The aim of this Member's Bill is to repeal, in its entirety, the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. The Bill has been introduced by James Kelly MSP.
The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 ("the 2012 Act") received Royal Assent on 19 January 2012 and came into force on 1 March 2012. The 2012 Act provides for two new criminal offences: one which criminalises offensive and threatening behaviour at, or in connection with football matches; and an offence which criminalises threatening communications which contain threats of serious violence or threats intended to incite religious hatred.
The 2012 legislation has been the subject of much debate both as it progressed through the Parliament and since the 2012 Act came into force. Some view the legislation as a necessary tool in combatting unacceptable and offensive behaviour at, or in connection with football matches; behaviour which can veer into racism, sectarianism and homophobia; others see the legislation as "illiberal", on the grounds that it targets only football fans; and as unnecessary, as there is other legislation which can be used to deal with such behaviour.
This briefing provides information on the background to, and the provisions within, the 2012 Act and examines the policy underlying the Member's Bill which is seeking to repeal the 2012 Act.
In 2011, a number of incidents during football matches (primarily involving Celtic FC and Rangers FC), and in the wider public domain, led to the Scottish Government organising a summit in March 2011 to discuss the impact of sectarianism on Scottish football and on wider society.
The intention of the summit was to assess and make proposals on certain aspects of the game in order to protect football's reputation in Scotland and beyond. The summit was attended by Scottish Ministers and representatives of the former Strathclyde Police force, Celtic FC, Rangers FC, the Scottish Football Association, the Scottish Football League and the Scottish Premier League.
At that time, the issue of sectarianism and associated behaviour at football matches had been to the fore of the debate. In addition to behaviour during football matches, a number of other serious incidents led to calls for an examination of, and responses to, sectarian attitudes which pervade some sections of Scottish society.
For example, in 2011, the former Celtic FC manager, Neil Lennon, former MSP Trish Godman and the late Paul McBride QC were the intended recipients of what were described by the police as 'viable parcel bombs'. The devices were found at various locations in the west of Scotland. Also in January 2011, bullets addressed to Mr Lennon which had been sent from an address in Northern Ireland, were intercepted at a mail sorting office in Glasgow. Bullets were also sent to two Celtic players who had represented Northern Ireland at international level. The police also arrested individuals who had allegedly posted sectarian comments on the internet directed at Mr Lennon and El-Hadji-Diouf, a Senegalese footballer who had been on loan at Rangers FC.
During a game between Celtic and Rangers on 2 March 2011, the respective managers, Neil Lennon and Ally McCoist were involved in a heated touchline confrontation which was also cited as a reason to examine behaviour at football matches in Scotland.
Following the summit in March 2011, the Scottish Government issued a joint statement:
Football is Scotland's national game and at its best combines pride and passion with a sense of responsibility, respect and discipline. There is absolutely no place in football for those who let the passion become violence, and the pride become bigotry, and we commit to doing all in our power to maintain the good reputation of Scottish football. No football club is directly responsible for the violence, disorder and bigotry seen on our streets and in our homes, and we condemn such acts entirely. However, we accept that as professionals and role models, those who play and coach the game do have a particular duty to ensure that their behaviour on and off the pitch sets a high standard.
We accept that those involved in football can positively influence the behaviour and attitudes of the wider community, and so do have a role in addressing the problems that affect such communities, whether that be violence or bigotry or alcohol misuse. We therefore commit to work together to ensure that however we can contribute to addressing these issues, we will. In particular, we agree on a renewed focus on tackling alcohol misuse.1
Following the summit, a Joint Action Group (JAG) was established to develop proposals and identify ways to deliver on the commitments agreed at the summit. The report of the JAG, published on 11 July, sets out those proposals including one to introduce an Offensive Behaviour at Football and Threatening Communications (Scotland) Bill with the intention that the Bill would be passed by the Parliament before the end of 2011.
