26 July 2012

Football justice for imaginary North Koreans!

A comic thought this morning on twitter from Love and Garbage.  At Hampden park yesterday, the doughty Olympic organisers experienced a wee technical hiccup. Or at least, something rhyming with hiccup.  The sport was women's football, the teams all set to play, Colombia and North Korea, but the flag flying on the big screen - alas - was South Korea's four black trigrams and central blue and red taegeuk instead of the North's red star and red white and blue bands. Cue predictable outrage from the players, and delays, and red phizogs from the ignorant numpties charged with organising the show. Widely reported as a gaffe, could running up the wrong pennant be treated something rather more serious? As Love and Garbage asks, only half-jestingly, might flying the South Korean flag actually have breached Offensive Behaviour at Football Act?

The answer, ridiculously, entertainingly, is yes.  Remember, the 2012 Act provided that:

1(1) A person commits an offence if, in relation to a regulated football match—
(a) the person engages in behaviour of a kind described in subsection (2), and
(b) the behaviour—
(i) is likely to incite public disorder, or
(ii) would be likely to incite public disorder.

Firstly, was the Hampden game a "regulated football match"? The 2012 Act is perfectly plain about that.  A game involving one or more teams representing "countries or territories" is a regulated match, covered by the law. What about the behaviour itself? The folk at Hampden broadcast the flag and the faces of North Korean players onto a big screen within the stadium itself. There was no physical flag, as I understand it, but the 2012 Act is uncompromisingly broad, covering:

4(1)(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done.

The next question we have to ask ourselves is whether hoisting the wrong flag meets one of the Act's definitions of "offensive behaviour".  As you may recall, these are diverse, the definitions driven by the domestic vices of sectarianism, but go well beyond the traditional hatred and ditties which have squalled over Scotland's football terraces.

(2) The behaviour is—
(a) expressing hatred of, or stirring up hatred against, a group of persons based on their membership (or presumed membership) of—
(i) a religious group,
(ii) a social or cultural group with a perceived religious affiliation,
(iii) a group defined by reference to a thing mentioned in subsection (4),
(b) expressing hatred of, or stirring up hatred against, an individual based on the individual’s membership (or presumed membership) of a group mentioned in any of sub-paragraphs (i) to (iii) of paragraph (a),
(c) behaviour that is motivated (wholly or partly) by hatred of a group mentioned in any of those sub-paragraphs,
(d) behaviour that is threatening, or
(e) other behaviour that a reasonable person would be likely to consider offensive.

I don't think one can get very far with the idea that flying the incorrect banner expressed or stirred up hatred against North Koreans, or for that matter, that it was threatening - but look at section (e): "Other behaviour that a reasonable person would be likely to consider offensive".  As concepts go, this one is hardly very clearly pinned down, and I'm no expert on the current state of North-South Korean relations, but given the history and ongoing tensions between the two countries, and the mine field which runs along their borders, it seems fair to say that the transposition of one flag for the other is sorely affronting.

The reasonable person seems likely to consider it to be offensive, nor is this necessarily an eccentric conclusion.  Imagine a bumbling football organiser negligently flew the Orange Order flag, in place of Celtic's green and white pennant, or for that matter, in place of Rangers' blue; or someone waggishly or accidentally substituted the flag of the state of Israel for the Nazi flag, and didn't realise his mistake till he saw it on the big screen. It is easy to imagine any of these scenarios being prosecuted under the Football Act.

But what about public order? As the Minister assured us when the Bill was being finalised earlier this year, while the concept of offensive behaviour is extremely broad, the government sought to qualify it with a narrower condition: that offensive behaviour had to put public order at risk before it would be criminalised under the new legislation. 

Certainly, the women's team refused to set foot on the green in high dudgeon, but I imagine the crowd wasn't exactly awash with North Korean football fans. Surely the chances of public disorder as a result of this "offensive behaviour" was limited? You may be right, but the Football Bill plays a natty little trick which makes such common sense calculations irrelevant.  The offensive behaviour doesn't have to cause a stramash. Indeed, a stramash doesn't even have to be possible, never mind probable, for offensive behaviour to be criminalised under the 2012 Act. The behaviour need only be 1(1)(b)(i) "likely to incite public disorder" or alternatively, such behaviour as 1(1)(b)(ii) "would be likely to incite public disorder".

