You are the (Sher)Ref

So, I was reading through the draft Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, which seems to be really broad in its attempts to crack down on sectarianism.  I tried to think back to my legislation honours classes at law school and I came up with the following questions.

Would these things count as an offence under the new Bill?

  1. At a football match, there is a minute’s silence for a former player who recently died.  Billy’s phone goes off during the minute’s silence and he answers it, going on to conduct a conversation with the caller in a loud voice.
  2. Mark and Stuart are driving to London to see a Scottish club play an important game of football against a London club.  They have reached the M6 motorway, when to pass the time Mark tells an off-colour joke concerning the circumstances of the death of Diana, Princess of Wales.
  3. Tina has never been to a football match in her life.  She has no interest in the game.  She is however, a fan of cartoon strips.  She sends an e-mail to her friend Sven which includes the following “Hagar the Horrible” cartoon strip.  She thinks, correctly, that he will get the joke.

So, which of these people risks going to jail for up to 5 years?  Please answer by leaving a comment.

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15 Responses to You are the (Sher)Ref

  1. Alistair Sloan says:

    Quite simply it is a terrible Bill. The potential unintended consequences of the Bill in its current state are many in number and represent several potential Convention breaches.

  2. Excellent idea – can this become a weekly feature?

    To answer –

    1 Yes – an offence under clause 1 (2) (e) – “other behaviour that a reasonable person would be likely to consider offensive”. There are some who would consider a loud telecon during a minute’s silence as offensive.

    2 Yes – same clause as above re the joke. Game involves a Scottish team, so even if in London, still covered – Clause 2 (1) (b) (ii). And the journey to the game counts, even if they are stopping overnight on the way down – Clause 2 (2) (c).

    3 Yes – but only if things go pear shaped in a “Twitter Joke Trial” sense. Clause 5 applies. Cartoon depicts violence to a fictitious character, but identifiable as a Scandanavian type, as one assumes Sven is. UNless Tina got Sven’s agreement to it first, before she sent it, she could be seen as reckless as to whether it would cause fear and alarm.

    The problem is I have seen fiscals who would want all three on petition!

    In the same vein, although with rather less creativity than you managed, I had a few hypothetical thoughts re what the Bill implied. http://scotslawthoughts.wordpress.com/2011/06/17/could-it-be-a-crime-to-sing-the-national-anthem-in-scotland/

    Paul

  3. Thanks for your response, Paul – I share your views and concerns about this. I think when we are criminalising behaviour simply on the grounds that people will (or may) find it offensive, we’ve crossed a line. Thank goodness there’s a large Liberal contigent in Parliament to oppose this sort of nonsense. Oh, wait …

  4. Iain McKellar says:

    ………………… They have reached the M6 motorway, when to pass the time Mark tells an off-colour joke concerning the circumstances of the death of Diana, Princess of Wales.”

    As not one inch of the M6 motorway is in Scotland- the M6 connects Carlisle to its junction with the M1 near Coventry, surely this would be a matter for the English legal system unless of course the First Minister is calling forn extra-territorial jurisdiction?

    • Well, it’s an interesting point because Section 2(1)(b) says that the term “regulated football match” includes games outside Scotland in which Scottish teams are involved. And Section 2(2) goes on to say that “in relation to” a match includes on the journey to the match. And Section 7(1) says that the Act applies to anything done outside Scotland by a British citizen or someone habitually resident in Scotland. So, yes it does appear that the Bill suggests an extra-territorial jurisdiction. Or am I missing something?

      • Iain McKellar says:

        I’m going to add another point. Let us say, they stop at Carlisle where they pick up Mark’s brother who lives in Longtown (as has done for several years) . It could be said that the brother is engaged in common purpose in the joke (let us say he prompted his brother) Bearing in mind Section 7(1) as outlined above, the brother cannot be charged but the others could be. These are far from unusual scenarios. More work for Scottish Lawyers obviously, but English Lawyers as well!!

        Mind you Carlisle has a place in Scots law. When Tinsley and Meakin were charged with regard to the Quintinshill Rail Disaster in 1915, several of the fatalaties died in the casualty ward of Carlisle Royal Infirmary and Tinsley and Meakin were charged with the same offence under English and Scots Law in that with the deaths in Carlisle, the English Courts had a valid statusin the case. It was decided at the higherst level for them to be charged under Scots Law

  5. Pingback: Draft sectarianism legislation published | CjScotland

  6. But if Mark’s brother is a British citizen, doesn’t Section 7 claim jurisdiction over him too – just because he’s on his way to see Ross County play Arsenal? And does it make a difference if you’re going to support the non-Scottish team?

    My head hurts!

    • Iain McKellar says:

      Even if the brother has never set a foot in Scotland in his life?

      Could he appeal to the Supreme Court?

      My head hurts as well.

  7. Malorie Holly says:

    Do you have a Facebook page or Twitter? Would love to follow you there, I’m on my iPhone and love reading your stuff!

  8. Tim Macdonald says:

    I’m not so sure that scenarios 1 and 2 are offences under the Bill. What about s 1(1)(b): the behaviour is/would be likely to incite public disorder? While talking loudly on the phone during a minute’s silence, and telling tasteless jokes about Diana, are both things which many would consider offensive, neither is (IMO) likely to start a riot.

    For scenario 3 to be a crime, it has to be the case that a reasonable person would consider that the image implies actual violence to actual Scandinavians (s 5(3)(b)). I think you’d have to be extremely unreasonable to take that cartoon strip as an incitement to violence.

    Nonetheless, the breadth of s 1(2)(e) does worry me.

  9. It’s a fair point Tim, but the test is public disorder not starting a riot. What if the fans around were sufficiently angered that they may start to remove their bunnets and strike him about the head until he ends his call? Section 1(5)(b) says that would be likely to incite public disorder includes circumstances where “persons likely to be incited to public disorder are not present or are not present in sufficient numbers.”

    So, although it’s an otherwise empty car, the law allows us to fill that car up with virtual “persons likely to be incited to public disorder” – in this case readers of the Daily Express, presumably.

    I think Hagar the Horrible is probably in the clear though!!

    Thanks for your participation!

  10. Alan says:

    When are County playing Arsenal? If a Caley fan abuses RC (FC) is that an offence?

  11. Pingback: Sluts, Trams, Bigots and Barbie – Scottish Roundup

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