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.