Offensive Behaviour at Football and Threatening Communications (Scotland) Bill
[AS INTRODUCED]
CONTENTS
Section
Offensive behaviour at regulated football matches
- 1 Offensive behaviour at regulated football matches
- 2 Regulated football match: definition and meaning of behaviour “in relation to” match
- 3 Fixed penalties
- 4 Sections 1 and 2: interpretation
Threatening communications
- 5 Threatening communications
- 6 Section 5: interpretation
General
- 7 Sections 1(1) and 5(1): offences outside Scotland
- 8 Commencement
- 9 Short title
Offensive behaviour at regulated football matches...
1 Offensive behaviour at regulated football matches
(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.
(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.
(3) For the purposes of subsection (2)(a) and (b) it is irrelevant whether the hatred is also based (to any extent) on any other factor.
(4) The things referred to in subsection (2)(a)(iii) are—
- (a) colour,
- (b) race,
- (c) nationality (including citizenship),
- (d) ethnic or national origins,
- (e) sexual orientation,
- (f) transgender identity,
- (g) disability.
(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.
(6) A person guilty of an offence under subsection (1) is liable—
- (a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or
- (b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.
2 Regulated football match: definition and meaning of behaviour “in relation to” match
(1) In section 1 and this section, “regulated football match”—
- (a) has the same meaning as it has for the purposes of Chapter 1 (football banning orders) of Part 2 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10) (see section 55(2) of that Act), but
- (b) does not include a football match outside Scotland unless the match involves—
- (i) a national team appointed to represent Scotland, or
- (ii) a team representing a club that is a member of a football association or league based in Scotland.
- (a) in the ground where the regulated football match is being held on the day on which it is being held,
- (b) while the person is entering or leaving (or trying to enter or leave) the ground where the match is being held, or
- (c) on a journey to or from the regulated football match.
(3) The references in subsection (2)(a) to (c) to a regulated football match include a reference to any place (other than domestic premises) at which such a match is televised; and, in the case of such a place, the references in subsection (2)(a) and (b) to the ground where the match is being held are to be taken to be references to that place.
(4) For the purpose of subsection (2)(c)—- (a) a person may be regarded as having been on a journey to or from a regulated football match whether or not the person attended or intended to attend the match, and
- (b) a person’s journey includes breaks (including overnight breaks).
3 Fixed penalties
In Part 1 of the table in section 128 of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8) (fixed penalty offences), after the entry relating to section 52(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, insert— “Section 1(1) of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2011 (asp 00) Offensive behaviour at regulated football matches”
4 Sections 1 and 2: interpretation
(1) Section 1(1) applies to—
- (a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done, and
- (b) behaviour consisting of—
- (i) a single act, or
- (ii) a course of conduct.
(2) In section 1(2)—
- (a) membership, in relation to a group, includes association with members of that group,
- (b) “presumed” means presumed by the person expressing hatred or, as the case may be, doing the stirring up,
- (c) “religious group” has the meaning given by section 74(7) of the Criminal Justice (Scotland) Act 2003 (asp 7).
(3) In section 1(4)—
- (a) “disability” means physical or mental impairment of any kind,
- (b) “transgender identity” means any of the following—
- (i) transvestism,
- (ii) transsexualism,
- (iii) intersexuality,
- (iv) having, by virtue of the Gender Recognition Act 2004 (c.7), changed gender,
- (v) any other gender identity that is not standard male or female gender identity.
(4) In section 2(3), “televised” means shown (on a screen or by projection onto any surface) whether by means of the broadcast transmission of pictures or otherwise.
Threatening communications...
5 Threatening communications
(1) A person commits an offence if—
- (a) the person communicates material to another person, and
- (b) either Condition A or Condition B is satisfied.
- (a) the material consists of, contains or implies a threat, or an incitement, to carry out a seriously violent act against a person or against persons of a particular description,
- (b) the material or the communication of it would be likely to cause a reasonable person to suffer fear or alarm, and
- (c) the person communicating the material—
- (i) intends by doing so to cause fear or alarm, or
- (ii) is reckless as to whether the communication of the material would cause fear or alarm.
(3) For the purposes of Condition A, where the material consists of or includes an image (whether still or moving), the image is taken to imply a threat or incitement such as is mentioned in paragraph (a) of subsection (2) if—
- (a) the image depicts or implies the carrying out of a seriously violent act (whether actual or fictitious) against a person or against persons of a particular description (whether the person or persons depicted are living or dead or actual or fictitious), and
- (b) a reasonable person would be likely to consider that the image implies the carrying out of a seriously violent act against an actual person or against actual persons of a particular description.
(4) Subsection (3) does not affect the generality of subsection (2)(a).
