Justice Committee

Meeting date: Tuesday, April 23, 2013

Official Report 439KB pdf

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Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012

Item 4 was included on the agenda in response to a request by Graeme Pearson. As I explained last week, it was a bit late to put it on last week’s agenda, and today was the earliest opportunity. The request was in response to a number of issues that have arisen recently in relation to the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.

Members will be aware that the Scottish ministers must review the operation of the offences in the act for the period 1 August 2012 to 1 August 2014 and that the report of the review must be laid before Parliament by 1 August 2015.

Before I invite members to comment, I ask the committee not to make any reference to the recent decision of Dundee sheriff court in the Dion McLeish case. An application for appeal has now been lodged, and the legal advice to the committee is that legal proceedings are still active and that any reference to the case would therefore be sub judice. We can, however, make general reference to the operation of the act; it is really the specifics of the case that we must avoid.

My letter to the convener was largely a result of the growing public debate about the controversies surrounding police enforcement of the legislation and the efficacy of the legislation. That has resulted in a substantial number of emails to me and, I gather, to other members of the committee.

Some committee members were, when we considered the bill, unhappy about the length of time before a full review would be conducted. The legislation states that a review does not need to be scheduled for Parliament until 2015. That seems to be an awfully long time away.

The relationship between the Police Service of Scotland and the general public is important enough that the legislation should be reviewed, and there are concerns about its operation, particularly in relation to the targets and policies that are set by Government.

Do any other members wish to comment?

I share Graeme Pearson’s concerns about the act, and I too have had a large volume of email correspondence about it. Given the sheriff’s comments, there is an onus on the committee to look at the act and how it is operating, and to consider whether the timescale for reviewing it that the act itself sets out should be accelerated.

I regularly attend football matches. I am a season-ticket holder, and where I attend I do not hear any mention of the legislation at all. That said, genuine concerns have been expressed to me. I have had about three dozen emails and have responded to them all, and I have been in touch with Chief Constable House. However, with regard to the circumstances that have given rise to the series of emails, just because someone says that the problem is the legislation, that does not necessarily mean that it is.

There are significant questions to be asked about policing practices. For instance, I have asked Mr House if any debriefing has taken place about the incident on the Gallowgate on Saturday 12 March, and I have encouraged a review of police tactics—not least in response to the suggestion that kettling was involved. If that was the case, it is disappointing because—as I understand it—there is the potential for people who are in no way connected with the incident that gave rise to it to get drawn into a situation. There most certainly are concerns; they have been shared with me, and they are almost exclusively from a quarter that supports one team, but that does not mean that we should not look at them.

Are we committed to that timeframe for the review, or is there any latitude for on-going review? Given the time that it takes to put in place prosecutions and an appeals process, it is fairly soon after the event for us to be able to see a broad picture of the effectiveness or otherwise of the act.

I want to hear views on how we can progress the issue, but we have to discuss that in the context of our work programme. We cannot commit to action until we consider all the issues in the work programme, if we are to slot anything in.

Members might be content in the interim—although it is optional—to write to the minister to reflect the conversation here and to find out what the Government has to say. That does not mean that we are pre-empting anything: we can still discuss the issue in the context of the work programme, which is very heavy, as members will know from their papers. We can do that and do something in the interim; I am not saying that we should, but members can certainly consider it.

There was always concern, given that the bill was so rushed and, in my view, so ill-founded, that it carried the risk of doing more harm than good. I, too, have received a great number of representations from constituents.

Although the spotlight must be shone on the concerns about heavy-handed and biased enforcement, the implementation of the act needs to be proportionate. The Government seems to be resting on the idea that there have been a number of successful prosecutions, but for me, that in itself is not a sign of whether the act is successful, especially if there is a sense that many fans feel intimidated by the legislation. I wonder whether it is possible to have an interim review and for us at least to hear from the Lord Advocate about implementation.

I was not on the Justice Committee when it considered the bill, but I have read the act. As you said, convener, a report on the review of the act is to be submitted to Parliament in 2015. If that is the case, I would want to uphold that. However, that is a decision for the committee.

I echo what John Finnie said about the events in the Gallowgate, which is in my constituency of Glasgow Kelvin. I have had many emails about the matter and I know that others have, too. Those events—which I believe are also sub judice—had nothing to do with the act. A few of us have written to Strathclyde police authority and I have had a reply from Councillor Philip Braat, who is a Labour councillor and convener of Strathclyde police authority. I am sorry—I should have given a copy to the clerks. The letter says that an investigation into the events is not forthcoming and that there are internal inquiries into the matter. In the last paragraph, Councillor Braat says:

“However, let me confirm that the force has already appointed a senior officer who has been asked to investigate any complaint received against any police officer and, should any misconduct be found, this will be dealt with in terms of the existing complaints structure.”

