6 January 2015

Incoherent, illiberal and ineffective...

During its bumpy and frequently unedifying passage through Holyrood, I made no secret of my hostility towards the Offensive Behaviour at Football legislation. The Act is a boorach, in principle and form. The law has - rightly - been slagged off as poorly drafted from the bench. One learned sheriff, in the language of the butcher's shop, dubbed it "mince". The football offences are woolly, imprecise, and difficult to understand.

This has implications for attendees on the terraces - but also to anybody in transition to and from regulated matches - but also extends to anyone in a pub, with the game quietly rolling in the background. And for police officers, and prosecutors, pondering how to apply the law to particular cases. What might a "the reasonable person find offensive"? A Palestinian flag? A Che Guevara T-shirt? A poppy? A shirt slagging off poppies? A Yes badge? But matters get even grimmer when it comes to the second part of the Football Act's offences. The Crown have to demonstrate, not only that the behaviour could offend the sensibilities of the reasonable person, but that it was capable of "inciting public disorder". 

During its passage through Holyrood, this was dressed up as a safeguard for punters, but as the High Court has demonstrated, it is nothing of the kind. In the absence of any actual people inflamed to mischief by remarks or shirts or songs or chants, the Act requires the court to invent imaginary mischief-makers. The sheriff must conjure fictional, potentially unreasonable, incitees from the the ether. If no North Koreans are conveniently on hand trash the place, thin-skinned patriotic and muscular wreckers are to be invented - and the accused held responsible for their equally imaginary public disorder. As Lady Paton observed:

"Thus, the Act distinguishes between, on the one hand, "a reasonable person" and, on the other, a person "likely to be incited to public disorder". It may be that a person likely to be incited to public disorder is of a more volatile temperament than a reasonable person or, to use the language of the sheriff, an uninitiated member of the public. The person likely to be incited to public disorder may have particular interests and particular knowledge. He may have particular views about the two songs in question or those who sing them."

In short, the court must invent a whole cast of touchy, grievance seeking, conspiratorial, irrational figures, and ask whether they might kick off in response to the hapless accused's conduct. This is madness. And if the recent statistics from our criminal courts are anything to go by, remarkably ineffective madness.

According to statistics released at the end of last year, the legislation has been an unprecedented calamity for Scottish prosecutors. First, a little context. The conviction rate for rape in this country has been reckoned a scandal. Across all offences - theft, fraud, murder, assault - the average rate of conviction is 87%. For the past few years, the rape conviction rate in Scotland hovered under 60% of cases brought to court by the Procurator Fiscal. Although not much discussed just before Christmas, the conviction rate for rape charges taken to court in Scotland took a massive dip in 2013/14.

Of the 214 people prosecuted, only 87 - 41% - were convicted. Why? During 2013/14, more people were prosecuted for rape in Scotland, but the number of individuals convicted did not increase significantly. With the corroboration debate unresolved, the 2013/14 figures should remind folk - there's a yawning gulf between (a) more people being prosecuted and (b) a greater percentage of people being convicted for sexual offences.

So what about the offences created by the new football legislation? According to the government figures, conviction rates for Offensive Behaviour and Football complaints and indictments are - remarkably - low. Of the 154 folk prosecuted for football-related offences, a stonking 74 were acquitted. That gives us a parlous conviction rate under the law of 52%. The overwhelming majority of these acquittals will be from sheriffs - from professional judges - not juries. This stinking conviction rate can't be blamed on the paradoxical conclusions of the Airdrie jury, or the partisan, Old Firm panel of fifteen ordinary punters. It speaks to the vices of the original Bill that was rushed so loyally and so inadequately through Holyrood.

Under the Offensive Behaviour Act, the Scottish Government is obliged to report on the operation of the legislation by the end of 2015. On the evidence, all does not augur well for the Scottish Government. These football laws were a classic essay in the worst political instincts of our late First Minister: sketchy, defensive, only half thought through, a pompous mess, hazy, made on the hoof. Alex Salmond had the cunning to dump the duty on Kenny MacAskill's desk, who aped his boss by abandoning poor Roseanna Cunningham to make the case for it in public.

Now, years on, this incoherent, illiberal and ineffective piece of legislation is Nicola's stress headache.


13 comments :

  1. Ditto for the named guardian Bill - "Children and Young People (Scotland) Act" - another piece of incoherent, illiberal legislation I think.

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    1. The named guardian legislation is a much more dangerous thing than the football law. It applies to all children, not just those who choose to be spectators at commercial sport

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    2. Well I certainly agree with you there "abesto" - both these peieces of legislation show just how baleful has been the influence of "Scotland's Party" since it became the governing party; mind you a lot of what Labour did in the wider UK did during its 13 years in power (and only partially undone by an emasculated Conservative government at Westminster, under the influence of the not always very 'liberal' LibDems) is probably equally or more awful. Basically "a plague on all their houses".