(5) Condition B is that—
- (a) the material is threatening, and
- (b) the person communicating it intends by doing so to stir up religious hatred.
(6) It is a defence for a person charged with an offence under subsection (1) to show that the communication of the material was, in the particular circumstances, reasonable.
(7) A person guilty of an offence under subsection (1) is liable—
- (a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or
- (b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.
6 Section 5: interpretation
(1) Subsections (2) to (5) define expressions used in section 5.
(2) “Communicates” means communicates by any means (other than by means of unrecorded speech); and related expressions are to be construed accordingly.
(3) “Material” means anything that is capable of being read, looked at, watched or listened to, either directly or after conversion from data stored in another form.
(4) “Religious hatred” means hatred against—
- (a) a group of persons based on their membership (or presumed membership) of—
- (i) a religious group (within the meaning given by section 74(7) of the Criminal Justice (Scotland) Act 2003 (asp 7)),
- (ii) a social or cultural group with a perceived religious affiliation, or
- (b) an individual based on the individual’s membership (or presumed membership) of a group mentioned in either of sub-paragraphs (i) and (ii) of paragraph (a).
(5) “Seriously violent act” means an act that would cause serious injury to, or the death of, a person.
(6) In subsection (4)—
- (a) “membership”, in relation to a group, includes association with members of that group, and
- (b) “presumed” means presumed by the person making the communication.
General...
7 Sections 1(1) and 5(1): offences outside Scotland
(1) As well as applying to anything done in Scotland, sections 1(1) and 5(1) also apply to anything done outside Scotland by—
- (a) a British citizen, a British Overseas Territories citizen, a British National (Overseas) or a British Overseas citizen,
- (b) a person who under the British Nationality Act 1981 (c.61) is a British subject,
- (c) a British protected person within the meaning of that Act, or
- (d) a person who is habitually resident in Scotland.
(2) Section 5(1) also applies to a communication made by any person from outside Scotland if the person intends the material communicated to be read, looked at, watched or listened to primarily in Scotland.
(3) Where an offence under section 1(1) or 5(1) is committed outside Scotland, the person committing the offence may be prosecuted, tried and punished for the offence—
- (a) in any sheriff court district in which the person is apprehended or in custody, or
- (b) in such sheriff court district as the Lord Advocate may direct, as if the offence had been committed in that district (and the offence is, for all purposes incidental to or consequential on the trial and punishment, deemed to have been committed in that district).
8 Commencement
This Act comes into force on the day after Royal Assent.
9 Short title
The short title of this Act is the Offensive Behaviour at Football and Threatening
Communications (Scotland) Act 2011.
7 Sections 1(1) and 5(1): offences outside Scotland
ReplyDeleteSimple non legal reading indicates to me that this is a catch all section defining the Scottish Court's geographical remit to everywhere and those subject to the law as being anybody to be anybody with a British passport, including British Overseas Territories, and anyone with any passport who has their abode in Scotland.
Am I missing something elsewhere?
I once had occasion to buy for a football daft Bulgarian colleague a publication that had collected Scottish terrace chants. One which he took much interest in was as follows, and with apologies for the language I think it's reflective of very many similar chants that are replete with a certain bitter humour, and which can be tailored to the rival club of one's taste:
ReplyDelete"If I had the wings of a sparrow
And the arse of a dirty great cow
I'd fly over Ibrox tomorrow
And shite on the bastards below, below,
Shite on the bastards below.
[continues]"
Under section 5 (2) (b), for instance, would said ditty fall foul of the legislation? There is clearly a need to act to stamp out sectarianism and associated voicing of hate crime at football matches. But isn't this proposed legislation not so much in danger of throwing the rattle out of the pram, but likely to re-introduce the use of the classic football rattle alongside chants that are restricted to: "Play up, boys!" The potential scenario is big drops in attendance at games, and even more folks than now choosing to get tanked up on cheap bevvy on the sofa and screaming blue murder at their tellies, with associated negative consequences.
While taking a stance against hate-talk, hate-chanting etc is one thing, where do you draw the line? Surely not in such an extreme way.
Sections 5 (3) (a & b) provide little comfort with the 'fictitious' language. It appears that the proposed legislation is intent on killing all aspects of the carnivalesque inside our football stadia. As things stand, the baw's on the slates, awaiting imminent bursting if this goes through in its current form.
Section 42 of the guidance makes it seem that the communication part applies to anybody in any country who might, in future, travel to Scotland.
ReplyDeleteIn answer to all three of you, I have a post on the anvil about the precise text of this Bill, which should cover all of these points. I hope to whack it up over the weekend - or at the latest, on Monday.