My comments were partially taken on by Sandra White.

In my days as a councillor here in Edinburgh, events such as happened at the Gallowgate are the sort of thing that would have fallen under my remit. It is almost irrelevant who was involved; it is purely a police operational issue and regardless of who is at the receiving end of it, it would most likely have been dealt with in the same way—at least, that is what I would expect.

Although I understand the concerns about whether there has been heavy-handedness, those are dealt with under the procedures for local authority and police complaints. I do not really think that we should consider the issue when we look at the act again.

I want to reiterate some of the things that Sandra White said. I have been trying for a little while to get a briefing from what was Strathclyde Police—now Police Scotland—on the events on 16 March. I have not yet obtained one, but I am still working on it. It is my understanding that whatever comments might have been made about police tactics on that day, it has nothing to do with the 2012 act per se. That act was not used and no one has been charged in relation to it. We should be careful to distinguish the events in the Gallowgate, which have caused a lot of public concern, from a general review of the act. That is my principal point.

I record first and foremost that I made no connection between the events at Gallowgate and my invitation to consider the act.

If I can comment about the events of that day, I say that I think that it is appropriate that the Scottish Police Authority properly review the circumstances in policy terms to decide whether—as John Finnie indicated—a kettling strategy was involved. The authority is the appropriate body to oversee whether that was appropriate. It is certainly for Parliament to comment on whether its approach is effective and whether it is responsive to its legislative responsibilities.

I am very aware of the number of people from South Scotland who have contacted me about how the act is being utilised. There is an on-going public debate about the act and about the implications that have arisen as a result of its enforcement. It seems that among the reasons why a group gathered on that day at the Gallowgate was their view of whether the act is appropriate or otherwise, and whether police enforcement of the act is effective and healthy. If we fail to scrutinise in a timely manner how our legislation is being used, that is not good for those who are being charged under the act. I have the numbers here: as of June 2013, 34 people, according to the figures that have been supplied to me, have been dealt with under the act; 83 per cent of prosecutions have resulted in convictions.

I think that you said June 2013. That cannot be right.

I am sorry. I meant as of April 2013; there is a mistype in the brief.

We are talking about 34 people and about the amount of upset that is being created among otherwise decent members of our community—respectable people who are involved in this controversy. There is an onus on us to review the act at the earliest opportunity.

The act was also supposed to be seen as a deterrent and we do not know whether that has been the case. That was the other view of it—it was hoped that there would not be prosecutions.

You will be aware that many of us had our reservations even in the lead-up to the legislation.

Indeed. I campaigned for it not to be emergency legislation at the beginning, if you recall. I thought that we should have a full hearing on it.

Graeme Pearson has covered a number of my points already—not least of which is the fact that, whatever the merits of the act, it is right that we recognise that the purpose of the people who congregated that day was to voice objections to the legislation. As a regular football attender I am blissfully unaware of any implications over it, but it has been made clear to me in personal contacts that certainly supporters of Glasgow Celtic feel that there is overzealous application of the act, which does not manifest itself only in arrests and prosecutions, but in operational policing. That has to be addressed, perhaps by way of a review of the act, to which, if it is competent, I am not averse.

There are clearly policing issues. I have said to individuals that if they have been the subject of overzealous policing, there is a complaints procedure that I encourage them to use, and that they should, if they feel that they have been wrongly convicted, seek legal advice as to the remedies for that. There are various strands to the issue, but it is important that the committee recognise that for the vast majority of football fans the act is not important, but that for one club in particular it has real resonance. It is seen as being—as Graeme Pearson suggested—divisive, which is precisely what gave rise to that demonstration, as I understand it.

I do not want to close down the discussion, but I wonder whether it would be helpful, because of the range of issues here, to write to the SPA with regard to the operational matters and the policy on them; to the Lord Advocate with regard to the comments that have been made here; and to the Minister for Community Safety and Legal Affairs with regard to specific concerns in relation to operation of the act. We can then, in the light of their responses, decide whether to take the matter further.

Do members have anything further to add to the discussion?

11:45

I understand what you are saying, but I echo what John Finnie said. This is what I wanted to say at the beginning; the particular incident in the Gallowgate that kick-started the question that was asked and the discussion was an operational matter.

I said that. I said that we would write to the SPA because it is an operational matter.

Yes. John Finnie said that he goes to football matches and has absolutely no problem at them. Basically, we are talking about one particular area. The issue was an operational matter for Strathclyde Police; it was not necessarily to do with the act.

No. We have separated them out.

That is what I feel.

That is why I think that I should add the chief constable to the list. The last thing that politicians want to do is get involved in operational matters.

Absolutely.

That does not mean that operational matters do not count, but the first port of call with operational concerns should be the SPA and the chief constable. Do members have any other suggestions? With that evidence gathered, we could decide what to do further.

