Escaping the Mire

Longstanding readers of this blog know what I think about the Offensive Behaviour at Football Act, and the events which led to its introduction. Alex Salmond seized on an Old Firm fracas in 2011, arguing that this so-called "shame game" required special legal measures.

Elected with a majority in the Holyrood election of that year, there was no restraining the former First Minister. He tapped unlucky Roseanna Cunningham to be the ministerial face and voice for a policy which was justified by sweeping populist rhetoric, but which was fundamentally reckless and un-thought-through.

A succession of embarrassing ministerial performances followed, in the chamber, and in the media. Kenny MacAskill sputtered "matters" relentlessly on Newsnicht. Roseanna suggested, depending on the context, that genuflecting or singing the national anthem might get you a jail term under the new rules. Unlucky civil servants were drafted in to give legislative shape to ministers' vague aspiration to use the criminal law still further to intervene in the regulation of fan behaviour in and around football matches.

Folk in parliament rhubarbed. Folk outside parliament rhubarbed.  Folk inside the SNP rhubarbed, including elected members, who nevertheless, cast their votes for the measure under the stern gaze of party whips. I remember taking to the airwaves against - now - Green MSP John Finnie. In those days, he was a Nationalist politician, and vociferously defended the legislation, accompanied by retired coppers and politically-helpful prosecutors from the Crown Office. None of this eliminated the fundamental problem with the law. 

To borrow a phrase from one of Scotland's judges, it was "mince." Certainly, the Act "sent a message" to hooligan elements who hover around football clubs and matches. But that message was as muddled and confused as the legislative provisions themselves.  Polling evidence showed - and has shown since - that the Act is supported by a majority of the public. But popularity doesn't transform a bad, paradoxical law into a good law. Being a lawyer, these problems perhaps excessively preoccupy me. But even if you are broadly supportive of the idea of prohibiting threatening and hateful speech in football grounds and outside them -- you still can't escape the conclusion that in 2011, Scottish ministers had no idea what they were doing, or why they were doing it, or why they were doing so on an "emergency" timetable. It was a picture of recklessness. 

The Act they left behind them is an appropriate testament to their cack-handedness. Getting your head around what the legislation does and does not criminalise can be tricky. That's one of the failings of the law. But it outline: it creates two new criminal offences: (1) offensive behaviour at football, and (2) threatening communications. The first offence applies in a range of locations. If you are in and around the ground of football matches, or on a journey to and from the grounds, it applies to you.

It also applies to you if you are in a public space, with a regulated match playing in the background. If you begin shouting and bawling at folk on their way to matches, the Act catches you too. There are some paradoxes about this. The law treats you as "on a journey" to a match, whether you attend, or even intend to attend a match. This even includes overnight breaks. Philosophically, we are all, potentially, on our way to a regulated football match. At least according to parliament.

But the new crime focuses on offensive behaviour. The law recognises different kinds of bad behaviour. It criminalises "expressing hatred" against groups or individuals, on the basis of their perceived religious affiliations, or on the grounds of sexuality, disability, nationality or race. This might be singing "the Famine Song," or saying "I hate the Orange Order", as you prop up a bar in which the Greenock Morton v Partick Thistle match is playing in the background.

But the law also extends to "threatening" behaviour, and  -- most controversially -- "behaviour the reasonable person would find offensive." The old common law offence of breach of the peace only criminalised behaviour which could "alarm the ordinary person" and "threaten serious disturbance in the community." The OFBA goes far further. The old offence of breach of the peace was certainly vague. Making "offence" the criterion for a criminal offence is even more problematic.

Recognising this, SNP ministers introduced what they characterised as a "safeguard." It wasn't enough for behaviour to be hateful, threatening, or offensive. In order to be punished under the new Act, it had to be "likely to incite public disorder." This sounds like a high hurdle for prosecutors to overcome. The SNP's justice team represented it as such to the Scottish Parliament's Justice Committee. But the detail of the law blew the lid from this "safeguard." 

Why? Because in the absence of any actual members of the public to be scandalised into violent disturbances by offensive behaviour, the Act instructs sheriffs to invent turbulent soccer fans or supporters who might have been provoked into violence by the offensive singing, or banners, or behaviour. The Act provides that courts should discount the fact that "persons likely to be incited to public disorder are not present or are not present in sufficient numbers." Defenders of the OBFA often claim that they are objecting about sectarian singing "in context." But the Act specifically requires prosecutors, police and courts to ignore the real context where songs are being sung, or behaviour is taking place. 

Singing the Sash in die-hard loyalist pub, for example, is unlikely to generate any mischief. But ministers were determined that this kind of - unattractive - behaviour should be prohibited by the legislation. In so doing, they made a mockery of the idea that the "public order" test was any meaningful limitation to the broad new offences created by the Act. 

So what's to be done? Repealing the Act simpliciter? As defenders of the legislation point out, what kind of message would that send to the diehard bigots, mischief-makers and trolls? And for that matter, what alternative is the opposition in the Scottish Parliament proposing? It is all very well to carp from the sidelines, but what constructive solution are James Kelly and his allies offering? Those are the Scottish Government's lines in today's spinwar. But there are a few obvious, practical solutions which the Cabinet Secretary for Justice, Michael Matheson, ought to be considering.  

In passing the Act in 2012, Holyrood gave ministers considerable power to amend the most controversial parts of the legislation.  We don't need new legislation to strip out the "behaviour the reasonable person considers offensive" provision of the Act.  Section 5 of the OFBA gives Michael Matheson the power to strike that provision from the statute book tomorrow. You'd be left, criminalising "expressions of hatred", and "threatening" behaviour.

It would be an altogether tougher spot, for Mr Kelly to defend abolishing those offences. Unless, that is, you approve of threatening behaviour in sports grounds. But the Act goes further. It also empowers ministers to draw a line through the daft provision, which instructs judges to invent potential incitees to public disorder. Again, this wouldn't require new legislation. Michael Matheson need only lay the order before Holyrood, and MSPs need only vote for it.

If the Scottish Government took both of these steps, the law would be considerably tightened. Procurators fiscal would have to establish (a) hateful or (b) threatening behaviour, and beyond that, they'd also have to establish that behaviour was "likely to incite public disorder" in the real context in which it takes place. That is a far higher test for prosecutors to satisfy, and doesn't transport our sheriffs to a fantasy land of invisible, touchy Queen of the South fans, or furious Dons, tired of unsubstantiated allegations of sheep-shagging.

If these reforms were introduced, in a trice, the Scottish Government would have eliminated the Act's most controversial (and badly thought-through) sections. The temperature would be turned up considerable on the opposition -- some of which is principled, but a good part of which is calculating, shallow and partisan. 

There is no shame in admitting you got things wrong. It was a bad Bill, introduced after a bad process, badly defended and badly enforced. To a significant extent, the outgoing FM must bear the burden of having foisted this inconvenient controversy on his successor. But there are obvious opportunities here for Nicola Sturgeon's government to revisit its errors, to make the law better, and to turn up the heat on their opponents.

