Hate crime legislation independent review: consultation (non-technical guide)

Chapter 7: Offensive behaviour at football

The purpose of the 2012 Act and its possible repeal

The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 (“the 2012 Act”) came into force on 1 March 2012. Section 1 creates the offence of “offensive behaviour at regulated football matches”. It was introduced against a background of certain football related events in 2011, which are described in detail in the full paper. Since its introduction there has been significant opposition to the Act. On 21 June 2017 James Kelly MSP introduced a member’s Bill in the Scottish Parliament to repeal it. Given the cross party support among opposition parties and the parliamentary arithmetic, there is a prospect that the Act will be repealed.

The Act was targeted at:

“…a small often determined minority for whom provoking, antagonising, threatening and offending are seen as part and parcel of what it means to support a football team. Whatever their motivation, this Bill seeks to demonstrate that such a view is mistaken and will no longer be accepted.” (Policy Memorandum paragraph 12)

While recognising that disorderly and offensive behaviour at football matches could, in certain circumstances, be prosecuted under the existing law, the government was concerned that a substantial proportion of offensive behaviour related to football which led to public disorder was not explicitly caught by the pre-existing law. It considered that the offence would serve to clarify rather than complicate the law and would provide reassurance to the public. It would send a clear and powerful signal to football fans and the public more generally that such behaviour at football matches was simply unacceptable. It would also mean that the offender’s criminal record would clearly show that he or she had engaged in offensive behaviour specifically related to football, rather than to any more general offence.

In addition, the government considered that there was no evidence of a significant problem in relation to sports other than football and decided that the new offence should apply only to football matches. It was also to apply to problems of disorder outside stadia and on the way to and from matches on public transport and in the streets as well as in pubs and other venues where matches were being televised.

Those who support repeal of the Act say that it is illiberal, confusing and unclear. They argue that the public do not understand what is, and what is not, allowed, and it is liable to be unfair and arbitrary in its application.

The second main criticism of the operation of the Act is that section 1 unfairly targeted football supporters and meant that the law treated exactly the same (sectarian) behaviour differently if it took place in relation to a football match than if it occurred in any other situation.

The approach of the Scottish Premier Football League Limited ( SPFL) and the Scottish Football Association ( SFA)

Each of the SPFL and the SFA has an identical code and a similar structure for dealing with “unacceptable conduct” in relation to the football matches falling within its jurisdiction. Over the years these have undergone revision.

Unacceptable conduct includes conduct which stirs up hatred against the following: female or male gender; colour, race, nationality (including citizenship) or ethnic or national origin; membership of a religious group or of a social or cultural group with a perceived religious affiliation; sexual orientation; transgender identity; and disability.

The rules require that every club must ensure, so far as is reasonably practicable, that its supporters do not engage in unacceptable conduct at the stadium on the occasion of an official match; and it must takes steps to identify and discipline any of its supporters who engage in unacceptable conduct. These could include, for example, confiscation of the person’s season ticket, or exclusion from club buses. If a club fails to do this, a range of sanctions can be imposed. These range from a warning as to future conduct to expulsion from the League.

For the 2017-2018 football season particular stress has been placed on the responsibility of each club to maintain discipline among its supporters. Clubs will be expected to take steps, including examining CCTV footage, to identify anyone engaging in unacceptable conduct such as singing sectarian songs. It is expected that such people will be disciplined, for example, by being deprived of their season ticket. Clubs must report incidents to the football governing bodies.

We were advised that some clubs considered it would be useful when dealing with unacceptable conduct if they could make an application to a court for a football banning order. A person who is subject to a football banning order is prohibited from attending football matches for a set period. Such an order could apply, even if the person banned has not committed an offence, if the court thinks that the person has been involved in violence or disorder in the past and that banning the person would help to prevent future violence or disorder at football matches. This would be similar to the law which allows the police to apply to the court for such an order. We shall return to this issue later in the chapter.

Views of fans’ groups

Some of the fans’ groups to whom we spoke are sceptical about how well the rules will operate in practice.

The view was expressed to us that many fans did not understand the 2012 Act or how it worked in practice. There was a lack of clarity about what was, and was not, acceptable. While most fans understood that certain forms of behaviour were clearly unacceptable and other forms of behaviour were clearly acceptable, the difficulty arose in making decisions about the middle ground. Who should decide what was offensive? More clarity was required. Some contrasted the vagueness of the 2012 Act compared with the specific list of songs which had been compiled by UEFA and which were not permitted to be sung. The groups expressed the view that it was not appropriate to have legislation which targeted football and football supporters in a specific way. There had been a very recent incident on an Orange march in Glasgow where spectators to the march had been filmed singing “The Famine Song” and the video had been posted on social media. It was noted that nothing had been done to stop that at the time of the march. Fans did not like double standards and there was a risk that they would lose their faith in a system where behaviour was tolerated elsewhere but not at football. This was reflected in surveys of fans.

Approach of the review

It is clear that the progress of the member’s Bill through the Parliament is likely to coincide with the consultation period of the review and perhaps extend beyond it. The Justice Committee has issued a call for evidence and will begin to consider the repeal Bill during the period that this consultation exercise is ongoing. No doubt that parliamentary process will inform and assist the consultation exercise. While the issues which are likely to emerge in the arguments as to whether or not the 2012 Act should be repealed overlap with those raised in the review consultation in relation to section 1, they are not exactly the same. It is important to understand that not all the behaviour covered by section 1 falls into the category of hate crime motivated by prejudice. In addition, some of the broader arguments advanced in favour of repeal may be outwith the remit of the review.

The review will therefore consider how the law should best deal with the type of hate crime behaviour covered by section 1 in parallel with the Parliament’s consideration of James Kelly’s repeal bill. The final recommendations made by the review will take into account the law as it exists or is anticipated at that point.