The Offensive Behaviour at Football and Threatening Communications (Scotland) Bill ("the Offensive Behaviour Bill") was introduced in the Scottish Parliament on 16 June 2011. The Scottish Government initially indicated that it would like to see the Offensive Behaviour Bill passed and in force in time for the start of the 2011-12 Scottish football season which was due to start in July 2011. In order to achieve this, it was intended that the Offensive Behaviour Bill would be subject to emergency legislation procedure (see the section on 'Procedural History' below). At that time, concerns were raised about the Government's intention to progress the Bill without a full consultation and the opportunity for the Parliament's Justice Committee to take evidence from stakeholders. Bill McVicar, then Convener of the Law Society of Scotland's Criminal Law Committee said:
We understand the importance of tackling sectarianism. This is a very serious issue and one that needs both attention and action from our political leaders. However, it is because of the importance of this issue that the Scottish Government needs to allow adequate time to ensure the legislation can be properly scrutinised. It is particularly vital for sufficient time to be allowed at stage 1, the evidence gathering stage, for proper public consultation. Without this consultation there is the risk that the legislation could be passed which either does not meet its objective or is inconsistent with existing law, making it unworkable. It could also result in legislation that is open to successful challenge. 1
The then Moderator of the General Assembly of the Church of Scotland, the Right Reverend David Arnott, met with the then Minister for Community Safety and Legal Affairs, Roseanna Cunningham MSP, to discuss the Bill and stated:
We appreciated the opportunity to meet with the Minister on this very important issue but we remain nervous about this haste in which the bill is being rushed through Parliament, apparently in time for the start of the football season. Whilst we are not against the ideas in this bill, we remain unconvinced of the wisdom of this approach. The speed at which it is being rushed through means it appears to lack scrutiny and clarity. The government is rightly asking for support from across civic Scotland, but is not giving civic Scotland much time to make sure they are happy with the content. 2
In the Policy Memorandum to the Offensive Behaviour Bill, the Scottish Government stated that the measures in the Bill needed to be in place before the start of the 2011-12 football season to, amongst other things, begin to repair the damage done to the reputation of Scottish football and Scotland more generally by recent events and that this had curtailed the opportunity to engage in a standard consultation on the provisions in the Bill. The Government also pointed out that its plans to introduce the legislation had been discussed with a range of partners including the Association of Chief Police Officers in Scotland, COSLA, the Scottish Courts Service, the Crown Office and Procurator Fiscal Service and representatives of the Scottish Football Association and the Scottish Premier League.
As pointed out above, the Scottish Government initially intended to fast-track the Offensive Behaviour Bill through Parliament so that it could become law in time for the new football season in late July 2011. To do this, the Government proposed that it should be treated as an emergency bill, although it also proposed a gap between stage 1 (to be taken on 23 June 2011) and stages 2 and 3 (to be taken on 29 June 2011). Under the Parliament's standing orders, the ordinary procedure for emergency bills is that Parliament takes all three stages on the same day.
The Justice Committee took evidence on the Offensive Behaviour Bill from five panels of witnesses at two meetings on 21 June and 22 June 2011. The Committee did so in the knowledge that it would not have time to produce a report on the Bill in time for the stage 1 debate (as would normally be the case). The Committee's intention was to take as much as evidence as possible in the limited time available so as to help inform the stage 1 debate and any debate on amendments to the Bill. The Committee also issued a call for written evidence on the Bill (necessarily with a very short deadline for responses) which was targeted at key stakeholders. In response, the Committee received 82 written submissions.
On 23 June 2011, the Parliament debated a motion to treat the Bill as an emergency bill. This was agreed to after a division. The Parliament then agreed by division to consider the Bill according to the timetable set out above. Following this, the Parliament debated the Bill at stage 1.
Shortly after the stage 1 debate, and just before the Parliament was to vote on whether to agree the general principles of the Bill at stage 1, the then First Minister Alex Salmond MSP, announced that, if the Parliament agreed to the general principles, he would propose an extended timetable for consideration of the Bill at stages 2 and 3. He indicated that this would, whilst allowing more scrutiny, enable the Bill to be passed by the end of the year. He said that he hoped that providing more time for evidence-taking on the Bill would increase the likelihood of the Parliament and wider Scottish society achieving consensus on the issues raised.