As things stand -- the Scottish Government seems confident it can win the PR battles against James Kelly and his allies. It seems to have given scanty thought to reform, and to seizing the initiative from the serried ranks of their opponents. They seem primed to stare defeat in the face, but well-prepared to grouse about it. But for this critic of the legislation, they can do much, much better than that. They said they believed in this measure. Let them fix it. If they don't take these opportunities, they have only themselves to blame.

"On HM Advocate v Charles Green, Craig Whyte et al..."

I'm not a football man. I have no team. I have never been to a football match. I have no intention of extending the frontiers of my experience in this regard. But I am interested in law, and in free speech, online media, and fair trials. 

In the life of this blog, legal issues and football have seemed increasingly to converge. From the Offensive Behaviour Act, tax obligations, paid and unpaid, defamation threats and insolvency events -- legal curiosity is increasingly pulling me into the wacky world of the SFA and SPFL and the various legal ructions which have gripped them and their members.

But approaching us is the trial to beat them all. Former Rangers heid neeps Charles Green and Craig Whyte have been indicted for a range of offences, along with lawyer, Gary Withey, and Duff and Phelps administrators David Whitehouse, Paul Clark and David Grier. Today brings news from a preliminary hearing in the High Court that a number of charges against these men have now been deleted from the indictment. To suggest this case will provoke public interest and comment qualifies for the understatement of the legal year. If the indictment pours oil on troubled waters; the trial will follow it with a lit match. 

Forums, facebook, twitter, online comments on blogs, articles and website: if it was possible, this criminal trial will turn up the heat on the already boiling cauldron of feeling and opinion which is Scottish football. And that has its risks. Not only for the chances of these men receiving a fair trial on the evidence - which should concern us all - but also for any armchair advocates and prosecutors and defenders, who think the public would benefit from their insight into the case.

Which, perhaps, makes this a useful moment to flag up one or two important things which anyone with a keyboard and an opinion, or a broadcasting job and a desire to remain unfined and out of prision, would be well-advised to bear in mind. The trial of these men is covered by the Contempt of Court Act. Proceedings are active. And Scots judges - at least historically - have been credited with a no-nonsense attitude to applying the Act's restrictions on what you can and cannot publish. In the old days, you could count publishers on your fingers. Today, anyone with an iPhone qualifies. 

And you hear dark rumblings coming out of the Crown Office these days, that senior prosecutors in Scotland are getting tetchy - tetchy with certain well-known tabloid newspapers, flying remarkably close to the wind in their reporting of criminal cases - and tetchy with the opinonated world of folk online, breenging in a prejudicial way into active criminal cases. You hear talk of salutary examples being made, pour encouragers les autres.

Which makes the Rangers fraud case a perilous but fascinating thing for media big and small, professional and amateur. Let's put it this way. Given the issues and characters involved, if the Scottish media, and the easily agitated world of online comment, escapes the Rangers fraud case unscathed by contempt, it'll be a miracle. 

Make no mistake: the lawyers for the accused will be taking a keen and constant interest in what goes on on in the pages of the press, in blogs, on twitter, and in forums. As the criminal case is ongoing -- none of this scrutiny will leak into the public domain. The judge will deal with it in the absence of the jury, but if you fall foul of  the court's attention, you may well find yourself appearing to explain yourself, and mumbling your explanations. 

The days of court specialist reporters in the media are long behind us. This job seems likely to end up the responsibility of the sports desk. And all it will take is one careless reporter, filling in, despatched to the High Court, out of their element, rusty on the rules, to say something spontaneous and silly on the radio or on telly. Or, equally probably, it'll be wee feature piece with a glancing reference to the accused, which isn't legalled, and is thoughtlessly published, only for its potentially prejudical impact to become clear. And bingo. Contempt. 

Perhaps the journalist will refer to legal argument heard while the jury are out of the room. Perhaps they'll allude to evidence the judge has excluded. Perhaps they'll speculate on guilt or innocence of the accused, or criticise the credibility and persuasiveness of some witness or piece of evidence. Whatever it is, there'll be embarassing explanations to be made and an irate judge to placate. I hope this doesn't occur. I don't want to see anyone - professional hack or amateur commentator - hit with a prison term or a fine. But in the current environment, it seems all too probable. 

So what are the rules? Any conduct - any comment - any commentary - any tweet - which tends "to interfere with the course of justice in particular legal proceedings" is a contempt of court, "regardless of intent to do so." This catches any comments which create "a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced." Your social media reach matters, but if you have any kind of audience, don't kid yourself. You aren't a world away from STV or the Daily Record, and you can't expect the judiciary to treat you as such.

You are protected if you are offering only a "fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith." Publications "made as or as part of a discussion in good faith of public affairs or other matters of general public interest" are also not treated as contempts of court "if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion". But if you breach that? The maximum penalty under the Act is two years in prison or a hefty fine. 

So don't kid yourself. Journo or punter, superfan or utterly indifferent to soccer: this isn't America. This isn't a free for all. Duly warned.

Roll of Honour

It is a short, technical-seeming judgment, and like many brief, technical-seeming judgments, it is more significant than it appears. In Donnelly and Walsh v. Procurator Fiscal, Edinburgh, Lord Carloway and his colleagues had to decode a decision by two of his fellow judges, to grant leave to appeal against a conviction in Edinburgh Sheriff Court. So much, so banal. 

Where matters get more interesting, however, is that the appellants, William Donnelly and Martin Walsh, were convicted by the sheriff of having committed offensive behaviour at football under the Offensive Behaviour and Threatening Communications (Scotland) Act 2012.  The sheriff found that Walsh and Donnolly had belted out "Roll of Honour" at a match between Hibs and Celtic at Easter Road in October 2013, concluding that this behaviour was caught by one of the Act's broad prohibitions, and was likely to incite public disorder.

Donnelly and Walsh are attempting to challenge their convictions under Article 7 of the European Convention on Human rights, which provides that:

1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

Article 7 has a bit of history in Scottish criminal jurisprudence. The old catch all common law offence of breach of the peace was gradually worn down and clarified by the courts, anxious that the vagueness of the offence would not satisfy European human rights criteria.  In Smith v. Donnelly, still the decisive word on the definition of breach in Scots law, Lord Coulsfield noted that "the Convention requires that any law creating a criminal offence must meet a certain standard of clarity and comprehensibility." It is not enough that the convictions of Walsh and Donnelly can be hung on section 1 of the 2012 Act: in order to satisfy Article 7, the criminal offences created "must be clearly defined in the law." In the language of the Strasbourg court:

"... this requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him criminally liable." S.W. v. The United Kingdom [1995] para 35.

Do the offences created by the football legislation pass this test? In the particular circumstances of the case, was the applicants’ right to know, with sufficient clarity, of the nature of the crime in terms of Article 7, breached? I would be surprised if Walsh and Donnelly prevail here. The crimes set out in the 2012 Act are arguably at least as clear as Smith v. Donnelly's definition of the crime of breach of the peace as "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community." But leave to appeal having been granted, the High Court will now have to embark on its first substantial review of the football legislation on human rights grounds since it was so hastily passed by Holyrood. One to watch.

