 Erdal, ddwybod fel Gweithredu Chymddiadau, 29 mlynedd yng Nghymru 2017. Felly, rydyn ni'n ddweud. Rhywun ymlaen i ddwybod ymlaen i ddwybod 5 o pryd, mae'r pryd ymlaen i ddwybod 5 o rhoddiwch am yr pryd ar gyfer ymloedd. Rhywun i ddwybod 5 o pryd, ymlaen i ddwybod 5 o pryd, mae'r pryd ymlaen i ddwybod 5 o pryd. Rhywun i ddwybod 5 o pryd, mae'r pryd ymlaen i ddwybod 2 o pryd, oedd mae'r pryd yn ysgol, Football and Threatening Communications repeal Scotland Bill. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a spice paper. I welcome James Kelly, the member in charge of the bill to the meeting. Also attending is George Adam, you both very welcome. We're taking evidence from two panels and time is extremely tight. There are 11 members on this justice committee. The role is to scrutinise the bill. If time allows, therefore, at the end of the member's questioning, I'll ask Brian, sorry George, if there's any question that he wants to ask very briefly. And there will be time allotted, of course, to James Kelly to ask any questions when you've heard all the questions and answers at the end. I welcome our first panel, Anthony McGeacon, Procurator of Fiscal and Engagement, Crown Office and Procurator of Fiscal Service and Assistant Chief Constable, Bernard Higgins, Operational Support, Police Scotland. I thank the witnesses for their written submissions, as always, that's very helpful. I'd like to move straight to Swestians, starting with Rona. Thank you, convener. Good morning, panel. I wonder if I could start by just asking you to comment in general, in general terms, if and how behaviour of football has changed since 2012 when the act came into force. Good morning, Justice Committee. I've been in the police 29 years, and what I would say from when I started in 1988 to the current day, football is almost unrecognisable in terms of fan behaviour, in terms of stadia. And certainly in the last five or six years, we've seen massive improvement in not just fan behaviour but stadium facilities and the professionalism of key elements of producing a football match, for example, the stewarding arrangements around it. If I give an example, in the last four years, we've worked tirelessly with clubs and associations like the Football Safety Officers Association to actually reduce the number of police officers at football events, because that then cost the club less money. But we're only in a position to do that because infrastructure has improved, and fan behaviour has improved. In terms of the 2012 act, what I would say is that it's certainly brought to the forefront, the social consciousness behaviour, what people would describe as unacceptable in a footballing context. There have been many occasions since the introduction of the act where fans have self-reported what they believe to be an appropriate and abusive behaviour, an example being during the Hibs harps Scottish Cup final some years ago, where a harps supporter was making racist and homophobic comments. He was reported to the stewards and then to the police by harps supporters and was duly arrested. I think that the act is on two things. It's certainly brought to the forefront and the wider not just footballing community but the wider Scottish community and what is acceptable and what's not unacceptable. In terms of policing football, it certainly made it very clearer when we can take action and when we can't. There's no comment that I would like to add in relation to behaviour at football currently. If you think that repealing the act would send out the wrong message that it may be acceptable to revert to the previous bad behaviour, if you like. I think that there's a potential for that, ma'am. It would be very subjective of me to say that it will definitely happen, but repealing the act may be interpreted by some as a lifting of restrictions in terms of how they can behave within football stadia. Then again, it may not. Your feeling is, though, that the act has helped to improve the behaviour at matches over the past five years? Again, I think that it's really important to stress that, generally speaking, football is very well attended and very well behaved. Let me give you an example. Season 16-17, we arrested 191 people. During that same period, 4 million people went through the turnstiles, so statistically we're talking about 0.005 per cent of people that attend football matches engaged in some sort of behaviour that wants their arrest. I think that it's really important not to lose sight of the fact that the vast, vast majority of fans attending football matches do so in the spirit of wanting to go and enjoy the game. There's no question from a professional policing point of view that the act has allowed us to address specific types of behaviour and challenge-act behaviour. Again, to me, the act has probably raised social consciousness. I have been asked what would happen if the act would repeal. Well, simply we would continue to try and address the behaviour using other legislation. Again, Mr McGeeking is far more skilled and knowledgeable about the alternatives, but there is no doubt that football in the last five years, the fans' behaviour, has improved greatly. However, it's a number of factors. It's not simply down to the act. It's down to fans' associations taking responsibility. It's about the clubs stepping up to the plate and taking responsibility. It's about the better informed infrastructure, the closer liaison between police, football safety officers, a whole combination of effects, and, yes, the act as well, but not in isolation. Is it accurate to say that the act goes beyond the football stadium that it can apply outwith and coming to from the match, etc., or anywhere in street corners? Yes, that's correct. I would flag that the act not only goes beyond the stadium in relation to section 1, but section 6 of the act is not connected with football. I think that we're going to come on to that later. My question to a degree follows on from the line of questioning that my colleague Rona has opened up. We've received a number of submissions from football supporters stating that the relationship between supporters and the police has deteriorated significantly since the 2012 act has been in place. Would you like to comment on that, ACC Higgins? Yes, by all means. From my perspective, I don't see that. I have got officers that regularly liais with the finance groups Scotland Supporters Direct, the Tartan Army Scottish Disabled Supporters Association, a national level, a local level. Within all our territorial divisions we have single points of contact with the clubs and through the club fan liaising officers, there is that contact. We work very hard to develop relationships with any fan base. My door is always open. I'll happily speak to anybody about any aspect of policing football they want to. If that's a perception that the relationship between the police has deteriorated, then that's something that we need to work on and improve. The reality is that that came into force. I make no comment about the rights and wrongs of where it was introduced, but the reality is that I'm a police officer and I have to apply the law of the land as it stands. Even if that law is unpopular with certain sections, it's not within my gift to take a decision not to enforce it where appropriate. Any other comment that has been made is that policing is seen as overzealous? Well, I've just given you a start there, ma'am, where I've said we've arrested 0.05 per cent of people attending football matches. That doesn't seem to me to be overzealous. I think that's pretty proportionate. 191 people out of attendance of £4 million. In answer to the first question that you were asked, you're opening comments where that football has changed dramatically over the time that you have been in the police. I suppose that I'm struggling to understand the significance of the 2012 act. If football is almost unrecognisable from when you went into the force, I don't really understand the significant impact that the 2012 act could have made because there has been a gradual shift in behaviour. When I joined the police, and again I'm swinging the lamp a bit here, but back in 1988 it was pretty acceptable to go to an old firm match and listen to sectarian singing from both sides of the old firm. Now people recognise that that's wrong in a modern society. Sectarian singing, homophobic abuse and racial abuse is simply not acceptable. What I would suggest is that the 2012 act has put that in the forefront of the public's mind and there is now a greater understanding, perhaps not an acceptance of the act, but there's a greater social consciousness and awareness of some of the challenges that don't just exist within Scottish football but within Scottish society. If there's only 191 arrests that were made last season, would you agree with the comment from supporters that there is little or no evidence of significant disorder in football then? It depends what you mean by a significant disorder. In 2015 we had several thousand Rangers and Hibs fans take to the field at Hamden Park and engage in significant sustained violence and disorder. As a result of that, we arrested over a period of months, certainly 184 people. A couple of years ago, one of the most significant elements of disorder we had was a mass brawl involving up to, I think it was, 30 or 40 fans from Airdrie and Air United within Cope Ridge Town Centre. A young detective sergeant sustained a broken jaw at that. So, yes, while statistically 4 million people attending in 191 arrests, that doesn't actually reflect the massive operations, joint operations between ourselves and stewards and clubs, to ensure that those 900 plus professional football matches each year go off as peacefully and safely as possible. Is the change in the policing operation due to the 2012 act? No. I took charge of being the strategic lead for football probably about five, six years ago. One of the things that I determined we were going to do, because policing is an expensive asset. If you employ a number of police officers, it's going to be much more expensive than if you employ an accredited stewarding company. What I undertook with the football authorities and clubs was to try and reduce the number of police officers at every match, and therefore financially they would be more beneficial. To do that, we had to do other things. Work with the Football Safety Officers Association to make sure that the safety and security of grounds would meet the requirements of the safety advisory groups. That's been a process that has happened over many, many years. Evidence of the police commitment to that is that, outwith the old firm, every major club in Scotland has now held police free games, while there has been no police officers at the stadium. We are working very hard to make those a really safe environment. Mr Higgins, can I address yourself? Could you elaborate on the challenges that officers would face when policing in the football environment should the 2012 act be repealed? How would Police Scotland deal with those challenges? Operationally, it wouldn't pose a significant challenge, respectively. We would still continue to discharge our duties in the same manner. What we would be seeking is guidance from the Fiscal's Office about what charges we should now apply, as opposed to the provisions of the section 1 act. I know that Mr Higgins has got some views on that. If the act is repealed, I am also quite sure that guidance will be forthcoming from Crown Office in that very subject. However, in terms of boots on the ground and how we would go about policing a football match, little, if anything, would change. Mr Higgins, do you have a comment? The Lord Advocate has published guidelines on the operation of the 2012 act by the police. We intend to publish similar guidelines on the application of breach of the peace and section 38 of the Criminal Law Consolidation Scotland act should the Parliament decide to repeal the act. I would like to ask both panel members if they think that if the act is repealed, there would be a gap in the law. If they think that that would therefore make games more or less safe for fans. In my assessment, there would be a gap in the law. In relation to section 1 of the act, there are alternative charges available to prosecutors, principally, as I have indicated, section 38 of the Criminal Law Consolidation Scotland act. The Criminal Justice and Licences of Scotland act 2010 and Breach of the Peace act. There are similar alternatives in relation to section 6 of the 2012 act in the form of section 127 of the Communications Act 2003. However, both of those alternative options in relation to section 1 and section 6 have limitations. In relation to section 1 alternatives, those alternatives propose a different legal test against which an accused person's offending must be assessed. That test is, in short, fear and alarm, as opposed to the test that is set out in terms of section 1. Section 1 also has an additional utilitarian value for prosecutors in the sense that it has an extraterritorial element and therefore it can currently be used by prosecutors to address offending committed by persons normally resident in Scotland but committed out with Scotland. That ability does not exist in relation to section 38 or Breach of the Peace and that ability has been used by prosecutors to successfully prosecute hate crime committed by persons normally resident in Scotland out with Scotland. In relation to section 6, there is an alternative in terms of section 127 of the Communications Act 2003, but it has similar limitations. Its first limitation is, as I have described in relation to section 1, and that is that section 127 of the 2003 act contains no extraterritorial element and therefore would but unable to prosecute offences committed by persons normally resident in Scotland where those offences have occurred out with Scotland. Again, we have used section 6 successfully to prosecute hate crime committed by persons normally resident in Scotland intended for a Scottish audience. The other advantage of section 6 is in relation to the sentencing powers available to the sentencer. In terms of the Communications Act 2003, only the summary level sentences available to sentencers. In terms of section 6 of the 2012 act, solemn level sentences are available to sentencers, and those solemn level sentences have been used by a sentencer to address serious hate crime perpetrated by a Scottish accused. That Scottish accused used the internet to post hate crime supportive of a prescribed terrorist organisation, namely ISIS. The severity of the accused's actions reflected in the sentencer's starting point for sentence, which is 24 months. The sentencer reduced that 24-month sentence to 16 months to reflect the fact that the accused played guilty, but the reality is that that option for the sentencer to reflect the severity of the accused's accepted behaviour would not have been available if the alternative charge in terms of section 127 of the 2003 act had been deployed. I think that in our lines of questioning, as we progress, we will try to tease out, because I think that it would be impossible to take in everything that you have just said. With the disrespect, we will break it down. You were on free flow there, but I was aware that you were going to another line of questioning later on. It is suffice to say that you feel that there would be a gap in the law if the act is repealed. You have concerns about other legislation, as you have mentioned. ACC Higgins, have you got anything to add to that? Is that actually the case? Would there be a gap in the law or would the existing law cover it? There would be a gap in the law. The 2012 act gives prosecutors powers that are not available under either breach of the peace section 38 or the communications act. We will come on to that later, exactly, in what situation you think there would be that gap. Good morning, sir. I will not add to what Antony said. The question about the repeal of that makes it more dangerous or less safe in the footballing environment. That is very subjective. Of course, as I alluded to earlier, there is the potential that many might see this as a lifting of restrictions, which means that perhaps behaviour would deteriorate, which would mean the consequence of additional police officers and stewarding having to be deployed to stadiums. However, the reality is that we just do not know that we would need to wait and see how fan groups reacted to that. My last question, convener, if I may, is in relation to—it is probably for yourself, ACC Higgins—do you feel that the police have a clear understanding of what offensive behaviour actually covers for the section 1 offence? We have heard some evidence, for example, from some of the evidence that we received that some people feel that they have been charged under the act for arguing with stewards. Is it your understanding that police officers would know what constitutes an offence? Yes, that is the short answer. Again, without throwing statistics at you, I think that for every person that we arrest under the act, Crown Office takes action in 89 per cent of those cases, which would, to me, demonstrate a high level of understanding by the arresting officers. I think that