Following the First Minister's comments, the Parliament went on to approve the general principles of the Bill at stage 1 (by a majority of 103 to 5, with 15 abstentions). On 29 June, the Parliament agreed, without division, a motion not to take the remainder of the Bill as an emergency bill; that the Justice Committee be the lead committee on the Bill; and that stage 2 be completed by 11 November. Stage 2 was duly completed on 22 November 2011 and the Bill was passed at Stage 3 on 14 December 2011 with a division of 64 for (all SNP Members), 57 against (all other Members) and no abstentions.
The 2012 Act makes provision for two new criminal offences, one involving "offensive behaviour at regulated football matches" (the Section 1 offence) and one involving "threatening communications" (the Section 6 offence).
The Section 1 offence
The Section 1 offence includes a number of separate elements. One is that the offending behaviour is "in relation to a regulated football match" and such behaviour does not have to take place in the ground where a match is being held and on the day it is being held. Also covered is behaviour while the person is entering or leaving the ground or on a journey to or from the match. The same is true in relation to non-domestic premises where a match is being televised - so a person can commit the offence in for example, a pub where the match is being televised.
The second element of the offence is that it involves behaviour that is or would be "likely to incite public disorder". Thirdly, the behaviour must be at least one of the following:
behaviour "expressing hatred of, or stirring up hatred against", a group of persons based on their religious affiliation or a group defined by reference to their colour, race, nationality, ethnic or religious origins, sexual orientation, transgender identity or disability - or against any individual member of such a group;
behaviour motivated by hatred of such a group;
behaviour that is threatening; or
other behaviour that a reasonable person would be likely to consider offensive.
Subject to these requirements, the behaviour may be "behaviour of any kind including, in particular, things said or otherwise communicated as well as things done", and may be behaviour consisting of a single act, as well as behaviour that amounts to "a course of conduct".
The Section 6 offence
The Section 6 offence consists of communicating material to another person if one of two conditions (A or B) is satisfied - although it is a defence to show that communication of the material was reasonable in the circumstances.
Condition A is that the material "consists of, contains or implies a threat, or an incitement, to carry out a seriously violent act" against a person or persons; that the material or communication of it "would be likely to cause a reasonable person to suffer fear or alarm"; and that the person communicating the material intends to cause fear or alarm or is reckless as to whether that is the outcome.
Condition B is that the material is threatening and is communicated with the intention of stirring up hatred on religious grounds. Condition B requires intent (to stir up hatred on religious grounds), in contrast to condition A where recklessness as to whether the communication concerned would cause fear or alarm can be sufficient for that condition to be met.
Further provision makes clear that the "material" means anything capable of being read, looked at, watched or listened to (for example, photographs and audio or video recordings as well as text); and that material can be communicated by any means other than unrecorded speech.
The Scottish Government's original proposal to legislate in this area, and the 2012 Act itself, led to very polarised views on whether the legislation was a necessary and proportionate response to the incidents which had preceded it. The legislation was viewed by some to be a necessary response to what was perceived to be a particular problem within football, while others felt that there were already laws in place which could deal with the behaviour that the legislation was seeking to address. Those opposed to the legislation also felt that it was illiberal in that it only applied in the context of football.
Those views have, more or less, remained constant over time. For example, the responses to the consultation on James Kelly's Member's Bill and the responses to the Justice Committee's call for evidence on Mr Kelly's Bill, were very similar to views on the original legislation. To that end, the following paragraphs very briefly outline some of the views expressed on the original legislation while views gathered in response to Mr Kelly's consultation and the Justice Committee's call for evidence are discussed in more detail later in this briefing.
The Section 1 offence and existing laws
The Policy Memorandum to the original Bill pointed out that, although there were a number of legal provisions which could be applied to disorderly and offensive behaviour at football matches, there was concern that a substantial proportion of such behaviour would not explicitly be caught by the current law.