Hear no evil, see no evil...

Back on the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, this morning, the High Court of Justiciary handed down its first major judgment under the legislation.  

The case was a Crown appeal against the acquittal of Joseph Cairns in Dingwall, who was prosecuted for "behaviour which the reasonable person would find offensive" under the Act, by singing "Roll of Honour" and "Boys of the Old Brigade" at a Ross County vs Celtic match.  According to the police evidence, "the majority of the Celtic supporters housed in the north stand" of Victoria Park joined in the singing.  In the Sheriff Court, Cairns was acquitted, the judge finding that he had no case to answer:

"Since there was no proper basis for inferring that any person who might be incited to disorder would have been able to tell that the respondent was singing about the hunger strikers or joining the IRA there was equally no proper basis for inferring that the respondent's behaviour was likely to incite public disorder."

On appeal, Lady Paton and Lords Philip and Brodie disagreed, drawing the sheriff's attention to section 1(5) of the Act.  As you may recall, not only do the Crown have to prove that the accused has "expressed hatred", threats, or "behaviour which the reasonable person would find offensive" at a regulated football match. Prosecutors also have to show that the behaviour is or would be likely to incite public disorder. During the law's speedy push through Holyrood, this incitement provision was characterised by Scottish Ministers as a safeguard, raising the bar of conduct criminalised by the Act. As the High Court recognise in this case, the government immediately lowered that hurdle by introducing the qualification that:

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.

The High Court explain the scope and significance of this provision in paragraph twelve, the critical section of the judgment.  In the absence of any disorder, or any real likelihood of disorder, the Act instructs judges to invent fictional incitees and to give them seats around the terraces. Theoretically, at least, this might include anyone under the sun, including furious North Koreans. The sheriff presiding at first instance, say appeal court judges, failed to exercise his imagination sufficiently.

[12] The sheriff correctly identified that to be struck at by section 1(1) behaviour ["offensive behaviour at football"] must not only be such that a reasonable person would be likely to consider it offensive but it must also either be likely to incite public disorder or would be likely to incite public disorder. Because, on the evidence led, the sheriff considered that there was no proper basis for inferring that any person who might be incited to public disorder would have been able to tell that the respondent was singing about the hunger strikers and the IRA, in his opinion there was no proper basis for inferring that the respondent's behaviour was likely to incite public disorder and, accordingly, the submission of no case to answer fell to be upheld. 

We cannot agree with that conclusion. As the advocate depute argued, it is by no means clear why the sheriff came to the view that he did on the evidence. Two police officers had given evidence that they recognised the song and heard certain of the words sung. As the advocate depute argued, if the police officers were able to recognise the song and hear the words, other persons must also have been able to do so. The sheriff appears to have adopted the view that the only candidates as persons likely to be incited to public disorder were the (apparently unperturbed) Ross County supporters. Why other persons might not be candidates, including persons standing close to or even among the "majority of the Celtic supporters housed in the north stand" is not explained by the sheriff. 

However, be that as it may, the sheriff does not appear to have considered the effect of section 1(5). That subsection provides that for the purposes of section 1(1)(b)(ii), behaviour "would be likely to incite public disorder" if public disorder would be likely to occur but for the fact that either measures are in place to prevent public disorder, or persons likely to be incited to public disorder are not present or are not present in sufficient numbers.

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. 

As section 1(5)(b) provides that such persons need not be present for the purposes of determining whether specific behaviour would be likely to incite public disorder, it cannot be relevant to the question as to whether there has been a contravention of section 1(1)(b) that particular persons in a football ground could not actually hear the words being sung.

In other words the actual context within which the behaviour occurs is not determinative. Where behaviour falls within any of the categories specified in section 1(2) it is sufficient for conviction that persons likely to be incited to public disorder would be likely to be incited to public disorder by the particular behaviour, whether or not they were present in sufficient numbers and whether or not they were subject to measures put in place to prevent public disorder

As it does not matter whether persons likely to be incited to public disorder are there in sufficient numbers or are there at all it cannot matter whether or not the persons who are present (whether likely to be incited to public disorder or otherwise) actually became aware of the relevant behaviour.

Paul McConville has more, as does Alex Massie over at the Spectator.

The Football Act: ending the shame of turnip on turnip violence.

Opinionated amateur horticulturalists, second-rate pie-sellers, brash turnip impresarios, and grinchly ticket-collectors, beware.  In Glasgow Sheriff Court last week, Sheriff Reid handed down an opinion on the interpretation of our old friend, Holyrood's Offensive Behaviour at Football (etc) Act of 2012. 

The case involved six characters, charged with forming a disorderly knot in the concourse of Glasgow Central Station. Five of the six admitted that, earlier that day, they'd attended the match between Ayr United and Hibernian football clubs, and travelled back to Glasgow by train from Ayr, with a view to cutting east, back home to Edinburgh.

According to the Sheriff's narration of the Crown's evidence, in the station, the group encountered a group of Rangers fans (and perhaps a smattering of Chelsea supporters), with whom the Crown allege the six gentlemen fell into disorderly confrontation.  No match involving Rangers had been staged that weekend, and none of the Rangers fans which the Crown argue were involved seem to have attended any match involving Ayr, Hibs, or anyone else that day. 

All six men were pulled up before the beak, charged with "threatening" behaviour which was likely to incite public disorder and "other behaviour that a reasonable person would be likely to consider offensive", the indictment alleging that "on the public concourse of a railway station form part of disorderly crowd, fight, gesticulate, throw missiles, challenge the lieges to fight and place the lieges in a state of fear and alarm." 

But did this behaviour, if proved, really "relate" to the regulated football match earlier that day between Ayr and Hibs? Their briefs argued not.  Section 2(2)(b)(iii) of the Football Act is explicit. "Offensive" behaviour isn't just criminalised on the terraces.  The legislation also extends to behaviour "on a journey to or from the regulated football match", by air, land or sea.  Oh.  And to any premises (save for a home say, or other cosy domestic spot) where a football match was televised, and presumably, to the journeys to and from those public houses.

The defence lawyers contended that there had to be a more substantial link between the regulated football match involved and the offensive or threatening behaviour criminalised under the new law. Sheriff Reid disagreed, and explaining his reasoning, offered this vivid assessment of the broad gamut of the new law.

[54] ...  a supporter within a football stadium during a regulated football match may become embroiled in a violent altercation with a pie seller. The dispute may have nothing to do with football or the match. It may relate to the quality of the pie. On both a literal and a purposive interpretation of the [Football] 2012 Act, the behaviour of both the supporter and the pie seller would fall within the ambit of the statutory offence. Likewise, a supporter on a return train journey home from a match may become offensive towards a ticket inspector. The argument may have nothing to do with football or the match. It may relate to an alleged unpaid fare. On both a literal and a purposive interpretation of the 2012 Act, the behaviour of the supporter would fall within the ambit of the statutory offence.

