'Offensive' Behaviour at Football: The Legal Position in Scotland

http://www.heraldscotland.com/resources/images/4782783.jpg?display=1&htype=0&type=responsive-gallery

What is the legislation? 

In 2012, the Scottish Government introduced a controversial piece of legislation aimed at football supporters and tackling offensive behaviour. For many, this measure was viewed as a tool to target sectarianism that had plagued Scottish football for decades and in particular, the two main Scottish clubs, Celtic and Rangers, whose fan base had a deep association with Ireland and N.Ireland, and the politics within.

The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 (OBFA) came into force in March 2012 and stated that it was an offence for a person, at a regulated football match, to engage in behaviour which is hateful, threatening or offensive and likely to incite public disorder. The legislation goes on further to state that behaviour is likely to incite public disorder if such disorder would be likely to occur, but for measures put in place to prevent it or for the absence of persons likely to be incited.

Hateful behaviour is defined as 'expressing hatred', 'stirring up hatred' or 'motivated by hatred' of an individual or group of persons based on their membership of a certain group. Such groups can include religious groups and social/cultural groups as well as those falling under race, gender and sexuality.
But how do you define 'offensive' behaviour as what may offend one person may not offend another whilst others have various tolerance levels when it comes to certain behaviours. The Lord Advocate released guidelines for police officers when considering whether behaviour falls to be 'offensive' under the Act. He said:

"Officers should have regard to proportionality, legitimate football rivalry and common sense when assessing whether the conduct would cause offence to the reasonable person."

It should be noted that this Act is very far reaching and catches all types of behaviour, that need not to be violent, including waving flags, displaying banners along with singing and chanting.

What led to the legislation being brought into force?

An urgent summit was called following the closure of the 2010/11 football season after an increasing number of sectarian-related incidents were recorded throughout the season. It was considered that existing legislation to tackle such issues was inadequate and the summit was held to discuss the problem with the Scottish Government, Police Scotland, the Scottish Football Association and representatives of Celtic and Rangers.

Incidents occurring during the 2010/11 season and leading to the enactment of the legislation included:

• Numerous incidents, on and off the pitch, in relation to Old Firm fixtures (more than 400 arrests)
• UEFA fine of £35,000 for Rangers following fans singing sectarian songs during Europa League fixture
• An old-firm fixture whereby three Rangers players were sent off and a number of on-pitch confrontations between players and coaching staff, leading to increased tension in the stands
• Celtic manager, Neil Lennon, attacked by Hearts supporter during match between both clubs
• Neil Lennon receiving death threats and bullets in the post
• Intercepted parcel bombs intended to reach Neil Lennon's home
• Intercepted parcel bombs intended to reach homes of prominent Celtic supporters, Paul McBride QC and MSP Trish Godman

Some cases

Procurator Fiscal v Cairns (2013)

In 2013, Celtic supporter, Cairns, was charged with breaching s.1(2)(e) of the OBFA after allegedly engaging in behaviour, at a football match, that a reasonable person would have likely considered to be offensive.

Cairns attended a fixture between Ross County and Celtic at Victoria Park, in Dingwall. Police were also in attendance and were equipped with hand-held cameras as well as body cameras. At some point during the game, it became apparent that a group of fans were singing Irish Republican songs, namely 'Roll of Honour' and 'Boys of the Old Brigade'. This was captured by video cameras carried by the police and Cairns was identified and subsequently charged.

At Court, the Sheriff acquitted Cairns, on the basis that there was 'no case to answer' as there had been no obvious reaction from the opposition supporters to the singing of Irish Republican songs, 'The Boys of the Old Brigade' and 'Roll of Honour'.

The Procurator Fiscal appealed the decision and the case was heard by Lord Brodie and Lord Phillips along with Lady Paton. The Judges overturned the original decision on the basis that the Sheriff had misunderstood the legislation. They stated that, under the Act, it is not necessary for a reasonable person to be present at the time of the conduct. The test is whether the reasonable person would have been offended had they witnessed the behaviour.

You can read the full decision here.

Donnelly and Walsh v Procurator Fiscal, Edinburgh (2015)

In this case, the Appeal Court was asked to consider whether the appellant's rights under Article 7 of the European Convention had been infringed. Article 7 states that no one shall be found 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. I.e. No punishment without law.