For example, such behaviour could, in certain circumstances, be prosecuted under the common law offence of breach of the peace, or by using the offence of threatening and abusive behaviour at Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 (“the 2010 Act”). Where there is a racist element to the behaviour, prosecution using the offences at Part III of the Public Order Act 1986 (incitement of racial hatred) may also be appropriate. Section 74 of the Criminal Justice (Scotland) Act 2003 and Section 96 of the Crime and Disorder Act 1986, which provide for statutory aggravations on grounds of religious or racial hatred, may also be relevant.
However, the Policy Memorandum to the original Bill suggested that a substantial proportion of offensive behaviour related to football which may lead to public disorder was not explicitly caught by the current law and that such behaviour may not satisfy the criteria for causing fear or alarm which is required to prove breach of the peace, or the offence of threatening and abusive behaviour at Section 38 of the 2010 Act.
With regard to the Section 1 offence, the Law Society of Scotland's criminal justice committee commented:
The Committee is of the view that the offence, under Section 1 does not improve on common law breach of the peace or Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010i. Rather than result in clarity, the new offences may cause confusion with particular reference to what type of behaviour is to be considered unacceptable at regulated football matches.1
Giving evidence to the Justice Committee, the then Lord Advocate Frank Mulholland QC stated:
...the definition of breach of the peace requires the conduct to be 'severe enough to cause alarm to ordinary people and threaten serious disturbance to the community' and 'genuinely alarming and disturbing, in its context, to any reasonable person'. Under that definition of breach of the peace, there have been cases in which a sheriff has ruled that supporters shouting racist abuse at a black player, or another supporter grunting in an ape-like fashion and shouting racist abuse at a black player, did not amount to breach of the peace. The view was taken that 'the conduct was over very quickly', that it was not 'flagrant', that it took place 'in the midst of the cauldron of sound which emanates from any large sports crowd' and that it could not 'be interpreted as conduct which would be alarming or seriously disturbing to any reasonable person in the particular circumstances of the football match'. In cases involving conduct at football matches, defences have been run that no fear and alarm is caused by offensive chanting and singing and at the end of the match it was clear that no public disorder resulted. 2
Whether the Section 1 offence is illiberal
Some stakeholders expressed concern that the Section 1 offence in the original legislation was illiberal in nature, focussing as it does on those attending football matches.
In its written submission to the Justice Committee on the original Bill, Celtic Football Club argued that the Bill could discriminate against football supporters by criminalising behaviour in a football environment which, in other circumstances, might not be considered unlawful.3
The Section 1 offence as enacted makes specific provision to criminalise conduct in relation to football matches rather than any other sport, activity, or event. The question is whether this is justifiable.
In the Policy Memorandum to the original Bill, the Scottish Government explained that the bill “has been limited to what the Government and partners agree is immediately necessary”, that football is Scotland’s national game with a high media profile, and that “there is something very specific and increasingly unacceptable about attitudes and behaviours expressed at football matches whether that is “sectarian”, racist or homophobic.”
Football as theatre
Another point put to the Justice Committee on the original Bill was that the question of whether football fans could be offensive or hateful completely missed the point. A football match, the argument went, should not be confused with real life outside the stadium; it was a rowdy and rough-edged species of theatre, and that was its unique appeal.
In his written evidence to the Justice Committee at that time, Dr Stuart Waiton developed this point further and argued that “the Football Bill consciously distinguishes football fan activity from the words and behaviour of artists, comedians and other performers. That football rowdiness is arguably part of a ‘performance’ specific to games is ignored. This aspect of the Bill appears to be wholly discriminatory against football fans who would no longer be treated equally under the law".4
Giving evidence to the Justice Committee, Dr Waiton, said that he doubted the existence of sectarianism as a meaningful social phenomenon, outside of the “pantomime” of football. He went on to argue that people who found “poison” at football matches needed “a reality check”. On the role of the media, he sought to turn the tables, arguing that “the most profound prejudice and hatred” came not from the fans towards each other, but from the media (and politicians) towards the fans. He condemned the Bill as a “snobs law”.5
The Section 6 offence
There were some parallels between the debate on the Section 1 offence and the offence of threatening communications. In particular, the same question was asked as to whether the offence was fundamentally necessary.
