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

1. Introduction

1.1 This report presents findings from the Scottish Government-commissioned evaluation of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. This evaluation was conducted by a research team drawn from the University of Stirling, the University of Glasgow and ScotCen Social Research. The evaluation formally started in June 2013 and concluded in early 2015.

1.2 The evaluation used both quantitative and qualitative research methods to explore the introduction, enforcement and impact of the legislation, gauging the perspectives of a wide range of stakeholders (e.g. fans, supporters groups, clubs, football authorities, the police, procurators fiscal, the judiciary, and other interested parties).

1.3 Central to this report are the findings from both sweeps of an online survey of supporters of Scottish football clubs, carried out in August/September 2013 and July/August 2014. The first survey focused on supporters' experiences of attending football matches during the 2012-13 season, including whether they had witnessed certain types of behaviour that might be deemed 'offensive'. The second survey was almost identical and focused on supporters' experiences during the 2013-14 season, in an attempt to trace changes that might have arisen from the new legislation following the initial 'bedding in' period. In both sweeps, supporters were also asked about their awareness of new legislation relating to offensive behaviour at football matches which came into force in the spring of 2012. This quantitative research was complemented by qualitative research with supporters through interviews, focus groups and some limited observations of fans' experiences at football matches.

1.4 The rest of this chapter explains the background to the legislation relating to offensive behaviour at football and why the evaluation was commissioned by the Scottish Government. The second chapter provides more detailed information about how the research was carried out. The remainder of the report summarises some of the key findings emerging from preliminary analysis of survey and from other data.

Background

1.5 The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 (hereafter known as the Act) was passed by the Scottish Parliament on 14 December 2011, received Royal Assent on 19 January 2012 and came into force on 1 March 2012. The Act was introduced following concerns about a perceived increase in various 'offensive' behaviours within the context of football. As stated in the policy memorandum:

"In summary, it is a critical assumption of this Bill that there is something very specific and increasingly unacceptable about attitudes and behaviour expressed at football matches, whether that be "sectarian", racist or homophobic."^[1]

1.6 Although the Act is designed to tackle a range of hate crimes and is not restricted to tackling sectarianism, the Scottish Government specifically believed the existing legislation and common law provisions to be inadequate to deal with the perceived increase in sectarian-related behaviours in and around football grounds.^[2] After several years of comparatively improved behaviour and atmospheres at domestic matches (Hamilton-Smith et al. 2011), the 2010-11 season saw a number of controversial incidents, both on and off the pitch, and mostly associated with either Rangers or Celtic (or both). The two teams met on seven occasions during the season, and the police reported a significant impact on their resources as a result of this. A period of heightened political and media focus followed. Both Celtic and Rangers fans were warned by Strathclyde Police and the football authorities about football-related violence and singing sectarian songs, and in April 2011 Rangers were fined £35,000 by UEFA, and supporters banned from one away game, after their fans sang sectarian songs during a Europa League match against PSV Eindhoven.^[3] A Scottish Premier League game between Rangers and Celtic on 20^th February 2011 reportedly saw 229 related arrests^[4] in the Strathclyde police force area. This was followed by a highly publicised Scottish Cup match between the same two clubs at Celtic Park on 2^nd March 2011 which saw three Rangers players sent off, a number of on-pitch confrontations between players and coaching staff, 34 supporters being arrested inside the stadium (including 20 for alleged religiously-aggravated breaches of the peace) and a reported total of 187 related arrests.^[5]

These statistics, though certainly higher than for an average game between these two teams, were not especially high by historic standards for this fixture^[6]. However, on this occasion the increased media and political spotlight, and a growing view that the social and policing costs of such fixtures were no longer acceptable, meant that shortly after the match a summit was requested by the police.

1.7 The police specifically argued that there was a correlation between Rangers-Celtic fixtures and a spike in reported instances of domestic violence, and this was widely covered by the Scottish media. The summit was subsequently convened by the First Minister. Representatives of Celtic and Rangers, the Scottish Football Association (SFA) and Strathclyde Police duly developed a plan to tackle behaviour related to Rangers-Celtic fixtures.^[7]