In one of its daffier, more whimsical provisions, the Act makes it eminently clear that as we puzzle through whether the impugned behaviour risks causing public disorder to break out, we should invent hypothetical crowds of people likely to be antagonised, and on that basis, come to a view about whether a fray is likely to be provoked by the behaviour:

1(5) For the purposes of subsection (1)(b)(ii), behaviour would be likely to incite public disorder if public disorder would be likely to occur but for the fact that—
(a) measures are in place to prevent public disorder, or
(b) persons likely to be incited to public disorder are not present or are not present in sufficient numbers.

Just think about that.  In this case, the question we must ask is not whether it is likely North Korean sections of the crowd might have been provoked into a swirling cavalcade of outraged violence, only failing to work up a riot because they didn't bring their families over to Scotland to see the women's team play.  Instead, the Football Act invites us to engage in counterfactual thinking, speculating on what might have happened, had Hampden been stuffed to the gunnels with wholly fictional North Koreans, troubled, insulted and offended by the flag of their inveterate foe flying beside the faces of their football team.  

And for that matter, what seems likely to have happened, if all of Hampden's empty seats have been full of patriotic North Korean football fans, when the big screen flashed its foolish error? Things needn't even degenerate into a brawl.  Imagine if imaginary crowds of North Koreans had all attempted to leave the stadium at once, outraged at this affront. Plenty of capacity for imaginary jostling, heated encounters and a disordered crowd crush, a threat to life and limb.  Imaginary public order was clearly imperilled. 

I'm sure I recall someone - several important characters in fact - saying something once about taking a "zero tolerance" attitude to offensive behaviour at football in Scotland.  Surely all those fictional North Koreans who weren't sitting in Hampden deserve a little justice.


  1. Suckmaster burstingfoam26 July 2012 at 14:07

    "someone waggishly or accidentally substituted the flag of the state of Israel for the Nazi flag"

    Am I reading this wrongly or should this not be the other way round? Unless there is in fact a Nazi football team out there (none of the obvious jokes, please!).

  2. Funny but ... let's get real.

    Olympic women's football. Sorry. Call me a cynic but there is a reason they literally could not give away the tickets for free.

    It would be impossible to overstate how much football supporters in Scotland don't care about Olympic women's football!

    Sad but true.

    You would have more chance of provoking a breach of the peace at Asda.

  3. Funny, and indicative of the ridiculous legislative reform. The analysis here was one I went through myself when I asked the question this morning. http://sfy.co/b14C

    That this is criminal under the Act that was unnecessarily rushed through the Parliament (even after the delays when Salmond agreed to listen to the criticism there was little substantive amendment) tells you that perhaps the legislation is a tad problematic. That we can be left seriously analysing last night's screw up in criminal terms should serve as a warning of sorts.

  4. Took that too far there

  5. Groundskeeper Willie27 July 2012 at 09:13

    The situation appears to have escalated.


  6. Suckmaster burstingfoam,

    A fair point! Inverted, but you get the sense of it.


    It is also suggestive of ways the Act could have been more narrowly drafted - eliminating the general offensiveness of (e) would have gone a long way to narrowing what the law covered, as would have eliminating the frankly bizarre definition threats to "public order" were given.

    To put the other side of the argument, however, I imagine folk who promoted the Bill would see this as no worry: an application of common sense from the procurator fiscal ensures that the unhappy flag flipper (or Seb Coe) escapes prosecution. Hardly a song for liberty, and as we saw with the Paul Chambers' trial, entirely reliant on the unwarranted assumption that police and prosecutors never screw up.

  7. There's no mens rea -- it was accidental. Most criminal offences require that you actually intended to commit the offence.

  8. Go on then LPW, make a formal complaint to the police - or withdraw the article because you can talk the talk but can't walk the walk.

  9. " an application of common sense from the procurator fiscal ensures that the unhappy flag flipper (or Seb Coe) escapes prosecution."

    BEEEG mistake to rely on officials applying common sense as evidenced by the #twitterjoketrial

  10. Let's hope North Korea haven't retargeted their nukes on Hampden.

    Saying that, it would give a boost to the construction industry and give the Scottish Government the opportunity to take credit for it.....

    Sorry.....time for my medication....

  11. drplokta,

    A fair point: all actus reus here, not mens rea.


    Haven't the foggiest what you are on about.


    Quite. The Paul Chambers case is a helpful reminder that we tempt fate, but showing blind, uncritical faith in prosecution authorities.