Is there really a gap in the law?

One of the Scottish Government’s main reasons for introducing the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill is that there is allegedly a gap in the current law to deal with these offences.  It is undeniable that Breach of the Peace has continued to be re-defined in a way that excludes a lot of conduct from it.  However, in 2010 the SNP Government introduced a new offence of Threatening or Abusive Behaviour (Criminal Justice and Licencing (Scotland) Act 2010, s.38) to deal with these cases.

This new offence has been in force for little over one year now and the Scottish Government are continuing to maintain that the law is in adequate.  If indeed the law is inadequate then the question as to why they did not do more in the last Parliament to deal with this problem needs answered.  However, it doesn’t actually appear that there is a gap in the law.  Earlier this year I published on here figures that had been released by the Crown Office and Procurator Fiscal Service (COPFS) in answer to an FOI request I had made on the s.38 offence.  I have since followed that up with another request seeking more detailed figures and today a response was sent to me by COPFS.

This second FOI request related to s.38 offences that had been aggravated by religious prejudice pursuant to section 74 of the Criminal Justice (Scotland) Act 2003.  The figures released today by COPFS cover the period since the offence came into force until 31 October 2011.

COPFS had received reports from the police containing 331 charges under s.38 where the alleged offence was said to be aggravated by religious prejudice.  Of those 331 charges, 309 were prosecuted (with decisions on 4 charges still to be taken).

Of those prosecuted 16 were prosecuted on indictment with seven of those resulting in a conviction and a further seven still to come to trial.  Out of the 293 charges prosecuted summarily, 192 resulted in a conviction and 82 are still to come to trial.

The COPFS were unable to advise how many of those offences related to football as the database does not record that data.

This suggests that the existing provisions are being utilised by the police and there have been a significant number of successful convictions for threatening or abusive behaviour that has been aggravated by religious prejudice.  The fact that COPFS cannot confirm how many offences have been committed in relation to football is an important gap in the data and is something that should really be explored before the Scottish Government declare Scots law to have a gap that needs fixed urgently by legislation.  The fact remains that the Scottish Government are making assertions that simply cannot be supported by evidence and where evidence does come to light it suggests that the Government’s position is even less credible than it was prior to the new evidence coming to light.

The Scottish Government really ought to scrap this Bill and look at the issues properly.  Assessing the evidence is an important aspect of deciding on an appropriate way forward and it would appear that the Scottish Government have failed to properly assess the evidence.

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