An evaluation of Section 6 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012

1. Introduction

1. The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 (hereafter referred to as 'the Act') was passed by the Scottish Parliament on 14 December 2011, received Royal Assent on 19 January 2012 and came into effect on 1st of March 2012. One of the main objectives of the new Act, through provisions made in section 6, is 'preventing the communication of threatening material, particularly where it incites religious hatred'^[4]. To achieve this objective section 6 of the Act criminalises the communication of material that contains or implies a threat, or an incitement, of a serious violence and threats which incite religious hatred. The Act also seeks, through provisions made in section 1, to prevent offensive and threatening behaviour related to football matches - this is the focus of a separate evaluation.

2. This report presents findings of an evaluation of section 6 of the Act. The evaluation was conducted by Neil Davidson of the Justice Analytical Services division of the Scottish Government.

3. This evaluation is predominately based on qualitative research methods (e.g. face-to-face interviews) but also includes analysis of Crown Office and Procurator Fiscal Service (COPFS) data and findings from an online survey, conducted by ScotCen Social Research. This survey sought the opinions of supporters of Scottish football clubs focussing on their experiences during the two football seasons between 2012 and 2014.

Background

4. During the football season of 2010-11 a series of threatening communications were made that were seen as linked to the wider set of issues of disorder in and around football games, particularly in relation to the two main Glasgow based teams Celtic and Rangers.

5. After one game^[5] between these two teams a "summit" was called to address issues that had become particularly high profile in the previous few months. Around this time the former Celtic manager, Neil Lennon, was the target of death threats and was sent live ammunition in the post, and was the subject of several malicious social media sites. The police also intercepted parcel bombs sent to Lennon, Paul McBride QC and MSP Trish Godman (both high profile Celtic-supporting Catholics), and to Cairde na hÉireann, an Irish Republican group based in Glasgow.

6. In June 2011, the Scottish Government published proposals for legislation designed to deal with threatening communications. The intention was to fast-track the Bill through Parliament as an Emergency Bill to allow the legislation to be in place for the start of the 2011-12 football season - this process was delayed in order to allow for a longer consultation period and a debate in parliament to address concerns raised by the Bill's opponents. The Act and legislation was introduced in March 2012, towards the end of the 2011-12 football season.

7. The Act created two new criminal offences. Section 1 of the Act criminalised a range of offensive and threatening behaviour including religious, racist, homophobic and other offensive behaviour, at or in connection with football matches. Section 6 of the Act criminalised threatening, or inciting, serious violence and threats which incite religious hatred. Unlike the rest of the Act, section 6 is not confined to offences connected to football.

8. In creating the new legislation the policy memorandum^[6] stated that the Scottish Government's objective was the prevention of the communication of threatening material, particularly where it incites religious hatred. The memorandum also stated that by creating a specific offence, and an imposition of a 5 year prison sentence on the most serious offenders, the Act would 'bring clarity to the law in this area, send a clear message that such behaviour is unacceptable' (Scottish Government, 2011 ibid, p8).

9. The two classes of threat that section 6 was introduced to deal with are a) threats of serious violence, and b) threats intended to stir up religious hatred, whether or not they involve threats of serious violence. Both threats are weighted equally.

10. A threat of serious violence is defined as where a person communicates material to another person, and the material consists of, contains or implies a threat, or an incitement, to carry out a seriously violent act against a person or against persons of a particular description. The offence is committed where that communication would cause a reasonable person to suffer fear or alarm, and the accused either intended to cause such fear or alarm, or was reckless as to whether the communication of the material would cause such fear and alarm. The communicated material applies to text, images, video and recorded sound (unrecorded speech is not included), communicated by any means (such as by post, on leaflets or posters or posted on the internet).

11. Threats 'intended to stir up religious hatred' are defined as hatred against a person or group of persons based on their membership of a religious group^[7], or of a social or cultural group with a perceived religious affiliation. It brings Scotland into line with England and Wales, where threats intended to stir up religious hatred have been criminalised since 2006^[8].

12. A person guilty of an offence under section 6 is liable on conviction to a fine, imprisonment for a term not exceeding 5 years, or to both. Summary conviction can lead to a fine, or imprisonment for a term not exceeding 12 months, or to both.

13. Additional prosecutorial resources, specifically three regionally-based Football Liaison Prosecutors within the COPFS were introduced to coordinate and oversee all football-related prosecutions. The Football Coordination Unit for Scotland (FoCUS) were also tasked with helping implementing the new law by providing national level specialist training and resources, and to compliment and assist local level policing.