Or the amateur horticulturalists, returning to their hotel from a visit to the Ayr Flower Show, who are drawn into a fight with fellow guests who are watching a live televised football match in the hotel lounge. The fight may have nothing to do with football or the match. It may relate to the size of turnips. On both a literal and a purposive interpretation of the 2012 Act, the behaviour of all participants would fall within the ambit of the statutory offence. There is no absurdity in these results. It accords with the "overriding priority" (per the Policy Memorandum) of the legislation which is to improve the unacceptable behaviour and attitudes increasingly displayed at, around, or on journeys to and from, regulated football matches, whatever the motivation for the offending behaviour. Parliament has designated "trouble free" zones in the context of regulated football matches - and persons finding themselves, or happening upon others, in such qualifying locations must take particular care to moderate their behaviour accordingly.

The next time you fancy collaring a fellow "commoner gardener" in the hotel lounge, arguing that his prize swede is really a diminutive turnip, think twice. Oh. And be sure to check if Ayr are playing Hibs on the telly first.

Poppy Wars.

The shirt is black with bright green lettering of three to four inches in height. On the front, it bears the legend "INLA". Flip it over, and it reads "FUCK YOUR POPPY REMEMBER DERRY", in similar lurid text.  Now, such a jabot isn't quite my style - I can't abide sloganising garments, and Leprechaun green on an ebony field combines unpalatably with my complexion - but if you caught sight of such a shirt, would you consider it conduct "severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community"? 

Quite so, according to three judges of the High Court, who have determined that the outfit and its message - worn, I might add, at a Celtic vs Rangers match in Glasgow in September 2011 - constituted a breach of the peace. (You may be struck by the gap between the trial at first instance before the sheriff, and this appeal. Nobody said that the cogs of justice grind swiftly). The appellant, Kevin Maguire, appealed against sentence and conviction. At trial, two police officers who had lifted him outside Ibrox gave evidence against him.

[3] The police officers testified that, in the volatile atmosphere of a Rangers and Celtic match and its aftermath, it was likely that the insignia of this organisation would be regarded as offensive and inflammatory by Rangers fans, and that there was the potential for this to provoke disorder and disturbance. The Celtic fans, although cordoned off from the opposing support in the immediate vicinity of the stadium, would merge with the Rangers fans a few hundred yards down Edmiston Drive. The officers also considered that there was a potential for the reference to the INLA to provoke Celtic supporters too. They would not appreciate their football club being associated with such an organisation. The police thought that any reasonable person would consider the slogan relative to the poppy to be offensive and upsetting, likely to be inflammatory and to provoke disorder. This would apply particularly in relation to any members of the public attending the match who had served in the Armed Forces or had family or friends in the Forces. 

There seems to be no evidence that disorder actually occurred as a result of Maquire's top. Per contra, the appellant argued that donning the shirt was simply engaging in a "legitimate protest", and invited the Court to "bear in mind the right to freedom of expression under Article 10 of the European Convention" in its construction of the common law offence of breach of the peace.  This sits - to put it generously - a little uneasily beside the mitigation made on his behalf to the sheriff, in which his brief had argued that "the appellant had met with certain family members from Northern Ireland before the match and had been given the top as a present. It was maintained that he had been unaware of what the lettering represented."

Lords Carloway, Drummond-Young and Marnoch were having none of it. Writing for the Court, the Lord Justice Clerk concluded:

[8] In relation to the merits of the conviction, the test of whether a breach of the peace has been committed is well-known and settled. It is, in terms of Smith v Donnelly 2002 JC 65, whether the conduct is severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community. It is conduct which presents as genuinely alarming and disturbing in its context to any reasonable person. If there is no evidence of actual alarm then, in terms of Jones v Carnegie 2004 JC 136 (at para [2]), the conduct requires to be "flagrant".

[9] Applying that test to the evidence before, and ultimately the facts as found by, the sheriff, the court has no difficulty in concluding that the appellant's conduct amounted to a breach of the peace. The actions of the appellant in wearing this top were not part of a legitimate protest. Rather they amounted to a deliberately provocative gesture, calculated to cause precisely the type of disturbance which the court referred to in Smith v Donnelly. His conduct, in the context of this football match and its aftermath, presented as genuinely alarmingly and disturbing to any reasonable person.

[10] The court does not consider that the appellant's right to freedom of expression was in any way be affected by his arrest and subsequent conviction. Even if the appellant does wish to engage in genuine protests, either in relation to Remembrance Day, the events of "Bloody Sunday" or about the proscription of the INLA, he has plenty of suitable opportunities in which to do so without intentionally provoking serious disturbance, including violence, in the community. The court will accordingly answer the first question in the negative, the second and third questions in the affirmative and refuse the appeal against conviction.

Context is clearly important, and the atmosphere when fans spill out onto the streets after an Old Firm match clearly differs from your ordinary saunter in the park. That said, isn't there an argument to be made that stepping out on any street in Scotland, one might encounter souls with backgrounds in military service? Might it be criminal in a recruiting town, known to have strong links with Scottish regiments, and less so in a spot sending fewer souls off to serve as sodgers? After all, conscription during World War II means that every family, give or take, is likely to have had a member who served in the armed forces in recent memory, who might look askance at the always controversial politics of (not) wearing a poppy around Remembrance Sunday.

A friend of mine in Oxford was recently assailed by a stranger in the street, who found her unadorned lapel sufficiently provoking to take to task for not wearing a poppy.  Another crony favours a white poppy instead, and found himself dragged into a furious row with a character in a pub, who thought the bleached flower was also "offensive and upsetting". His choice of white petals in lieu of blood red certainly provoked disturbance in that wood-panelled, lager-stained community. 

I am particularly struck by Carloway's distinction, dismissing the freedom of expression argument, between a "genuine" protest, and one which "intentionally provoking serious disturbance" in the community.  To my mind, intentionally disturbing the settled quiet of a community is precisely the object of most protests. Few are likely to prosper, or to promote their cause, without arresting the ordinary social course of things, drawing attention, making a hubbub. Which is not to say that Mr Maguire's fashion choices represented a wise move unlikely to cause a stramash outside Ibrox, but I'm not at all convinced that Carloway's neat distinction between authentic protest and inauthentic protest holds together terrifically coherently.

What's more, can it really be convincing that "the court does not consider that the appellant's right to freedom of expression was in any way affected by his arrest and subsequent conviction"? I think not. From the appellant's point of view, the message his outfit communicated brought him into police custody, pulled him before our courts, and has seen him banned from football for two years under threat of further criminal sanctions. His freedom of expression rights under Article 10 of the European Convention are clearly engaged by this state action and penalisation.  If this isn't a case which even engages fundamental rights of free expression, then I struggle to think of any case which does.

There may be an argument that the state's interference with his rights can be justified under Article 10's second paragraph, and that the criminal regulation of his expression serves a legitimate aim, is necessary in a democratic society and represents a proportionate response to the mischief contended with. It is disappointing, however, that the High Court seems to have contented itself with this wrong-headed, sweeping rejection of the bare applicability freedom of expression.  It makes for an impoverished analysis.