it would be good if you could give a really good and concise example of what offensive behaviour actually consists of. Offensive behaviour is behaviour that is offensive to any reasonable person. The Lord Advocate has published guidelines on behaviour that may be offensive in terms of the 2012 act. That definition is set out at page 4 of the Lord Advocate's published guidelines, dated August 2015. It provides that the offence is not—it is in effect one and a half pages of narrative. I can go through that if that would be beneficial to the committee. If you would select one example, that would be kind of good. Is there actually examples in that narrative? Yes. At page 5, the first paragraph of page 5 provides that, while it is a matter for the judgment of a police officer, whether a song or other behaviour, including the display of offensive flags or banners, is likely to be offensive to a reasonable person, having regard to the nature of the material or song, including its lyrics and any add-ons, the surrounding circumstances and the context in which it is being displayed or sung. The following are examples of the types of displays, songs and chants that are likely to be offensive to a reasonable person. The first bullet point is flags, banners, songs or chants in support of terrorist organisations. The second bullet point example is flags, banners, songs or chants that glorify, celebrate or mock events involving the loss of life or serious injury. It should be noted that, in order for this offence to be committed, in addition to the display, song or chant being offensive or threatening, it must be likely to incite public disorder. Perhaps the police could give us a specific example of how that is being applied, then, and the police's interpretation of it. Pretty much we have arrested a number of people over the years for displaying pro-IRA banners, for example. We have arrested a number of people for singing, for example, the Billy Boys with the add-on and that about being up to your knees in fhenion blood, which is offensive and would likely incite public disorder. It is a pretty common place in terms of what we can apply that act to. As I say, in the general legislation, should that act be repealed, then that behaviour we would still challenge and we would still arrest for. Whether that behaviour became a breach of the peace or a section 38 offence would be a matter for Crown to give us guidance for. The offensive behaviour itself, as it has been defined and the examples given, if the act was repealed, it would still be covered by legislation. By and large, with the exceptions that Antony alluded to in terms of the gats, but the very general offences that we arrest for would still be covered. Liam McArthur, sorry for being too short on that. Just for clarity on the same point to the Crown, in your evidence, you state that the legislation does not particularise the behaviour that a reasonable person would likely consider offensive. It is not unusual for legislation to contain a test in relatively broad terms. I wonder if you wanted to comment on that specifically. You also state that the Crown does not agree that the legislation is applied arbitrarily or unfairly. Those are important points to highlight from your evidence in relation to the question that the convener asked. In relation to the lack of definition of offensive behaviour as prescribed in the act, that is not an unusual situation in terms of legislation. A type of behaviour and offending that the majority of us are very familiar with would be dangerous driving. Section 2 of the Road Traffic Act prohibits dangerous driving but provides no definition of what may or may not constitute dangerous driving and what may or may not constitute dangerous driving is defined by the particular circumstances of each individual case. The use of offensive as a test is also not unique to this 2012 act. For example, one of the alternatives that it identified as a possible remedy should the act be repealed is the Communications Act 2003. That act itself prohibits the sending of a message that is grossly offensive or of an indecent obscene or menacing character. Again, we have the offensiveness of an act as a reference point for criminal behaviour without any specification of what may or may not constitute offensive behaviour. In relation to the second part of your question, which was a rejection on COPFS's part that the act is applied illiberally, my position is that in order for an act to be committed under the 2012 act, it is not simply sufficient that the act is offensive but rather that the act must be one of five types of behaviour specified by the act. It must also be behaviour that incites or is likely to incite public disorder. It is only if those two tests are met that there is a charge against an accused person can properly be brought. I was interested in your reference back to the Communications Act 2003. Do you refer to its reference to grossly offensive and obscene? In a sense, from a lay perspective, that would appear to set the bar slightly higher than offensive as defined in the 2012 act. Do you see that as potentially problematic in that if something grossly offensive, presumably there is no dispute or much less scope for dispute whereas something that is deemed offensive may be offensive to some but not necessarily to others and therefore may be seen as more of a judgment call made by officers and ultimately by the Crown? My analysis would be that it sets not a higher bar but a different bar. In relation to the 2012 act, the bar that is set is that the behaviour is both offensive and either incites or is likely to incite public disorder. That second element is not necessary in relation to the Communications Act. A different test is applied in relation to the Communications Act. If you are to ask me in isolation is offensive behaviour less than grossly offensive behaviour then in isolation I would answer that question, yes. In answer to the question, does the Communications Act 2003 set a higher bar than the 2012 act? I would suggest not, it simply sets a different bar and in one view the 2012 act bar is a higher one. Just turning back to the line of question that Fulton MacGregor was pursuing there, he raised the fact that concerns have been highlighted by supporters groups about the approach that was taken by the police in relation to the interpretation of offensive behaviour. Obviously, the act has been enforced now for a number of years. At what level of concerns have there been among officers about how they should be interpreting offensive behaviour and what discussions have there been with individual fans groups associated with particular clubs or across the piece about the way in which officers are being seen to be interpreting offensive behaviour over that period? Certainly, when the act was introduced, there was a training package, which was delivered across the force, as was a very new piece of legislation. Then a lot of our thinking has been developed through case law and stated cases. We do understand what offensive behaviour is. In terms of concerns raised by fans groups, again, I am open to any sort of engagement. Recently, some of my staff went to the Supporters Direct Association. It was an annual conference and, essentially, fan groups from across the country were there. They spent some time engaging and delivering a presentation about some of the challenges of policing football events. It is always an open dialogue. Some officers, at the start of the act, in areas out with the central belt, were probably not exposed to some of the chanting and songs that predominantly old firm fans will do. We had to educate them in terms of recognising what could be potentially offensive singing and chanting, but that was right in the early days. We are now four or five years into the act. Pretty much every officer has a firm grip and understanding of the act and what falls within the definition of offensive behaviour. You would argue that, at this stage, there is unlikely to be any legitimate suggestion that this is being policed inconsistently or in different ways in different parts of the country. Again, we have got 42 professional clubs in Scotland. As of today, 24 of those clubs have had people charged with offences under this act. That ranges from Elgin and Inverness right the way down to Queen of the South and everything in between. To me, that would suggest that the police officers in the city of Elgin have a good understanding of what is happening with the act, as the police officers are policing Glasgow, Celtic, Rangers, Hibbs, Harps or whoever. I am just going to ask Mr McGeehan a follow-up question. The figure of mid-80 per cent of reports from police are then taken forward for prosecution. What has been the pattern over that four or five years in terms of police reports to prosecution? Has that 80 per cent been consistent across the piece? Has it increased over the three or four or five years? That information is published by COPFS. There is a COPFS hate crime publication and within the publication there is a table that sets out the numbers of charges that are reported to COPFS and the action taken in connection with those charges. If I set out table 6A of that published document and if I could go through the years, if that would be helpful. If you could top-line figures, it would be helpful. In 2012-13, 267 charges were reported in section 1 and no action was taken in connection with 23 of those charges. In 2013-14, 206 charges were reported and no action was taken in connection with 16 charges. In 2014-15, 193 charges and no action was taken in connection with four charges. 15-16, 286 charges were reported and no action was taken in relation to 14 charges. 16-17, 377 charges and no action was taken in connection with seven charges. I can make the full table available to the committee because it provides further information on other actions taken by prosecutors beyond and separate from court proceedings. Maurice Corry has a relationship between supporters of the police changed since the legislation was introduced and, if so, why has it changed? There are pockets of supporters where the relationship has certainly changed, but I would say that out of the 4 million people that regularly attend Scottish football, then 99 per cent of them, the relationship remains exactly the same. Can we maybe establish why, in some cases, you do not proceed? Detail in relation to the reasons for proceedings not being taken is set out in the hate crime publication. I can take the committee through that, if that would be a benefit. If you could just succinctly explain your understanding of why that would be helpful. Page 16 of the Crown Office publication Hate Crime in Scotland 2016-17, page 16, table 8, breaks down the reasons for no action in relation to offensive behaviour at Football and Threatening Communications Act 2012 and separates the no action decisions in relation to section 1 and section 6. In relation to section 1, which would appear to be the focus at present, the total number of charges in which no action was taken was seven and breaking down the reasons for no action being taken in relation to those charges, one was as a result, to explain, when we mark a decision for no action, prosecutors will assign a code to the decision to provide an indication of the reason for the decision making process, and when I use this terminology, I am referring to the codes that prosecutors would use and record for particular no action decisions. Breaking those seven cases down, one was marked no action for the prosecutorial code not a crime, one was marked no action due to insufficient admissible evidence, four were marked no action due to further action being assessed as being disproportionate, and one was marked no action for another reason. Our prosecutorial codes allow some flexibility for prosecutors to account for cases where prosecution is not in the public interest, but the reasons that prosecution or prosecutorial action is not in the public interest perhaps do not match some of the easily available codes to prosecutors, and that is why we have a prosecutorial code other reason, and that is what that refers to in relation to one case. It probably would be very helpful for the committee if you could write to us just summarising the information for the year since that came into force, including the information that you gave to Liam McArthur. You talked earlier about the Lord Advocate's guidelines and ACC Higgins talked about some specific songs. It has been suggested by some supporters that certain songs that are sung at football matches result in charges and prosecutions, but if those same songs are sung at a concert venue, that can be done with impunity. Do you think that this anomaly is why football fans have come to the view that they are being unfairly targeted and criminalised? Good morning, Mr Kerr. I am not aware of any songs being sung at any concerts. However, if that was reported to us, we would investigate it, and I am quite sure that we would report that to the procurator Fiscal. Of the £191 million out of £4 million arrests that have been made, how many of those took place away from a ground, such as in pubs or bars? I think that the road that I have got is about within football stadiums. All the arrests are taking place because the act specifically extends it, I believe. It does, but the 191 arrests are not 191 arrests under the act. It is 191 arrests in total, and that will include things such as common assaults. It is not 191 arrests under the act, it is 191 arrests in total. How many arrests are made under the act in that 191? I do not have that breakdown, but I can get it to you. I may be able to assist there. I can understand that perception, but I would suggest that that perception is based upon a false assumption. That false assumption is that the singing of that song would not constitute a criminal offence in any other context. It may well constitute the offence of breach of the peace, or a contravention of section 38. In relation to your second question, which was in relation to statistical data about the locus of section 1 offences, it would suggest that that information may well be available from the Scottish Government. The Scottish Government produces annual research in connection with the 2012 act and analyses the locus of particular offences, and the percentage of those offences that occur within or outwith football stereo. Therefore, if that information would be of value, I would suggest that that request might well be made to Scottish Government colleagues. To come at it from the other side, some stakeholders have argued that the provisions in section 1 of the act should be extended to cover things like parades. At present, what charges would be brought if the songs that we are talking about, for example, in support of terrorist organisations were in evidence at these events? Is it your view that the act should be extended to cover those things? Police in parades is a very challenging environment, regardless of what type of parade it is. Whether it is a loyalist parade or a republican parade, they bring their unique challenges. What we do is we will arrest individuals for breach of the peace section 38 offences and then report it to Crown Office. The matter of extending the provisions of the act to cover parades I would need to give that some thought. Often it could be helpful, there is no question of that, but often what we will do is a police service will take a fairly neutral view on legislation until we see the drafting of it and then we would give an operational perspective on how that would be applied in the real world. I would basically hold my own counsel until I saw more detail in that particular suggestion. You talked there about the real world. I just want to ask a bit of a daffladi question if I may. What would the police do if the entire stand breaks into offensive behaviour? The entire stand breaks into song? Frequently happens. What we do is we will use the stadium CCTV, we will deploy police officers with cameras, we will film and then we will try and identify the main protagonist and arrest him. Mr McKeehan, there have been a number of appeals in relation to convictions under section 1 offence. It is going back to following on from Liam McArthur's question earlier. How many of those appeals have been successful and on what grounds were they successful? COPFS does not hold data in relation to the number of appeals in connection with the 2012 act specifically or their outcomes. An accused person may appeal a whole variety of judicial decisions at a number of different stages within the criminal justice process. Our database is an operational one designed to support the effect of prosecution and investigation of crime. We do not hold a database or data in relation to numbers of appeals connected with the 2012 act, their nature or their outcome. If that data was of use, then a request for that data might be made to the judiciary office. Thank you. One final question for me. ACC Higgins, if this act were repealed, you have talked earlier on about the fans' clubs, kind of stepping up in the last few years, the clubs themselves stepping up, there is obviously the UA for restrictions, FIFA restrictions, this