I don't want to get into the he-said-she-said of which set of fans were to blame for the altercations that took place on the pitch, or indeed for the encroachment on the pitch itself. Clearly acts of violence and abuse, whether against fans, players, staff or officials, are completely inexcusable, are criminal, disgusting, and should be punished by the full extent of the law on identifying those culpable. Clearly the Police should use all proper avenues available to them to collect evidence and do their job.
I also, just to be clear from the outset, think that the SFA specifically and the governing bodies in Scotland in general have to take far greater responsibility for punishing clubs whose fans commit acts of violence, public disorder, and who partake in sectarian chanting and singing during the football matches for which they are responsible.
I am, however, deeply troubled by the news that three individuals have been charged under the Offensive Behaviour at Football and Threatening Communications (Scotland) Act. According to STV:
"Police Scotland said three men, aged 18, 19 and 23, were arrested for allegedly breaching the Offensive Behaviour at Football Scotland Act due to a pitch invasion."
Those who have been following Scottish politics in the weeks following the election will know that this piece of legislation is, to put it kindly, very politically sensitive and controversial. All of the opposition parties, from the left-wing Greens through to the Conservatives, opposed its introduction when the SNP proposed it and all of them want either to repeal it completely or to repeal most of it and substantially amend parts of the "Threatening Communications" section.
It seems clear to me that the motivation for prosecuting people in relation to incursions onto the pitch, as described, is to manufacture or at least buttress a justification against the repeal of this legislation. It is not clear whether the charged three are Hibs or Rangers fans, or both. In either case, if indeed the prosecutions relate to conduct associated with the pitch invasion and not, independently, with sectarian singing, then other laws would have been completely sufficient to prosecute anyone for criminal activity. If it is for violence, assault is a crime. If it was for goading opposition fans or setting off flares, public order offences exist.
If the prosecutions relate to the singing of sectarian songs, then it is misleading to suggest that these charges were in relation to the pitch invasion, or that Saturday's game, as opposed to any other, reiterates the need for the Act to stay.
Is this law necessary?
Police Scotland has always maintained that the existing laws it had to deal with crowd disorder, and specifically the singing of sectarian songs, were inadequate in order successfully to identify and prosecute the perpetrators of wrongdoing. In 2012, when their immediate predecessor forces supported this Act being forced through, this was and indeed it still is, a hugely dubious claim. In Scotland it has always been a crime to assault someone. Any violence at a football match, the Police have, and have always had, the authority to arrest and charge people.
There have always been a range of "public order" offences, the two best-known of which are "breach of the peace" and more recently section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. It is a crime to behave in such a way as is "severe enough enough to cause alarm to ordinary people and threaten serious disturbance to the community" or deliberately or recklessly to "behave in a threatening or abusive manner" that "would be likely to cause a reasonable person to suffer fear or alarm".
It is also a crime to "incite" someone to commit an act of violence, or to threaten public order in the manner described above. Goading people into creating unrest, or deliberately behaving in ways that make it difficult for the Police to maintain public order, are themselves capable of falling under conduct which is criminal. When you commit any of these crimes, and there is a sectarian element to the people you are attacking or disturbing or inciting, it is already possible for a court to consider this to be an "aggravating factor" and this can increase the maximum sentence you receive or be led by a prosecutor against any attempt at plea in mitigation when a judge is exercising discretion. The harsher sentencing of sectarian aggravation was introduced way back under Jack McConnell's tenure as First Minister.
"Breach of the peace is too broad"
One of the objections to the suggestion that existing laws were sufficient to deal with crowd trouble was that there is an "indeterminacy" to the law of breach of the peace. Its definition is very broad, owing in part to its origins in the common law of Scotland. There are perfectly valid arguments that it should be replaced completely with much more exacting public order offences, but significant progress has already been made in that direction. The aforementioned s38 is used far more often to deal with instances of public disorder involving intimidation and mob-like behaviour.
