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

3. Use of section 6

33. This chapter outlines the number, nature and outcomes of the section 6 charges, as reported to the COPFS and published by the Scottish Government, between March 2012 and March of 2014.

34. During this time period there were 33 charges^[16]; 5 charges in 2011-12 (1 month), 19 in 2012-13, and 9 in 2013-14. This is a comparatively low number compared to charges under section 1 of the Act for the same period (538^[17]).

35. The section of the evaluation provides some basic information on the specifics of the section 6 charges (offender demographics, the nature of the offence, and the disposals). However due to the low number of section 6 charges, more detailed analysis and extrapolations of trends and how the Act has been used - which would ideally be included in this section of the evaluation - is not possible because of risk of disclosure of personal details.

36. The chapter also considers the opinions of justice system practitioners on the section 6 cases they were involved with.

Trend in charges reported in 2011-12, 2012-13 and 2013-14

Age and sex of the accused

37. Of the 33 charges reported by the police to COPFS, there were 25 male and 8 female accused. Twenty-three of accused were aged between 16 and 30 at the time of the charge; 3 were under 16 years old , 3 were aged between 31-40 , 3 were aged between 41-50 , and 1 was over 61.

Charges related to football

38. Fifteen of the total section 6 charges (45%) were reported to be related to football in some manner (i.e. the police report contained mention of either the accused as having an affiliation to a particular football club, the victim being related in some way to a football club, or the offence having occurred at a football club's stadium). One of these was in 2011-12, 8 were in 2012-13, and 6 were in 2013-14.

39. Of those section 6 charges where football affiliation of the accused was noted, Rangers and Celtic supporters featured in charges more than any other group of supporters.

40. Four of the section 6 charges included reference to religion, 2 included a racial element, and 4 referenced support of a terrorist group^[18].

Method of abuse

41. Twenty-four of the 33 section 6 charges (73%) were made via at least one form of internet based communications: 13 were on Twitter (39%); 9 were on Facebook (27%); and 3 were on YouTube (9%) (Total charges is higher than 33 due to 1 incident where a threat was made using more than one method of communication.) Of the other charges of threatening communication, 7 made via letter (21%); 1 was on a banner (3%); and 1 was a text message (3%). Table 1 shows the method of communication used in the section 6 charges.

Table 1: Number of s6 offences by method of abuse

The victims

42. Out of the total section 6 charges, 27 had a specific victim of the offence; 14 of these victims were workers (e.g. bar staff or security steward) and 13 were members of the public.

Disposals

43. Court proceedings have been completed in 9 of the 33 charges. Official 'criminal proceedings' data published by the Scottish Government for the 3 financial years of this research 2011-14, showed that 8 resulted in convictions (a conviction rate of 89%). Three of the accused were given monetary penalties, 2 were given community payback orders, 2 were admonished, and 1 received a custodial sentence. One of the accused was accepted as not guilty.

44. With such low numbers further analysis of these offences is not possible. What these low numbers do indicate however is that section 6 is not a widely used charge, or that some relevant threating communications behaviours are not being identified or reported under this charge. The views of practitioners on this question are explored in section 5.

Justice system practitioners' views on implementation of the legislation

45. Given the low numbers of section 6 charges, there is little experience amongst justice system practitioners of using the legislation.

46. Police respondents who had experience of using section 6 had done so with incidents of threatening communications that they perceived were relatively straightforward - section 6 was deemed as an appropriate charge in these circumstances. For example, they were satisfied that the incidents of offending communication they had dealt were not just abusive - making it appropriate for prosecution by existing legislation - but fitted the definition of section 6 i.e. the communications consisted of material that contained a threat of serious violence that was designed to have had, or was likely to have caused, fear or alarm to a reasonable person.

47. COPFS respondents were satisfied that section 6 has gone some way to addressing threatening communications made over social media, an area in the existing legislation that was previously identified as potentially being insufficient. For example, it was believed that subsection 3, which states that an offence is committed if a communication contains an image (whether still or moving) that depicts or implies a seriously violent act against a living, dead or fictitious person, and a reasonable person would consider this image to imply the carrying out of this seriously violent act, may make it easier to prosecute persons who had posted such images on social media sites.

48. COPFS representatives were also satisfied that the inclusion of the freedom of speech clause, coupled with the use of 'common sense', would sufficiently guard against prosecutions being brought against the freedom of expression, a major concern raised during the consultation of the Act.

Summary

• Between March 2012 and March of 2014 there have been 33 section 6 charges: 5 charges in 2011-12 (1 month), 19 in 2012-13, and 9 in 2013-14.
• Of those accused of committing a section 6 offence, the majority were male (25) and the majority were aged between 16 and 30 (23).
• Fifteen of the section 6 charges were recorded to be related to football in some capacity (45%). Four section 6 charges included reference to religion, 2 included a racial element, and 4 referenced support of a terrorist group.
• Twenty-four of total section 6 charges (73%) were made been made via at least one form of internet based communications: Twitter (13), Facebook (9), and YouTube (3). Seven were made via letter, 1 was on a banner, and 1 was a text message (3%).
• Out of the total section 6 charges, 27 had a specific victim of the offence; 14 of these victims were workers (e.g. bar staff or security steward) and 13 were members of the public.
• Court proceedings have been completed in 9 of the 33 charges. Of these 9, 8 have resulted in convictions (a conviction rate of 89%); 3 of the accused were given monetary penalties, 2 were given community payback orders, 2 were admonished, and 1 received a custodial sentence. One of the accused was accepted to be not guilty.
• Given the low numbers of section 6 charges, there is little experience amongst justice system practitioners of using the legislation.
• Police respondents who had experience of using section 6 had done so with incidents of threatening communications that they perceived were relatively straightforward - section 6 was deemed as an appropriate charge in these circumstances.
• COPFS respondents were satisfied that section 6 has gone some way to addressing threatening communications made over social media, an area in the existing legislation that was previously identified as potentially being insufficient.