Graham Spiers: One for the Memory Hole...

A hat-tip to Love and Garbage on twitter for this sterling example of intellectual consistency and serious-mindedness from Herald football columnist, Graham Spiers. The topic: the Offensive Behaviour at Football Act and subsequent police enforcement measures taken under it.  In an article headlined "How the SNP have made policing fans a minefield" published yesterday, Spiers suggests that the Act was  

"... a piece of legislation that many - this writer included - had doubts about. The act seeks to do what it says on the tin: stamp out “offensive behaviour” such as bigoted or sectarian expression. There has been plenty of that around the Old Firm over the years, so to that end all decent-minded people felt that the law should crack down on bigots."

Cataloguing what he now perceives as the Act's problems, Spiers continues:

"Someone said to me: “A law never works if it cannot be objectively measured.” This absolutely captures the problem of the Offensive Behaviour at Football legislation. We got a glimpse of the mess the Scottish government was getting into when, in June 2011, Roseanna Cunningham, not having realised how much she had chewed off, had to frantically backtrack and delay the processing of the bill.

That day it took a mere half hour of questions to realise that Alex Salmond and the SNP, wobbling towards their legislation, hadn’t quite appreciated the acuity of supporters who wanted to defend their right to hold political or cultural positions in song and slogan. The Offensive Behaviour bill was duly delayed.

But its final clarity, when put on the statute book last year, was scarcely enhanced. It has all become quite a dog’s breakfast. Meanwhile, football supporters in Scotland feel like they are under a type of surveillance once associated with life behind the old Iron Curtain."

All of which gives the impression that the judicious Mr Spiers was a long-standing critic of these proposals, who set out these concerns about the clarity of the legislation and its definitions at the time, sorry to see his predictions about the illiberal and reactionary potential of this legislation borne out in practice. The only problem with this little pen-portrait is that it's a self-serving counterfeit.

Spiers refers to Roseanna Cunningham's Justice Committee appearance in 2011 which was not, with the best will in the world, her most triumphant parliamentary performance. He neatly glosses over his own. On the 6th of September 2011, the Scottish Parliament's Justice Committee had the benefit of Mr Spiers' own evidence on the Offensive Behaviour a Football Bill as it was being rammed through Holyrood. No doubt he put his concerns to our tribunes? Articulated these "doubts"? Quantified those anxieties about how this vaguely-drafted piece of legislation might operate in practice?

Er. Not really. Quoth Spiers:

"I am in favour of this bill in principle. If someone asks whether I want to live in a country where thousands of people can shout about the Pope and say “F the Pope”, I say that I do not want that in a football stadium in my country. In principle, I am in favour of the bill."

Okay. So that isn't exactly a doubt-wracked assessment of the draft legislation, but perhaps further on in his testimony, Spiers really got to grips with the detail of the Bill, and the concerns many folk articulated at the time about the scope of its provisions? Fife SNP MSP Roderick Campbell, himself an advocate in a past instantiation, raised some of these concerns with him in the Committee session.

Roderick Campbell: "I will follow up on three themes that were developed in the earlier session. I would like to hear the panel’s views on the suggestion by the Rangers representative in the previous session that by legislating we are using a sledgehammer to crack a nut, and any comments on the context and clarity of the legislation, particularly from Graham Spiers and Pat Nevin."

In all fairness, Spiers' response was not the model of clarity, but the gist of his answer and the scope of his doubts was not that the Bill was too broadly drafted, overcriminalised football fans or threatened free expression, but that its provisions may be extraneous to requirements, given existing common law and statutory offences which apply to conduct in and out of football grounds.

Graham Spiers: "There is probably some substance to that complaint. As much as I wish the bill well, it seems to me—although I am not an expert on the statute book—that there are already contingencies in place such as religious hate crime law, breach of the peace, and other laws that give the police powers such as banning orders to apprehend supporters. There is a lot of stuff currently on the statute book that could deal with many of these problems, so I am a bit mystified as to why we must have an extra load of law—if I can put it in that way—to deal with the issue.

I suppose I need to qualify that by saying that I have been aware this morning that a lot of people are complaining about the anomaly between crimes that are committed in a football stadium and crimes that are committed in the street or in a bus shelter. People have said that that is odd, but a part of me says that it is not. I have been going to these games for decades, and there can be a particular poison in a football stadium. The expression of that may be found out in the street, on the factory floor or wherever, but it nonetheless finds particularly acerbic expression in a football stadium, so a part of me wants some type of specific law to deal with that.

That answer is perhaps as clear as mud, but I hope that you get what I am trying to say."

As Spiers notes in yesterday's Herald piece, the legislation he approved of in September did not differ materially from the final text adopted by the Scottish Parliament in November.  He looked at the "dog's breakfast" in the autumn of 2011, and enthusiastically endorsed it.   

Better one sinner repenteth and all that, but mightn't the entire debate have been improved, if folk like Spiers hadn't given the Scottish Government spurious political cover for this cobbled-together enterprise, had actually read the draft legislation properly when it really mattered, rather than composing self-righteous jeremiads now, when the reactionary legislation which Spiers himself helped to get on the statute book is enforced by the police in a predictably illiberal fashion?

♫ You take the high road and I'll take the low road ♫

As eager-beaver listeners cannot but have noticed, there was a certain gap in our routine For A' That podcasting last Sunday.  Just a wee dab of damnum fatale. In compensation, we've two episodes of the show scheduled for this week, going back to our usual structure of one of Michael's Scottish independence podcasts appearing on Wednesday, and us, back to our usual Sunday spot.  

Our guest today was Pat Kane, scribbler, chanteur, and currently a board member for Yes Scotland.  Up for the blether this week, who are Britain's narrow nationalists now? Theresa May's human rights trolling, high roads, low roads, ambivalence and storytelling in the Scottish independence debate. Pat asks, is folk singer Karine Polwart right? Last month, she wrote:

"Let the Yes campaign be positive and hopeful, yes. But let’s allow it to be, where it needs to be, angry and bold too, please. And let’s harness more imagination to the urgent transformative telling of better stories about how we want to live."

One year since it came into force, we also had a wee chat about football, masculinity, sectarianism, and the Offensive Behaviour at Football Act. A brave public health measure, exorcising the country's sectarian ghosts, or an instrument which has empowered the police to treat fans in heavy-handed ways? A way of addressing Scottish cultures of toxic masculinity, or a threat to basic rights and freedom of speech?

To tuck away the show for later consumption, you can download it from Spreaker, or from iTunes.  Alternatively, you can listen to our discussion with Pat right away, right here. We'll be back, as usual, on Sunday afternoon.

For A' That, Episode 4 ... Hypothetically Speaking...

I'm told that - like grief and alcoholism, and here there may be overlaps between the three - completing your doctoral thesis is a process with many stages, from bright-eyed initial enthusiasm, to grinding, alienated despair, as the prose accumulates, and the months and years tick by.  It's like Stockholm syndrome, where it is impossible to tell whether you or the thesis is the kidnapper. I've been sunk deep up to my eyeballs in this unforgiving endeavour: I hope you'll forgive my quietness here these past two weeks. 