The definition of BOTP has also been construed more narrowly by the courts in more recent years in order to make sure that it is compatible especially with Articles 10 and 11 of the European Convention on Human Rights, for which the Human Rights Act provides domestic protection of our rights to freedom of expression and of assembly. This greater degree of specificity was something demanded in order to ensure that Scotland's criminal justice system was providing procedural fairness to people accused of criminal offences, to satisfy their Article 6 and 7 rights under the Convention in relation to having a fair hearing and not retrospectively to be criminalised.
The Police attempted to argue that the Offensive Behaviour (etc.) Act powers were necessary in order that they would be less reliant on breach of the peace. There is nothing wrong in principle with this argument as long as the offences that replace an old law are themselves less intrusive. Yet if anything, the 2012 Act is a greater affront to the basic principles of the rule of law and protection of fundamental human rights than what is now the scope of the crime of breach of the peace, at the very least in relation to maintaining order at football matches.
What does the Act change?
The Act creates a new statutory offence, when at or travelling to or from a regulated football match, of "expressing hatred of, or stirring up hatred against" an individual or group of individuals based on their actual or perceived membership of:
- a religious group
- a social or cultural group with a perceived religious affiliation; or
- a group characterised by colour, race, nationality (including citizenship), ethnic or national origins, sexual orientation, transgender identity or disability.
It also makes it a crime to to engage in "threatening behaviour" or any behaviour "motivated by hatred" towards any of these groups or, most sweepingly of all, "any other behaviour" the reasonable person would "be likely to consider offensive".
There is an additional requirement that the conduct must be likely to cause public disorder, or would have been likely to cause public disorder but for the fact that "measures were in place to prevent public disorder" or that "persons likely to be incited to public disorder were not present or were not present in sufficient numbers."
What impact does that have?
It is very difficult to conceive of any instances in Scottish football where something like fan violence, singing designed to incite violence or public disorder would not have been a criminal offence before, especially under s38 of the Criminal Justice (etc.) Act 2010, that would now be a criminal offence as a result of this Act. Yet paradoxically, this attempt to give specificity to criminal activity has, if anything, broadened the scope of public order offences into the realms of things which anyone who believes strongly in human rights or freedom of expression should be deeply concerned.
Criminalising people condemning the thing you're condemning
This Act is very explicit in that it is attacking not "behaviour" or "violence" or "disorder". It is criminalising "expression" of certain kinds of views, when uttered in a hateful way. The fact that they have chosen the word "expression" should immediately set alarm-bells ringing for those who value human rights. The state's objection, and rationale for criminalising people under this statute, is that the content of what they are saying is or could be offensive to other people. Even if your concern is that certain kinds of offensive speech, especially sectarian speech, is hurtful and harmful to those who hear it, this Act does not constrain its ire to offensive songs of a sectarian nature. Indeed, one can "express hatred of" a group based on their belonging or perceived affiliation to a religious group, precisely because one is criticising the import of religion into football.
One such example of this was when a teenage Partick Thistle fan was convicted of singing an anti-sectarian song at a match at Firhill against Celtic. The song in question contains the lyrics:
"Hello, Hello, How do you do,
We hate the boys in Royal Blue
We hate the boys in Emerald Green
So **** your Pope and **** your Queen"
Anyone who understands the context of that song knows that it is sung as a critique of the import of religion and constitutional politics by Rangers and Celtic fans into Scottish football. Yet the chant, quite literally, "expresses hatred" towards individuals or a group of individuals based on a social group's perceived affiliation to a religious organisation. And the reasonable person could say that, but for the presence of Police and stewarding and segregation, singing a song like that could incite public disorder.
Indeed, at the next game between those two sides at Firhill, when Celtic won the game to clinch the league, the clandestine subversion of segregation in the Jackie Husband Stand led to some pretty unpleasant scenes in the home end. I saw normally fairly placid middle-aged men on the verge of an "actual physical fight" when the green and white scarves emerged from under coats and goading and gloating began. It is not hard to see how, if the above song was sung in that environment, it could have escalated the situation.