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  2. Maybe the Named Person legislation could be modified to allow upstanding middle class people to take their children "off the radar". The government would then not need to bother with ensuring that civil servants responsibilities to that child were carried through.

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  3. The named person legislation, extending a successful scheme nationally, is not as paranoid dribbling loons usually characterise it, being concerned with giving children and families a point of contact with officialdom if necessary.

    Most objections seem to come from Evangelical Christian groups, I suspect they don't like their children and families getting a view not controlled by their churches

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    1. I'm not sure that you understand how it works. A "point of contact" makes it sound like a helpful telephone number. But if you don't want your children to be contacted, well, you don't really have a say.

      "Paranoid dribbling loon," incidentally, might apply very well to some of the named people themselves. A named person in the Highlands pilot reported one of the children under her pseudo-parental supervision to the police for comments he wrote on a blog.

      I'm an atheist btw, just to bypass that bigoted smear about Evangelicals.

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    2. "if you don't want your children to be contacted, well, you don't really have a say"

      Sadly here in Scotland, as everywhere, if you really want to be allowed to bring up your children with no malevolent outside influences, you're going to have to fit out your basement Fritzl style.

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  4. I recount an episode from a football match on my own blog, from a slightly different slant, but it may be instructive. Here is my story.

    On Remembrance Sunday I headed to Pittodrie for a match between Aberdeen and Celtic. During the game, Celtic fans chanted a new (to me, at least) fitba chant. Topically, the fans of a team from the Yes voting constituency of Glasgow taunted the No voting constituency of Aberdeen – to the tune of Guantanamera – with the words, ‘You’re only No voting shitebags, No voting shiiiiitebags…’ (and so on).

    An offence?

    (As an aside, the minute's silence was not impeccably observed.)

    https://basedrones.wordpress.com/2014/12/29/my-2014-in-review/

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    1. Either or might conceivably be, the singing and the failure to observe silence. It is difficult to see how you'd fit chanting motivated by locale and politics, essentially, under and of the OFBA's headings of expressing hatred -- so we're left with the lovely catch all of "behaviour the reasonable person would find offensive". As the incitees? Imagination will take care of those.

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  5. Far from being an abberation, the logic underpinning the OBF authoritarianism is practically normal these days. Prior to indyref, the Crown Office stated that any "cybernat" convicted of publishing "offensive or abusive" tweets could face five years in the slammer. Nobody was jailed - to my knowledge - but the intention was to generally warn people away from freedom of speech. Police Scotland this week said that they are "monitoring" social media for offensive material. Down in England, the student Liam Stacey was jailed - yes, for a tweet - after pleading guilty to threatening public order with some racist microblogging.

    It gets even worse with the Fringe. I had to sit through two plays this year - funded by the Scottish government - in which the characters on stage were lamenting how their sectarian bigotry had landed them in prison. As an "anti-sectarian" awareness-raising project, these plays were admittedly cheaper and shorter than staging genuine show trials.

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    1. Quite.

      On a lighter note, I gather that the National Theatre staged a play including a number of catchy sectarian ditties a few years ago -- many of the cast were actors from elsewhere in the UK, apparently, and had to be sternly admonished not to whistle the Sash in public -- however much the tune may have lodged in their skulls.

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  6. I go to Firhill occasionally and (on even rarer occasions) may take a friend's seat at Celtic Park.

    Last time i was at the latter was the title-award match against St Johnstone, at which the Green Brigade sent a banner mocking Alex Salmond and the Act round the stadium. The banner was tracked in its progress round the stadium from below by the stewards and cops and it failed to cross the gap into the section where I was - instead it went slowly back into the loving arms of the Brigadistas.


    Gordon Strachan - before Scotland's game against the Republic of Ireland - appealed to the Scotland fans to adopt a 'pantomine' approach when booing the Scots-born players in the Ireland team, and it strikes me that with the banner at Celtic park there was indeed an air of pantomime about that ceremony, a group reinforcement ritual rather than threat behaviour.

    There was certainly booing of McGeady at the Scotland game - could it be dismissed as pantomime and did it matter? - did it matter enough for the law to intervene and lift a few of the more vocal Scotland fans?

    Mibbes Aye, Mibbes Naw. What is certain is that one person's gentle ribbing is another's racist abuse. I can see why the SNP wanted this Act and have empathy with its framers - but it is clearly not working.

    Oh and those rape conviction figures are disturbing.

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    1. Another good example Edwin. Clearly covered by the Act and potentially criminalised, I'd say. Does booing a player on grounds of their nationality amount to "expressing hatred" in the language of the legislation? Arguably. And again, the incitees take care of themselves.

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