I'm happy to say, however, that we are keeping up the momentum up on our For A' That podcast, recorded with my co-host, Michael Greenwell of the Scottish independence podcast (most recently recorded with Patrick Harvie MSP), and interesting folk from the world of Scottish social and political commentary.  Our guest on this, the fourth episode of the show, was Gary Dunion, currently one of the editors of Bright Green Scotland blog, former candidate and chief press officer for the Green Party in England and Wales.  

Today's discussion covered a range of topics, from Vodafone and Starbucks' interrogation by a Committee of the House of Commons on their economical tax arrangements, and the potential efficacy of protest to effect political change, to yesterday's (unconfirmed) allegations that police were stripping Celtic fans of Palestinian flags as an entre into a broader discussion of policing football, the law recently passed by Holyrood, to criminalise "offensive behaviour" on the terraces and how that may relate to fundamental rights, including free expression, which is protected by the European Convention on Human Rights, incorporated into domestic law by the Human Rights Act 1998.

We closed off our chat with a brief look at the latest independence referendum issues, including the House of Lords Constitutional Affairs Committee's report, published this week, reported in the Telegraph under the inflammatory headline, Lords: Scottish independence referendum deal could be declared "unlawful". Gary also makes an interesting point about campaign funding: is the SNP government actually proposing an overly abstemious regulation of the independence referendum? Is there not a case for nationalists to raise and spend a substantial amount of cash, making the best, most detailed case for independence which can be conceived? We also considered the situation of the civil service in this process: will the state bureaucracy in Scotland and the UK strain at the seams, as a nationalist Scottish Government, and a unionist Westminster Government, use their governmental resources to pursue their constitutional preferences?

In perhaps the podcast's inflammatory admission thus far, I also reveal that, unlike the First Minister, I cannot survey a Tunnocks' teacake with equanimity, nevermind culinary enthusiasm. Lend the podcast your ears here:

For those of you who'd prefer to ferret the show away for later like a concealed, larcenously-acquired teacake in a greedy schoolboy's pocket, you can also download the show via iTunes or Spreaker.  All observations, comments or criticisms on the show, or anything we discussed, very gratefully received.  We'll be back next week with another show, with another guest, and a new range of issues to blether about. Unforeseen, but happily, I'll also be up in Glasgow next week and have squeezed Saturday's Radical Independence Conference into my schedule.  I dare say I might bump into a few of you there.

The first peep from a deflating political football?

There's a couple of wee snippets in the Herald and Scottish Star (not online) today about an abortive prosecution in Falkirk's Sheriff Court yesterday under the Offensive Behaviour at Football Scotland Act. The details in the brief reports are sketchy, but the accused - Steven Dickson - was alleged to have been the worse for drink and to have turned the air blue aboard a train back to Glasgow, returning from a Celtic match against Dundee United.  Witnesses suggested that the words "hun" and "Pope" were used or sung. Dickson was put up before the sheriff in Falkirk to answer for the conduct imputed to him, which was alleged to have put elderly fellow travellers in fear, alarm and "distress".  The reports indicate that he was charged under the new legislation, in preference to your old fashioned "breach of the peace". 

As you will recall, the Football Act criminalised "offensive behaviour at a regulated football", which explicitly included behaviour "on a journey to or from the regulated football match" s2(2)(b)(iii).  So what's the precise ambit of the offence? As for the behaviour itself, it must either "express" or "stir up" hatred against a religious group or social or cultural group with a religious affiliation, or colour, race, nationality, ethnicity, sexuality orientation, transgender identity or disability, or be threatening, or "other behaviour that a reasonable person would be likely to consider offensive".

The second test which must be satisfied is that the offensive behaviour alleged is or would be "likely to incite public disorder" 1(1)(b). Here, however, Holyrood worked a queer little incantation.  It added a subsection which makes clear that:

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.

The situation this section aimed at were well-policed football grounds, where the strains of the Sash ring out, say, but order is undisturbed. Ministers were absolutely frank: they want the singers nicked, and this is the section which they hoped would allow police officers to do so, on the theory that sectarian ditties, of themselves, have a tendency to disturb the public peace. You could even - at least theoretically - commit this offence in a room by yourself (once the judicial imagination has supplemented your audience with a suitably provocable crew). So what happened in Falkirk? Sheriff Caldwell appears to have found that there was no case to answer against Dickson, and he sauntered free from court. His defence agent, Tony Callahan reportedly submitted that:

"We have heard he was seated, no problem at all. Derogatory does not mean offensive. Nor was his behaviour likely to incite public disorder".  

Reporting of the Sheriff's remarks were limited to the observation, directed to the PF, that:

"You have to prove his behaviour was likely to cause a reaction of disorder in others".

From these very sketchy reports, it isn't entirely clear precisely what the Sheriff found wanting in the prosecution's case.  Assume, for the sake of argument, however, that both he and the procurator fiscal  faithfully applied the law as it was drafted, and did so in full understanding of subsection 1(5)(b)'s curious provisions, inviting the court to imagine fictional, potentially inciteable persons when assessing whether the conduct complained of was criminal or not (although it is impossible to say, on the facts before us, whether or not either might have fallen into error, and missed the significance of the subsection).  

Imagine you are a prosecutor. How the devil would you prove that words or ditties - such as Hun, or Papal lyrics - are likely to incite public disorder in the absence of any disorder, in the absence of likely insitees? Find a police officer willing to say that she's witness brawls break out or a stramash be provoked by their invocation in the past? Is it taken to fall within judicial knowledge, whether a given aspersion cast or vocabulary used is, of itself, "likely to incite disorder"? As s1(5)(b) of the Act makes plain, prosecutors don't have to show that anyone actually on the train was likely to be encouraged to mischief by references to the Bishop of Rome, or to Huns. In this case, responses to the accused's conduct seem to have ranged from abandoning the coach he was seated in and complaining to train staff, to (most likely) staring fixedly at the wall in an effort to ignore the antics of which he was accused. Certainly, no disorder in the carriage, no mêlée on the train resulted.

Defenders of the legislation would likely argue that the intellectual challenge this imposes on courts doesn't substantially differ, for example, from the older common law of breach of the peace.  A breach prosecution must demonstrate "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community". Significantly, the Crown don't have to prove that any actual fear and alarm resulted from the conduct either.  Legally, it is an "objective test", and asks whether the conduct would be genuinely alarming and disturbing to any reasonable person, rather than whether anybody in the real world was actually alarmed or disturbed. 

You might well argue that the Football Act calls for an essentially similar exercise of the judicial imagination, albeit on a question of disorder, rather than alarm. I'm not so sure. For one thing, judges are invited to consider conduct alleged to breach the peace in context. The public train, the private house, the doorway to a high street bank, and so on. The Football Act explicitly requires sheriffs to populate the context with imaginary additional characters, to chock the peaceful train full of irate "the Rangers" supporters on the bevy, in reaching any conclusion about whether disorder is liable incited. That's a different, altogether trickier, species of speculation to engage in.