sort of thing. What actually would be the practical impact of repealing this legislation? Again, that is a very subjective question, Mr Kerr. Nothing might happen. Equally so, people might interpret that as a lifting of perceived restrictions and we could revert to behaviour that we saw in the 80s and 90s. I have gone in record and said that some of the challenges within football hate crime is not a football issue. Hate crime is an issue for this country and it manifests itself often within the football environment. However, I can no more arrest my way out of changing hate crime and sectarianism within this country. It has got to be a far more widening approach to challenging behaviour that is inappropriate. It just so happens that a lot of the inappropriate behaviour manifests itself within a football stadium, but that does not necessarily mean to say that the problem lies within wider Scottish society, because we still see offensive behaviour in the streets of Scotland on a Saturday night. Operationally, I do not know what the repeal of this act would do, but I will say that Police Scotland is absolutely committed to continuing to work with all multi-agency partners to try and address the scourge that is hate crime, no matter where that form takes, whether it is within a football stadium or in Suckey Hall Street on Saturday night. I will supplementary one from Fault and one from Mary, but before I move on to that, I can ask you a little bit about this non-recording of appeals, Mr McGeachan. It would seem to me just logical if the Crown procurator of fiscal was looking at its prosecution policy and there were 95 per cent of appeals, for example, and likely on particular charges. They would want to look and determine why there were so many appeals. Do you consider that there is a gap there that might be helpful in helping you to prosecute more effectively? Our appeals unit monitors significant appeals, and we consider the outcome of those appeals as the impact upon any prosecutorial policy, but in terms of a database, for example, a simple numerical database of the numbers of appeals that relate to the 2012 act, the nature of those appeals, we do not record that data. Do you think that that would be helpful to record? I would suggest that what is particularly helpful is identifying those appeals that have a particular impact upon a particular area of the law and our appeals unit do that. I am not convinced that a simple numerical volume of appeals would be particularly useful in terms of indicating an area of the law or policy that requires consideration by Crown Office. As I have indicated, an accused person can appeal at a variety of different stages of the criminal justice process. That appeal might be, for example, in connection with a 2012 act offence, but the appeal might be limited to the decision by the sheriff to remand him or her in custody pending trial or remand him or her in custody pending sentence. An appeal can be an appeal against conviction, an appeal against conviction in sentence or an appeal against sentence. Therefore, a simple numerical tally of the numbers of appeals would not tell us very much in terms of any particular area of the law. What would be significant would be those significant appeals that offer particular direction to prosecutors, police officers and defence agents in relation to significant areas of law. We monitor those and amend, adapt and reflect upon our policies in light of those significant appeals. I understand that you analyse each appeal, but it is a wee bit like seeing the wood from the trees while the figure itself in isolation is fairly meaningless. I think that if you add it to your analytical data then that might well be very helpful just to start teasing out 95 per cent of these appeals at a certain stage. Further down, there could well be a core percentage of appeals that was hitting at the policy itself and the effectiveness of it. I think that there the statistic used in conjunction with the other information that you have would be helpful. Do you have a view of this at all? I understand exactly why Mr Mughees explained about the whole variety of appeals and the reasons for them. I agree that a single figure would not tell us very much, but there is probably merit in breaking it down further. It might be a useful tool, because in this Parliament consistently we talk about the lack of recorded data and how we will never improve things if we do not have the full information, so it is perhaps something to reflect on. I would like to ask Mr Mughees again for some comments on the use of diversion schemes in relation to this offence. We received some evidence from brands against criminalisation in the written submission that, on request of a freedom of information, that only two people had been offered a diversion in relation to sectarian offences. Is that the case? Have you got any comments on why that would be? The evidence in relation to two persons being diverted resulted from a freedom of information request that an organisation made to COPFS, and that data reflects the information that was provided by COPFS at that time. We can provide up-to-date data in relation to diversion figures again if that would be useful, but the overarching commentary that I would offer in that regard is that COPFS would always support in appropriate cases interventions or diversion that address the causes of behaviour, but I would stress that it is in relation to appropriate cases, and those appropriate cases would be identified with reference to our published prosecution code. We would look at the severity of the offence and then a variety of factors as to what the appropriate outcome is for that accused. The variety of factors might well include the history of the accused in terms of his or her criminal record, any personal circumstances of the accused, and also, as I have said, the severity of the offence. The other overarching observation would make is that in relation to sacro diversion, it is only relatively recently that sacro diversion was extended to cover all hate crime previously. The sacro diversion scheme is only related to sectarian education or in relation to sectarian issues. It is a minority of offences that are reported to COPFS in terms of section 1 that would qualify or be relevant for a sectarian diversion scheme, and that therefore informed the low diversion rates that you have referred to. The other tension for prosecutors is addressing the accused's offending behaviour not only in the future but also immediately, and that tension was reflected in the 2015 academic study conducted by Sturgeoning University. One of the recommendations of that study was that there should be an option where the recommendation was not specific to prosecutors but that it could be taken to combine both diversion and a football banning order, and in that way you would prevent the offending both immediately and in the future. At present, that option is not available to prosecutors. If we think that a football banning order is appropriate to address an accused's behaviour in the future, then I am afraid that the only option for us is to initiate criminal proceedings. What would you say to criticism that has been made that young men, particularly because that is what we are hearing in evidence, with perhaps no previous criminal record, have been criminalised through the act? Would you have a comment on that? What I would say is that I have read the critique that this act focuses on young men. I would suggest that the conclusion that this act focuses on young football fans is an incorrect one. A conclusion that an act focuses on young male persons in particular, or even male persons in particular, might similarly have arrived at if we were to look at those persons who commit other types of criminal offences such as sexual offences. We would see that there is a significant proportion of accused persons in relation to sexual offences who are male. In relation to the criminalisation of football fans, I would suggest that it is irrelevant for the purposes of proving a case under the 2012 act that an accused person is a football fan. I have read the critique that the act criminalises young males with no record of criminal offending, but if I can make this real to borrow a phrase, this month there was national press coverage of a conviction under the 2012 act in relation to homophobic behaviour, and that homophobic behaviour occurred at a Dundee match. If the committee would bear with me, I will find the coverage in question. It was an accused person who had engaged in homophobic behaviour at a Dundee match, addressing homophobic comments at a Dundee football player, and that person had a significant criminal record, including a previous banning order and a significant previous offending of violence. I would refute the suggestion that the act is used to target young males with no criminal record. You would support the use of diversion, where appropriate, and perhaps the expansion of it? We have case mark instructions for cross-shooters in relation to the 2012 act, and those case marking structures positively encourage prosecutors to consider diversion in appropriate cases, but it is the identification of appropriate cases that is the issue. You spoke a moment ago about the wider issue in Scottish society of the behaviour that we are talking about this morning. We do not just see it at football grounds. Do you think that the increased police focus on this issue has had any impact on reducing bigotry in wider society? I would like to think so. We are one of a number of agencies that contribute to the scourge that is sectarianism, which has been described as affecting this country. The short answer is, I do not think that we have had a particular focus on enforcing the act. I think that we have placed operational games and then applied the appropriate charge when we arrest some people or some persons. If I could add to Mr McGregor's question about criminalising of young men, I have a very simple view. In the absence of the act, the same young men would have been arrested but charged with a different offence in all but every case, with the exceptions that Anthony made in terms of the gaps. However, if you were charged with singing an offence of song under the offence of behaviour act, in the absence of that, you would have almost certainly been arrested and charged with a breach of the peace of a section 38 offence. I do not accept the argument that the act has criminalised young men. It certainly brought it to the forefront, but it would still have happened in the act's absence. I would like to ask, from the crown, some questions about section 6. I know that you referred to it earlier. One thing that is clear is that if the piece of legislation is repealed, that will include section 6 and its focus on threatening communications. I noted that, in your written evidence, you stated that the behaviour that is covered by section 6 is not in connection with a football match but has been used successfully to prosecute individuals who have made serious threats of violence against members of the public, including threats of murder, and individuals who have made threats towards Jewish, Muslim and Catholic communities designed to stir up hatred on the basis of religious grounds. It has also been used successfully to prosecute accused who have used social media to post-threatening material designed to stir up religious hatred and which referenced the prescribed terrorist organisation ISIS. I just wondered if you could expand further on your comments earlier on how important section 6 is in terms of the criminal law and dealing with current threatening communications, and how repeal of section 6 may leave prosecutors less able to secure convictions of such threatening communications. I would describe section 6 as affording prosecutors three particular advantages. The first is that one of the pieces of logic behind section 6 was to address a debate in connection with the Communications Act 2003 and its applicability to the variety of ways in which electronic communications can be used by persons. The 2003 act relates to the sending of communications, and there have been questions and challenges in relation to whether or not the whole variety of actions that an accused person may take on the internet constitute the sending of a communication, as opposed to simply the creation of, for example, a forum or the posting of a blog. That was one of the doubts or gray areas that section 6 was designed to address, but the principal benefits of section 6 are in relation to its extraterritorial provisions, allowing prosecutors to address offending by Scottish residents when they are out with Scotland designed for a Scottish audience. That is what the offence has been used to address hate crime posted in those circumstances, and section 6, significantly, provides for greater sentencing powers on the part of sentancers than the 2003 act. As I have already illustrated, we have had a case where an accused person posted comments supportive of a prescribed terrorist organisation, namely ISIS, and the view of the sentencer was that the severity of those acting should be reflected in a starting point of 24 months imprisonment. That starting point for the sentencer would not have been available in terms of the alternative charge under the 2003 act. I think that it is important that those advantages of section 6 are highlighted. For clarity, how many convictions have been secured under section 6 to date, which were prosecuted on indictment? We have figures in relation to the numbers of convictions in terms of section 6 with that latter point, which is solemn convictions. I do not have that data to hand, but I can secure that data if that would be a benefit to the committee. If Parliament's decision is not to repeal this bill, ECC Higgins and Police Scotland, and we have the chance to improve the legislation, I noted in Police Scotland's evidence that there is some comment about that the wording in section 6 of the defence restricts Police Scotland's ability to bring charges in relation to such threatening communications. I know that you were reluctant to comment on drafting earlier, and I appreciate if that is the case here as well. However, as the points have been raised, I wonder whether you want to elaborate on that at all. In the fact that section 6 does not give you the scope that would help to use that in terms of football context? I think that that is a debate for another time. I think that the act in its current format serves a purpose. The reality is that we have very few section 6 inquiries, compared with the wider telecommunication inquiries that we undertake, and that is something that I am happy to elaborate by way of written note. I would be grateful for that. Brief supplementaries, Mary, and then Liam. I have a more substantial question to ask if he would prefer me to do that now or to wait. If you want to, well, Liam, on that point then, then that's fine. Thanks very much, convener. Following up the response, Mr McGee, and give to Ben a second ago. Through the evidence so far this morning, I think that the gaps that are perceived to be left with the reveal of this in relation to section 6 seem to be more significant than they are in relation to section 1 offences. With hindsight, do you think that it was perhaps a mistake to bring together in a single bill the offensive behaviour at football and threatening communications, as opposed to having two separate pieces of legislation, one dealing with a gap and one that, to all intends and purposes, does not appear to have dealt with a gap in the law? I cannot really comment on the wisdom of a parliamentary approach in the past. I can see that many of the criticisms that are directed at the act have appeared to be principally directed at section 1, as opposed to section 6, and section 6 does not appear to have attracted either the same degree of attention or criticism as section 1. In terms of the criticism, that criticism will come from external stakeholders, but from your own experience of the way in which the act is working, you would argue that the section 6 component of this, the threatening communications, is the one that has had effect and that the section 1 element has not, in terms of prosecution, had any great effect or plugged a gap that was there in the law previously. No, that would not be my position. My position would be that both section 1 and section 6 have utilitarian value to prosecutors. In relation to section 1, there are alternatives in relation to section 6. Some of the deficiencies of those alternatives apply equally to section 1 and section 6. As I indicated, both section 1 and section 6 have an extraterritorial power that is not available in relation to any of the alternatives. In relation to section 1, there are alternatives available in relation to each of the pieces in section 38, and in relation to section 6, there is no alternative in terms of the communications act. The advantage and distinction to the alternatives available to section 1, which is the piece in section 38, is that there is no disparity in sentencing powers as exists between the alternatives for section 6 and section 6, as it currently stands. Could existing