Wednesday 25 May 2016

An Addendum: Offensive Behaviour at Football Act

Further to last night's post, one of the three men referred to in the STV News report as having been charged under the Offensive Behaviour (etc.) Act has been named as Greg Binnie. He appeared before Glasgow Sheriff Court on a charge sheet which averred that he had run onto the field of play, run towards Rangers goalkeeper Wes Foderingham and had gesticulated in an offensive manner.

There is absolutely no obvious reason from the perspective of a Procurator Fiscal's perspective why it would be preferable to prosecute that behaviour under the auspices of the Offensive Behaviour Act, rather than the alternatives. There is a strong arguable case that charging at a person falls within the definition of assault in Scotland. In Atkinson v HM Advocate in 1987, the principle was clearly established that physical contact was not necessary to substantiate an assault charge.

In that instance simply jumping over a shop counter while wearing a ski-mask was enough to satisfy the definition of an assault. It is enough that the perpetrator made threatening gestures sufficient to produce alarm. Quite clearly in this case, that threshold would have been met, and would have been no more difficult to prove from an evidence perspective than the particulars of the OBFA. If anything, it is easier to prove!

Equally, Mr Binnie could have been charged under s38 of the Criminal Justice and Licensing Act 2010, for behaving in a threatening or abusive manner, in such a way as the reasonable person would be likely to be induced to fear or alarm, and did so either intentionally or was reckless as to whether his conduct would have that effect. This would have been no more difficult to prove than an offence under the 2012 Act.

He could even have been charged with breach of the peace, or incitement to breach of the peace, had either of those charges failed to produce the desired result.

Which returns us to the very obvious question: why have the police chosen in this instance to charge him under the Offensive Behaviour at Football Act?

This was a choice. This behaviour does not even relate to the more controversial provisions of the 2012 Act, and expressions of hatred towards protected groups. The Police has very clearly taken the view that it would be desirable to make an example of Binnie to conflate in the minds of passive observers the preservation of the OBFA and the need to ensure order at football matches and prevent a repeat of the scenes on Saturday.

This is simply indefensible. Police Scotland are playing politics with their powers to influence the legislative process.

Meanwhile, we have today heard from former Cabinet Secretary for Justice Kenny "wrong thing for the right reasons" MacAskill, who has stated in plain terms that he thinks winding-up opposition fans by waving your own club's flag in front of them should be capable of constituting a criminal offence. I was almost left lost for words at how breathtakingly stupid a notion that was.

In his piece in The Herald he also characterises opposition to the 2012 Act as being the preserve of extreme leftists and right libertarians, even comparing those opponents to the NRA. As Alex Massie deftly pointed out, he should probably think about comparing these people, myself included, to people who would defend a First Amendment right to the hilt, rather than the Second.

This false equivalence is so ridiculous that it borders on the offensive. In fact, if Kenny MacAskill were to say this at a football match, it would arguably constitute "behaviour the reasonable person would be likely to consider offensive". And if, in the hypothetical, it would have been likely to cause a heated argument with other people had they heard him say it, it would have been "likely to incite public disorder". And the fact that he could then be prosecuted under that Act tells you all you need to know about the merits of it remaining on the statute book in its current form.

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