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

5. Potential barriers to use of section 6

66. Chapter 4 examined the impact and possible deterrent effect section 6 had achieved. From the Scottish football supporters survey there were indications that the Act had achieved some level of a deterrent effect (albeit with some reservations as to what behaviours it had targeted and how proportionately it had been used). Many justice system practitioners also thought there had been a deterrent effect, primarily due to high profile prosecutions of threatening communications and a lack of Rangers and Celtic inter-league rivalry. These findings may partly explain why section 6 charges are low in overall number but it may be possible that there have been issues regarding its enforcement by justice system practitioners (e.g. it has been underused).For this chapter the potential barriers to the use of section 6 are examined through the perspectives of justice system practitioners.

Awareness of section 6

67. Overall knowledge and understanding of the purpose of section 6 among the front-line police officers who were involved in this evaluation was varied. There are a number of reasons as to why this may be the case.

68. As the Act was only introduced in March 2011 only one officer involved in a section 6 case had received training on the Act at Scottish Police College at Tulliallan.

69. For the majority of officers their initial introduction to the Act was done so via internally cascaded standard information packages (i.e. emails and PowerPoint presentation attachments). However, due to the large amount of information officers receive daily - pertaining to new pieces of legislation, initiatives, policies, etc. - officers interviewed for this research described how they 'filter out' what they perceive to be less relevant to their specific duties and zone-in on what they believe will be. This is an inevitable process and forms part of an officers necessary prioritisation of tasks. As such, for those who were not involved in football, and even some who were, the Act was not seen by many officers as being directly pertinent to their responsibilities.

You maybe get a [email] link [containing training or information updates] but to be honest we're may be getting 10 a day. You're never going to cope with that, and that's everything from your vulnerable persons' database changes to your standing operating procedure changes to new legislation that's coming - you cannot be expected to retain and deal with that, plus you've got to answer your calls. (Police Officer).

You can't possibly keep up to date with it and that's the reality of the matter. You just can't keep up with it. (Police Officer)

70. Low numbers of section 6 cases mean that inevitably justice system practitioners will rarely have first-hand experience of using the legislation, something that forms an important aspect of practitioners education. This also reduces the opportunity for peer-to-peer learning and knowledge dissemination. A court case precedent to draw from was also reported to lead to lower confidence in using the legislation. The result may be a reluctance in the first instance to use section 6 and a desire to use more 'tried and tested' pieces of legislation.

With any new legislation there is sometimes a lack of confidence using it, because you don't want to be the person that took an offence where all the evidence was there, charged it as something else not realising that there was a specific requirement. (Football Liaison Procurator Fiscal)

That's one big thing with cops. If you're not doing it day in and day out then there's a reluctance to get yourself involved because you're not sure and you've not got that confidence and stuff like that… cops always revert to what's easy sometimes. (Police Officer FoCUS)

71. The role of FoCUS was cited by many justice system practitioners as being particularly helpful in overcoming any knowledge gaps pertaining to section 6, particularly for front-line police officers, by providing information and advice in a number of cases where an officers needed assistance. Increased training and knowledge dissemination of section 6's purpose and uses may help address many of these issues, however a lack of hands-on experience and peer-to-peer learning is unavoidable until the use of section 6 has become more widespread.

Misinterpreting the intent

72. Being part of an Act that is designated for use specifically in a football related context (section 1) appears to have influenced some officers understanding of the applicability of section 6 with a perception that it would only be relevant where football or sectarianism were present. It was believed that existing legislation, specifically section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and section 127 of the Communications Act 2003, would cover all other contexts of threatening communications.

Something like this is really only applicable to football matches. (Police Officer)

See the word 'religious'? That's the word that was very important for this case and for other cases, so there's no point if a husband and wife fought and the husband makes a comment then that's not stirring up hatred on religious grounds. That's domestic stuff and we use the Telecommunications Act - so I think the words 'religious grounds' is very specific to section 6 and unless there is a religious element then that legislation will never be used. (Police Officer)

73. Concerns were also expressed that the threatening communications part of the Act may even be 'hidden' behind the first part of the Act, offensive behaviour at football.

I think a lot of the problem is that because it says at the start of it 'offensive behaviour at football.' I think that they automatically think that it's only to do with football because when I certainly looked at it the first time I was thinking that. It's threatening communications separate from the offensive behaviour at football so I don't know they wouldn't consider just making it two separate Acts, and if they did that then it wouldn't be quite as ambiguous. (Police Officer)

74. Such misunderstanding and lack of awareness may have contributed to section 6 being underused in certain circumstances (e.g. domestic abuse situations). COPFS were also in agreement that section 6 could have wider applicability if there was increased awareness of its purpose and powers^[19].

The high legal threshold

75. Several justice system practitioners commented that section 6 had a very high legal threshold. For example, 2(a) of section 6, outlines that an offence is committed if a person communicates material to another person and 'the material consists of, or 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' - whereas section 38 (1)(a) of the Criminal Justice and Licensing (Scotland) Act 2003 states that an offence is committed if a person 'behaves in a threatening or abusive manner'.