The Scottish Government’s Policy Memorandum on the original Bill listed three statutory offences that might be used against threatening behaviour: the offence of “threatening and abusive behaviour” at Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and the offences at Part III of the Public Order Act 1986 (incitement of racial hatred).
Section 74 of the Criminal Justice (Scotland) Act 2003 and Section 96 of the Crime and Disorder Act 1986, which provide for statutory aggravations on grounds of religious or racial hatred, may also be relevant; plus two common law offences (uttering threats and breach of the peace).
The Policy Memorandum went on to say that, while these laws were in place, they were not always easily applied to this behaviour. For example, the requirement for a “public element” can make a charge of breach of the peace difficult to bring in some cases. It can also be difficult to establish that someone actually intended to carry out a threat or incite someone else to commit a crime in relation to the common law offences of uttering threats and incitement. While the offence of “threatening and abusive behaviour” does not require a public element, it does require that the behaviour must be of a threatening and abusive manner and could not necessarily be used to prosecute threats made with the intent of inciting religious hatred. Finally, in relation to electronic communications, case law has left some doubt about whether the offence of improper use of a public electronic communications network at Section 127 of the Communications Act 2003 can be used to prosecute people who create offensive websites or “groups” on social networks, as opposed to sending threatening emails or other communications.6
In written evidence to the Justice Committee at that time, some legal experts doubted the Scottish Government’s analysis stating that as with the Section 1 offence, Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 (threatening and abusive behaviour) already provided an appropriate remedy, with an identical sentencing power to that proposed in the original bill .
In their written evidence, Dr Sarah Christie and Dr David McArdle stated that the Section 38 provisions on threatening or abusive behaviour could also be read to encompass the offence proposed in Section 6 of the Bill.
Section 38 provides that it is an offence for a person to behave in a threatening or abusive manner where that behaviour would be likely to cause a reasonable person to suffer fear or alarm and he or she either intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.
‘Behaviour’ in this context covers behaviour of any kind including, either as a single incident or a course of conduct, spoken threats, or threats communicated in other ways, and threats evinced through physical acts. If the individual were to have communicated material containing or implying a threat of serious violence, or material which is threatening and intends to stir up religious hatred, that would amount to behaving in a threatening, and no doubt in many cases, abusive manner which would be likely to cause fear or alarm to a reasonable person and so would be caught by that section. The Policy Memorandum queries whether Section 38 could cover all instances of behaviour intended to incite religious hatred but, given the nature of material designed to inflame religious ‘hatred’, the academics argued that it would be hard to envisage a communication which was not sufficiently abusive to cause fear or alarm to a reasonable person.7
The following paragraphs provide statistical information on the use of both Section 1 and Section 6 of the 2012 Act since its inception.
The Scottish Government statistical bulletin Criminal Proceedings in Scotland, 2015-16 provides information on people proceeded against and convicted under the 2012 Act between 2011-12 and 2015-16. The bulletin was published in January 2016.
| 2011-12 | 2012-13 | 2013-14 | 2014-15 | 2015-16 | |
|---|---|---|---|---|---|
| Section 1 | |||||
| convictions | 2 | 67 | 86 | 76 | 131 |
| proceedings | 2 | 91 | 154 | 90 | 173 |
| Section 6 | |||||
| convictions | - | 2 | 6 | 3 | 1 |
| proceedings | - | 2 | 7 | 6 | 2 |
The Table shows that there were 132 people convicted for offences under the 2012 Act in 2015-16. When compared with the number of people proceeded against, this represents a conviction rate of 75 per cent.
The bulletin points out that these statistics are not directly comparable with the COPFS reports on Hate Crime in Scotland or the Scottish Government publication Charges reported under the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 in 2015-16. Both of those outputs use COPFS figures which measure individual charges at the case marking stage while statistics in the criminal proceedings bulletin are representative of closed cases that have reached a final verdict in court.