The basis for this argument was not by reason of the definition of the offence under s.1 of the OBFA 2012 being incompatible on grounds of uncertainty but because the appelants may not have understood that their rendition of the song "Roll of Honour" could be regarded as threatening or offensive behaviour and consequently render them liable to criminal conviction.

The two appellants were convicted under s.1 OBFA having been identified singing a song, called "Roll of Honour" in support of a proscribed terrorist organisation, the IRA. The appellants had been in attendance at a fixture between Hibernian and Celtic, at the Easter Road stadium. The appellants were situated in the away stand and were singing as part of a group. The lyrics of the song are in support of fallen members of the IRA, during the 1981 hunger strike and contain lines such as:

"England you're a monster. Don't think that you have won. We will never be defeated whilst Ireland has such sons"

The singing of the song was understood to have provoked boos from the Hibernian support. The fact that the singing could have incited public disorder was not in dispute. What was at issue was whether the appellants could have reasonably appreciated that their singing of the song may have violated s.1 of the OBFA 2012.

The argument put forward by the appellants was that there was great uncertainty amongst fans about which songs could and could not be sung at football matches. Previous cases were cited whereby Sheriffs had acquitted others for the singing of that very same song and the Scottish Human Rights Commission had even made representations to the United Nations in relation to the wide scope of the OBFA 2012. The appellants argued that they had a right to foresee, to a degree that is reasonable in the circumstances, the consequences that a given action may entail.

In response, the Advocate Depute for the Procurator Fiscal, contended that this issue had already been decided by the previous case of MacDonald v Cairns and that the Court, in that case, held that anyone caught singing "Roll of Honour" would have a case to answer. Notwithstanding that, the Advocate Depute pointed to the legislation and stated that it had 3 stages: (1) a person had to be at a match (this isn't true and in fact, behaviour can also be sanctioned when it is carried out travelling to and from matches); (2) the behaviour had to be threatening or offensive and (3) that behaviour was likely to incite public disorder. Given that, the Advocate Depute concluded that it would have been evident to the appellants that the singing of a song that is in support of the IRA (a proscribed terrorist organisation), at a football match, would be deemed a criminal offence.

In coming to its decision, the Appeal Court noted that singing songs of a sectarian nature was likely to be a criminal act and this was firmly established in law and well-known. The Sheriff noted that the song, "Roll of Honour" was widely regarded as sectarian and offensive and notwithstanding that, he understood that warnings about singing such songs were broadcast before matches and that both Celtic and Celtic Supporter Club website's had issues warnings in relation to the risks faced in singing that particular song.

The Sheriff upheld the original decision and stressed that there was no need for proof of knowledge that the particular supporter was aware of the law or status of the song. Ignorance is not a defence. In the Sheriff's opinion, the appellants were aware of what they were engaging in, when they began singing the song.

You can read the full decision here.

Procurator Fiscal v Montgomery and Taylor (unreported)

In May 2016, two Rangers fans were charged under the OBFA having been identified singing about the Young Citizen Volunteers (YCV) at a match between Rangers and Dumbarton. A Police Inspector providing evidence stated that the pair had been acting in a manner likely to incite public disorder by singing songs in support of a proscribed terrorist organisation. She believed that singing, of that nature, could have provoked a reaction.

Montgomery and Taylor pled not guilty on the basis that the YCV is a group regarded as the youth wing of the UVF, which is a proscribed terror organisation, but the YCV itself is not. Given that, there was no case to answer.

The Sheriff upheld the no case to answer submission, stating that the legislation was deeply flawed:

"It is deeply flawed legislation. Sectarianism is a blight on Scottish football, a blight on Scottish life and there is an evil in football represented by sectarianism. It seems this Act was designed to try and deal with this evil. I'm not satisfied, however, that the Crown have established that any crime has been committed and accordingly I uphold the submission of no case to answer. Do not think this means I approve in any way whatsoever with conduct which is in any way sectarian in nature."

Procurator Fiscal v Maguire (unreported)

In 2016, Celtic supporter, Maguire, was acquitted following charges brought against him for singing songs in support of the IRA.

Maguire attended a fixture between Hamilton Academical and Celtic, in February 2016. During the game, Maguire was identified as singing 'Roll of Honour' along with other supporters. Fans were monitored via video surveillance, during the fixture, which led to the identification of Maguire and his eventual arrest. As a result of the singing, he was charged with engaging in behaviour likely to incite public disorder.