legislation be amended so that these extraterritorial powers could be incorporated? Existing legislation does not have it, but could they be amended? Can be amended, subject to parliamentary scrutiny and authority. We are remembering that one of the principal alternatives offered for section 1 is breach of the peace, and that is a common law as opposed to a statute. You do not see a way around that, is that what you are saying? No, there is no other law that would cover it. There is no immediate way around that, obvious to me. Thank you. I have a few questions. The first is about Lord Bracadale currently undertaking a review of hate crime legislation in Scotland. Do you think that it would be more beneficial to wait for the outcome of that before proceeding with the potential repeal of the act? What I can confirm is that, in response to Mr Kerr's question about extending the act to parades, I chose not to contribute. The reason I chose not to contribute is that my assessment was that it would be premature to include that the act to be extended to parades only in light of Lord Bracadale's review, which is going further than simply this act, and considering a wider range of issues than this act, including, for example, the extension of hate crime to other protected characteristics. I would await the outcome of Lord Bracadale's review before offering any opinion, if, for example, in relation to the extension of this act to parades. Okay, thank you. I would also like to look at another area and consider the wider impact of this by focusing on some of the issues that have been raised on other evidence to the committee, and particularly I would like to focus on some of the evidence that we received from the Scottish Women's Convention in particular. They stated in their evidence that arguments for the use of breach of the peace do not send a strong enough message of condemnation in regards to the offensive behaviour that can occur at football events, because this form of abuse tends to be highly sexualised and threatening when aimed at women. It is not only highly offensive but can lead directly to gendered abuse, including intimidation and rape threats. Do you agree with that assertion in terms of the limitations of breach of the peace legislation and their comments on that in terms of the message that that sends? Do you think that the 2012 act is currently able to tackle this type of abuse and behaviour in a more targeted way? The 2012 act allows us to target behaviour, as you have described, ma'am. I would agree that breach of the peace is rather than limiting, it is almost a scattergun. When I joined the police, you could pretty much apply breach of the peace to any set of circumstances, which then left colleagues in Crown Office with head-scratching moments about how they were going to mark a breach of the peace case, whereas, with the 2012 act, it is a very specific course of conduct. I would agree with your comments, yes. I would absolutely agree that legislation can be used to send a message. An example of legislation being used for those purposes is the Emergency Workers' Scotland Act 2005. It could be argued that the offences described by that act were already addressed by the common law of, for example, breach of the peace and assault. However, the act itself sent a message in relation to the way in which offences on emergency workers would be treated by the law. Therefore, I think that it is an entirely appropriate function of legislation to send that societal message. I have another point in the evidence that they say that women are often the victims of sectarianism and as a result, often avoid public spaces on match day due to fear, and that this particular type of behaviour is often linked to violence against women and can deepen the inequality between the sexes. Do you see a specific link between the type of behaviour that is seen on match days and violence against women? I must confess that I have not looked specifically at that. What we have done, for example, with old firm matches, is that we have monitored the level of domestic abuse incidents that occur in the periods after old firm matches. I do not have any statistics with me. The general pattern is that it does increase. That can be a whole combination of factors. However, the act allows us to target that specific behaviour that you address. I hope that that could have a consequential impact on what happens afterwards. Maurice Corry Reference the conviction post-appeal situation. I understand that you just said that the current office has not commented on this aspect of the bill in its written submission. Have you any concerns about that as they are currently drafted? What I would say is that this is in relation to the approach to repeal that is proposed. I would suggest that it is a slightly unusual approach to repeal that is proposed by the bill, and that is almost that of a guillotine, as at the date of repeal in relation to all live prosecutions. That is not the traditional approach. The traditional approach would be that new prosecutions would not be possible post-repeal, but live prosecutions would not be affected. I understand that the policy statement for that approach is to prevent injustice, but I would reflect that only a minority of the charges and prosecutions relate to subsection 1 to E offensive behaviour, which would appear to be the subject of the most scrutiny. The remaining charges in terms of section 1 to E to D relate to behaviour such as hate crime, and I would question whether a different type of injustice would be created if those prosecutions were brought to an end as a result of the approach adopted to repeal in this bill. George Adam, do you have a question? Yes, thank you, convener. Good morning. I would just like to go through some points here. I am a football fan myself. I have probably declared an interest at this point as a convener of the Submarine Independent Supporters Association, but I go to football regularly and I know what it is like when the big game in Renfrewshire, when the big game in Renfrewshire, when everybody starts getting really passionate about the game. The whole point is when do we actually cross that line. Does the site give you the powers that you did not have before and when does that line cross and what is that line when it goes from the competitiveness of two towns, two teams, to actually it becomes offensive behaviour? Where is that line and has it helped you? Good question. Police officers make judgment calls all the time. It does not matter whether it is in a football environment or again in Suckeyhall Street in a Saturday night. When you see two people arguing, they have to decide whether we are going to split them up, warn them and send them home or are we going to take more punitive action. One of the things that we train our officers to do from the moment they join the police is to apply discretion where appropriate, but when it gets to the tipping point of becoming offensive then that is when we need to take action. That will depend on the circumstances of each individual match. I absolutely accept your point, Mr Adam. Football stadiums are excitable, high-octane places full of banter but there is a difference between banter between rival sets of football fans and chants and songs that are designed to inflame and incite an offend. Is that not the point, ACC Higgins? Is that not the whole point of this act? Is the fact that there are certain key songs, words, things, shouts and chants that actually do create that difference where it crosses that line and it becomes totally unacceptable? I do not think that the act creates that. I think that the individual is undertaking the behaviour to create that and we apply the provisions of the act to deal with it. Can I just say with Mr McGeehan you mentioned earlier on that if the act was repealed you would have to look at other options to try and work that out. We have received various bits of evidence. Victim support Scotland said that it is opposed to the repeal of the 2012 act and less there is a viable alternative to support victims of threatening communication and religious prejudice. Scottish Council of Jewish Communities have said that we are concerned that the repeal of the offensive behaviour of football threatening communications act would send a wrong message. Is it not the case in this modern society that we have that if we do repeal this, not only would it be difficult for you in the Crown of Officials to have to change things, there is a need for it. We can see from those groups I think that we have covered that in the line of questioning that has been asked already, Mr Adam. Can we move on? The member in charge of the bill and I now defer to him to ask any questions. Okay, thank you convener and good morning. I have one point to ACC Higgins and three points to Mr McGeehan. ACC Higgins in terms of the concern that was raised by Mary Fee in relation to overzealous policing in relation to the act and you responded to that. I mean one of the concerns that I have is that people who are prosecuted under the act are pursued. I mean putting it charitably would be to say overzealously to give an example. People who are first time offenders are often brought to the police station and detained overnight and that is not normally the case if somebody is a first time offender. People who are charged with much more serious crimes are allowed to be freed until they appear in court. To give an example, after the cup final, you obviously published the CCTV images of fans who were on the park and were alleged to have been involved in criminal activity. I know of a case where a young Hibs fan voluntarily went with his lawyer to a police station after he was captured on the CCTV image. He had no previous convictions, no involvement with the police but he was detained overnight before appearing in court. Why would that be the case in relation to people brought to police stations under this act? It depends on the nature of what he was charged with. What we saw at that particular cup final was significant and severe violence and disorder, the like of which had never been seen for over 30 years. Anybody who is engaged in that is engaged in the highest level of disorder seen in this country for over 30 years. One of the reasons that we would put people to court is to seek bail conditions imposed on the court, which might, for example, limit their ability to attend future football matches, but without knowing the specifics of that individual, I can only comment in very general terms. I am not talking about that. I gave that as an example, but I can tell you that in the meetings that I have held around the country, there have been numerous examples of that. It seems to be a regular practice that, where people are detained and charged under this act, they are detained on an overnight curfew. It is not an overnight curfew, sir. It is just detained and custody to appear the next lawful day. It is a practice that we employ. I make no apologies for it because when we are dealing with the worst type of hate crime, what we want to do is put control measures around individuals until the courts can decide whether their guilt or innocence and hopefully prevent them from engaging in any more such activity until that. What I would say, though, is that the new criminal justice bill, which is due to go live in January of next year, has a presumption of liberation. Any person who comes into police custody today will do a custodial test and either release them, hold them in custody or release them on an undertaking to appear. That is going to change quite dramatically come January, where the presumption is that if you come into police custody, for all but the most exceptional high-end cases, you will be released. Mr Mugeekiniff can move on to yourself. In terms of this issue about whether or not the law is effective, I am sure that you have read the law society submission and they outline the existing provisions aside from the current 2012 act that could be used in relation to prosecution. They also point out that the definitions used in the act have led to some confusion and they highlight the fact that they feel that the 2012 act will continue to be appeals because of the confusion over definitions in the act. What is your response to that? In relation to the availability of other offences to address the behaviour in question, that reflects the COPFS position and the Lord Advocate's guidelines, where we recognise that the behaviour in question may well be capable of being addressed, as, for example, a breach of the peace or a contravention of section 38. Our position is that the use of the act ensures that that type of behaviour is more securely capable of being addressed and is not subject to the type of challenges that existed pre-2012 act. We are referred to when the act reflecting the bill was first being debated by the Parliament, when the then Lord Advocate referred to cases where there were successful defence arguments that, for example, racist abuse or homophobic abuse did not constitute a breach of the peace due to the peculiar circumstances of football and the potential that sections of a crowd might well be enured to that type of offending behaviour. What about the specific law society point that if this act continues to be enforced, there will continue to be appeals because of the confusion over the definitions in the act? I would suggest that, in relation to many pieces of legislation that will continue to be appeals, that is entirely proper as part of a well-functioning and balanced criminal justice system, whereby laws are tested, clarified and applied by the courts. If I can give you an example, we experienced a similar series of cases in relation to drink driving until the courts clarified the law in relation to drink driving. Offensive weapons is another example. The 2012 act is not unique or unusual in its scrutiny by the courts or its consideration by the appeal courts. On to section 6, which you have outlined your position on, can you tell us how many prosecutions and convictions there have been in relation to section 6 since the act was introduced? That information is published again by the Scottish Government, and if the committee can bear with me, I will find the relevant Scottish Government publication that confirms that data. It is not immediately at hand unless you have got it. Yes, I will forward it on, but the Scottish Government publishes data in relation to proceedings and convictions in relation to both section 1 and section 6 for the duration of the act. It is helpful to the committee that the information is contained in page 11 of the financial memorandum to the bill under consideration. It is the case that there have only been 17 prosecutions raised under section 6. Is it not then the case, as the police noted in their submission and other respondents have noted, that the threshold in terms of the legislation is actually too high and it is difficult to secure convictions under section 6 is currently drafted? That is evidence for the fact that, over the period that the act has been enforced, there have only been 17 convictions for all. No, I would not draw a conclusion from the numbers of convictions that there is a particular difficulty in connection with section 6. As I have indicated, section 6 provides a power and a tool to prosecutors that would not otherwise be available in relation to extraterritorial activity and also offending that potentially merits a solemn sentence. Surely, if you look at threatening communications, particularly in relation to online activity, that is something that has really grown over the past five years. However, when we look at the statistics, the fact that there have only been 17 cases brought indicates that both police and prosecutors do not have any confidence in the legislation to secure convictions. I would not draw a conclusion that prosecutors do not have any confidence in section 6. No, they are obviously not using it. They are using it in a limited number of cases where that is the appropriate charge. Again, those cases are where, for example, there is an extraterritorial element that cannot be addressed through any other legislative tool. Moving on then to the issue that Mr MacGregor raised about diversions. The latest statistics show that 31 per cent in relation to convictions relate to under 20s. Do you think that that is a desirable outcome of Scottish Government justice policy? I am an independent public prosecutor. I cannot comment on Scottish Government policy. For the minister, Mr Kelly, that is fine. Do you have any other questions? Yes, sure. Just in relation to the diversion tactics, you said that the case work instructions in relation to that act were very specific in terms of setting out that diversions should be used, but we see from the evidence that was discussed earlier that that has only happened in two cases. Why is that? I do not think that the evidence is that that has only happened in two cases. The evidence referred to was a response to an FOI request at September 2016, and I have offered to obtain up-to-date information in relation to diversion. I have also indicated some of the possible reasons for a low number of diversions, which include the fact that previously