The "Charges reported under the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 in 2015-16" was published in June 2017 and provides an overview and further analysis of charges reported by the police to the COPFS in 2016-17. The report provides information about the locations, dates of charges, the nature of the offensive behaviour, the age and gender of the accused, and the nature of the victims.
Section 1
The document states that, in 2016-17, there were 377 charges under Section 1 reported by the police to COPFS. This represents an increase of 32% on the 286 charges reported in 2015-16 and is the highest number of 'offensive behaviour at football' charges since the 2012 Act was introduced. The document states that the increase is explained by the 140 charges associated with the Hibernian versus Rangers Scottish cup final fixture at Hampden stadium on 21 May 2016.
The document points out that data has been gathered over a sufficient number of years to discern that changes from year to year are often driven by a small number of specific events, and therefore caution is advised when seeking to draw conclusions when comparing data across different years.
In 2016-17, as with all previous years, the accused in Section 1 cases were mostly males. Of the 377 charges reported, 373 involved a male accused. Thirty-one per cent of the charges involved an accused aged 20 or under; 39% of charges involved an accused aged 21-30; and 30% were 31 or older.
The accused were noted to be affiliated to 20 football teams - a decrease from the previous year when affiliation to 33 teams was noted. Accused persons had an affiliation to Rangers in 100 charges (29% of the total, with 60 of these charges associated with the Scottish cup final); Hibernian in 101 (27% of the total, with 75 of these charges associated with the Scottish cup final); Celtic in 60 (16% of the total); and Hearts in 17 (5% of the total).
The most common category of offence in 2016-17 was threatening behaviour (79%), followed by hateful behaviour (17%) and 'otherwise offensive' (10%).
For the period 2016-17, there were 66 charges for hateful behaviour. Breaking down the hateful behaviour category further, 58 charges related to religious hatred. Catholicism and Protestantism were the main religions targeted within the religious hatred category. Catholicism was the main target, with hateful behaviour reported towards this religion in 44 charges - 75% of the total of religious hatred charges.
The majority of the charges reported occurred at a football stadium (69%). This represents an increase of 85% from the period 2015-16 (142 charges) to 2016-17 (262 charges). This increase can be explained by 137 of the 140 charges associated with the Scottish cup final between Hibernian and Rangers at Hampden.
After charges occurring at football stadiums, the next most common locations where people were charged under Section 1 were on a main street (19%), followed by public transport (8%).
Section 6
The report points out that, in 2016-17, there were 6 Section 6 charges reported to the COPFS. This compares to 7 charges in 2015-16, 4 charges in 2014-15 and 11 charges in 2013-14. One of the 6 charges in 2016-17 was related to football, which is the same number as in 2015-16 and 2014-15. There were 6 charges related to football in 2013-14. Social media was the medium used to send a threatening communication in 4 of the Section 6 charges in 2016-17.
The report states, that of the 6 charges reported, court proceedings had been commenced in all 6. At the time of publication, 3 cases were ongoing, 2 had resulted in convictions and were given monetary penalties and the other resulted in a harassment order.
On 27 July 2016, James Kelly MSP lodged a proposal for a Member's Bill which seeks to repeal the 2012 Act in its entirety. Mr Kelly also published a consultation on his bill which closed on 23 October 2016. Mr Kelly proposed the repeal to the 2012 Act on the basis that the legislation was flawed on several levels including its illiberal nature, its failure to tackle sectarianism, and the existence of other charges which the police and prosecutors could use to tackle the behaviour in question.
Mr Kelly's consultation received a total of 3,261 responses. The Policy Memorandum to Mr Kelly's Bill states that a majority of respondents to the consultation were fully or partially supportive of repeal, both of the provisions in the 2012 Act relating to offensive behaviour at football (73%) and of the provisions relating to threatening communications (69%).