1.8 At the same time, an ongoing series of hate crime incidents targeted at certain high-profile figures in Scotland was also the subject of intense media focus. Neil Lennon, the Celtic manager at the time, received death threats and bullets in the post. Attempts were also intercepted to send parcel bombs to Lennon, the late Paul McBride QC and MSP Trish Godman (both high-profile Celtic-supporting Catholics), as well as to Cairde na hÉireann, an Irish Republican group based in Glasgow. As a result of these incidents, sectarianism in Scotland, and its perceived links to football, emerged as a key item on the political agenda after some years of relative quiet. From this increased focus on tackling offensive behaviour at and around football, with a specific concern about sectarianism, various measures were put in place by the Scottish Government. A Joint Action Group was set up following the summit, and met throughout 2011 "with a focus on supporting the further development of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act and to consider and agree further measures to tackle unacceptable supporter conduct" (http://www.gov.scot/Topics/archive/law-order/sectarianism-action-1/football-violence/football-summit/JAG). It should be noted that these initiatives were formally separate from, though associated with, a wider range of Scottish Government-supported activities to address sectarianism. Most notably, an independent advisory group was established to conduct its own investigation into sectarianism, resulting in the production of a high-profile interim report which was submitted to Ministers in December 2013, which presented its final report in May 2015^[8]. Under the auspices of this advisory group, Government funding was also provided for community-based and educational initiatives aimed at tackling sectarianism in Scotland and for commissioning of research into various aspects of sectarianism. A multi-pronged approach to sectarian and other offensive behaviours thus appeared to be the government's intention, with behaviour at and around football being one aspect of it.

1.9 In June 2011, the Scottish Government published proposals for new legislation to curb offensive behaviour around football matches, with particular emphasis on 'sectarian' behaviour:

"The objective of the Bill is to tackle sectarianism by preventing offensive and threatening behaviour related to football matches and preventing the communication of threatening material, particularly where it incites religious hatred."^[9] (Policy Memorandum).

1.10 The legislation was also designed to deal with threatening communications, thereby responding to the incidents mentioned above. The government's initial plan was for legislation to be in place before the start of the 2011-12 football season and it sought to achieve this by recourse to emergency legislation procedures.^[10] However, concerns were raised regarding the need for a better consultative process, and the passage of the Bill was delayed to allow time for wider views to be sought and for further debate by Parliament.^[11] The Bill received Royal Assent on 19 Jan 2012 and came into force on 1 March 2012, towards the end of the 2011-12 football season.

Overview of Act

1.11 The Act, as discussed above, dealt with two key problems: (1) offensive behaviour in and around football matches and (2) threatening communications (threats of serious violence or incitement to hatred which have been made in a recorded format). The second element of the Act (threatening communications) is broader and need not involve either sectarianism or football.

1.12 This research is concerned only with the former, which is dealt with in Section 1 of the Act. This creates an offence of engaging in behaviour 'in relation to a regulated football match' which 'is likely to incite public disorder' and which is hateful, threatening or is 'other behaviour that a reasonable person would be likely to consider offensive'. Hateful behaviour is defined as 'expressing hatred' of, 'stirring up hatred' against, or 'motivated by hatred' of (whether wholly or partly) an individual or a group of persons, based on their membership (or presumed membership) of certain groups. These include a religious group or a social or cultural group with a perceived religious affiliation or a group defined by reference to one of the following: colour; race; nationality (including citizenship); ethnic or national origins; sexual orientation; transgender identity; disability.

1.13 'Other behaviour that a reasonable person would be likely to consider offensive' is not defined in the Act, but the Lord Advocate's Guidelines state that 'Officers should have regard to proportionality, legitimate football rivalry and common sense when assessing whether the conduct would cause offence to the reasonable person.' They give examples of flags, banners, songs or chants 'in support of terrorist organisations' or which 'glorify, celebrate or mock events involving the loss of life or serious injury'.^[12] The analysis of the operation of the first year of the Act found that all of the charges under this category noted behaviour which was said to refer to 'terrorism and terrorist organisations'.^[13]

1.14 The offence requires the Crown to prove either that an individual's conduct was likely to provoke public disorder; or that this would have been likely but for other circumstances. As noted above, the Act provides that 'behaviour would be likely to incite public disorder' if public disorder would be likely to occur but for the fact that:

(a) measures are in place to prevent public disorder, or

(b) persons likely to be incited to public disorder are not present or are not present in sufficient numbers.

1.15 Thus, it is not a defence to a charge of criminal conduct that rival fans had been segregated, or that police or stewards were present to maintain public order. It is this element that has led to the section being described by some as overly broad. Lord Brodie, speaking on behalf of the Appeal Court following the decision that a sheriff had erred in law when he acquitted Joseph Cairns, who had been charged with singing pro-IRA songs at a match between Ross County and Celtic in Dingwall, said that the Parliament had created "a criminal offence with an extremely long reach"'^[14].