the diversion scheme was very focused on sectarian behaviour and did not reflect the wide spectrum of offending behaviour that was addressed by the act. In addition, the case work instructions do encourage prosecutors to use diversion in appropriate cases. The fact that diversion may not be appropriate may result from, for example, the accused's record of offending behaviour or the risk of the accused committing further offences without actions such as a football banning order. It might also be suggested that the fact that diversion is not used is reflective of a proportionate approach being adopted by the police. We would normally expect to use diversion in relation to offences at the lower end of the offending spectrum. If those offences were not being addressed by the police, for example, through their existing powers with the application of fixed penalties, then we might well expect to see low levels of diversion by prosecutors. Just to be clear, the information that was published in response to the FOI in September 2016 was accurate at that time. It was, yes. Just before we conclude, you mentioned, Ms McGeehan, that it is not unusual for new offences to cause confusion and that the courts generally sort that out. However, we have heard from numerous sheriffs that the legislation is confusing and flawed, so it would seem that the courts are not sorting out the legislation. Again, in relation to responses from sheriffs, I referred to the 2015 academic survey, which included interviews with sheriffs. That survey indicated a much more diverse range of opinions in the part of sheriffs in relation to the act and its value. Does it not, at the very least, say that there is a diversion of opinion among the judiciary and that in itself cannot be welcome or good or help to ease the confusion? I would not conclude from my diverse range of opinions in the part of judiciary that that represents a wrong in the part of, for example, legislation. I would suggest that the diverse range of opinions is healthy. If it is diverse and both opinions are diametrically opposed, that is not healthy because you have a polarisation of views. Again, I think that a diverse range of opinions is not unique and specific to the 2012 act. A polarisation of views? I cannot speak for the judiciary and the range of their opinions and whether or not they are polarised in relation to the 2012 act alone or in relation to other statutes or offences. That cannot be a good place to be in principle. That cannot be a good place to be if there is this confusion. That is what I am trying to get at. I would accept that if there was a consensus of a wrong that is required to be addressed, that would be a good thing. That concludes my question. I thank the witnesses and suspend briefly to round a change of witnesses. I welcome our second panel, Jeanette Finlay, Paul Quigley, fans against criminalisation, Simon Barrow, chair and Paul Goodwin, chief executive of the Scottish football supporters association, Andrew Jenkins, head of supporters direct Scotland. I again thank the witnesses for the written submissions. They are tremendously helpful to the committee in seeing some of this in advance of our questioning. I move straight to questions from Rona Mackay. We have heard from previous panels that pre-existing legislation would not be sufficient to deal with some of the behaviour that falls within the 2012 act, in particular in section 6. What is your view on that? Does that concern you that there is going to be a gap left? I am happy to answer that. Certainly what has been heard this morning is conflicts with the submission of the Law Society of Scotland, which takes the view that there would be no gap in the act. I also refer you to the evidence that you just heard, where ACC Higgins said in the absence of this act that young men would have been arrested and charged with breach of the peace. It does not appear to us that there is a need for that. I am talking specifically about section 6, not breach of the peace. Sorry, section 6. As you have already heard, section 6 is rarely used. How would you breach that gap of allowing people to send insightful communications? It is not the role of fans organisations to determine how a legislature deals with communications acts. I am certainly not at your view on that. If there needs to be other legislation, then that other legislation should not be attached to something that only relates to football fans. I accept that section 6 does not just relate to football fans, but it seems to be that it is part of the whole muddled original drafting of that legislation that you have. Section 1 draws up a list of offences that apply only in the context of a regulated football match. Section 6 is an entirely separate matter that applies to everybody and is rarely used. It seems to me that there was a problem with the original drafting, and that could be looked at and corrected after the act was repealed, which is what we hope will happen. That question illustrates that it is important to look at the issue in the context of Lord Bracadale's hate crime legislation review. One of our concerns is to look at it in that wider context. Obviously, the feedback that we get back from fans—I should say that the Scottish Football Sports Association has not done a specific survey on that issue, but we do receive feedback about what appears to be the targeting of football fans in particular. Those issues need to be addressed in relation to the wider review. Obviously, it is important that one looks at how you deal with that kind of behaviour. Football fans do not want to see that kind of behaviour. In Scottish criminal law, there are statutory aggravations based on race, religion, disability, etc. However, the question of how it all fits together is not something that we claim legal expertise in, but it is something that we are concerned to see addressed. We do not have any research on section 2, as that was not just specifically for football supporters. We do have research on supporters' views on section 1, of which 84 per cent of supporters do not believe that any conduct currently such that— We will go on to that later. I am just specifically at that question asking about section 6. Mr Goodwin, do you have any? I have no further comments. Okay. Can I move on then at the moment and just ask you, do you feel that behaviour at football generally has changed since the introduction of the 2012 act? And if so, in what way has it made you experience of attending football more or less enjoyable? Assistant Chief Constable Higgins has made the mark in the past that there has been an improvement over the past five years, but my understanding does so without any substantive basis to do so. We have experienced it from the role of fans. I am obviously not quite old enough to have experienced football in the 60s and 70s and 80s, but I accept that some types of behaviours, racism, sectarianism, were all too commonplace, just as it was, perhaps, too accepted by society at the time. Football does not operate in a bubble from society, it reflects society, so those types of things became less acceptable in society and so, too, became less acceptable with football. What we have seen in the past five years, in my opinion, is not an improvement in terms of the behaviour of fans or the listening of certain singing or anything like that. What we have seen is a breakdown in the relationship between fans and the police, and that is what has been caused by that legislation. That is not quite what we heard from ACC Higgins, but that is your view. Anyone else? Just to make a comment and to set it in context, I have been following Scottish football for 47 years. I am a season ticket holder at Dunbarton and over the past five years I have been to all but four of the 42 professional grants in Scotland, as well as to junior football. The answer to the question really depends on the context in which you operate. At Dunbarton, we occasionally see a police officer. There have been some incidents that I have needed dealing with when, in recent seasons, we have had larger clubs there, but the experience will be quite different in different parts of football. You have already heard one experience based on some of the larger clubs. I was talking recently to a woman who has been a long-term fan of hearts and she felt that things had improved since the legislation had come into effect, that it had created an atmosphere where there was an ability to challenge abuse and that women and families in particular felt more welcome. On the other hand, I then had another conversation with someone from another club who had diametrically opposed views to that as well and said that it had created an atmosphere where there was greater suspicion between police and fans, so I think that it is a mixed picture from that point of view. Before I bring someone else in, can I put it to you then, just generally as a panel, that Stonewall Scotland equality network, victim support and women's organisations take the view that they fear the repeal of this act and they don't want it? Does that concern you? Certainly it would concern many football fans if sexist and racist abuse, sectarianism, hate speech of any kind, homophobia and so on was tolerated in football and fans are actively working to combat those tendencies within some sections of our game and some sections of wider society. The question as to the efficacy of the act is obviously a disputed one from that point of view, but we also recognise that on the other hand liberty and lawyers and other organisations are concerned about its effect on free speech, so there are conflicting views about this. I think that the key thing that we would want to say is that whatever happens moving forward it's vital that we within football take greater responsibility for the atmosphere that exists, for the sense of community, for the way that we address disorder etc. One of the things that we have put forward in terms of the Scottish Football Supporters Association is the need for policing by community consent, actually drawing together community groups, women's groups, fans groups, stewarding organisations and police in particular context to look at what is happening in a particular situation, because as I've already said it varies very widely across Scottish football but to find solutions that are based on the ground and relate that obviously to the provision of hate legislation and how that's dealt with by police courts etc. Anyone else? Obviously that would be very concerning and I've read those submissions in some detail and I've also kept a track of the statistics over the years, so if there was any basis to those concerns then clearly I would be concerned as well. However I think you'll find that in the entire period of the act I think there's been two charges which related to homophobia, there have been none which have related to I don't know whether it be called misogyny or sexism, I don't know what that would be called but there are none that relate to that. I don't see in all of those submissions those organisations conceded that the act was not being used in relation to their protected characteristics, so if there is a problem and clearly there is a problem more widely in Scottish society which affects those groups I don't know that there's any evidence that's being presented that that's particular to football but if there is a problem then this act is not dealing with that. I'm not sure how worthwhile it is to look back retrospectively and I'm not sure if you're inferring there's no basis to their concerns because they clearly are concerned there must be reasons for it and it may be that in future and just on going if they're going they just don't they don't enjoy it, they don't feel safe and they feel the repeal of this act would be detrimental to their enjoyment of it. I don't know if that's the case and I don't know if it reflects more widely because I was unable to establish and we did try and correspond with Scottish Women's Convention in particular and they were unable to provide us with any details about where they had collected that evidence or how many women it represented or the age ranges or any basic statistics around that so we did examine it because we did look at it but we were unable to establish really any basis. Won't you accept as a general principle that women shouldn't be afraid to go to football? No, no, that they fear if the act is repealed they will feel less protected. I know that there are organisations who have written that as a submission. I'm not clear what lies behind and how much evidence there is to support the submission that I've put. Okay, thank you. Supplementary Leonger. Thank you, convener. Good morning. ACC Higgins was very clear that behaviour changed and I think Mr Barrow you would agree with that. But is there any evidence from the groups you represent that that change in behaviour is in response to this legislation? And flowing from that ACC Higgins was saying that this legislation puts it in the front of the public mind but have you any idea how many fans actually knew about this act in order to moderate their behaviour? It's one of those things that we're just football fans, we're not lawyers, we're not experts, we just want to go and watch a game of football and I think over the course of, I am old enough to you know football in the bad times not just in Scotland but also in England where I lived and worked. I think there's been a dramatic change society itself has actually done things. I know my student with my father, my grandfather shouting things, it would be unacceptable in this day and age and I think the generations as we move on have taken that on board and we've also been supplemented by really important campaigns like show racism the red card. Interestingly going back to the the issue of the homophobia, Scottish football is one of the only countries that actually been pushing things forward with the rainbow laces campaign until this season it's been running in England for seven years and it's taken till now for football itself to actually pick that up and actually run with it. So I think there's always going to be these issues all round about it and I think a lot of it comes down to football itself as an industry and as a business taking a look at it. We are the loyal customers of that industry, we're not the experts in the legal framework and I think the clubs themselves and the football authorities have to take responsibility and actually push the appropriate messages through the game to help and support the fans. But did the behaviour get better because of the act? No, it's immaterial. Is that view shared by the panel? Our research, we asked the question in the national supporters survey this year about the offensive behaviour and whether it had been effective in preventing unacceptable conduct and all that I've referred to is the 12,000 people that filled it in and 71% felt it wasn't effective in preventing unacceptable conduct. And just the second part of my question then, do football fans know about this legislation? Society, you're going to have people that are more informed of certain issues than others and but I would say as a consensus a lot of supporters are informed and know the framework well. A lot of have replied to surveys and consultations on the matter so absolutely. Come back to what you said because your question seems to assume that there was very poor behaviour prior to the 2012 act and that behaviour has improved, but certainly that's the kind of evidence that you've heard to hear this morning from ACC. I didn't mean to imply that incidentally. In actual fact there's very little evidence to suggest that there is a behaviour problem in Scottish football grounds and certainly hasn't been for a very very long time. If you take for instance religious agrivation charges which would have been the charges that should have been used in cases of sectarianism prior to the 2012 act and the two years leading up to the introduction of the act, the proportions which took place at football grounds were 12.9% and 7.6% respectively. The vast and overwhelming majority of problems with sectarian type offences and that's just one of the offences are taking place somewhere else other than football grounds. When we're asked has behaviour improved, I suppose our response to that is on a long-term trend clearly since the 1980s it has, but there wasn't really a problem with behaviour in Scottish football grounds in 2011 and the evidence suggests that. There's very little disorder, very little violence, very little of anything. Scottish football grounds are extremely safe places to be. My question later which I think will be covered and I think it's just a good place to come in. What do the panel think about the message, the appeal of the act if it goes ahead? We'll send out to fans and what message generally in society and if I just give an example just last week the whole Parliament, every party, agreed to the stage 1 principles of the domestic abuse legislation and part of that is also about sending a message out that domestic abuse is not acceptable in our society. As we heard in the earlier panel for those of you who are in, legislation can be also sending a message. What message do you