I am wary about using the Gallowgate example simply because of the operational part of it. Any large group could be in the same situation.

I have clarified that that is not to do with the act, but is an operational matter. However, there are concerns relating to it, and we want to know what the processes in relation to operations were.

I find this difficult. If I were looking at the matter up the road, obviously the usual questions would have to be asked about whether it was or was not allowed. It is simply an operational matter. I understand what you are saying, but we cannot use it in any reference to the act.

I am not suggesting that we ask the minister about an operational matter—there are routes for that—but there is an issue that is open to debate to do with examining whether there could be an earlier or interim review. I think that Alison McInnes suggested that. That is another matter to do with the act.

We have separated and teased out the two matters. Politicians cannot get involved in police operational matters that are unconnected with the act. Graeme Pearson and John Finnie will know that better than the rest of us. I have been advised that there were no prosecutions under the act for what happened at the Gallowgate. That is a separate issue, but there is an issue to do with the act itself.

I have a couple of points to make. To respond to Colin Keir, what happened at the Gallowgate was a manifestation of concern that arose from policing under the act, so it is legitimate for us to look at that. If you are writing to the Lord Advocate, could you ask whether he has updated his guidance on that?

Certainly, I could. Members should say whether there is anything else that they want to add to the letters. I will run them past you all.

I disagree to an extent with connecting the two matters, simply because it was just a gathering of people. The gathering is irrelevant; at issue is how it was handled.

That is what we will write letters about.

I know, but it was the way that—

We will write about the operational matter.

The word “manifestation” was used.

What happened was within a culture. Let us put it like that.

I simply see what happened as another instance of something that the police saw in a large group, and the matter is dealt with under the legislation that already exists.

I do not expect all of us to agree on absolutely everything, but it is important to hear comments from the appropriate agencies, which will no doubt clarify whether the matter is within their remit.

I will deal with Colin Keir’s issue first. To say and acknowledge the reason why people gathered is not to express a view one way or another on the merits of legislation, and I certainly do not have any issue with that.

On the level of interference in operational policing, I have written to Chief Constable House to ask him whether there was any debrief on the incident and to encourage the non-use of kettling, if kettling was used there.

If legislation that we have been party to passing is having a disproportionate impact on one geographical area or a section of the community, we should legitimately ask why. To my mind, the act is not interfering in operational policing.

I do not think that we could put anything in the letter about the use or non-use of kettling. I would rather get a response—

I will share my reply with you when I get it.

I would rather get a response from the chief constable than cross that line between politics and policing.

It is appropriate to ask the SPA for its view of the policy and how it was enforced on the day.

Absolutely.

I do not know whether you will get an answer. We have been told that the case is sub judice, and until the video tapes have been looked at—

Okay; in that case we will be told that.

That is what I have been told.

Can I add just one sentence? We are not interested in the activities on the day; it is the policy that we are interested in.

Yes—within a culture that surrounds the legislation.

Is the committee content that the first step will be to write to the chief constable and the SPA particularly with regard to the incident in the Gallowgate, which is an operational matter? There are connections—the demonstration was related to the act—but the issue was kettling in particular, which is an operational matter. We will ask about that and about the complaints procedure.

We will also write to the Lord Advocate. We know that the case is sub judice because advice is being sought, but we want to ask for any comments that the Lord Advocate has regarding implementation of the act. In addition, we will write to the cabinet secretary, asking whether he is considering, at this stage, an interim review of operation of the act.

Are members content with that?

I am content with that in principle, but could we see the letters before they are dispatched?

Yes. I usually find that my semicolons get interfered with, but I assure you that you can see them. You have heard the gist, but you will see the letters before they go out.

I agree with you, convener, but I wonder whether we have adequately dealt with the issue that the sheriff raised about the drafting of the act.

We would then have to get into what was said and the finding at that time, which is—

It is more to do with whether the prosecutors and the sheriffs are having difficulty not in relation to the case, but more generally. Is there an issue about their ability to interpret the wording of the act?

We can ask for the Lord Advocate’s views on that, as a starting point. As you will know from being a solicitor, it will be difficult not to get into the case itself, which may be subject to appeal—which might or might not fail—so we must watch ourselves.

On a point of clarification, John Lamont mentioned the sheriff’s comments on the act. Are we also going to look at the sheriff’s comments regarding denominational schools?

No. We are not going to look at the sheriff’s comments specifically.

That was part of his comments.

No. We are looking at the generality of whether there are difficulties in interpretation of the act. We cannot look at the case—end of story. It is sub judice.

That is fine, but we have to bear in mind what the sheriff said.

You will all get to see the letters before they go out sometime this week.

11:53 Meeting continued in private until 12:44.