1.16 Section 1 covers not only conduct at a regulated football match, but also conduct 'in relation to a regulated football match'. It therefore covers behaviour during a journey to or from a match (including on public transport), behaviour in pubs or clubs or other places that are showing televised football, and matches that are played abroad if they include a Scottish club. A 'journey' includes overnight breaks and it applies not only to persons attending a match but also to others who were not intending to do so. The Lord Advocate's Guidelines advise that this includes persons who participate in such behaviour 'alongside fans who are travelling on such a journey'. These others need not previously have been aware of the match. There has yet to be an Appeal Court judgment of whether their behaviour also needs to be in relation to the regulated football match, or whether it is enough that they engaged in some way with those who are on that journey.^[15]

1.17 Section 1 does far more than place common law breach of the peace on a statutory footing or restate section 38 of the Criminal Justice (Scotland) Act 2010. It targets and labels behaviour related to football and provides for the courts to take account of that in sentencing decisions. The targeting of football has been supported by additional police and prosecution resources introduced in March 2011 (specifically, the appointment of Football Liaison Prosecutors, procurators fiscal who are football specialists but also retain a wider role as procurator fiscal deputes) and the creation of a Football Coordination Unit for Scotland (FoCUS))^[16]. The aims of these measures were to increase the specialist resources available to police football-related behaviour, and to improve the quality and consistency of decision making from the point of arrest to the point of sentence. The other major legal change is the section 6 offence of communicating threats of serious violence or threats inciting religious hatred, but this is not the subject of this report.

1.18 It is important to note that the Act does not use the word 'sectarian' or 'sectarianism', instead making use of more established terms in Scots law such as hatred based on religion, race, sexual orientation, disability and so on to capture the various behaviours that are dealt with in section 1. The term 'sectarian' is problematic and highly contested and has not been used in any criminal legislation in the UK. However, both media and parliamentary discussions around the legislation continue to focus on 'sectarian' behaviour.

The Act makes provision for prison sentences of up to five years for those convicted on indictment of either the offensive behaviour at football or the threatening communication offences.

Discussion of the Act

1.19 As previously noted, the Act has been the subject of some controversy since its inception. Although it is not our intention to recap those arguments in detail - our remit is to evaluate the Act as it has been implemented - the key issues raised through these discussions should be noted. The main criticisms of the Act concerned its putative freedom of speech implications, the failure to define 'offensive behaviour' and a lack of precision in some other elements^[17], and whether or not there was a gap in the existing law which justified its introduction. Some of these criticisms were addressed in Committee and during the Parliamentary debates,^[18] but not all of them were and it is unsurprising that the first eighteen months of the Act's existence have been controversial. Although there have been many successful prosecutions, many have failed. It was not possible to find out whether this has been due to weak evidence being provided to the court, or because sheriffs have taken contrary views to fiscals on whether certain behaviours are caught by the Act,but some have been successful despite the sheriffs' criticisms of either the breadth of the Act or its use in the particular circumstances of the case.^[19] In Cairns the High Court commented on sheriffs' perceived misunderstanding of the legislation,^[20] while some fan groups and commentators have robustly expressed their concerns around 'over-policing' and unfair treatment.

1.20 Many of the debates over the merits of the legislation have focused on the extent to which certain behaviours at football can legitimately be deemed to be hate crimes, sectarian or otherwise and the degree of harm that may be attributed to them (for example, not only in terms of any immediate offence caused, but also potentially in terms of perpetuating wider social divisions and tension). Of course, the existence of 'sectarianism' in Scotland is itself a contentious one; some scholars argue that it is a 'thing of the past' (Bruce 2004) while others believe that it is a problem with far deeper roots in Scottish society (e.g. Devine (ed.) 2000; Kelly 2003).^[21] Clayton (2005) argues that 'sectarian' attitudes and behaviours are generally only identified at football matches, suggesting that the problem is limited to a form of 'football sectarianism' as opposed to a serious social problem. This perception is in keeping with Bruce et al.'s (2004) argument of 'tribalism' or what is also sometimes referred to as '90 minute sectarianism'. Devine meanwhile argues that more qualitative research is needed.^[22] But however it may be articulated the interplay between football and hate crime, particularly sectarianism, and the broader significance of that interplay, is crucial to any critical consideration of the Act. Recent survey research (Hinchliffe et al., 2105) suggests that most people do see a strong link between football and sectarianism. However, there may be a degree of circularity in the relationship between public perceptions and legislative activity - in other words, in responding to apparent public concern about the link between football and sectarianism, the Act itself may have also served to amplify that perception. Debates have also centred on the fact that the Act targets football supporters specifically, as opposed to legislating uniformly. As will be explored further in chapter 3 of this report, many supporters and representatives from supporters' organisations expressed concern that football fans have been unfairly singled out.

