The Scottish Government’s flagship Offensive Behaviour at Football law has one of the lowest conviction rates of any crime in Scotland.
Last year, barely half of those charged under the legislation were
found guilty. Conviction rates were far higher for a wide range of
crimes, including murder, sexual assault and robbery.
The Offensive Behaviour at Football Act, passed in 2012, gave police
and prosecutors extra powers to crack down on sectarian songs and
abuse at football matches.
In 2013/14, 161 people were prosecuted under the legislation. In all,
86 were found guilty, a conviction rate of just over 53%.
The conviction rate for murder last year was over 80%. The total
across all crimes was almost 85%. Rape, at just four in ten, was one
of the few crimes in Scotland with a lower conviction rate than the
controversial football law.
The Offensive Behaviour at Football and Threatening Communications Act
has come in for criticism, particularly from fans groups and some
prominent legal figures. Last year, Dundee Sheriff Richard Davidson
described it as “horribly drafted” and “mince”.
Questions have been raised about a number of prosecutions made under
the legislation.
Earlier this month, 20-year-old German fan Lucas Tussing was found not
guilty after police charged him under the act for singing songs about
the Irish Republican Army at Celtic Park. In court Tussing claimed
that he did not understand the lyrics.
James Chalmers, professor of law, Glasgow University, says that one of
the reasons behind the unusually low conviction rates for offensive
behaviour prosecutions is that many fans see the law itself as
illegitimate.
“People charged with crimes where they don’t believe the underlying
law is a fair law are much more likely to plead not guilty.
“People are choosing to contest the charges in a way that is pretty
unusual with criminal offences. People charged with breach of the
peace previously for disturbances around football would have been more
likely to plead guilty,” says Chalmers.
Another factor behind the low conviction rate is the subjective nature
of the offensive behaviour legislation itself, an aspect of the law
highlighted by its critics.
“If you are charged with assaulting someone the only fact in question
is, did you hit him or didn’t you. That generally is not too difficult
if you’ve got witnesses to it but in this case the court has to make a
subjective judgement about whether this behaviour was liable to incite
disorder, and that is not a straightforward factual question,” says
Chalmers.
“It is not as if have got a list of songs. Did you sing these songs?
You are guilty of the offence. You have actually got to prove in each
case that what was done was liable to incite public disorder and that
is a really question to judge.”
Added to these concerns, Scottish prosecutors are often under pressure
to bring forward cases under the offensive behaviour legislation.
“This is seen as something that is a priority of the prosecution
service. It would be a brave fiscal who would drop (Offensive
Behaviour at Football) cases,” says Chalmers.
“There is pressure to put the case forward and see what the court makes of it”
The results of an academic study into Offensive Behaviour at Football
and Threatening Communications Act are expected to be released later
this year
“It will be interesting to hear the results of the academic study
being undertaken by Stirling University into the impact and
effectiveness of this law,” says David Scott, campaign director at
anti-sectarianism charity Nil by Mouth.
“We know from our work with police and law enforcement officers that
there is still apprehension about using this law.
“However, we can over analyse this law – the overwhelming majority of
football fans don’t go to games to dredge up bigotry so are unaffected
by it.”
Scottish Labour leader, Jim Murphy, has said that if elected First
Minister he would scrap the offensive behaviour legislation.
“The law was an attempt to chase headlines rather than actually fix a
complex problem. Sectarianism and intolerance goes far beyond 90
minutes on a Saturday or 140 characters in a tweet.
“Instead of fixing the problem, they have created a pointless culture
of mistrust between football fans and the police,” Murphy said last
year.
A Scottish Government spokesperson said: “There is no conviction rate
target for our courts for any offence as it is always a matter for the
courts to decide whether to convict in any individual case based on
the evidence before them.
“Season 2013-14 saw a 24% reduction in the number of charges under the
Act from the previous season, falling from 267 charges down to 203.
We welcome this fall in charges which shows the vast majority of
football supporters simply wish to enjoy the match and support their
team.”
A Crown Office spokesperson: “Whereas the vast majority of football fans are well behaved there have been recent examples of disorderly and sectarian behaviour at
football matches both home and abroad. Police and prosecutors will
continue to use the tools at their disposal including the offensive
behaviour at football and threatening communications act to continue
to address this behaviour. We all have an interest to help make
football a safe and enjoyable environment for all.”
“Cases which do not result in a conviction can happen for a number of
reasons which includes situations where the Crown has led sufficient
evidence in law to establish that an offence has taken place but the
Court decides that the evidence is not sufficiently credible or
reliable, for example, to prove identification.
It is quite right that the Court weighs up all the evidence heard,
including any given by the accused before deciding on guilt or
innocence and decisions by the Court of this type do not reflect on
the content of the legislation used nor on its application by
prosecutors.”