17 June 2013

The Football Act's iffy conviction rates...

Last Friday, the Scottish Government published this statistical research on the operation of the Offensive Behaviour at Football Etc (Scotland) Act. The paper looks primarily at charges communicated to prosecutors by the police, the characteristics of people accused of hateful, threatening and offensive behaviour in relation to football, and the where, when and how of their alleged offences. 

It covers the first financial year in which the new Act has been in force, between 1 April 2012 and 31 March 2013.   Because of the small number of folk charged and prosecuted, more detailed figures are not generally available for the outcome of proceedings in cases taken under section 6 of the 2012 Act, which criminalises sending threatening communications via twitter, facebook and what have you. 

You may recall that back in March, the Lord Advocate and Justice Secretary hailed the effectiveness of the new measure one year on, placing considerable emphasis on the number of cases prosecuted, and the percentage of accused people who're found guilty of having committed the new offences. Just a few months back, Kenny MacAskill argued that:

"... the charge and conviction rates for people arrested under this legislation show that it is working well." 

A claim echoed by Scotland's chief public prosecutor:

"The Lord Advocate, Frank Mulholland QC, has said that the legislation is being used to good effect by police and prosecutors. So far 89 per cent of the cases reported to the Crown Office have been prosecuted, and the conviction rate stands at 83 per cent. Figures from the first full year of the act are still being collated and analysed and will be published after the end of the football season."

Now, one might wonder whether rates of conviction are really the best guide to the efficacy of any piece of criminal legislation.  What is most striking in Friday's research is that the healthy prosecution and conviction figures MacAskill and Frank Mullholland relied on in defence of the Act in March aren't borne out across the Act's first full year. Taking the whole year figures, government researchers found that:

  • Court proceedings were commenced in 219 (82%) of charges communicated to prosecutors under the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.
  • During 2012/13 there were 62 convictions from 95 concluded charges under the 2012 Act.

As paragraph 3.27 of Friday's report concludes:

"This is a conviction rate (ie the proportion of concluded charges that resulted in convictions) of 65%.  In 2011-12 there were 25 convictions from 33 concluded charges, a conviction rate of 76%. For the full period of the first 13 months of the act, there were therefore 87 convictions from 128 concluded charges which is an overall conviction rate of 68%."

Even the most mathematically challenged of us shouldn't struggle to ascertain that the real conviction rate under this legislation in 2012/13 is a substantial 18% lower than the more congenial figure of 83% rolled out by MacAskill and Mullholland in March. Even including the months it was in force during the 2011/12 financial year only nudges that conviction rate up a trifle.

To put this conviction rate in some sort of context, we can look at the Scottish Government's official figures for the outcome of criminal proceedings in Scottish courts. Over all categories of crimes and offences, the Procurator Fiscal proves their case against 87% of accused people who end up in the dock. This data is also broken down by different offences.  For example, 83% of homicide trials, murder and culpable homicide, end in conviction of the accused.  At the other end of the spectrum, of rape and attempted rape trials, just 53% result in conviction.   

The conviction rate for all non-sexual crimes of violence in Scotland is higher than the offences created by the 2012 Act. The conviction rate for all crimes of dishonesty in Scotland is higher than these new football offences. Indeed, according to the latest figures, of all categories of crimes and offences, only rape and attempted rape cases record a lower percentage conviction rate than the 65% recorded under the Offensive Behaviour at Football legislation last year.  

If, as Kenny MacAskill and the Lord Advocate suggest, conviction rates are an important factor to be taken into account in evaluating the effectiveness of criminal statutes, the Football Act's relatively very poor performance in 2012/13 ought to be a source for anxiety, and not for reassurance.


  1. Is it not natural that a new law is going to have a certain amount of scope for evolution of interpretation while it's bedding in, both among police and judges?

    1. Sure. Particularly, as in this case, where the legislation is so broadly drafted, the compass of its meaning is both a) obscure and b) amenable to a whole range of interpretations. We've seen some similar developments on this score, in the judicial interpretation of Holyrood's Sexual Offences (Scotland) Act 2009 too.