Passage of the Act

14. Submissions were sought on the Act during the consultation period. Key concerns raised by these submissions were addressed by the Justice Committee^[9] and during Parliamentary debates. The majority of the concerns were in relation to Section 1 and are therefore not relevant to this evaluation of section 6 of the Act. Furthermore, most commentators were in agreement that threatening communications were a cause for concern and therefore supported the principles of the legislation in general - the issues instead were regarding various details of section 6. The main issues raised are discussed below.

The need for new legislation

15. Many people/groups expressed the opinion that they were not convinced gaps existed in previous laws - this new law would merely be duplication and serve little purpose. Defending the necessity of the powers, the COPFS^[10] cited the limitations in the existing legislation, particularly the wide range of ways in which such threatening behaviour can be expressed (e.g. social media). It was highlighted that, for example, existing legislation does not always cover situations where the threatening communication offences occurred in private contexts (common law offence of breach of the peace), where the intentions of the accused to carry out the threat made were uncertain (common law offences of uttering threats and incitement), where the threats were inciteful of religious hatred (section 38 of the Criminal Justice and Licensing (Scotland) Act 2010) and where these threats were indirect e.g. on social media networks, rather than as direct messages (section 127 of the Communications Act 2003).

Freedom of Speech

16. Concerns were raised that section 6 had the potential to infringe upon freedom of speech. Religious groups such as the Christian Institute were particularly concerned about the possible ramifications section 6 had for expression of religious beliefs. In response to these concerns the Bill was amended at Stage 2 to include the provision that Condition B - stirring up hatred on religious grounds - does not prohibit or restrict certain behaviours that would be protected under existing rights to freedom of expression. It was also highlighted by both the Lord Advocate's Guidelines^[11] and the Act's accompanying 'explanatory notes'^[12] that the communicated material must be intended to cause fear or alarm (or is communicated with recklessness as to whether fear and alarm is caused) for an offence to be committed. This would therefore ensuring that depictions of death or injury in art, literature, the theatre, film, video games, or similar cultural or dramatic contexts, and threats made in jest that no reasonable person would find alarming are not caught by the offence.

Sentencing

17. The Committee was concerned about the introduction of the legislation being a catalyst for drawing children and young people into the ambit of the criminal justice system or the Children's Hearing system. ChildLine in Scotland also expressed concern that this sort of legislation was not necessarily the best way of dealing with issues like cyber-bullying and felt that only exceptional cases should be referred to the Children's Hearings System.

18. Individuals/groups felt that it should be noted that there are different context for different behaviours, and that the context of the communication needs to be considered before charges are made. The Committee were also concerned that people may have a different concept of appropriate conduct in semi-public web forums compared to in other communicative mediums. It was acknowledged that identity may be managed in different ways in the 'real world' and online, therefore it was felt that it may not always be appropriate to treat communications in these spheres of life in the same way.

Enforcement

19. Several issues were raised in relation to the potential technological challenges involved in policing threatening communications, specifically the practical concerns about tracking online communications, finding the sufficiency of robust evidence to make a conviction, and the need for the jury to be properly informed of the risk of evidence being unreliable. Police representatives also sought assurances that appropriate resources and funding would be provided to deal with any increased workload in order to prevent having to divert front-line resources from elsewhere.

20. In setting out the case for the Bill, the Government did not seek to quantify the current costs of dealing with such offences nor of the wider costs of dealing with online crime more generally. However it did re-emphasised that much of the behaviour that section 6 covers is already criminal and liable to prosecution anyway, meaning that the additional cost of the Act's provisions were estimated to be relatively limited.

Extraterritoriality

21. There were concerns expressed about the extraterritorial scope of the Bill. Section 6 provides that an offence may be committed by a person outside of Scotland who is a British national but also includes 'any person from outside Scotland if the person intends the material communicated to be read, looked at, watched or listened to primarily in Scotland.' Although examples of collaboration between international policing institutions to deal with of offences committed online do exist (e.g. cases involving paedophilia) there is potential for such cases to be labour intensive due to foreign communications and the multitude of foreign data protection and investigatory laws of the foreign jurisdictions

22. Given the absence of clear national barriers online, the Committee commented that it expected the use of section 6 in such circumstance to be restricted to exceptional cases where it is considered in the national interest to pursue a conviction and there was reasonable prospect of it being successful. Similarly the Lord Advocate's advice states that 'given the practical and logistical difficulties of investigating and prosecuting a crime that occurred outside Scotland, a careful and measured approach must be taken and the authorities in the place where the offence occurred should ordinarily have primary jurisdiction.'^[13] .