ReplyDeleteRoseanna was on Radio Scotland this morning being asked about the bill. To the various well structured and reasonable questions, she answered (forgive me for paraphrasing) eh......ah......er......um yes indeed, er......badly needed....um urgent....... something (mumble) had to be done.... That's a matter for the police.... eh.....
ReplyDeleteDoes the Orange Order fall within the definition of 'a social or cultural group with a perceived religious affiliation' S.1(2)(ii)?
ReplyDeletebigrab,
ReplyDeleteI heard. In fairness to Roseanna, it is always going to be difficult to talk for a few minutes about an issue which is quite complication - without crashing into proper detail.
Anonymous,
A very good question. One, for example, which we could even put in respect of Celtic and Rangers. Who "perceives" the religious affiliation? Certainly some people perceive the squads in religious terms. As to the Orange Lodge, it seems to me clear enough that it probably would fall within the ambit of s1(2)(ii).
I know very little about law, but surely "Sections 1(1) and 5(1): offences outside Scotland" is illegal under the European Convention on Human Rights?
ReplyDeleteI'm all for cutting out bigotry, but this is a reactionary act which will probably do more harm than good.
Anonymous,
ReplyDeleteI cannot immediately think of anything in the European Convention which would make any Act applying extra-territorially unlawful according to European Human Rights Law. The idea of criminalising conduct which happens outside the jurisdiction, based on the identity of the offender, is not actually new - although one can question whether it is appropriate in this case. Other examples of extra-territorial application of criminal legislation include section 12 of the Bribery Act of 2010 - and I believe certain sexual offences against children, although I'd have to look up the precise reference. Those are just a couple of examples.
On your main point, I think almost everyone should be able to agree that sectarianism is an ugly social problem. Recognition of the seriousness of this problem doesn't tie one in to supporting this particular measure; and opposing the Bill should not be seen to imply you don't take sectarianism seriously.
The lack of definition of"threatening" jumped out at me.
ReplyDeleteThis is what the explanatory notes have to say:
"27. Subsection (5) sets out the two tests which must be satisfied for Condition B to be met.
These are:
• That the material is threatening; and
• That the person communicating it intends to stir up religious hatred.
28. This is wider than Condition A, in that it covers threats of any kind, and not only threats
of serious violence. In contrast with Condition A, a person who is merely reckless that a
communication would have the effect of stirring up religious hatred would not be caught by the
offence. This ensures that a person making a communication containing what he or she intended
to be legitimate comment or criticism of a religion or religious beliefs would not commit the
offence solely because others considered it had the effect of stirring up religious hatred."
Not exactly reassuring. Also the definition of religious hatred seems pretty far reaching.
Sheila,
ReplyDeleteMe too. What is a "threat", precisely? One can of course "threaten" people with perfectly legal sanctions. If I was a pious Protestant (which I'm not), and thought the doctrines of my Catholic neighbour imperilled his soul, would it be a threat to advise him such - that his pieties threatened eternal damnation? "Don't be ridiculous", proponents of the Bill are likely to say - but the legislation itself furnishes no guide at all on this question.
Also...why the undue haste?
ReplyDelete(even I know it is meant to be something to do with the start of the footie season - must have been the only person in the country not to know who Ryan Giggs is)
http://home.rangersmedia.co.uk/index.php/component/content/article/41-finances/1206-sectarianism-bill-justice-committee-express-concerns-over-timetable-.html
S1.(2)(e)
ReplyDelete'other behaviour that a reasonable person would be likely to consider offensive.'
Would someone holding the views of a nationalist intellectual like Andrew Dewar Gibb be considered a reasonable person for the purpose of this provision?
If so, we might as well all go home, whether the famine is over or not.
Another non-legal type here. How common is it for legislation to contain nebuluous subjectivities such as "a reasonable person"?
ReplyDeleteLikewise Colin - what exactly is the legal definition of "stirring up"?
ReplyDeleteSheila,
ReplyDeleteThe haste is being driven from the very top of the SNP, for political reasons - and the argument that the troubles seen on the terraces earlier this year, leading to the sectarianism summit, are of such magnitude that they required instant legislation. On "stirring up", I'd have to look into the case law on the 1986 Act, which uses the same language.
Anonymous, Colin,
As Roseanna told Holyrood's Justice Committee yesterday, the "reasonable person" - the ungendered heir of the reasonable man - is a very familiar legal formulation. But what the devil does the reasonable person think? Practically, the "reasonable person" is whoever is enforcing the law. In the street, it will be the police - and in courts, on appeal, judges will finally take a view on what is or is not reasonable. Generally, such legal concepts are not practically framed as rules - and can be pushed hither and thon by "all of the circumstances of the case". As I noted in another post recently, the law uses conceptual terms like objectivity and reasonableness in ways that'd make philosophers blush.