporters felt negative references to religious background were less common in the 2013/14 season than in previous seasons, while only 3% felt it was more common. 56% of supporters felt that the level of negative references to religious background was about the same as in previous seasons.

Fans and stakeholders in the qualitative research mostly held similar views, with fans of Rangers and Celtic in particular noting a marked decline in certain types of offensive behaviour at home games.

Impact of the Act - official data

Official data on football-related offending would seem to lend support to these fan and stakeholder judgements, indicating a marked decline in football-related charges, including hate crime charges, between the first and second full years after the introduction of the Act, and with a 24% reduction in s. 1 charges overall betweeen 2012-13 and 2013-14.

Positive as these trends are, it is impossible to determine whether some, or any of these reductions are attributable directly to the Act (though some fans and police officers clearly felt that the Act had had an impact), to the policing or prosecutorial resources that were put in place in the year before the Act, or indeed to the broader societal context which has witnessed sustained declines in violence and disorder more generally over a number of years.