It's still early days in the enforcement of this legislation, and thus far, no cases have made it to the Court of Criminal Appeal on the nicer legal arguments which it might raise, and like this Dickson case, summary cases aren't generally reported in detail in the Scottish press. It would be an irony, however, if this piece of legislation, so rapidly clattered through Holyrood with such hot rhetoric, were to miscarry and actually prove a less effective instrument than the common law to prosecute some forms of generically "offensive" conduct with a loose football affiliation, like making a post-match boozy racket aboard trains. 

It also puts prosecutors in a tricky situation. For political reasons, you might well expect procurators to feel compelled - or at the very least encouraged - to prosecute football-related misconduct under the Act.  Ministers have to report back to Holyrood on its operation.  Folk will, understandably, be keen to demonstrate that it was a "vital tool" in the prosecution of football offenses, rather than a dud, agenda-driven reform that was only half thought through.  It is too early to say for certain, but the Dickson acquittal at leasts suggests - no doubt worryingly for the ministers involved - that the new legislation may prove less effective, and provide trickier legal standards for procurators fiscal to navigate, than the common law breach of the peace which they will now, understandably, be more reluctant to charge. 

An anatomy of an Olympics Grinch...

In my youth, I quickly came to understand that it was my fate to hirple like an ailing hephalump. I never managed any pace one could dignify by calling a run, but instead lolloped slowly and inelegantly across the syrupy-seeming earth, a racing sloth. In my primary school in rural Argyll, I habitually came fourth of four in my class races, which were all heels. In secondary school in Glasgow, my body proved just as defective. Although I can swim, and my hand-eye coordination is more-or-less satisfactory, I never managed to master a skipping rope, and at football, was customarily relegated to stand lumpily between the goalposts, glumly, half-heartedly – and usually accidentally – interrupting around one shot in ten. My team-mates, all would-be strikers booting for glory, damned me for a useless so-and-so, and it was difficult to disagree with their assessment. 

Latterly, I served as a ridiculously outsize cox on ancient, hideous heavy rowing boats which we ineptly navigated up the Clyde. My talent for rugby proved less than stellar. With weary predictability, I took my allotted place among the school’s bottom stream– supportively characterised as the “all stars” by our fellow students, and officiated over by a world-weary rugby coach who styled himself “Supremo”. He wasn’t exactly kind, but Supremo was generally supportive towards the asthmatics, weeds, chubsters and hephalumps he ordered hither and thon across the muck, fumbling the lozenge-shaped ball and missing tackles. He was certainly an improvement on the vile beldam of a PE teacher who’d harried me through primary school - boot-faced beneath her boy’s bowl-cut, a ginger pudding set atop her snarling phizog – who despised my physical uselessness. There was nothing clandestine about the contempt flecking her flayed pig-skin voice. 

Overall, I very much enjoyed school and prospered well inside the classroom, but for me, those early experiences forever associated sport with boredom, heavy with constricting feelings of inadequacy. Of course, there are plenty of doughboys and inadequates who enthusiastically take in the football, or can admire gymnastic feats that their own soft, inflexible bodies could never hope to emulate, but I’m not one of them. I don’t follow football, nor rugby. I can dip into tennis, but it is never anything which sets my heart racing, not something feel I can participate in. Amid all the enthusiasm for the achievements of punishingly fit athletes flown from across the globe, I find myself an Olympics Grinch, unmoved, indifferent, uninterested in even the most astonishingly physical feats – but not without a little regret. 

We don’t come howling into the world, our interests and enthusiasms predetermined, but are clearly fashioned by our experiences, our encounters and opportunities. Although there is an obvious temptation to see the Olympics as the apotheosis of individual triumph, of personal victory attributable entirely to idiosyncratic physical virtues, it seems important to resist taking that understanding too far.  True, the gold, silver and bronze medals can only loop about a few necks, but delve into the careers of these athletes, and you will find them many-peopled, their individual triumphs the result of much hidden, collective labour, contingent chance, the opportunities some folk are afforded, and others miss. Billy Connolly tells a tale of walking through Glasgow with the late Jimmy Reid:  

“He’d point to a tower block and say: “Behind that window is a guy who could win Formula One. And behind that one there’s a winner of the round-the-world yacht race. And behind the next one … and none of them will ever get the chance to sit at the wheel of a racing car or in the cockpit of a yacht.” 

I’m under no illusions that I’m a frustrated Olympic sportsman, sealed in this unsatisfactory, flaccid, unathletic body, my potential squandered – but some small corner of this Olympics Grinch wishes that I could enjoy sports in the way I never have. That they didn’t summon up the recollection of a littler me, despairfully trotting out onto the games field, and a torn-faced, judgmental woman, bitter beneath her mushroom cap of carrot hair. 

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.

The criminal law & mitey morphin' power Rangers...

I'm not your man for the football. I have no thoughts on the state of Scottish football, the liquidation of Rangers, or their strange, attenuated reincarnation, beyond the - hopefully uncontroversial - observation that corporations should pay their taxes, directors should be honest, not venal and negligent and gains got by theft and malpractice should not be rewarded. The collapse of some empires definitively should not be mourned. I've a weakness for stories of hubris whose disaster is royally visited upon itself, and have surveyed the engulfing calamity in that spirit. 

That said, I am interested in the law which Scotland has built up around football, most recently the Offensive Behaviour at Football Act of 2012, which you may remember I was and remain very much opposed to.  But bracket that.  What effect, if any, might Rangers' crashing out of the Scottish Premier League have on the implementation of legislation which was, as you'll recall, largely premised on the familiar spectre of the big and bitter Old Firm match, resounding with chant, singsong and mutual recrimination? I've been wondering if a peripheral section of the 2012 Act might not increase in significance.

Remember, the law primarily criminalises "offensive behaviour at regulated football matches". "Offensiveness" is defined exceedingly broadly. The definition of "regulated football matches" for the 2012 is largely borrowed from the Public Order and Criminal Justice (Scotland) Act 2006, which includes all games where one or both of the teams are members of the SPL and SFL, of the the Football League, the Football Association Premier League, the Football Conference or the League of Wales, or whether the Scottish national team is playing, whether at home or abroad. The 2012 Act is slightly more limited in its compass, and the offence it created:

2(1)(b) does not include a regulated 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.

As you may recall, the "offensive behaviour" criminalised by this Act applies to folk in, entering, leaving or on their way to a football ground where a regulated match is taking place.  It also applies in:

2(3) "... any place (other than domestic premises) at which such a match is televised."

Rangers' fans may not see their team playing in the SPL, and if consigned to the third division, their games presumably won't be televised, but assuming that they are sporting enthusiasts with a certain attachment to the spectacle of top-flight of Scottish football booting the bladder about, they might at the very minimum decamp to a comfortable pub to watch their inveterate foes and former competitors fighting it out in their absence.  In the final controversial stages of the Football Bill, various Scottish politicians and senior policemen envisaged ostentatious police raids on pubs where regulated football matches were broadcast, silencing singers and penalising sectarian expressions wherever they risked creating "public disorder". At the time, this mostly came off as the empty, "tough" rhetoric of political poseurs, but I wonder if the provision might not become more important, as Rangers fans are cleared off of Premier Division terraces, and a segment of their supporters are obliged to take their sectarian ditties with them - presumably - to the pub.

