Ban on offensive songs in Scottish football has failed

Law designed to improve behaviour at football games is having opposite effect. Picture: SNS

SOMEONE has to rush in where angels fear to tread. I would like to consider the Offensive Behaviour at Football And Threatening Communication (Scotland) Act 2012. This appears to have an objective that people at football matches will behave in ways not likely to incite public disorder and that a reasonable person would not consider offensive. This is to be encouraged by the threat of up to five years imprisonment.

Police officers on the ground have to decide what conduct is prohibited and courts have to decide whether to convict on the same subjective determination. One person’s terrorist anthem may be another’s folksy ditty.

Supporters of one of the large Glasgow clubs devised a song using a well-known tune. The lyrics were founded upon an undeniable historical fact – a potent recipe to engage crowd participation and to stimulate consternation at the other end of the stadium. It was certainly a cup winner of a football song. It displayed a massive disrespect for the suffering of previous generations. It was also found to offend against the new law. This was declared to be the case by the club whose supporters sang the song. Notices were posted and prosecution threatened.

Many offended supporters now regard themselves as victims not only of some nasty chanting but also as victims of broken laws. In other words, the Act, rather than diminishing the offensiveness of behaviour, has increased it. Despite the law, the song continues to be sung. The tradition of responding in kind is now filled with the menace of criminality.

Statute having created this stick for the supporters the better to beat each other, that same stick (or song) now lies around the grounds for other supporters to pick up and use. Recognising the legally stimulated potency of the song, supporters of other clubs now add their voices. The temptation is too great to expect them not to do so. It was the Scottish Parliament not the authors of the song which turned the song into a choral Exocet .

In the same vein, I wish to explore the working of the Act. We must avoid behaviour likely to incite public disorder and which a reasonable person would find offensive. Would the scoring by one player of five goals not be likely to incite disorder at an Old Firm match? Would any reasonable observer not conclude these goals were the product of an effective offensive strategy? Should that player face a year’s imprisonment for each goal?

This suggestion may be dismissed as a nonsensical reading of the Act. Supposing, however, that that same player were to engage in extravagant gestures of triumphalism. Perhaps as many people in the stadium would see a clear breach of the new law as would see otherwise. Properly objective legislation would avoid such potential difference of opinion as to what the law required.

The law already prohibits the deliberate incitement of public disorder and causing unreasonable offence is subject to the well-tried regime of breach of the peace. This Act seems likely to stimulate public disorder and to reduce confidence in the neutrality of the police and courts. The part that concerns behaviour at football matches appears to be unnecessary and unworkable and should be binned.

• Michael Sheridan is Secretary of the Scottish Law Agents’ Society