think would be sent out if the appeal goes through? To respond to that, I'm not a lawyer, I happen to be married to a lawyer. The whole question about the extent to which law is there to send out messages or actually to provide an effective framework for dealing with order issues is one in which there's a variety of questions. Many fans will feel that this legislation targets them unfairly, is directed towards them unfairly. One of the signals that they might get is that that's not so much the case. Primarily relating your question to the previous question, what makes fans feel safe at football is the way that clubs deal with the whole situation, with the way that fan groups do, etc. That's where the primary messages are. For example, at my own club I have heard instances of chants or comments that are sexist and homophobic and so on. One of the responses of our supporters' trust is to identify who's doing those things, to try and take them into the community suite, have a chat with them, introduce them to someone to whom that is threatening or offensive, and in other words to take active responsibility for what goes on. The primary messages that fans pick up are ones as to how things are dealt with on the ground in the local situation. As to their responses to the presence or absence of legislation, it's difficult to draw definite conclusions either way about that. If I can just come in on that. I think that what has been established here this morning, there has been no gap in law in terms of the hate crime that we're talking about racism, sectarianism and homophobia. Those kinds of actions and behaviours would still be illegal. It's my understanding that ourselves as a campaign group against legislation and any other prominent critics of the legislation do so on account of the fact that the bill is by definition discriminatory. It creates an offence that only applies to football fans. I don't think that anyone is defending the types of behaviours that we've already covered, which would still be illegal. The message that it would be sent is that football fans would no longer, as they have been under this act, be unfairly and unduly criminalised specifically in a way that wider society wouldn't be. Is it fair to say from that submission that it's not so much the act that you are opposed to is the fact that it is relating to football? If it was mentioned in the earlier panel, if the act, theoretically speaking, was extended to, for example, the offensive behaviour at sports grounds under other venues—that's just off the top of my head, that's not any—would you be comfortable with that, then? What I would say is that we began as an organisation around the summer of 2011 when the bill was being proposed as an emergency bill for the so-called shame game that took place earlier that year. Our opposition to the act then hasn't changed all that much. There are two primary reasons for our opposition to the act, the first of which is that, as I've said, it creates a piece of legislation that only applies to football fans and we believe that laws should apply universally. Secondly, we also think that to create an offence that criminalises something as subjective as offensiveness presents a broader danger to freedom of speech and freedom of expression. On that basis, we would be opposed to a legislation that, for example, would criminalise certain offensive behaviours outwith hate crime in other arenas or locuses. The panel is not saying that there is any particular risk if the bill is repealed, which means that the panel members here today are particularly well informed, but there isn't a risk that fans in stadiums up and down the country could get the message that it's okay to sing satirian songs as a result of the publicity and the outcome of the bill being repealed. I'm sorry, I'm sorry. I apologize if I don't mind. I'll be willing to sacrifice my question later as well, because I can't hear you. Brief supplementary, Rona. Just to clarify what my colleagues have been talking about very briefly, would you be in favour of this act if it was called the Offensive Behaviour and Threatening Communication Scotland Bill and take out the words at football? No? No. No. Is that the view of everyone? I think it definitely is a starting point in trying to restore the faith that some of the football fans have. I think that a lot of this is down to horrific PR right from the start when we talked about emergency legislation coming in. I think that from a football fans' perspective, from many clubs, they don't understand why it was there in the first place, they don't understand the benefit of it and they feel either rightly or wrongly targeted. Certainly our colleagues were part of football supporters Europe in part of our submissions. They were surprised that in countries like Poland where they have horrific violence and issues with flares and all sorts of things, Turkey and other example, there is not a specific act. From a global perspective from a football, this is the only bit of legislation that we can find that is so targeted to football fans and a society that we have in Scotland is that right. In terms of the principles of the things that some of it is trying to do in other areas, of course we would happily have it called whatever it needs to be called. Just for clarity, I'm not speaking much, my voice isn't working very well. I just wanted to be clear, Mr Quigley. You suggested that there were behaviours caught by the legislation that we're considering that should not be caught by any legislation. That's what I appeared to hear you say. Can you give me an example of a behaviour caught by the current legislation that you do not believe should be legislated in any context? That's what you appeared to say to me. There's been, I forgot the course of our campaign not only if we campaigned against the legislation, but we've also offered help and support to people who have been charged under it. Do forgive me, I want to just focus very narrowly. There was a Rangers fan who was arrested for holding a banner, which simply said, axe the act. For example, there was a Motherwell fan who was arrested, held in green up prison for four days and then convicted of singing a song that simply included profanity about a vital team. I don't think that that's proportionate and I don't think that's worthy of a criminal condition. My very precise point is that you're saying that should not be criminalised in any context, whether it's a football match or elsewhere. I just wanted to be clear what you were saying. What I would say is that, for example, you're talking about singing a song and that's obviously the type of behaviour that would go on at a football match. You wouldn't typically walk down the street and sing a song which would include profanity and that would obviously be slightly different, but within the context of a football match, I don't think that those types of behaviours should be criminalised. Maurice Cawthorne. I wonder if Mr Barrow or Mr Goodwin would elaborate on what the SFSA means by divisions and how do you both see them being overcome? In your submission, you're talking about divisions. What do you mean by divisions? There are already too many divisions in the game that we love and something requires to be put in place to show the majority, so that we understand the problem and work together to resolve it. That wasn't our submission, so it's a little difficult to... It's from Mr Goodwin, and both of you are representing the Scottish Football Supporters Association, so perhaps it's better to direct it to Mr Goodwin. Obviously, there are divisions. The very nature of football itself is divided by our loyalties, and we've heard about the divisions between rival fans. Divisions are right from the very top of the game. We're in a period of angst, where fans' representations are being generally ignored for many, many years, many, many seasons. We don't have a route and an access to actually have a say in the game. That's not just ourselves, but that applies to the Holy Trinity, as Bill Shankley once quoted, the players, the managers and the coaches. According to him, nothing else in football matters. Sadly, from our game, we're in a place where any opinions that we have, and this is a very rare occasion, we get a chance to come and express those opinions. They tend to be treated in a vacuum. The opinions that we have are different, they're varied, and the big division in the game is that, as the game changes and becomes more corporate, more global and in a different environment, the communities and societies that many of these clubs have represented beautifully over the years has changed, so that's maybe the reference to the divisions. Can I ask some permission on that one? I don't think that it's connected. I really don't. Just to say, and I apologise for the distinction between a group submission and an individual submission, that one of the things that we've done very recently and will be publishing the results of this next month is the first benchmarking survey on governance in Scottish football, which looks at how, as Paul has just said, fans, players, officials and others with stakeholders in the game, what their view is about how the game is run, and that will enable us to begin to look at some of the differences of opinion on a variety of issues, but that's the way we would see that moving forward. As to divisions in relation to the review of this particular piece of legislation, the thing that we're conscious of in presenting our evidence to you is that fans do have different opinions. The great majority of fans from the research that we've done do have severe questions about this act or are opposed to it, but others are obviously very concerned about the issues it is intended to address, and we recognise that the intention is good and that those issues and behaviours that are challenging and fans themselves have to be central to doing that. Good morning, panel. Like all of you, I love football. I've played it a lot, grown up to quite a high level, and I've been to games across Scotland, from Edinburgh Darby to old firm matches and lower leagues. What I find difficult about the submissions that we've heard so far from ourselves is that I don't know what behaviours you want to do that this act is preventing, particularly Paul Quigley and Jeannette Finlay. What are the obstructions to you being fans, supporting your club, participating in the beautiful game and being part of the experience at a football stadium? What does this prohibit? I'm happy to reply to that. The point that you're misunderstanding is that the behaviours that are prevented are any behaviour that any police officer regards as being potentially offensive to a person who may not be there, who may not ever know about it, and that's sufficient to bring a charge. That charge that you've heard this morning is almost always preceded with by the Crown Office. They prosecute it in almost all cases. That requires people to attend court on three or more occasions, sometimes considerably more over quite long periods of time, longer than normal, as the Stirling research that the Scottish Government Commission found. My concern is that you could be doing anything that a police officer might consider to be offensive. We've already heard that police officers in Scotland have to be educated as to what might be offensive. If that does not raise alarm bells for people that you have to train police officers to discover what might be offensive, that's the problem. I am not prevented from doing anything that I want to do when I go to a football match, but I see young people by and large, young men by and large, being charged, not necessarily being convicted because the conviction rate is very low, but being charged and being put through all of that disruption for doing things that, on any view, should not be a criminal offence in a civilised modern democracy. When this act catches racism, sexism, homophobia, and sectarian abuse, it rarely does capture those things. When it addresses the fact that there are flags and banners and songs and chants in support of terrorist organisations, are you supportive of that? The question that you're asking me now is, do I like sectarianism, do I like hate crime, do I like bigotry? That's what you've just asked me. No, I don't. I'll make that clear. I'm not asking you for that. I'm telling you that this legislation does not address those things. You heard this morning evidence that said, first of all, that the diversion scheme doesn't work because in actual fact that's really only aimed at sectarianism. That really only captured two people in its whole first year. Sectarianism is the minority of the charges. The gentleman from the Crown Office said, it's the minority of the charges that are brought up in relation to this act. What this act is capturing is not hate crime, and there's legislation to cover that. What this act is capturing is behaviour that a police officer might find by and large. Of course, I'm not saying that there's never been any hate crime captured by, of course, there has, but on the whole what it's capturing is behaviour which a police officer trained or otherwise thinks might be offensive to somebody who's there or not there, and on the basis of that young people's lives are disrupted. Now, there must be a way to have legislation which targets genuine problematic behaviour which does not leave citizens just because they happen to be attending a football match wide open to that kind of consequence. Just if I may elaborate, convener, I thank you for that explanation. I guess to get back to the conceptual point that I'm making though, which I think is an important one in terms of legislation, is that when—so I appreciate you have views and you put them in your submissions and today that this act has been used in a way that you think is disproportionate, but when this act, in the views of the law, prosecutes on the basis of discriminatory behaviour of chants that would be unacceptable in the eyes of most, and behaviour associated with that negative aspect of Scottish football, which is undoubtedly there, and we've all experienced that those who've gone to football matches and children are subjected to listening to it when they go to football matches and women and wider society as a whole. Surely it must be supportive of the act when it does address that demeaning and unacceptable behaviour. No, I'm supportive of people who engage in hate crime being brought to justice. I am not supportive of this act being used for that purpose. Apart from anything else, this act has a very poor conviction rate, so if he genuinely wants to address real offending behaviour, real hate crime, then charge him under legislation that has some prospective success, and almost every other possible alternative has a better prospective success than this act. I think the difficulty that we're facing here is the distinction and how it's made between problematic and offensive behaviour on the one hand, behaviour that clearly wouldn't be acceptable in other parts of society, and many of us say isn't acceptable in football either. I mean it's clearly that sexism, racism, sectarianism and homophobia and other behaviours of that kind need to be challenged and rooted out. There's no question about that. There's a question about when speech reaches a point that it should actually be criminalised, and whilst there's some clarity that it should clearly be criminalised when it's threatening and violent and so on, it's often difficult to draw those kind of distinctions. I think for example every week as I attend home matches, there's someone who sits not that far from me, who's enjoyment of the main activity that he seems to go there to actively participate in, which is criticising the officials, is occasionally interrupted by football, and some of the way in which he criticises the officials is rude and offensive to many people. The way that we deal with that is partly by moving some people but also by directly challenging that behaviour. We have been able to temper that individual's behaviour and so on. Should his behaviour be criminalised, I would say that's not the helpful or appropriate way, but clearly there is behaviour where people are directly threatened, where there's a clear public order situation, where the law has to step in and it's about the distinction between those two things and the difficulty at the moment is people feel that that distinction is not operatively and at a legal level clear enough. Can I just ask a quick supplementary on that and genuinely a question in good faith to Paul Quigley and Janet Finlay? Since the enactment of this piece of legislation, have football fans in your experience been less reluctant to engage in the sort of chanting and singing of songs, display of certain symbols and slogans that would be seen as offensive or supportive of violence or celebrate or mock historical examples of violence? Personally, I couldn't see any improvement and I don't think there would be much evidence that suggests that there has been an improvement. The previous panel posed the question to them to ask their view on the guidelines that go with the 2012 act, if they thought that the guidelines were suitable, if they thought that they