85% already believe "sectarianism" is a criminal offence...

On Wednesday, Holyrood is due to pass the final version of the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill into law at stage three.  Yesterday, the BBC's Politics Show Scotland discussed the issue, and somewhat unexpectedly, yours truly was invited back on to contribute. The section starts around 01:04:16.  While there is still time for the legislation to be amended, its substantial revision seems unlikely.  I've made my own views on this legislation, and how it has been handled, defended and justified, exceedingly - one might even say tediously - plain across a series of more-and-less temperately worded pieces on this blog.  Such doubts are now moot. The Bill will pass on Wednesday. Our thoughts must turn to its implementation, its operation in practice and anxious scrutiny of how prosecutors and police officers use the sweeping powers it gives them. It is in that spirit that I tried to contribute to yesterday's programme.

Whether or not you regard this law as the bee's knees, we must be frank about the challenges presented by how its actual provisions have been composed. It is very broadly drafted, potentially criminalising a great gamut of conduct around and near football matches and football fans, whether in stadia, on public transport, or in pubs with the football on. In these settings, the police will be armed with very broad powers indeed, mediated primarily by that less-than-reassuring concept "common sense", to guide them. If this is your goal, or one you find attractive, this Bill will certainly satisfy. However, the breadth which will give the police such "flexibility" correlatively - and self-evidently - presents challenges for the liberty of the subject.

Some of you, I think, may have misapprehended the point I was trying to make in my ad absurdam piece about the criminalisation of Huguenot-haters. By no means am I seriously suggesting that the police will be spending their time, scourging around in bars, seeking out and persecuting those fondly reminiscing about St Bartholomew's Day in 1572.   By taking such an improbable example, and demonstrating how the new law will criminalise the eccentric conduct and prejudices of its characters, I hoped primarily to prompt a little thought. What about more plausible scenarios closer to home, closer to the Scottish experience? Do we seriously think that such cases really merit criminalisation and jail terms? Anybody who believes that the police and prosecutors never stumble and misjudge, I'd encourage you to read up on Paul Chambers and the scandal of his "Twitter Joke Trial". Such concerns are not hysterical. They are just the sorts of cases which are left vulnerable to prosecution, when you enact very broad criminal legislation, relying on the good sense of law officers and public prosecutors to use their provisions sparingly and selectively. Supporters of the Bill must be frank with themselves about that.

Finally, I wanted to expand upon a point raised in yesterday's Politics Show, on public knowledge of the law and potential challenges posed to the enforceability of this legislation. Les Gray, for the Police Federation, was profoundly skeptical about the idea that football fans - and I suppose, the public in general - will  struggle to ascertain what behaviour, speech or songs will be criminal under the new regime and which will not.  This robust confidence, despite the plain obscurity of the legislation's vaguest section, which criminalises "behaviour that a reasonable person would consider offensive" which a sheriff can be persuaded "is likely" or "would be likely to lead to public disorder". There is, for example, no list of proscribed songs or lyrics appended to this Bill, nor even a series of non-exhaustive scenarios, adding some meat to the concise definitions of its offences, to guide football fans and others exchanging views which might, conceivably, shade into the idea of "expressing hatred" against any of the groups enumerated in the law.

Is Les Gray right to be cynical about the idea that people have a clear idea what is permitted and what isn't? Here's a piece of evidence which suggests not, which I had rather intended to mention on the programme, but lamentably, slipped my mind when the camera had me in its beady, unresponsive gaze.  Seeking to bolster their waylaid plans for this legislation, the SNP Government commissioned a  poll from TNS-BMRB over the late summer, asking a series of questions about public attitudes towards "sectarianism". Do you agree that sectarianism is offensive? Do you agree that sectarianism is unacceptable in Scottish football? Do you agree or disagree that stronger action needs to be taken to tackle sectarianism and offensive behaviour associated with football in Scotland? 

From their point of view, the findings were ideal.  89% agreeing sectarianism was offensive, 91% agreeing that "stronger action was needed". Since, Roseanna Cunningham has regularly syllogised around these findings thus: 

Almost everyone agrees stronger action on sectarianism is needed. This Bill is stronger action on sectarianism. Therefore almost everyone supports this Bill.  

Best I can discern, at no point in this polling exercise did the government or TNS-BMRB attempt to posit any definition of what they actually meant by sectarianism, so heaven knows what those polled made of the questions. I'm reminded of George Orwell's essay, "What is Fascism?", on wild, undefined commonplaces in our discourses, which all too easily obscure rather than illuminate the issues we're trying to talk about. Fundamentally, to ask if folk if they think sectarianism is offensive is basically to ask do you think that this Bad Thing is good or bad? It is no surprise, thus framed, that such questions generate such stonking results.  

On my main theme, however - public knowledge of the law - the poll generated one finding which the government have conspicuously not discussed. Indeed, insofar as they have made reference to it, they've appear to have distorted the significance of the data. TNS-BMRB report that they asked their respondents if they thought that sectarianism is a criminal offence, under existing legislation? The key rationale now advanced by Scottish Government ministers is that this new Bill closes "gaps in the law", which is a rhetorical way of saying, "criminalising things which are not criminal but we think ought to be." So how knowledgeable were the public about these "gaps"? Did they see sectarianism as already criminal, or presently permitted by the law, and requiring criminalised in a "crackdown" aiming to expunge it from society and eliminate its lyrics from football? Strikingly, the poll showed that the vast, vast majority of respondents already thought that sectarianism was a criminal offence. The results were as follows:

Q: Sectarianism is a criminal offence. Agree or disagree?

Agree: 85%

Disagree: 5%

Neither agree nor disagree: 10%

Extremely cheekily, in a naked distortion of the polling data, in its news release, the Scottish Government appears to have substituted the is for an ought, suggesting that the poll showed that 85% of people "agreed that sectarianism should be a criminal offence". Not so. And the difference between the two statements is absolutely crucial. While the second may support the Scottish Government position, the question as posed by TNS-BMRB is more interesting, and more challenging. If most folk already regard "sectarianism" as criminal, what can new, symbolic criminal legislation contribute to changing behaviours, stopping mouths and slaying songs? More generally, if people have a very loose grasp on what the law requires of them as is, failing even to recognise the "gaps" the SNP government have put at the heart of their justification of this legislation, who can have much confidence that the broad-brush terms of the Offensive Behaviour at Football Bill will be seriously comprehensible, allowing people to discern what is and is not criminal, and regulate their conduct accordingly?  

At the very least, the Scottish Government's own poll suggests that Les Gray's cynicism about knowing fans, feigning ignorance about what is and is not required of them by the criminal law, may be seriously misplaced.