Placing section 1 in its legal context

1.21 Section 1 is not unique. Some of its language appears in other statutes,^[23] and much of what it deals with is familiar to criminal lawyers. Sport spectatorship (especially football) has for many years attracted specific regulation by the criminal law throughout the UK and many parts of Europe. Both Scotland and England/Wales for example have specific laws to cover drinking in and around stadia,^[24] and England/Wales has specific legislation on football ticket touting, pitch invasions and racist chanting at football.^[25]

1.22 Much of the behaviour of football supporters is governed by the 'public order' family of offences (such as the common law offences of breach of the peace or mobbing and rioting) to which section 1 belongs. Whether something is a risk to public order depends on the circumstances of where it happens, so that behaviour which might be disruptive but lawful^[26] in everyday life can become unlawful in a mass football setting. Furthermore, one of the aims of these offences is to prevent disorder before it happens.^[27] The offences therefore catch supporters who are attempting to do things which could cause a disturbance, not just those who already have. Hence, public order offences are not precisely worded and, because of that uncertainty, raise legitimate human rights concerns. We will consider later in this report the comments that were made by sheriffs and fiscals about section 1.

Breach of the peace

1.23 Section 1 is closest to the common law offence of breach of the peace and the similar statutory 'section 38 offence'. Breach of the peace has been a notoriously wide and vague offence in the past, but was somewhat narrowed by Smith v Donnelly^[28], which keeps it within the limits of the European Convention on Human Rights,^[29] although some argue that it remains more vague than it should be (Ferguson 2013, p. 93). The Smith test requires the prosecution to show two things. First, that the accused's conduct is 'genuinely alarming and disturbing'. Second, the conduct must also in the surrounding circumstances^[30] threaten 'serious disturbance to the community'. If there is no evidence that people were in fact alarmed, then the conduct must be of the sort that would be alarming or seriously disturbing to any reasonable person in those particular circumstances.

1.24 What amounts to something that would seriously disturb the 'community' has been interpreted broadly. For example, shouting abuse at two paramedics in a private flat met the test, because a door was open onto the public street.^[31] An offence can even take place in private, but there would need to be evidence that there was a realistic risk of the conduct being discovered.^[32] That the behaviour is absorbed in a 'cauldron of sound' at a football game is not a defence either, the Appeal Court having asserted that 'in the context of a noisy crowd the provocative nature of what was said and done takes on even greater significance.'^[33]

Threatening or abusive behaviour

1.25 The other offence most similar to section 1 is section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, dealing with threatening or abusive behaviour. A person will commit a section 38 offence if they behave in a threatening or abusive manner which would be likely to cause a reasonable person to suffer fear or alarm. They must have either intended this to cause fear or alarm, or have been reckless as to whether it would. This can be in public or private, and again, the potentially alarmed person does not have to be present. In a case where a man engaged in 'vile, general and specific threats to well-known persons both dead and alive'^[34] inside a locked police van, the court said that it 'did not require to consider the likelihood of the remarks actually reaching' the person who might be frightened or alarmed.^[35] On appeal it was added that if a reasonable person would have suffered fear or alarm 'it is no defence if the behaviour causes no fear or alarm to the individual complainer, who might be, for example, an intrepid Glasgow police officer.'^[36]

1.26 The High Court has commented that breach of the peace should not be limited to cases in which there was evidence of actual alarm or annoyance, because there is a 'safeguard against any undue expansion of the law' that the conduct must be genuinely alarming and disturbing to any reasonable person.^[37] Likewise, the essence of the section 38 offence 'is that the accused's conduct is to be judged by an objective test in which the actual effect of the threatening or abusive behaviour on those who experience it is irrelevant'.^[38] The test again is the effect on the reasonable person. Hence, the sweep of both offences is broad and it is not clear what forms of offensive behaviour, particularly singing, would or would not be caught by them.