Maguire, however, was acquitted at Hamilton Sheriff Court after the Sheriff blasted the weak evidence presented to him by the Crown. He stated the following:-

"From the video which we viewed in Court, you were never properly identified by the police officers as doing any of the singing ... I could hazard a guess as to your involvement but hazarding a guess is not how the law works, the law works by me being satisfied beyond a reasonable doubt of conduct before I can find guilt ... The Crown case at it's highest level meant there was only just a case to answer and I repelled a no case to answer submission ... However, the case presented in Court was not to the standard that one might expect in a case like this ... Having spoken to colleagues, they have heard cases where experts on Irish history have come in and told the Court why Roll of Honour is a song related to the IRA and what it means ... But there was no such evidence led here and the two police officers themselves admitted they were not experts ... Putting everything into consideration you will be formally acquitted of the charge."

Procurator Fiscal v Morrison (unreported)

In 2016, a Rangers supporter, Morrison, was one of many to be sanctioned with a banning order and fine, following shameful scenes after the Scottish Cup Final between Rangers and Hibernian.

Morrison was charged under the OBFA for entering the field of play, gesticulating to opposition supporters and fighting with rival fans.

The Court heard evidence that Cairns had been restrained by a steward at full-time as he attempted to enter the field of play. He eventually managed to break free and climbed over a barrier before being stopped by another row of stewards. At this point, Morrison continued to gesticulate to Hibernian supporters and again managed to break free before joining a fight that had broken out between supporters.

Morrison received a UK wide football ban for a period of two years and ordered to hand his passport in every-time a Scottish team was playing a fixture abroad, during the two year sanction. On top of that, Morrison also received a £1,000 fine and a lifetime ban from Rangers FC for attending any of their matches.

Maguire v United Kingdom (2015 60 EHRR SE12) - Freedom of Expression

Although not directly related to the OBFA, this case cannot be ignored as it concerns potential offensive behaviour at football matches and the infringement of Article 10 of the European Convention of Human Rights - Freedom of Expression.

On 18 September 2011, Maguire attended a football match at Ibrox Stadium, in Glasgow - home to Rangers Football Club - where Rangers were meeting Celtic in an Old Firm fixture. Maguire attended the match, as a Celtic Supporter, and wore a black top which, in large green letters, bore the abbreviation 'INLA' on the front and 'FUCK YOUR POPPY REMEMBER DERRY' on the back. INLA is an abbreviation of the Irish National Liberation Army, a proscribed terror organisation. In the UK, the poppy symbolises remembrance of the members of the armed forces who have died in the line of duty. Derry is a town in Northern Ireland where in 1972, 13 unarmed civil rights protesters and bystanders were killed by soldiers of the British Army (known as Bloody Sunday).

Following the football match, Maguire was in the process of leaving the stadium when he was approached by two police officers whose attention had been drawn by the top he was wearing. He was arrested and taken to the police station. He was subsequently charged as conducting himself in a disorderly manner by wearing a top which displayed slogans of an insulting and abusive nature and committed a breach of peace, as a result. Maguire pleaded not guilty to the charge but the Sheriff convicted him.

The case was appealed to the Appeal Court who dismissed the appeal stating that they had no difficulty in concluding that Maguire's conduct had amounted to a breach of the peace. In relation to an argument concerning infringement of freedom of expression, the Appeal Court stated that it did not consider that the right to freedom of expression was in any way affected by Maguire's arrest and subsequent conviction. Maguire had plenty of opportunity to engage in genuine protests, either in relation to Remembrance Day or 'Bloody Sunday' without intentionally provoking a serious disturbance, including violence, in the community.

Maguire appealed, once again, this time to the European Court of Human Rights complaining that his conviction constituted an unjustified interference with his right to freedom of expression.

The Court reviewed Maguire's actions and stated that it was not enough that his actions were a "deliberately provocative gesture" (as the Appeal Court called them) and that that in itself did not justify his arrest and his conviction for breach of the peace. It must be shown that the restrictions imposed on him were proportionate and met a pressing social need.