Evidence of conduct prosecuted under section 1

Based on the information provided to us in the fact-finding phase and the recently published statistics by the Scottish Government we found that there were three broad categories of behaviour which have consistently given rise to offences under section 1 since its introduction:

• threatening behaviour;
• behaviour which expresses hatred of various groups, stirs up hatred or is motivated by hatred. The groups are based on religion, race, sexual orientation, transgender identity and disability, but the significant majority of cases involve religion. Generally, this behaviour involved singing, speech, the waving of banners and making of gestures;
• other offensive behaviour. This generally involved singing, speech, the waving of banners and making of gestures all in support of proscribed terrorist organisations such as the IRA or the UVF.

The police and courts tend to deal with the use of pyrotechnics as culpable and reckless conduct rather than using the section 1 offence.

Offences in the first category, those involving threatening behaviour, do not generally fall within the remit of this Review. We were told, for example, that most of the cases following the disruption after the 2016 Scottish Cup Final between Hibs and Rangers were related to threatening behaviour and involved no obvious prejudice. Another example given was an altercation within the crowd over seating arrangements: this could amount to threatening behaviour. Offences in the two other categories described above do come within the remit.

“In relation to a regulated football match”

The offence applies to behaviour “in relation to a regulated football match”. This applies in the ground where the match is being held but also while the person is entering or leaving or trying to enter or leave the ground, or on a journey to or from the match. A journey includes breaks, including overnight breaks. It also includes premises, such as a pub, where the match is being televised.

The statistics show that the majority of the cases prosecuted related to behaviour within the stadium. A minority of cases involved behaviour outwith the stadium. Very few cases came from pubs in which the match was being televised. Some incidents occurred on trains on which fans were travelling to matches.

The approach in other parts of the UK

There are laws in force in England and Wales and Northern Ireland which specifically relate to “chanting”. Chanting is defined as meaning the repeated uttering of any words or sounds, whether alone or together with others. In England and Wales the target is chanting of an indecent or racialist nature, while in Northern Ireland the chanting may be of an indecent nature, a sectarian or indecent nature, or consists of or includes matter which is threatening, abusive or insulting to a person by reason of their colour, race, nationality (including citizenship), ethnic or national origins, religious belief, sexual orientation or disability. We wish to consider whether anything is to be learned from these provisions for application in the Scottish context.

Conclusion on type of conduct prosecuted under section 1

When the threatening behaviour charges are left out of account (as explained above, these do not come within the remit), the history of the operation of section 1 of the 2012 Act makes it clear that the remaining charges have overwhelmingly been of a sectarian nature. The conduct giving rise to these charges comprised singing, speech, waving of banners and making of gestures. The charges which were brought involved either the expressing or stirring up of hatred of religion, or offensive behaviour by glorifying proscribed terrorist organisations.

Question:
How clear is the 2012 Act about what actions might constitute a criminal offence in the context of a regulated football match?
Should sectarian singing and speech, and the waving of banners and making gestures of a sectarian nature at a football match be the subject of the criminal law at all? If so, what kind of behaviour should be criminalised?
Does equivalent behaviour exist in a non-football context?
If so, should it be subject to the same criminal law provisions? Please give reasons for your answer.

Application of section 1 to conduct outwith Scotland

The 2012 Act permits prosecution in Scotland of an offence under section 1 committed outside Scotland by a person who usually lives in Scotland. This provision was used in a case in Glasgow in 2013 when a person was prosecuted in the Sheriff Court for singing offensive songs at a football match in Berwick between Berwick Rangers and Rangers.

Question:
Is it beneficial to be able to prosecute in Scotland people who usually live in Scotland for offences committed at football matches in other countries? Please give reasons for your answer.
Should a similar provision apply to non-football related hate crime? Please give reasons for your answer.

Diversion

Diversion schemes are voluntary schemes which can be used, where the COPFS considers it appropriate, in place of prosecution. If a person agrees to attend such a scheme and completes it satisfactorily, the prosecution does not go ahead. One such scheme relates to offences such as offensive singing. The community justice organisation, Sacro, operates a nationwide scheme for young people (aged 12 and over) charged under the 2012 Act. Under the scheme, young people can be offered diversion from prosecution in the form of a structured programme based on behavioural and attitudinal change, using Cognitive Behavioural Intervention techniques. The sessions support the individual to understand why they behave in a specific way and take ownership of their attitude and behaviours to ensure positive changes so as not to repeat the offence. It was suggested to us that this was the preferred course of action in relation to people with offending behaviours where violence was not involved and it was considered that a football banning order was not necessary. The requirement of the scheme was that the person should voluntarily attend and successfully complete it. If they did not do so then they could still be prosecuted.

The use of systems which allow for diversion from prosecution is discussed in more detail in chapter 9.

Football Banning Orders

Where a person commits an offence involving violence or disorder at a football match, or in some way associated with a football match, the sentencing court may impose a football banning order prohibiting the person from attending any regulated football matches in the United Kingdom and even abroad. The ban may be for periods of 3, 5 or 10 years, depending on the circumstances. Where a person is convicted under section 1 of the 2012 Act a football banning order is usually imposed. A ban can also be imposed for other offences involving violence and disorder. It has been suggested that football banning orders are an effective deterrent as supporters do not wish to be prevented from attending matches.

It is also possible for the police to apply to the court for a football banning order for someone who has not committed an offence. These are not common. This applies if the court thinks that the person has been involved in violence or disorder in the past and that banning the person would help to prevent future violence or disorder at football matches. Some football clubs have expressed the view that a similar provision which would allow a football club to apply for a football banning order would be a useful tool in maintaining discipline as required by the governing bodies of football.

Question:
Should a football club be able to apply to the court for a football banning order? Please give reasons for your answer.