I can imagine circumstances where you would have a threat of violence and as a prosecutor you would say 'I don't want it to fall down on that, so I'm not using this section because I'm not sure it's a threat of a seriously violent act. I'm comfortable it's a violent act but I'm not sure this is seriously violent.' (Football Liaison Prosecutor)

For a section 6 it's something you do really need to sit and think about. Have we reached that benchmark? Have we attained that level of threat to be able to libel it a section 6 and there's still 99% of the time you're struggling to reach that mark. (Police Officer FoCUS)

76. Concerns were also raised by COPFS representatives regarding part (i) and (ii) of 2(c) of section 6 which states that the person communicating the material has committed an offence if they either intend to cause fear or alarm, or are reckless as to whether the communication of the material would cause fear or alarm. Proving intention to cause fear and alarm was considered more straightforward (e.g. one person sending a threatening communication directly to another person on Twitter) however it was thought to be more problematic prove that someone was being reckless (e.g. when an indirect threat is shared on a Facebook page but does contain a link to a specific person or is sent as a direct message).

If you send [a threatening communication] to Neil Lennon and that's what it says, intention: easy. If you send it to your three best school mates, who you're always making jokes with, if you don't think they're going to be placed in a state of fear or alarm by it then arguably the prosecution have to prove that there is a likelihood that they will forward it to other people, in which case you have started that chain and therefore might be liable for it. Or that there is a likelihood that by sending it to those people, other people become aware of it, and that's a difficulty. (Football Liaison Procurator Fiscal)

Subsection c I think is the biggest barrier because where something is posted on the internet, you're posting on a public forum sometimes, it depends on somebody's mind-set as to what they think a public forum is. So, Facebook, some people's understanding is that 'this will be seen by my friends and no one else', might be right, might be wrong. Twitter, if you are Jon Snow, millions of followers then you expect that anything you post on Twitter is out there for the world to see. If you're Jim Smith that's got ten followers, do you in your head think the things you post on Twitter are going to be seen by the world? Probably not. (Football Liaison Procurator Fiscal)

77. The majority of justice system practitioners believed that the high legal threshold of section 6 meant that the majority of cases involving comparatively less serious threatening communications - those which encompass the majority of such threats - would continue to be prosecuted by existing legislation (i.e. section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and section 127 of the Communications Act 2003). For these respondents, section 6 represented an additional as opposed to a replacement charge, but is one that would most likely be used only in exemplary cases.

Evidence gathering

78. It was noted by many justice system practitioners that gathering evidence that would be sufficient to increase the chance of a successful prosecution was challenging for some section 6 cases, particularly where a threatening communication was made via an electronic device onto a social media host site.

79. Some practitioners struggled with understanding the contexts of contemporary electronic communications, particularly those which can be a combination of different mediums (text, audio, video, images), hosted on multiple sites (Facebook, Twitter, YouTube, Snapchat, Whatsapp, Skype, Instagram etc.) and transmitted from various devices (desktops, laptops, games consoles, tablets, phones). The speed of growth^[20], rapid evolution^[21] of these sites, and the emergence of new categories of threatening communications (e.g. 'revenge porn') even in the time since the Act was introduced, further exacerbates this issue. In comparison to more 'conventional' forms of communication - letters, phone calls - which viewed as being more straightforward cases to deal with, this milieu of internet-based communications were seen as more ambiguous, with a gradation of threat level. In these complex situations, justice system practitioners would have to draw on what training and experience they had, as well as their 'common sense', to make a decision based on a case-to-case basis.

80. For COPFS practitioners it was seen as being a significant asset for the prosecution's case if the accused had admitted at police interview stage that they were indeed the person who sent the threatening communication. This was particularly true with cases involving internet based communications, (and internet based crimes in general) where managing to infer that someone was the sender without a confession was a considerable hurdle for prosecutors to overcome.

81. Police officers also described how gathering evidence for section 6 cases where an electronic device was used was potentially a complex and difficult process due to the issues associated with gaining access to, and information from, organisations and service providers that are substantial in size and international in scope. This was the case for internet crime in general and not just related to section 6 offences.

82. It should be noted that many of the concerns highlighted above relate to not only section 6 but internet-based crime in general. Almost all justice system practitioner respondents stated that they believed the increasing frequency and complexity of such crimes will have potentially significant knock-on effects for the justice system. In such circumstances, section 6 may become more and more relevant.

Summary

• Overall awareness of the Act among justice system practitioners respondents was varied. This may be due to: lack of suitable training of justice system practitioners; misinterpretation of the purpose of the Act (believing it to be football related only); and lack of hands-on experience.
• Respondents commented that the high legal threshold of section 6 meant that existing legislation would remain appropriate for the majority of cases involving threatening communications - section 6 represented an additional as opposed to a replacement charge, specifically one that would most likely only be used in extreme cases.
• Gathering sufficient evidence that would lead to a successful prosecution was challenging for some section 6 cases. This was particularly the case where a threatening communication was made via an electronic device onto a social media host site and there was no admission of guilt from the accused.