captured offensive behaviour correctly. What's the panel's view? Dad for Kids guidelines, the 2015 ones. Well, I suppose the difficulty where you would see that coming to fore is in terms of how that's then dealt with in the courts. I've already mentioned the very low conviction rates, which would suggest there's a problem. We also heard this morning from the Crown Office representative and the Police Scotland representative about the nature of the bill having the legal test in terms of inciting public disorder and it being offensive to a reasonable person. The Crown Office representative clearly didn't have information about appeals, but we do. The Crown Office appeals against the Joseph Kern case and the Walsh and Donnelly case, which are the two main Crown Office appeals against a person not being found guilty. Expanded and explained and clarified those terms. The two things that are important about that is that the reasonable person was redefined as being, if you give me a minute, I'll tell you what it was. It said, the law lords found in the Walsh and Donnelly case, thus the 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 songs and questions or those who sing them. In other words, the leading case in this regard makes it clear that it's not a reasonable person that we're talking about. It's an unusually volatile person. The other issue related to whether public disorder would take place and that same judgment makes clear that not only does public disorder not have to take place but the person who might have been incited to public disorder does not have to be there and does not ever have to find out about whether the thing that might have incited them to take place. The Lord Advocate's guidelines might, on the face of it, have seemed a reasonable set of guidelines about when people should be charged. The outcome of case law has shown that they are not adequate, but that's because the law in its original drafting was never clear. Therefore, I'm not sure what guidelines he could have produced that would have allowed proper and sensible interpretation of the law. Do any of the other panel members have any comments on the guidelines because I want to move on and ask something else? I don't think specifically on the guidelines, but generally there's a lot of ambiguity as to what constitutes a criminal offence under the act. I think that's the only thing that I would add to that. The fans against criminalisation submission spoke of genuine problems within football stadiums. Could you perhaps explain to committee what you mean by that? I don't have a page number at the moment, but you spoke about genuine problems within football stadiums in general terms. In any context where you have large crowds of people, whether that be a football match, any other sporting match, a concert, a demonstration, a parade or anything, it's clearly the case that there can be incidences of criminal behaviour. I suppose that our view is that before the 2012 act, clearly some criminal acts did take place in football stadiums. It would be very surprising if that were not the case. There were very few, but they were dealt with under the law and dealt with by police officers in that case. To the extent that there are any genuine issues of criminality, that might be, it could be or so, whatever it might be, the police should deal with that under the existing law and they clearly have the ability to do that. Because of the 2012 act, there is less focus on other issues and more focus on the specific exam. The Government's own research found that. The Government's own research found that there was a danger that because there was the focus on the stadium, and I suppose that the word focus is in question because the unit of the police that is used to deal with that is called the focus group, but because of the focus on that on football stadium, in some cases there had been a little bit of a rise up again of some disorder away from football stadiums that were not being captured by the act, so that in fact police resources were being improperly directed to where the problem was known and away from any potential problems that might be taking place elsewhere. Can you give any specific examples of that kind of behaviour? Inside stadium? Outside. When you said that the police attention was taken away from other incidents, can you give an example of what kind of incident you would mean or behaviour you would mean? Well, I was referring to the Stirling research, but it could be low-level minors of disorder, football casual type of thing, which is very limited in scope. The chief constable referred this morning to some arrests that took place, and there was an MLE or an ARAMI somewhere involved in Erdogan Hamilton supporters at some point. That did not take place inside the football stadium to play somewhere else. Has the change in the police operation at football matches had any impact on fans and their experience of enjoying the game? Yes. Absolutely. I think that the fan experience has been dramatically changed as a result of this act. Now, I understand what Mr Barrow is saying in terms of how those experiences may differ depending on the club and the side of the club that each fan supports, but my own experience as a Celtic fan comes from the second that you get off a bus in any city over the country. Your films from the moment you get off and your fans often feel intimidated from the second that they get off the bus to the second that they get back on it. The type of surveillance that did not exist, that they did not have to experience until 2012. I think that it is correct that there is now a suspicion between fans and police that the relationship is broken down, and I do not think that that has been in anybody's interest. Do you think that the police have been justified in the way that the police matches now? What I would say is that it is quite a difficult thing to police because I just say that offensiveness is subjective. I understand that the witnesses this morning said that it is not applied arbitrarily, but I cannot see how it possibly could not be because even Mr Higgins said that if a full stand is singing offensive songs, they obviously cannot arrest everyone. However, in terms of how fans experience it, I think that fans would certainly suggest that it is applied arbitrarily, and I think that they would feel that it is, in some cases, been applied overzealously by the police. Do any of the other panel members have any comments? Just a quick comment on that. First of all, with reference to the 2015 evaluation of the University of Sirling Glasgow and Scotland's social research, I do not have that data in front of me at the moment, but one of the things that they did say was that they felt that there was some evidence of detracting from attention to relationships between police and fans in some situations. As Mr Quigley has just said, the experience is very different across Scottish football. Mostly, I spend my time in lower league football and so on, and the issues do not seem to impact for the great majority of people, for the great majority of time. However, when I have been in matches between larger clubs and so on, the fan experience is very different, and you can certainly feel under a lot more pressure and scrutiny than you would normally in other parts of the game. I do not know if the act itself has given it that opportunity, but, undoubtedly, in the role that I have, I go to a lot of football grounds around the country. There is far less trust in the police, and I think that the policing of football matches has deteriorated over the past 10 years, possibly, before the act. I think that we talk about individual incidents. I was at a promotion match in the party of thisland, Falkirk, and the fans were doing the conga. The police were out with video cameras, video on every single one of the fans, and we were approached and asked why they were doing it and where that data was being used and where it was stored. They were threatened with being arrested on the day that we won the championship. It is a perfect example of where I do not know if it is this act. It is not my area of expertise, but I definitely think that policing should be by consent, and that is where the work needs to be put in, right across the platform of all the different stakeholders, but it is certainly not in a good place. The statistics that I have regarding policing at football matches in Scotland are that, in the last two seasons, supporters were more aware of police presence, but there was a majority of fans that felt that fans' behaviour had not improved as a result of that, so there seems to be a correlation between the two. Liam Kerr asked about fan awareness of the act and how you will cope with that if it is repealed. What will football supporters do to communicate to their members and supporters in their clubs that the act has been repealed and makes them aware that behaviour is not acceptable? I think that most fans' awareness is conditioned by the messages that they get from the clubs and from the fan groups that collaborate with the clubs. For example, in programmes, they will be a notice about what is unacceptable behaviour, etc. Certainly what we will do, whichever way this goes, is to ensure that the actual issues of sectarianism, homophobia, sexism, racism and other forms of hate in football are addressed. For example, we do think that serious attention needs to go towards the issue of strict liability. I have already referred to the experiments that we are keen to be engaged in helping to come into fruition where we bring together fans, stewards, police and so on to look in particular situations about not only disorder but bad behaviour is dealt with, as well as community initiatives that enable clubs to be more community-friendly places, more family-friendly places, etc. I think that context is all. One part of that context is obviously the hate crime review, and we think that it makes sense to consider these questions in the context of the hate crime review. The other thing is the responsibility that fans take themselves, and the responsibility of those who govern football to engage with fans to address these behaviours at all levels. Liam McArthur, or is there anyone else who wants to add anything? When we have put out our consultations in the past, we have always tried to leave a space for supporters to offer their opinion on how we best tackle these issues if it is not through legislation. The consensus is that we cannot punish a problem away, but if you ask supporters what their views are, there seems to be three key things. Obviously, the SPFL has got its unacceptable conduct guidelines in place as of January this year. I think that the Scottish Government will be getting feedback on how that is going, but we would feel that clubs could be doing more to work with their supporters. The three themes that we have picked out are about educational workshops for supporters on the issues that have been improved in sensible policing, which is clear and consistent and more fan engagement and dialogue between all stakeholders, including police and stewards as well. Liam McArthur? I think that it has largely been picked up in the sense that the message that was conveyed earlier around the repeal, particularly of section 1, is that it would ascender the wrong message around tolerance towards hate crime in all its forms and also inhibit the police and prosecuting services in dealing with instances. From what all of you have set out, there is a raft of different areas and where work can be done to ensure an appropriate targeted approach to building on the messages that have been coming through at a societal level. Would that be a fair characterisation of your views? Nording of Heads does not put that well in the official report. I mean clearly, yes, is the answer to that. I think the key question as to which this committee has come back to on a number of occasions is to how messages are sent out. Is that actually part of the issue here is for politicians in terms of how it is handled? I think one of the things that we felt very much in coming to give evidence to this committee is that we want to avoid being involved in a political stushi over this, because it ought to be something that politicians are able to come together on. The problem, obviously, is that there are strongly divergent views on the effectiveness and appropriateness of this particular act, but there ought to be a way of addressing, as I say, the wider issues of hate crime, and there ought to be very serious attention to possible gaps that may open up, but in particular to further engagement with football fans and further, I would say, pressure on the football authorities to respond to these kind of issues, because the solutions for problems that football faces and all sections of society have both general and some characteristic problems that they have to face has to come by football owning and taking responsibility for the issues, and that's the primary context in which I think we can have a positive response. I'm interested in that point, which means tangential slightly to the bill, but I think addressing one of the concerns that's been raised in relation to the bill, I think it would be helpful for the committee if there are specific ideas about how that engagement could be made to work better, because I get the feeling that it works reasonably well in certain areas with certain clubs, but perhaps across the piece isn't working as well as it might. Not in others, and that's certainly we want to pursue some of the issues that I've drawn attention to here and also, of course, in our submission to the hate crime review as well. I wonder if I could ask you. You mentioned that there's been a number and perhaps you could give a rough indication of how many cases of people being charged and then the case subsequently being dropped and the disproportionate effect that had had on the people who were charged. If you could give us some examples of previous cases and the type of behaviour that that covered and also to quantify how often our prevalent this was. It's less that they are charged and then the charges dropped. In fact, charges are rarely dropped. It would be the normal practice of, as I understand it, ffiscals and a share of court throughout Scotland to sometimes strike out charges and make certain arrangements and that never happens in football. Football cases are always prosecuted right up to trial in almost every case, so they're not dropped but they have a lower chance of success once they come to trial. In terms of the numbers, we can speak to our analysis of the Government's own data and Crown Office data, which we've obviously followed and analysed regularly throughout the last six years. We can also speak to the people who come to us. We have a website with a forum where people can say that they've been charged and ask for support and help and assistance. I can say that as the person who takes most of those phone calls in response to them in the initial period, overwhelmingly, I can think of almost maybe two in the whole of those six years where somebody had previous convictions. Most of the people that contact us and say, this has happened, what should I do, I need advice, are rarely people with previous convictions. The Crown Office doesn't collect that data. The Crown Office official this morning referred to one case, but the Crown Office doesn't collect the data on whether people have previous convictions. I suppose that, in that case, we have the only evidence of that. Out of the over the last six years, 200 people have come across us. I would say that two had any type of previous conviction, and even those were sometimes 10, 15 years old. They were the very rare occasion of people who were slightly older. Most people are a lot younger than that. In terms of what happens to them and the impact on them, in most cases, I don't know if you're aware of this, there's usually three appearances at co-op. When you go to the pleed and diet, then there's an intermediate diet and then there's a trial. The evidence is, from our own experience and from the Stirling researchers that, in football cases, that's very often extended, very often, much longer than that, maybe four or five times for various reasons. Because of the nature where the alleged offences are supposed to have taken place, it often involves people travelling quite long distances, having to take time off work, having to tell their employers that they've been charged, there's all of that. The worst case that we had was seven young men who sang a song at an away game and were appeared in court 17 times over 23 months, and they were all acquitted in the end of that. One of them lost a promotion during that time, two of them were completing their studies, which would have involved professional registration, and therefore were in jeopardy of losing not only just a job but their entire career. Thank goodness that didn't happen. That's a very extreme case, but it reflects cases that we see that happen quite often. They take longer, they're never dropped, the Fiscal's—we've had numerous occasions of Fiscal saying privately, look, I would—you know, this would go—they say here the defence solicitors that we work with, this