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

5. Concluding remarks

5.1 How best are we to judge the effectiveness of section 1 the OBFTC Act? Arguably the 'bottom line' measure(s) relate to actual levels of offensiveness, in particular as experienced by fans themselves, but also via secondary indicators such as official recorded crime figures and conviction statistics. In this respect, the data that are available would certainly suggest that offensiveness at matches has declined, as most persuasively evidenced by our surveys of fans, and reinforced in interviews with fans and stakeholders alike.

5.2 There are of course a number of hefty qualifications that must be applied to prevent any premature attribution of this reduction to the Act itself. There are figures to suggest that these reductions to an extent pre-date the Act. Nevertheless a good number of fans and stakeholders interviewed through this research noted that there had been a marked drop around the period of the Act's Introduction, in particular a reduction in those forms of offensiveness that were widely perceived to be the central target of the Act. Even some of the fans most strongly opposed to the Act, whilst bemoaning the dearth of match day atmosphere that followed in their view the clamp down on their favoured songs and chants, had nevertheless emphatically stopped singing those songs. That said, whether this reduction was due to the Act itself or to the policing and prosecution resources put in place sometime before the Act is impossible to answer. At one level it may be argued that this is a moot point, in so far as these developments were all complementary parts of the same drive to address the problems in football that flowed from the events on and off the pitch during the 2010-11 season. Certainly our work would suggest that what marks out the Act is not (primarily) that it stakes out some wholly new territory, bringing within the ambit of the criminal law behaviours that were previously free from any legal sanction. Rather it is the political intent behind the legislation that distinguishes the Act. This, combined with the resources that complemented its introduction, emboldened the authorities to bring more prosecutions and strengthened the law through highlighting and clarifying what the problems with these offensive behaviours were, thereby facilitating more successful prosecutions (at least initially).

5.3 It was apparent both from our surveys and from our qualitative research that most fans knew what songs and remarks were offensive. Nevertheless, one recurring criticism of the Act is that it leaves it substantially open for the police, acting in the capacity of the reasonable person, to exert a high degree of discretion in determining whether behaviour is offensive. A constant theme in many fan focus groups was that supporters needed greater clarity, and definitive lists, about what songs or remarks were offensive, and that they should not be subject to the variable standards of different police officers, or to future changes in terms of what society may or may not deem as offensive. However, the fact that social standards and normative values do change, and that the law needs to be dynamic enough to cope with such change, is a fairly accepted and commonplace observation. Relatedly, there will always be tests in terms of behaviours that raise genuine uncertainty in terms of their acceptability and legality, and that may be subjected to legitimate debate and in some instances subject to judicial determination. Equally, it has to be acknowledged that offensiveness is very contextual, that behaviour that goes unremarked in one context, may be dangerously inflammatory in another. The need to be alive to context, and for the law to be applied in a way that is flexible enough to cope with context, is not the same as the law being applied inconsistently, and whilst some fans did raise examples that would suggest some instances of unwarranted inconsistency in decision making, in other instances what seemed to be being described was a sensible attention to context.

5.4 Conversely conversations around the Act also at times seem to attract a slightly artificial commentary, dividing football fans into a false binary between certain fans of Celtic and Rangers who use games to vent bile and bigotry, and most other types of fans who merely want to attend games free from any 'banter' or offensiveness. This was not evidenced in our research. Many otherwise relatively sedate fans often talked nevertheless about enjoying the atmosphere created by younger fans who were engaged in singing and 'banter'. Whilst one comparatively 'middle-class' focus group of fans from the East of Scotland described motivations for going to games that clearly gave primacy to songs and to 'winding up' the opposition (including 'wind-ups' that actually fell squarely within the reach of the Act). Winding up the opposition might certainly be argued to be a fairly deeply-rooted aspect of football 'fandom'. The question is whether, and when, 'winding-up' oversteps a certain line, when it becomes unacceptably offensive and/or threatens disorder. What our fan focus groups certainly demonstrated is that it is not always straightforward to define where this line sits, or indeed to preclude the possibility that otherwise law abiding fans might occasionally inadvertently cross such a line. In these instances, some element of discretion and dialogue between the police, stewards and fans seemed helpful, and in particular self-policing amongst fans as a mechanism to ward off the emergence of clearly offensive behaviour.

5.5 Fans and stakeholder participants alike therefore at times seemed to create an artificial binary between behaviour that merited no attention and behaviour that fell within the remit of the criminal law. In reality, such a dichotomy masks the fact that there is a sliding scale of offensiveness that requires the involvement of fans and clubs before, and/or as well as, criminal justice agencies, and that would recommend the use of other non-criminal remedies and sanctions for behaviour that falls in this problematic middle ground.

5.6 There was strong evidence to show that the Act in the short term had created an atmosphere of mistrust and tension between the police, stewards and some fan groups. In this research it was notable how often indeed fan groups, who conventionally had nothing to do with the violent risk groups that engaged in traditional football 'hooliganism,' were often referred to in terms of being 'risk groups'. This widening conception of football fans in terms of 'risk' seemed unhelpful. It could be argued that the Act was always going to attract hostility in some quarters because it attempted to tackle long-standing and long-cherished behaviours that had gone comparatively unchallenged. However, it would seem critical going forward that relations between fans, clubs, stewards and the police are appreciably improved, as constructive relations are critical both in terms of the enjoyment of the match day experience, but also if match days are to remain safe occasions. There is a substantial and distinguished repository of academic research that has persuasively evidenced how order is better maintained at football if the police have a good relationship with the majority of fans, and adopt where possible a less confrontational 'public order' style of operation, working with fans to self-police (Stott et. al., 2012; Hoggett and Stott 2010; Stott and Pearson 2007). This indeed is a style of policing that Scotland has traditionally had a reputation for excelling in, and we should be reluctant to relinquish it.

5.7 One final means through which one might judge the 'success' of the Act is in terms of the number of convictions. Here of course there has been a recent fall in the rate of convictions. What is behind this fall is open to question. Some of our judicial respondents did comment that there were issues with the quality of evidence, although whether this indicates some issue with official capability further down the criminal justice 'pipeline' or whether it in fact indicates that more difficult or more controversial cases are now being brought to court, is unclear. A low conviction rate might also be problematic for the credibility of the Act. Many of the section 1 charges are for comparatively less-serious behaviours, and in such cases it is open to question whether it is fair or proportionate to subject charged individuals to long periods of uncertainty (often combined with quite stringent bail conditions) when the probability of being found guilty is comparatively quite low^[69]. Here, it may be prudent particularly for less serious charges - to consider faster, diversionary measures, leaving the full weight of the criminal process (with its attendant cost implications and further burdens on the criminal justice system) to more serious offences.