There's a couple of wee snippets in the Herald and Scottish Star (not online) today about an abortive prosecution in Falkirk's Sheriff Court yesterday under the Offensive Behaviour at Football Scotland Act. The details in the brief reports are sketchy, but the accused - Steven Dickson - was alleged to have been the worse for drink and to have turned the air blue aboard a train back to Glasgow, returning from a Celtic match against Dundee United. Witnesses suggested that the words "hun" and "Pope" were used or sung. Dickson was put up before the sheriff in Falkirk to answer for the conduct imputed to him, which was alleged to have put elderly fellow travellers in fear, alarm and "distress". The reports indicate that he was charged under the new legislation, in preference to your old fashioned "breach of the peace".
As you will recall, the Football Act criminalised "offensive behaviour at a regulated football", which explicitly included behaviour "on a journey to or from the regulated football match" s2(2)(b)(iii). So what's the precise ambit of the offence? As for the behaviour itself, it must either "express" or "stir up" hatred against a religious group or social or cultural group with a religious affiliation, or colour, race, nationality, ethnicity, sexuality orientation, transgender identity or disability, or be threatening, or "other behaviour that a reasonable person would be likely to consider offensive".
The second test which must be satisfied is that the offensive behaviour alleged is or would be "likely to incite public disorder" 1(1)(b). Here, however, Holyrood worked a queer little incantation. It added a subsection which makes clear that:
1(5) For the purposes of subsection (1)(b)(ii), behaviour would be likely to incite public disorder if public disorder would be likely to occur but for the fact that -
(a) measures are in place to prevent public disorder, or
(b) persons likely to be incited to public disorder are not present or are not present in sufficient numbers.
The situation this section aimed at were well-policed football grounds, where the strains of the Sash ring out, say, but order is undisturbed. Ministers were absolutely frank: they want the singers nicked, and this is the section which they hoped would allow police officers to do so, on the theory that sectarian ditties, of themselves, have a tendency to disturb the public peace. You could even - at least theoretically - commit this offence in a room by yourself (once the judicial imagination has supplemented your audience with a suitably provocable crew). So what happened in Falkirk? Sheriff Caldwell appears to have found that there was no case to answer against Dickson, and he sauntered free from court. His defence agent, Tony Callahan reportedly submitted that:
"We have heard he was seated, no problem at all. Derogatory does not mean offensive. Nor was his behaviour likely to incite public disorder".
Reporting of the Sheriff's remarks were limited to the observation, directed to the PF, that:
"You have to prove his behaviour was likely to cause a reaction of disorder in others".
From these very sketchy reports, it isn't entirely clear precisely what the Sheriff found wanting in the prosecution's case. Assume, for the sake of argument, however, that both he and the procurator fiscal faithfully applied the law as it was drafted, and did so in full understanding of subsection 1(5)(b)'s curious provisions, inviting the court to imagine fictional, potentially inciteable persons when assessing whether the conduct complained of was criminal or not (although it is impossible to say, on the facts before us, whether or not either might have fallen into error, and missed the significance of the subsection).
Imagine you are a prosecutor. How the devil would you prove that words or ditties - such as Hun, or Papal lyrics - are likely to incite public disorder in the absence of any disorder, in the absence of likely insitees? Find a police officer willing to say that she's witness brawls break out or a stramash be provoked by their invocation in the past? Is it taken to fall within judicial knowledge, whether a given aspersion cast or vocabulary used is, of itself, "likely to incite disorder"? As s1(5)(b) of the Act makes plain, prosecutors don't have to show that anyone actually on the train was likely to be encouraged to mischief by references to the Bishop of Rome, or to Huns. In this case, responses to the accused's conduct seem to have ranged from abandoning the coach he was seated in and complaining to train staff, to (most likely) staring fixedly at the wall in an effort to ignore the antics of which he was accused. Certainly, no disorder in the carriage, no mêlée on the train resulted.
Defenders of the legislation would likely argue that the intellectual challenge this imposes on courts doesn't substantially differ, for example, from the older common law of breach of the peace. A breach prosecution must demonstrate "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community". Significantly, the Crown don't have to prove that any actual fear and alarm resulted from the conduct either. Legally, it is an "objective test", and asks whether the conduct would be genuinely alarming and disturbing to any reasonable person, rather than whether anybody in the real world was actually alarmed or disturbed.
You might well argue that the Football Act calls for an essentially similar exercise of the judicial imagination, albeit on a question of disorder, rather than alarm. I'm not so sure. For one thing, judges are invited to consider conduct alleged to breach the peace in context. The public train, the private house, the doorway to a high street bank, and so on. The Football Act explicitly requires sheriffs to populate the context with imaginary additional characters, to chock the peaceful train full of irate "the Rangers" supporters on the bevy, in reaching any conclusion about whether disorder is liable incited. That's a different, altogether trickier, species of speculation to engage in.
It's still early days in the enforcement of this legislation, and thus far, no cases have made it to the Court of Criminal Appeal on the nicer legal arguments which it might raise, and like this Dickson case, summary cases aren't generally reported in detail in the Scottish press. It would be an irony, however, if this piece of legislation, so rapidly clattered through Holyrood with such hot rhetoric, were to miscarry and actually prove a less effective instrument than the common law to prosecute some forms of generically "offensive" conduct with a loose football affiliation, like making a post-match boozy racket aboard trains.
It also puts prosecutors in a tricky situation. For political reasons, you might well expect procurators to feel compelled - or at the very least encouraged - to prosecute football-related misconduct under the Act. Ministers have to report back to Holyrood on its operation. Folk will, understandably, be keen to demonstrate that it was a "vital tool" in the prosecution of football offenses, rather than a dud, agenda-driven reform that was only half thought through. It is too early to say for certain, but the Dickson acquittal at leasts suggests - no doubt worryingly for the ministers involved - that the new legislation may prove less effective, and provide trickier legal standards for procurators fiscal to navigate, than the common law breach of the peace which they will now, understandably, be more reluctant to charge.