Yet it was obviously absurd that this was what the Act was criminalising. The Sheriff in that case, having found the solitary arrested perpetrator for singing this song out of a group of easily several hundred, refused to punish him and granted an absolute discharge and so prevented him from getting a criminal record. This isn't, it should be stressed, the same as finding him not guilty. What this guy did was, according to the law of the land, a crime.
This is not evidence of a working scheme
We should not have to rely on the goodwill or discretion of judges, prosecutors or the police to prevent sweeping state powers from being abused, especially where there is evidence that they are being used overzealously. These abortive prosecutions still have a significant impact on those who are dragged through the courts for several months fearing a criminal record.
Police Scotland also has form for using its powers to the point of abusive excess. It previously used stop and search powers so sweepingly that they went beyond the per capita search rates of the London Metropolitan Police and the New York Police Department, including searching children below the age of criminal responsibility. It was only after politicians, especially within the Liberal Democrats, had the courage and bloody-mindedness to keep raising this issue in public debate that the Scottish Parliament was able to exert pressure on the police to review its procedures. A 93% reduction in stop and searches since tells its own story. A law is a bad law if it criminalises conduct that its advocates do not believe should be criminal, or which gives the police broad powers without a clear and carefully defined purpose.
This is principally objectionable
The refrain of Evelyn Beatrice Hall that "I disapprove of what you say, but I will defend to the death your right to say it" is also important here. What the football authorities decide should be the terms and conditions of entry to their grounds and how people should have to conduct themselves there is ultimately their decision. But the right to freedom of expression that protects hateful and discriminatory and horrible opinions and beliefs that we utterly condemn in a progressive society is precisely the same right that lets us challenge the social attitudes that give rise to those beliefs and how people express them in the first place.
An aspect to this crime is that you can be prosecuted under it even if, on the facts, your conduct was not actually likely to cause disorder. If the Police had implemented very effective segregation at a football match, or not enough people sung the song that the opposition fans could actually hear the damned thing, you can still be prosecuted. This reiterates that it is not the behaviour in its social context and the effect it has on other people that is being criminalised, but the very words uttered or gestures made that "express hatred". To mix two metaphors, if a "Teddy Bear" shits in the woods, and no one's there to hear it, does the Billy Boy make a sound?
Part of the reason this Act targets football fans is that there would be an absolute uproar if its provisions were to apply to the general public at large. Incursions into fundamental rights and freedoms are much more popular and readily accepted when most of the population think they won't conceivably apply to them, and that the kind of people who will get caught on some level are "trouble" and that they "deserve it". See also why the majority of people support capital punishment and depriving prisoners the right to vote.
The Act does not stop there in terms of what we should principally object to. Even if its advocates are right and this expression is something we should criminalise, why does it only apply to football fans? The mere fact that football fans are more likely to engage in this conduct than the general population does not justify a law that specifically and only targets them. If the conduct is wrong, it should be wrong regardless of whether it takes place on the terraces or anywhere else.
This creates some absurd consequences. Imagine that I am on the Subway to Kelvinbridge, en-route to Firhill. I am "on a journey to" a regulated football match, so the Act applies to me. Imagine I meet a friend, who is a Thistle fan but is instead going into town. If we were to sing "Hello Hello" together, but the carriage is empty, I am committing a criminal offence and he is not. We may be arseholes for singing in an enclosed public place, but that isn't a justification for criminalising me but not him.
In a similar vein, it purports to criminalise Scottish resident football fans for actions undertaken when they attend football matches not even taking place in this country. If by some freak of magic Partick Thistle qualify for Europe and we draw Honved in the UEFA Cup, I might take a bus down to London and then fly out to Budapest for the away leg. I may be joined by a "Thistle Nomad" who lives in England, and we might board the same flight to Hungary. If we sing "Hello Hello" together on the plane, or at the football game, I have committed a criminal offence but he has not. And not a criminal offence pertinent to Hungary, but pertinent to Scotland! The powers arrogated by this Act are simultaneously extraordinary yet also inconsistent.
