On Thursday 6 October the Justice Committee of the Scottish Parliament issued its stage 2 report into the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill.  The history of this Bill has been covered on this site before and it is safe to say that almost all of what has been written to date here has been criticising the contents of the Bill.  This is the first part in a three-part series of articles examining the Bill in light of the Justice Committee’s report.  This part will briefly look at the general background before concentrating on the Section 1 offence.  Part 2 will focus on the Section 5 offence while Part 3 will focus on more general observations and the wider issues ignored by this Bill.

There is no doubting that the general principles of the Bill are to be commended.  The problem of sectarianism is a generational problem that causes huge problems within society.  It blights the communities in which the people of Scotland live and is at the centre of a lot of football related crime.  However, there are serious questions still remaining with this Bill and it is quite clear that it is not anywhere near ready to be added to Scots law.

The legislation seeks to introduce two new criminal offences to Scots law: Offensive Behaviour at Football (Section 1) and Threatening Communications (Section 5).  The predominant message that has been given by the Scottish Government in relation to this Bill is that it is needed to tackle sectarianism and to address gaps in the law that currently exist.  It has been argued here, in other places and by people much more knowledgeable and distinguished that the latter is not really an issue.

Much of the committee’s discussions centred around the inability of breach of the peace to cover sectarian related offences at football following the constant constriction on when breach of the peace is actually committed.  In order to deal with this the SNP introduced a new offence of Threatening of Abusive behaviour towards the end of their first term in Government.  This offence can be found in Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and has been in force for about 12 months now.  The Committee appeared to be not at all familiar with this offence, what it covered or how it has been used.  Indeed, within their report they state the following at paragraph 140:

The Committee would welcome clarification from the Lord Advocate as to whether section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 is being used this season to prosecute cases of offensive behaviour at football matches. If so, we would also welcome an assessment from the Lord Advocate of the efficacy of that provision in obtaining convictions.

In other words the committee is backing the introduction of a new criminal offence while being totally in the dark as to how the current law is operating, how it is being used and without any sort of assessment of the offence.  Asking the Lord Advocate for this information at this stage does strike as being rather late in proceedings.

The above quote from the report looks even more odd when taken in conjunction with what the committee’s report states ate paragraph 7:

A majority of the Committee support the new offence of offensive behaviour at football. The majority believe that the Government has made the case that there are gaps in the law that do not enable the police and prosecutors to target offensive behaviour effectively.

Paragraph 8 of the report echoes what paragraph 140 has to say and states:

The Committee would welcome clarification from the Lord Advocate as to whether section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 is being used this season to prosecute cases of offensive behaviour at football matches. If so, we would also welcome an assessment from the Lord Advocate of the efficacy of that provision in obtaining convictions.

How a committee can on the one hand say that the Government has made its case regarding gaps in the law but immediately seek clarification on an important element of the law being placed before the committee as an argument against the Bill cannot really be justified.

It should probably be noted that the only committee members who supported the Bill were the SNP members of the committee.  This could somewhat explain why the report supports the Bill while containing mostly elements of criticism put forward by the significant majority of witnesses to the Justice Committee.

Section 1 offence

The report states at paragraph 12 that the general view among the witnesses who gave evidence is that the way in which this section is drafted lacks clarity.  The Lord Advocate has produced draft guidance to the police.  However, this should not be a substitute for proper drafting within the statute to make it clear and as easy for all to understand as possible.

Serious concerns have been raised regarding Section 1 and its relationship with Article 10 of the European Convention on Human Rights (freedom of expression).  The way in which the offensive provisions have been drafted are too wide and are at risk of coming into serious conflict with Article 10 if the legislation were to be passed.  It is undesirable to try and define exactly what will be deemed as offensive conduct.  However, it is even more undesirable to have a piece of legislation drafted in a way that requires a particularly low threshold to be met; especially when in the sphere of criminal law.