would go, but I'm not allowed to drop it. They're simply not allowed to drop it. They're made to proceed to the first extent. Would that be advice on—from a higher level? Yes, yes. They're never allowed to make that decision. I think, obviously, your witness here is no longer here, but they're never allowed to make that decision. They have to phone and ask—and they would normally be for other types of offences, but they're not allowed to make that decision in football cases, and they're very rarely allowed to drop football cases. That seems to us to be tremendously punitive to prosecute cases to a much greater extent than you would in other circumstances. Those are not cases by and large that involve any violence, involve any—you know, there are usually cases with no specified victim. I have been in many cases and I haven't yet to see somebody other than a police officer stand up in court and say that they were the victim of this offence. I think that if you look at the submission in the last year, I think that 86 per cent of all cases, all charges under the offence of behaviour act, there was no identifiable victim. It was either the police or the community as defined by the police officer making the… There are no victims and people are put through this kind of… I suppose the point that's emerging from that is that there is, in your opinion, a lack of prosecutorial discretion at a certain level. It's a presumption that… I would actually say that there appears to be a lack of prosecutorial independence, which I'll find even more concerned than some of the issues around this act. Okay. Thank you for that. If I might add to that. Yes, if you could, Mr Barrow. Sorry, there are prosecutorial issues there, but the general issue that we need to be looking at and that hasn't entered this debate enough, it seems to me, is the distinction in outcome and effect between primarily punitive approaches and restorative approaches to challenging difficult and defensive behaviour and, as I say, when the boundary is crossed into what should be criminalised behaviour because it's about violence and threat to people. This is an absolutely critical issue because otherwise we're in danger of pushing young people into a system where further criminalisation is going to be the outcome. Okay. Thank you. And Ben, did you have a supplementary question? I mean, I think it would be incumbent on us to write to the Crown Procurator Fiscal Service to ask for their comments on what's just been said because those are quite happy to do that. Serious statements. Yeah. Fulton. Yeah, thanks, convener. I know regardless of whatever people stood on the act initially when it was first in place, I'm far from convinced that a repeal of the act wouldn't send out entirely their own message. So I suppose what I want to ask the panel is where do you begin to touch on it through Lee McArthur's question, but where do you stand on possible amendments to the act rather than a repeal? Where do you stand on that and do you see any merit in that going forward? Fair to say that we as an organisation don't believe in football-specific legislation. Therefore, your proposal earlier of widening out to the whole of society I think would be supported. I don't think that you can have legislation that can apply to one specific sector of society. I think that's grossly unfair. Therefore, I think that a step forward would be the proposal that you suggested earlier, that it was widened out not to sport, because I think that that would criminalise sport fans, but to the whole of society. In just a day and before any deals, and the panel answers, can I add in as we're able to take into account Lord Bracadil's current review? Where do you think that that should fit into that process? Key part of it, and we've sat down with him and had those discussions, but again I would echo that that this shouldn't be specific about sport, and that is the concern of our colleagues across Europe. We're looking at Scotland in isolation and saying why has this happened, and it's very difficult that somebody is not so closely involved in it to try and explain why we've got to this place. I mentioned earlier on about the PR, I think that this is a PR mess that needs fixed, and I think that it's got to be that politicians from all the various parties get around the table to try and fix the mess, because it's not sending good signals out about Scottish football when, at a time when it's actually, we're trying to attract young people and kids and families to the game, and all the evidence is that we're doing that really, really well at a lot, lot of clubs. The act itself is just, it's got a bad credibility whether the ins and outs can't comment, because I'm not a lawyer, but I think you've got to broaden it out or recut it in some shape or form, it's just not good news really. Football and sport specific legislation is unacceptable to fans, that's clear. Whether reform and retitling is possible is a question that can be explored. As Mr Goodwin has just said, the difficulty is that the PR so far has pushed people into a position of alienation, so there's a lot of ground to be made up as far as that is concerned, but clearly the hate crime review is the context in which decisions like that should be taken. We would take the view that we support the outright repeal of the legislation now, for the reason I just touched upon, we don't believe that it's right to have legislation that only applies to one sector of society, but we also don't think that criminalising offensiveness to the rest of society would work higher, we would think that that would present too great a danger to freedom of expression. We would support the repeal of it as quickly as possible, genetics touched on the human cost of the legislation and what happens when people are dragged for good of courts and how that drags on. People have lost their jobs, people have lost their promotions, people have suffered varying degrees of mental health breakdowns, people have even suffered fractured relationships. When, as is so often the case, these people aren't found guilty, it doesn't undo any of the damage that's been done. I was actually quite sympathetic to that argument in the previous panel, but are there no more implementation issues as opposed to a repeal issue? No, my point is that, in regard to the black and deal report, we think that that, obviously, hate crimes are serious. Issues in Scotland should absolutely be given the kind of time and energy that's required in order to try to deal with it, but we feel that that legislation is a slightly separate issue. And because these cases are still going for good of courts, this isn't a static issue, this is live, these cases are still happening right now and people are still having their lives turned upside down, so we support a full repeal as quickly as is possible. legislation.gov.uk identifies for me there are 87 pieces of legislation in the UK pertaining specifically to football, starting in 1989. It's been said, particularly by Mr Jenkins, that no legislation should address football alone, should all 87 pieces of primary and secondary UK and Scottish legislation therefore be abolished. Why should it be football and not for the wider society? I think that's just the question that I would ask as to why each of those acts were implemented. No, but very specifically you said that if it refers to football, it should not be legislated for if it only refers to football and I'm pointing out that starting in 1989, there are 87 pieces of legislation which have football in the title and I've had a quick look and they are specific to football. Are you saying that all of these 87 pieces of legislation should be abolished? Sorry, my wider point was that in each of those I would be interested to know why it was just applied to football. 1989 is about offensive behaviour at football matches. This is not new and this is not the first legislation on this particular. It's UK, not Scottish, I accept, but I'm just making the general point. I think that I've probably heard all I'm going to hear, convener. What do you think about if any of them create an offensive which only applies to football fans? Obviously, you'll have some which will deal with things like drinking alcohol and a football stadium and that type of specific legislation, but would there be any which creates other than those types of behaviours that creates a criminal offensive which would only apply to football fans and no one else? Yes, the Football Spectators Act of 1989 would be an example that specifically creates offences related to football. So, we're not talking about a new approach to legislation. Well, now you've been made aware of that. Perhaps you can look and if you want to submit something in response to that now you've had a chance to consider that point, the convener would be happy to receive that response. I'm going to move straight on to James Kelly because I'm afraid time and the clock has beaten us. My apologies to George Adam that it was always dependent on the timing of the committee if I could bring you in for a supplementary. James Kelly. Okay. I appreciate that, convener. I've got a question for each member of the panel or each organisation that's represented. In terms of the submissions to the Justice Committee, we've heard from the Law Society about that there wouldn't be any gap in the law. We've heard from civil rights groups about the imposition on civil liberties, but I think it's very important to hear from supporters groups because you are at the sharp end of being at the football, witnessing the effect of the legislation. So, if I can start first of all by Andrew Jenkins, we've spoken about the international context to this. What message do you think it sends out internationally that Scotland has seemed to have a set of legislation that specifically targets football fans? I think that there was one of our members, I think that it was the Duns supporters together, did a comparison of all the different football supporters across Europe and football supporters were the most legislated against in terms of their rights, in terms of safe standing, in terms of alcohol at football, in terms of the Offensive Behavior Act. That needs to be addressed and I certainly think that it's unfair that those supporters in Scotland should be criminalised because they are not going to football. In terms of the SNPSA, you spoke interestingly about building a more collaborative approach between fans groups, football clubs and also the police. Do you think that the absence, the repeal of this legislation, taking that off the table would make that approach a bit easier to build? I think that it probably would. I think that it goes into that. I've mentioned the PR three times now, but also when you talk about the private discussions that you have with various different police members versus a public display of unity that they face. Most of the police say, look, there's way round all these problems, which goes back to what your law society and the like have submitted. From that point of view, something's got to happen, something's got to give, to give people faith that the concerns and the various different degrees that are being addressed can move on to provide a place where everybody can work together. Finally, if I can ask Janet Finlay specifically about the conviction rates, we heard earlier from the Crown Office Procurator Fiscal Service that the conviction rates, I think that the term used was very good for this, and it was quite successful. You've repeatedly said that that's not the case. Can you give us a bit more detail on your explanation for that? Conviction rates are presented in two ways in the two separate publications that are referred to. One is a Crown Office publication, the other one is a Scottish Government publication, one is called offences under the Offensive Behaviour Act, or charges under the Offensive Behaviour Act, and the other one is the hate crime. Either it's based on the year of the charge, however many charges there is in a year, but what's reported is a conviction rate based on however many cases are completed in a year. Let's say that you have—sorry, I had the data earlier—300 charges, but only 150 of them are concluded in one reporting period. The conviction rate is based on the number of people convicted as a proportion of that much smaller number, so it looks as though you have much higher conviction rates than you have. The ones that are reported annually of around 70 per cent, 75 per cent, which in themselves are lower than most convictions. They're still low even at that, but they don't represent the true conviction rate. In fact, the true conviction rate is never actually properly reported. What we have done is counted all of the charges from 2011 to the most recent data, and we've counted all of the convictions. This is from the Scottish Government data, and this is their data. The conviction rate is about 36 per cent, and it's just below 36 per cent. There's a tale there of unconcluded cases. Even if every single one of those cases resulted in conviction, that wouldn't take the rate to 50 per cent. The 75 per cent and so on that's often stated each year is vastly overinflated. Most people would think that a conviction rate would be the number of people charged in a year and then the number of people convicted shown as a proportion of that, but that's not what you're given. It might be useful to the committee, but it might be useful to provide that analysis to the committee if that's not already been done. Mr Jenkin, if you wouldn't mind supplying the full details of the survey that you referred to, that's Boaters Direct Scotland at Carrita, that would be very helpful. That concludes our line of questioning. I thank all the panel members very much for giving evidence today. Given that we're working really against the clock, I'm going to continue now to our next agenda item, which is agenda item number three, which is consideration of three negative instruments. I refer members to paper three, which is a note by the clerk. The first instrument is Scottish tribunals, eligibility for appointment, amendment regulations 2017, SSI 2017-274. Do members have any comments? If members have no comments, is the committee agreed that it does not wish to make any recommendation in relation to the instrument? We are agreed. The next instrument is sexual offences act 2003, prescribed police station Scotland regulations 2017, SSI 2017, oblique 285. Do members have any comments? Can I perhaps seek some clarification? There are so many police stations mentioned in this SSI, and I wondered if any of those were under threat of closure 89, prescribed police stations as previously listed. Could we find out if any of those are currently under threat of closure? I think that that would be useful. If there are any other comments, no other comments, are we agreed that it doesn't want to make any recommendation to this instrument? The final instrument is title conditions Scotland act 2003, rural housing bodies, amendment number 2, order 2017, SSI 2017, oblique 301. Do members have any comments? No comments. Is the committee therefore agreed that it does not... On the list of rural RSLs, it did not include ACA, Argyll Community Housing Association, it did include them in Britain, and in my area there are two. Can we note that and perhaps...? Oh, sorry, I beg your pardon, I misread that. No, you're absolutely right. Thank you. Okay, thank you for that clarification, Mr Finlay. That's good. Is the committee therefore agreed that it does not wish to make any recommendations in relation to this instrument? Agreed. Thank you. That concludes consideration of negative instruments. Agenda item number 4 is a feedback from the Justice Sub-Committee on Policing on its meeting of 28 September 2017. I refer members to paper 4, which is not by the clerk, and invite Mary Fee to provide feedback. Thank you, convener. The Justice Sub-Committee on Policing met on 28 September when it took evidence from the Cabinet Secretary for Justice on Governance of the Scottish Police Authority. The Cabinet Secretary told the sub-committee that, in his view, the Police and Fire Reform Scotland Act 2012 was fit for purpose but acknowledged that there have been issues with how the roles and responsibilities have been taken forward. He indicated that an interim chief executive should be in place within the next couple of weeks and that the appointment for a new chair was currently under way. Mr Matheson described the current review of the SPA and the appointment of a new chair as an opportunity to improve some areas such as strengthening the input from local scrutiny committees to the SPA by providing them with a formal role. The next meeting of the sub-committee is scheduled for Thursday 26 October, when it will hold a round-table evidence session on Police Scotland's engagement with black and minority ethnic communities. I am happy to take any questions. Members of any comments or questions for Mary? No comments or questions, then we now move into private session. Our next meeting will be Tuesday 24 October 2017, when our main business will be further consideration of the Offensive Behaviour Bill. I spend briefly to allow the public gallery to clear.