What this Act does, by saying that the relevant expressions of hatred are uniquely criminal in a football setting, is create an image of "victimhood" among the football fans that actually are engaging in unpleasant sectarian singing. This victimhood complex is manifest when you look at the statements from Rangers in the last few days, where they convey the impression that entering the field of play in response to another team's fans doing so and provoking you is somehow a completely "natural" or "understandable" or "reasonable" response. That victimhood actually makes the potential for antagonism and retaliation and violence at football games worse, not better.
It lets them say that they are being treated differently from other people. That creates a horrendous distraction from efforts in education, and for that matter among the football governing bodies, to eradicate sectarianism in Scottish football. For too long those bodies have sought to oursource this problem as being "a matter for the police" when if the expression of these views at football matches is a problem (and I believe it is), it is one for which they and not the criminal law are responsible in terms of responding.
There is no evidence that this Act has reduced the preponderance of sectarian singing at football matches. There is no evidence that it has cut violent crime or domestic abuse, whether or not related to sectarianism. There is no evidence that it has reduced problems with public order. There is no evidence that it has made it easier for Police to arrest actual troublemakers with cause. If anything the opposite is true as we have seen the Act used as often with individual supporters of "provincial" clubs as we have with the two clubs, large groups of whose supporters are responsible for the vast majority of sectarian singing.
Perhaps most worryingly, though, the fact that the Scottish Cup Final is now being used, by the police, by SNP politicians like John Mason, and by the Scottish Government as evidenced by Michael Matheson's statement. Specifically, it is being used to further political objectives before we have even established what wrongdoing occurred on Saturday and who the perpetrators were.
The Police have very clearly chosen to prosecute under the Act rather than other criminal offences in order to make a point, and to try to suggest that it is a necessary and effective part of their armoury, despite the total absence of evidence to support this. It renews broader concerns about how much influence the SNP government is exerting over the single police force after its centralisation project, which make the police, including its most senior appointments, directly accountable to the Cabinet Secretary for Justice.
It may well be that Police Scotland has done this off their own backs, but the combined effect of the close relationship between them and the Scottish Government and their "at one" positions on the events at Hampden, does little for public trust that they are executing their functions apolitically. At a time when the future of the 2012 Act is under very public scrutiny, it surely behoves Police Scotland only to use the offence under the Act as an absolute last resort when other crimes of equal severity and sufficient specificity are not viable alternatives with which to charge people. To behave in this way totally undermines the principle of policing by consent and the separation of power we consciously impose between those who make the laws and those who enforce them.
Jumping to Conclusions on Alcohol
The SNP is also using this Cup Final as evidence why alcohol should not be allowed to be consumed at football grounds. This is despite the fact that there is no evidence to support the view that drunkenness was what caused the disorder and violence at Hampden and it was in any case a match at which no alcohol was available for consumption. In a classic turn, they have made generalisations about football matches and fans on the basis of the most intense and raucous of them, in order to discredit, without evidence or causal link, the arguments of their opponents. Advocates for a relaxation of the ban have called for a more flexible approach that properly involves the police in assessing the risk posed in each individual case, not the mass availability of alcohol at every match.
As we have seen with the upcoming European Championships match between England and Wales, alcohol restrictions can be imposed on "high profile" or high risk games. In Scotland, junior football does not prohibit the drinking in social clubs at grounds during matches, yet they often have higher attendances than third and fourth tier matches in the SPFL where alcohol is banned! England, Germany and Spain all have alcohol available for sale at top-flight games, the vast majority of which pass completely without incident. There are probably more drink-related arrests at T in the Park each year than there are outside the top-flight of Scottish football in an entire season.
The Scottish Government and Police Scotland clearly aren't interested in having a grown-up discussion about issues affecting Scottish football relating to violence, public order, safety and sectarianism. They want to maintain their existing power to control football fans at all costs, but in doing so totally undermine the calls within the game for the SFA and SPFL to get a grip and start forcing clubs with badly behaved fans to play games behind closed doors. Instead they want to treat football fans like children or animals, and their authoritarian instincts shine through at the first opportunity.
And if you treat people like animals, it isn't a surprise when they act like them.
Update 20:34 25.05.2016 - An addendum to this post in light of new information