The Court considered that at the relevant time, sectarian violence was recognised as a societal problem in Scotland, and was a particular issue in the context of Old Firm football matches. The Court emphasised that national authorities are better placed than it was to understand and appreciate the specific societal problems faced in particular communities and contexts. The decision of the police immediately to arrest Maguire, the subsequent decision to prosecute him and the decision of the Sheriff to convict him were not unreasonable in the circumstances. The Court also considered that Maguire could not claim that he had no knowledge as to why the police and Sheriff would be of the view that the top he was wearing was likely to incite disorder, in the context in which he was arrested.

In relation to freedom of expression, the Court stated that it was important to underline that Maguire was not convicted for expressing the views that he did or even for expressing them in strong language. The conviction was a narrow one in respect of particular conduct at a particular time in a particular place. There were and are many suitable opportunities in Scotland for Maguire to express his views or participate in protests, without contravening the criminal law.

In conclusion, the Court confirmed that even if they had found that Maguire's conviction and sentence represented an interference with his exercise of his freedom of expression, the reasons adduced by the State to justify any such interference were relevant and sufficient and that the interference complained of met a pressing social need. For those reasons, the Court rejected Maguire's complaint.

What are the concerns about OBFA?

One of the main concerns about OBFA is the lack of clarity concerning the term 'offensive' and the 'reasonable person'. Offensive behaviour is a subjective test and how one would determine an offensive act is likely to differ from person to person. Likewise, what one would deem as offensive is also likely to differ from person to person. A criminal law that is based on a reasonable person who does not have to be directly affected, was always going to have flaws. The perfect example of that is in relation to Irish songs, one group of persons may consider those to be connected to terrorist organisations or have a political agenda, whilst another group may consider the very same song to be an expression of Irish culture and identity.

The legislation has seen criticism from all affected by it ranging from fans to politicians to lawyers and Sheriffs - one Sheriff referred to the Act as 'mince' whilst the Scottish Criminal Bar Association labelled it "capricious, unfair, unnecessary and unworkable." The general consensus appearing to be that existing breach of the peace laws were effective in catching any unacceptable behaviour and the new legislation made some feel uncomfortable in relation to human rights (following Maguire v UK (see above), however, any interference may be reasonable and justified, given the social context & impications).

In relation to football fans in particular, many have expressed their dissatisfaction at being unfairly picked on and placed under a microscope, similar to that of no other groups of sport fans. The example regularly provided is that of middle class rugby fans who can attend rugby matches freely and without being subjected to a 'Big Brother' surveillance program. Compare that to working class football fans who are heavy regulated and under surveillance, at all times, whilst travelling to and from fixtures as well as during attendance. This has naturally contributed to a breakdown in relationships between the police and fans with many expressing deep resentment and distrust in police officers, some going as far as calling it a 'Police State'.

What is the future? 

With the growing disenchantment with the OBFA, there have been moves to repeal the Act and in November 2016, MSPs successfully voted to urge the Scottish Government to repeal the Act.

But what would replace it? Would we simply revert to existing breach of the peace laws?

There have been calls to implement UEFA's strict liability rules, which are already in place in England. Such rules would force clubs to take responsibility for unacceptable fan behaviour and result in sanctions including football bans and matches being played behind closed doors. Under the current rules, clubs can escape sanctions if they can prove that they had taken steps to avoid unacceptable types of behaviours.

This isn't the first time that strict liability has been mooted. It was voted against in 2013, by Scottish clubs at the Scottish Football Association's AGM. However, due to the backlash with OBFA, the prospect of strict liability has raised it's head again. Celtic has already warned against strict liability stating that, in their opinion, holding clubs responsible could encourage unacceptable behaviour in stands by rivals pretending to be supporters of the club. They also claim that there is no evidence to suggest that the strict liability system, operated by UEFA, is effective in combating unacceptable behaviour or reducing the number of disciplinary offences.

Of course, strict liability is not the only option, the Government could implement an independent panel consisting of experts acting as arbitrators who could hear cases on unacceptable behaviour and advise clubs on best practices.

With the Act likely to be repealed in the near future, the focus should not only be on combating sectarian behaviour but also providing education to fans and building relationships between Police Scotland and supporters, to gain trust once again.

IMPORTANT: This post is not intended to be a legal briefing, it is not intended to be a statement of the law and no action should be taken in reliance on it without specific legal advice.