Two years have passed since the SNP won its landslide election victory, leaving Alex Salmond master of all devolved territories. Two years notable for the absence of significant legislative achievement. Given the consequences of government legislation this is not necessarily something to be regretted. Nevertheless, Mr Salmond is no FDR or LBJ (again, a good thing too you may say).

The exception to this record of legislative lethargy is, of course, our old friend the Offensive Behaviour at Football and Threatening Communications Act. Readers may recall that I am no fan of this illiberal, pernicious, dismal piece of legislation (my most recent post on it is here). Nothing that has happened since it was pushed through Holyrood has persuaded me to grant it a second chance. Quite the contrary, in fact. With each fresh prosecution we are reminded of how rank this bill is. Everything the critics predicted has duly come to pass; none of the claims made on its behalf weather serious scrutiny.

The latest example comes, courtesy of Lallands Peat Worrier, from the High Court of Justiciary which today granted a Crown appeal against the dismissal of a case involving one Joseph Cairns. The Sheriff in Mr Cairns’ case had ruled there was in fact no case to answer and thrown the prosecution out on its arse (to use the technical term).

Mr Cairns, attending a Celtic match against Ross County in Dingwall, had been filmed by police officers singing two Celtic songs, namely The Roll of Honour and the Boys of the Old Brigade. The former is a hymn to IRA hunger strikers; the latter a salute to the memory of the 1916 Easter Rising. In a better country these might be considered – and protected – expressions of political speech. But this is Scotland and no such speech protections apply. (For the time being anyway: I suspect, or rather predict, that this bill will fall when it is eventually challenged on human rights grounds. And rightly so.)

Anyway, at Mr Cairns’ trial the Sheriff noted that the police officers filming Mr Cairns needed to consult the video tape to ascertain the precise – and therefore the actually “offensive” – wording of the songs in question. The Sheriff ruled, therefore that:

“Since there was no proper basis for inferring that any person who might be incited to disorder would have been able to tell that the respondent was singing about the hunger strikers or joining the IRA there was equally no proper basis for inferring that the respondent’s behaviour was likely to incite public disorder.”

That is: though a reasonable person might consider these songs offensive (though if this is the case then a reasonable person should get a grip), a reasonable person some way further distant from Mr Cairns than were the police officers  could hardly be offended, far less incited to public disorder, by words they were, in this instance, unlikely to be able to make out.

The High Court – their ruling is here – was having none of this and, in fairness to their lordships, the High Court’s ruling appears consistent with the law as it was written and intended to be applied. As we shall see, however, that merely means the law stands naked as an ass.

As the High Court reminded us, the parliament “created a criminal offence with an extremely long reach”. (For example: a person may be “regarded” as having been on their way to or from a “regulated football match” even if they had no intention to attend that, or any other, football match.) The Court then demonstrated just how long the law’s reach is.

In the first place, the three judges hearing the Crown’s appeal, made the startling claim that though police testimony suggested the majority of Celtic supporters were singing these anthems these self-same Celtic supporters could have been “incited to public disorder” by their own songs. This, surely, suggests that Mr Cairns could be tried and convicted of an incitement to public disorder since the person liable to be so incited was, well, himself. 

If that sounds ludicrous it is no more ludicrous than the actual provisions contained within the bill. You see:

[T]he sheriff does not appear to have considered the effect of section 1(5). That subsection provides that for the purposes of section 1(1)(b)(ii), behaviour “would be likely to incite public disorder” if public disorder would be likely to occur but for the fact that either measures are in place to prevent public disorder, or persons likely to be incited to public disorder are not present or are not present in sufficient numbers.

The law as it stands creates an imaginary person who might be incited to public disorder even if no such person exists or is present at the time or place of the alleged offence. Heads you lose; tails the state wins. As Paul McConville observes it takes only a modest dollop of imagination to construct a hypothetical scenario in which singing “offensive” songs in the privacy of your own home could, in certain circumstances, leave the singer liable to be prosecuted.

It does not end there, either. This is how it works:

[T]he Act distinguishes between, on the one hand, “a reasonable person” and, on the other, a person “likely to be incited to public disorder”. It may be that a person likely to be incited to public disorder is of a more volatile temperament than a reasonable person or, to use the language of the sheriff, an uninitiated member of the public. The person likely to be incited to public disorder may have particular interests and particular knowledge. He may have particular views about the two songs in question or those who sing them. As section 1(5)(b) provides that such persons need not be present for the purposes of determining whether specific behaviour would be likely to incite public disorder, it cannot be relevant to the question as to whether there has been a contravention of section 1(1)(b) that particular persons in a football ground could not actually hear the words being sung. In other words the actual context within which the behaviour occurs is not determinative. Where behaviour falls within any of the categories specified in section 1(2) it is sufficient for conviction that persons likely to be incited to public disorder would be likely to be incited to public disorder by the particular behaviour, whether or not they were present in sufficient numbers and whether or not they were subject to measures put in place to prevent public disorder. As it does not matter whether persons likely to be incited to public disorder are there in sufficient numbers or are there at all it cannot matter whether or not the persons who are present (whether likely to be incited to public disorder or otherwise) actually became aware of the relevant behaviour.

Ye gods. The standard (sic) for determining whether a song is “offensive” is that of a reasonable person; the standard (ibid) for a person “likely to be incited to public disorder” may rest on whether that person has a “more volatile temperament” than a “reasonable person”. Or, in the vernacular, if said person is a heid-banging, bampot. That, my friends, is how you lower the evidentiary bar.

Again, of course, the law as presently applied makes you responsible for the reactions of morons. Is that just? Pull the other one.

Mr Cairns’ case would seem to be a splendid example of a victimless crime. Or, rather, “crime”. No-one was offended by his singing. No-one was incited to public disorder. And none of that matters. The case will return to court and, given the manner in which the law is constructed and understood by the courts, is seems all but impossible to mount a legally persuasive defence against the charges. Since no disorder need take place and since the persons “liable” to be incited to disorder do not even need to exist, the deck is so stacked against the defendant you might think this law had been devised by Kafka or Gogol.

It is also worth mentioning, again, that OBFA is wholly capricious. As many as 2,000 Celtic supporters were singing “offensive” songs in Dingwall yet only Mr Cairns, I believe, has been prosecuted. He’s the unlucky loser of a police lottery, being neither more innocent nor more guilty than thousands of his colleagues. And yet he is the poor sap picked upon and hauled before the bench. Equal justice? There’s not even the pretence of that.

But that of course merely demonstrates that the law is unworkable as well as unjust.

Perversely the SNP – including the First Minister – remain proud of this monstrosity. It is a pernicious, illiberal bill that would remain a disgrace even if it could  - as it cannot – be applied consistently and equitably. The criminalisation of speech, under threat too often in too many parts of this realm, continues.

The Scottish government has commissioned Stirling University to “study” the “impact” of the bill. They are paying the academics £155,000 for this. I could have saved them a lot of money: this bill still stinks and should still be repealed at the government’s earliest convenience.

Tags: Alex Salmond, british politics, Celtic, Football, Holyrood, Law, Rangers, Scotland, Sectarianism