The main arguments advanced in support of repeal of the provisions relating to offensive behaviour at football included:
the lack of time for adequate scrutiny of the 2012 Act during its parliamentary passage (see section on Procedural History above) and consequent flaws in drafting
the lack of clarity in defining "offensive behaviour" and the criticism that the 2012 Act was consequently illiberal, unfair and arbitrary in its application
the targeting of football matches and criminalisation of football supporters by contrast with other sports or events which might equally be viewed as involving antisocial or sectarian behaviour
that the 2012 Act infringes of human rights and freedom of speech
whether the 2012 Act was needed in light of existing legislation to address the behaviour in question
the negative impact on police/football supporter relations following implementation of the legislation
Those opposed to the repeal of the provisions relating to offensive behaviour at football, provided the following reasons:
the 2012 Act was effective in challenging antisocial and sectarian behaviour and should therefore, be retained
the legislation provided a powerful message that such behaviour was not acceptable at football matches and its repeal would give the impression that such behaviour was permissible
there was no alternative proposal to replace the 2012 Act with something else
instead of repeal, the 2012 Act could be amended to address any weaknesses
With regard to the provisions dealing with threatening communications, arguments in favour of repeal were similar to those supporting repeal of the offensive behaviour provisions in terms of lack of clarity within the provisions; human rights and freedom of speech issues; and the existence of other legislation which would cover the offences in question. Those opposed to repeal of the threatening communications provisions argued that there was no adequate provision in existing law and that the provisions in the 2012 Act provided additional protection regarding online threatening communications.
A summary of the consultation responses was published in November 2016.
The Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill ("the Repeal Bill") was introduced in the Parliament by James Kelly MSP on 21 June 2017. The Bill is seeking to repeal, in its entirety, the 2012 Act.
Section 1 of the Repeal Bill states simply that "The 2012 Act is repealed".
Consideration has also been given to how the Repeal Bill should deal with people charged under the 2012 Act but not yet prosecuted, or whose cases have not yet been concluded when the repeal of the 2012 Act takes place. The Member's stated priority is to bring to an end what he regards as the injustices of the 2012 Act as quickly as possible.
On that basis, the starting point for the Member has been that there should be no further convictions for Section 1 or Section 6 offences from the date on which the repeal of those offences takes effect. The effect should be that no further prosecutions would be brought, and that ongoing prosecutions would be abandoned, at least insofar as they relate to offences under the 2012 Act. However, a person may be charged with a number of offences arising out of the same incident, and even once a conviction is no longer possible for offences under the 2012 Act, a prosecution may still be relevant in respect of other offences charged (i.e. not those under the 2012 Act).
The Member was also concerned to ensure that appeal rights were unaffected by the repeal. As a result, people convicted (prior to repeal) will still be able to bring an appeal (subject to the same criteria that currently apply) post-repeal, including an appeal against sentence or against conviction (or both). On the same basis, the Crown will retain its right to appeal, including against acquittal. In this way, the Member believes that the Repeal Bill upholds the principle of parity in the criminal justice system.
Accordingly, the Repeal Bill allows for the possibility that a person may still be convicted, post repeal, under the 2012 Act in very limited circumstances – for example, where the person was previously acquitted by a court but where the Crown subsequently appeals that verdict successfully. However, the Bill‘s prohibition on further convictions post-repeal will apply to any new prosecution brought (following an appeal) under Section 119 or Section 185 of the Criminal Procedure (Scotland) Act 1995.
As well as criminal prosecutions, the 2012 Act allows Section 1 offences to be dealt with by means of fixed penalty notices (issued under the Antisocial Behaviour etc. (Scotland) Act 2004). A person issued such a notice by a police officer has the option of paying a penalty (currently £40) as an alternative to facing prosecution, but may also opt to be tried for the offence instead. If the person does neither of those things within 28 days, he or she becomes liable to pay a higher amount (currently £60).
The repeal of the 2012 Act would, by removing the offences themselves, end (on the same date that the repeal of the 2012 Act comes into force) the right to issue fixed penalty notices for such offences. As a consequence, Section 4 of the Repeal Bill repeals the entry in Section 128 of the 2004 Act that refers to Section 1 offences.