It is not desirable to try and tackle offensive behaviour, particularly speech, in general.  The ability and freedom of causing offense is essential in the operation of freedom of expression.  It may be offensive and not very tasteful, it may be that some (or even the majority) are offended by what a person or group of people have to say.  However, there must be something substantially greater than slight offense, or indeed even a moderate level of offense, caused before it can be justifiable to restrict freedom of speech.  20 years or so ago Salman Rushdie wrote:

“What is freedom of expression? Without the freedom to offend, it ceases to exist,“

Something that is merely offensive cannot simply be banned in a society that considers itself to be free and democratic.  Limits do need to be placed upon freedom of expression sometimes.  This is recognised within Article 10 and paragraph 2 of Article 10 provides occasions when contracting parties can restrict freedom of expression.  An example of where it is considered quite proper to restrict a person’s freedom of expression is holocaust denial.  16 nations in Europe have not only banned it but have attached to it criminal penalties.  Denying the holocaust is, without doubt, offensive in the extreme and while a person is free to hold such beliefs to allow them to express those beliefs causes a great deal of anguish, anger and discomfort to not only the memories of those who lost their lives but to their relatives and those who survived the atrocities perpetrated by Hitler’s Nazi party.

In its written evidence to the Justice Committee on the Bill the Law Society of Scotland stated the following (quoted at paragraph 123 in the Justice Committee report):

“The Committee is of the view that the offence, under Section 1 does not improve on common law breach of the peace or section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. Rather than result in clarity, the new offences may cause confusion with particular reference to what type of behaviour is to be considered unacceptable at regulated football matches.”

It is quite clear from the evidence submitted in written and oral form to the Justice Committee that this is a view shared by many and is one that has been touched upon in this article above.

It is also necessary to return to the issue of whether the current law is working.  The Committee comments in its report at paragraph 127 of its report “that there has been a stepping up of police and Crown Office activity to tackle criminality relating to football in recent months.”  There have been many reports in the press about persons arrested or detained in connection with a verity of football matches over the summer.  It might be fair to suggest, and certainly some did in evidence to the Justice Committee, that the police and Crown Office should have been concentrating more on enforcing the existing law.  Have the police and the Crown Office been using the existing law to its full effect in relation to sectarianism at football?  That is a question that won’t be answered here, but it is one that the public need to be thinking about.  Is this a case of the law being inadequate or the enforcement of the law being inadequate?  It’s all very well introducing new offences, but if the problem lies with the enforcement then new legislation will not solve that at all.

Dr Kay Goodall from the Stirling Law School is reported in the Justice Committee’s report as having stated the following in her written evidence to the Justice Committee:

“The decision to create new legislation, even where it overlaps with existing law, can be justified. Creating specific named offences can aid public discussion and encourage public support. Doing this also makes it easier in practice to monitor reporting, recording, prosecution and conviction of the offences. … Creating more legislation can be justified, even though much of what these problems involve is already covered by Scots law. Research suggests that the public may be more likely to hold favourable views of the criminal justice system when they are more informed about offences and patterns of sentencing. Even just a public discussion which provides more information about sentencing may prove useful. It matters that the public feel positive toward the criminal justice system; not least because it is they who report crimes and support the prosecution process throughout.”

There is certainly merit to what Dr Goodall is saying in her evidence.  The public confidence that is talked about can be achieved in ways other than duplicating the existing law in new legislation.  These other ways should be looked at first before spending time passing legislation that simply restates the law that already exists under a slightly different name.  Better media reporting of prosecutions, including the offences for which a person is being prosecuted as well as the sentences they are receiving from the courts would all achieve this.  Perhaps publishing the judges sentencing remarks in full in these cases might aid the press in conveying to the public how these offences are being dealt with.  Although, this would have to be monitored for accuracy given the tendencies in the press to misrepresent what happens in court in order to sell more papers and achieve higher viewing figures.

Returning briefly to the restrictions upon free speech as there is one final matter of importance that must be looked at here and that is in relation to the ability of contracting parties to the ECHR to restrict that freedom.  It is generally for the state to demonstrate the need for the restrictions and not for a citizen or group of citizens to demonstrate why it is not.  If the Section 1 offence is to remain as wide as it is and potentially cover so many minor matters as it would currently appear to it would be for the State to demonstrate that it is essential in a democratic society.  In this case the Government appears to be relying upon the public order element to Article 10(2) of the ECHR.  It would therefore be for the government to demonstrate that the restrictions are a proportionate means to a legitimate aim (i.e. reducing public order issues around football matches)

On the whole there are serious deficiencies in the evidence placed before the Justice Committee to allow it to have properly reached the conclusion that it has.  The Section 1 offence needs a significant amount of work done in order to address a number of legitimate and serious concerns about the way in which it is currently drafted.  Part 3 of this series will return to look at Section 1 again in the wider context of the Bill and reach conclusions as to whether it is needed or not.  However, it is probably the case that it is simply not required.

• Criminal Justice
• Criminal Law
• Scots Law