1.27 It can be seen therefore that the margins of the pre-existing law that dealt with the sorts of football offences tackled by section 1 are themselves indistinct. They are capable of being extended to cover many situations where potential victims of public disorder need not necessarily be present.

Section 1's relationship with existing offences

1.28 Section 1 has therefore been introduced into an area of law which is already so broad that it is difficult to identify what changes the section actually makes (other than more clearly labelling the conduct it deals with). Criminal law academic Professor Pamela Ferguson has said, regarding breach of the peace, that '[w]hether any particular behaviour would amount to breach of the peace has always been hard to predict' (2013, pp. 132-137). Most of the ways in which a section 1 football offence can be committed are similar to those captured by breach of the peace or section 38, so it is useful to consider section 1 in the light of how legal commentators and the appeal courts have looked at these other offences.

1.29 The 'stirring up hatred' element of section 1, however, is novel. It takes the form of an incitement to disorder offence and the behaviour itself need not be alarming or disturbing. Section 1 here differs from most incitement offences by not specifying the need to prove a specific intention to commit the crime. The Scots common law offence of incitement to commit a crime requires evidence of 'a serious, earnest and pointed attempt by the accused to encourage and instruct a crime': it is important under the common law that the person seriously intended the crime to happen.^[39] Likewise, the equivalent English law makes clear that it is not enough if the offence that resulted was merely a foreseeable consequence.^[40] There have been no appeal cases to clarify the interpretation of 'stirring up' hatred in section 1. One sheriff noted that there have been very few prosecutions on this point to date and we have been unable to locate any reported judgments on the matter. But it is an important point and one which could be the subject of an appeal in the future.

Summary of the legal context

1.30 The criticisms made of section 1 are therefore familiar to critics of public order offences. Other similar offences such as breach of the peace and section 38 are also broadly drawn and broadly interpreted, and have raised similar concerns about civil liberties among legal commentators. These concerns include, for instance, the vagueness of concepts such as the 'reasonable person' or 'public disorder' when used in circumstances where behaviour may be categorised of having amounted to a risk of disorder yet did not in fact produce it. There is a long history in Scots and English law of civil liberties challenges to public order offences, some of which have been appealed, sometimes successfully, as far as the European Court of Human Rights. What is clearly new about section 1 is that it targets and labels behaviour related to football and provides for the courts to take account of that in sentencing decisions. It may also have extended Scots criminal law, certainly at least as regards the offence of stirring up hatred.

The wider objectives

1.31 During the progress of the bill through Parliament the Scottish Government formally committed to evaluating the implementation and impact of the Act. This evaluation is therefore a statutory requirement in accordance with section 11 of the legislation and had two main formal objectives:

1) to undertake a process evaluation to examine the implementation of the legislation, including the practices and mechanisms put in place to support its operation. The process evaluation should also explore whether there are any barriers to successful implementation of the Act

2) to undertake an outcome evaluation to examine the impact the legislation has had on attitudes and behaviour of football supporters (and by extension to assess the impact of the Act on offending).

1.32 A key aim of the qualitative strand of the work was to assess the implementation of the legislation and to identify factors that may be impeding its 'effectiveness', as well as how it was experienced by key stakeholders - supporters, police, sheriffs and others. The qualitative research also complemented the survey of football supporters by addressing the following specific sub-objectives:

• to evaluate whether the atmosphere and behaviour at and around football matches has improved since the introduction of the Act;
• to examine supporters' perception of the legislation, in terms of their understanding of its content and their acceptance of its objectives;
• to examine whether supporters view the legislation as being implemented in a way that is clear, fair and consistent.

1.33 The survey of football supporters carried out in August and September 2013 was followed by a second survey at the end of the 2013-14 season. In combination, these allowed an engagement with the following specific issues:

• the prevalence of certain types of potentially offensive behaviour at football games;
• the prevalence of potentially offensive behaviour in 2012-13 and 2013/14 compared to previous football seasons;
• opinions on what type of behaviour at football is offensive;
• how authorities are dealing with potentially offensive behaviour at football compared to previous seasons;
• how easy or difficult it is for people to agree on what constitutes offensive behaviour at football;
• levels of awareness of laws related to offensive behaviour at football enacted in spring 2012, amongst football supporters.

1.34 Finally, in addition to the survey the evaluation involved analyses of police arrest statistics and crime reports to examine the sorts of cases that are being targeted for prosecution and to help assess the impact of the Act.