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Legal figures call on Holyrood to scrap 'draconian' legislation

PROMINENT lawyers and politicians have called for controversial legislation on tackling sectarianism in football to be scrapped.

The Offensive Behaviour at Football and Threatening Communications (Scotland) Act came into force in March last year with the aim of clamping down on sectarian abuse at football matches.

Figures from the Scottish Government show there were 268 charges reported under the legislation in 2012-13. Out of 128 charges completed by the end of March, a total of 87 (68%) resulted in a conviction.

However, leading QC Brian McConnachie said he considered the act to be unnecessary and an "unsophisticated way" in which to target fans. He also said the legislation "discriminated" against fans.

He said: "There were, prior to the implementation of this particular legislation, plenty of examples of people being convicted of the offence of breach of the peace at football matches.

"This legislation means that even if there is no evidence of any person being offended by any particular chant, an individual can be convicted and sentenced to imprisonment.

"Indeed, so draconian is the drafting of the legislation that there need be no-one present who would take offence, yet a conviction can follow."

McConnachie said he would like to see the legislation scrapped, as "tinkering with it will not resolve the underlying problems".

He said: "Football fans, particularly Old Firm fans, have done themselves no favours over the years with their pointless sectarian 'banter' … However, the law already provided for them to be appropriately punished.

"Today … a football fan is more likely to be prosecuted for singing to an opposing fan than for punching him."

Paul Kavanagh, director of legal business Gildeas, said his firm had seen a marked increase in people charged under the act over the past 18 months - the majority of whom had never been in trouble with police before.

He said the legislation was not clear enough about what constitutes a breach of the law - for example, which songs are now considered banned.

"We are left in a position now where we have got these fans that don't think they are doing anything illegal, but somehow they are being arrested by the police and prosecuted by the state and sometimes getting convicted," he said.

"Personally I would like to see the legislation scrapped."

Advocate and human rights expert Niall McCluskey said a core concern was the provision within the legislation to catch any behaviour that a reasonable person might consider to be offensive.

"That seems to be such a wide provision that could apply to almost anything," he said. "There is a concern that this type of legislation can have a kind of chilling effect on freedom of expression." McCluskey said clearer guidelines from the Lord Advocate on what conduct is considered unacceptable would help. "It is very difficult for the citizen to discern what is it they can do and what is it they can't do," he said.

He added: "At the end of the day, one wants to attack - as the legislation does - some of the completely unacceptable behaviour that occurs either at football or online and that is quite proper.

"But on the other hand, people who go to football matches or people who are online have to be able to also have the opportunity to express themselves."

Labour MSP Graeme Pearson, a former senior police officer, raised concerns about the impact of the law on the relationship between the police and football fans.

He said: "In terms of numbers, if the crowd sought to misbehave, and they have done in the past, they are able to misbehave no matter what the legislation says. So you rely very much on the good humour and the wellbeing in terms of the relationship between those enforcing legislation and those on the receiving end. I worry that the legislation would poison the water to an extent. To be honest, I would get rid of it."

In a recent letter to Holyrood's justice committee, which is examining how the legislation is operating, Lord Advocate Frank Mulholland said successful prosecutions involved cases such as brandishing a flagpole to make it look like a firearm at a football match, making a Nazi salute at a football match, and abusing passengers, including children, en route to a football match.

Other examples included singing songs "containing lyrics to the effect that opposition fans are 'Fenian b*****ds' and 'f*** your Pope and the Vatican'" and shouting racial and religious comments at opposition players.

The Lord Advocate said: "This is a snapshot of the type of disorder that police and prosecutors are dealing with. The notion that this behaviour does not take place flies in the face of reality."

He added that he did not consider it appropriate to issue a list of songs, words, banners or chants which are deemed offensive, as it is "important that the context and circumstances of each case are taken into account by police".

Roseanna Cunningham, Minister for Community Safety and Legal Affairs, said: "The act was introduced in response to police and prosecutors who told us they wanted more powers to tackle the small minority who think it is acceptable to use each match day as an opportunity for abuse and other offensive behaviour. The statistics demonstrate it is being used as it was intended, with the largest category of charges being for religious and racial hatred."

Cunningham (pictured) also pointed to the independent report of the Advisory Group on Tackling Sectarianism in Scotland, published on Friday, which stated that sectarianism needs to be tackled with the same conviction and confidence as racism and homophobia.

She added: "We welcome the fact that the report recognises there is a great deal of hope for the future and that Scottish society is more than capable of tackling this issue."

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