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Published online by Cambridge University Press: 15 April 2014
The problem of sectarianism has attracted increasing attention in recent years, particularly as a feature of hate crimes in Scotland today. The current law on sectarianism is based on the common law crime of breach of the peace and on new statutory offences which cover some categories of behaviour that have been prosecuted as breach of the peace. However, ‘the Crown frequently prosecutes a wide range of behaviours as breach of the peace when there is an (arguably more apposite) statutory offence’. The regulation regarding sectarianism might also require a reappraisal of the common view that blasphemy is no longer an offence in Scottish law.
2 P Ferguson, Breach of the Peace (Dundee, 2013), p 65.
3 Gordon, G, The Criminal Law of Scotland (2nd edition, Edinburgh, 1978)Google Scholar, p 998.
4 [2009] HCJAC 59.
5 2001 SLT 1007. In this case the Appeal Court fashioned a test to identify the conduct that constitutes breach of the peace. That conduct must be ‘severe enough to cause alarm to ordinary people and threaten serious disturbance to the community’. See Jones, T and Christie, M, Criminal Law (5th edition, Edinburgh, 2012)Google ScholarPubMed, p 326 (emphasis in original).
6 Walls v Brown at para 6.
7 Offensive Behaviour at Football and Threatening Communications (Scotland) Bill. Policy Memorandum (SP Bill 1, Session 4 (2011)), para 3, <http://www.scottish.parliament.uk/S4_Bills/Offensive%20Behaviour%20at%20Football%20and%20Threatening%20Communications%20(Scotland)%20Bill/b1s4-introd-pm.pdf>, accessed 10 September 2013. For cases more relevant to this article see the two unreported cases decided by Glasgow Sheriff Court HMA v Rollie and HMA v Birrell, on 6 October and 17 October 2011 respectively. In both cases the defendants were convicted for contravention of the Criminal Justice and Licensing (Scotland) Act 2010. In particular, Birrell posted ‘a string of religious and racially-motivated comments on a social networking site’; among other things he wrote ‘Hope they all die. Simple. Catholic scumbags ha ha.’ S 8 of the 2010 Act punishes behaving in a threatening or abusive manner and this can be religiously aggravated under s 74 of the Criminal Justice (Scotland) Act 2003. On the other hand s 6 of the 2012 legislation criminalises threatening communications. ‘Offensive football offences’, (2011) 409 SCOLAG Legal Journal 246Google Scholar.
8 SP Bill 1 Offensive Behaviour at Football and Threatening Communications (Scotland) Bill [as introduced] Session 4 (2011). For a brief account of the debate surrounding the bill, see Cranmer, F, ‘Parliamentary report’, (2012) 14 Ecc LJ 93–99 at 98–99Google Scholar. This bill sought ‘to introduce two new criminal offences: one which will criminalise the full range of offensive and threatening behaviour, including sectarian behaviour at, or in connection with football matches; and one which criminalises threatening or inciting serious violence and threats which incite religious hatred’. See also Scottish Parliament Information Centre, (2011) Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, SPICe Briefing 11/48, available at <http://www.scottish.parliament.uk/S4_Bills/Offensive%20Behaviour%20at%20Football%20and%20Threatening%20Communications%20(Scotland)%20Bill/SB11-48.pdf>, accessed 10 September 2013.
9 Policy Memorandum, para 2.
10 Ibid, para 15.
11 According to s 1(2)(a) of the 2012 Act it could be: ‘a religious group’ or ‘a social or cultural group with perceived religious affiliation’ or ‘a group defined by reference to a thing mentioned in subsection (4)’. The cited subsection tends to give a certain uniformity to the concept of religious group; in fact, it states that ‘“religious group” has the meaning given by section 74(7) of the Criminal Justice (Scotland) Act 2003 (asp 7)’.
12 G Gordon, Criminal Law, p 998. Maher, G, ‘Blasphemy in Scots law’, (1977) SLT 257–260 at 260Google Scholar.
13 ‘Written submission from Church and Society Council of the Church of Scotland and Faith in Community Scotland’, p 4, available at <http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/OB50._Church_of_Scotland.pdf>, accessed 10 September 2013. Goodall, K and Malloch, M, ‘Women, football and communities: gendered conceptualizations of “sectarianism”’, in Flint, J and Kelly, J (eds), Bigotry, Football and Scotland (Edinburgh, 2013)Google Scholar, p 167, remark: ‘An extra provision, section 7, which emphasises the right to freedom of religious expression, was added in an amendment to the Bill before enactment.’ However, ‘a conditional right to freedom of expression is already protected in Scotland under, among other things, section I of the Human Rights Act 1998. Nonetheless, given the extent to which public and press debate has exaggerated the extent of the Act, this should have been made clearer.’
14 The Church used to incite anti-Catholicism. See Report of the Church and Nation Committee to the General Assembly of the Church of Scotland, 2002, para 2.1, available at <http://www.churchofscotland.org.uk/__data/assets/pdf_file/0018/7425/SECTARIANISM_2002_GA_Report.pdf>, accessed 10 September 2013.
15 P Tartaglia, ‘Written submission from the Catholic Church’, p 1, available at <http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/OB9._The_Catholic_Church.pdf>, accessed 10 September 2013. Centisimus Annus was written to celebrate the centenary of Pope Leo XIII's encyclical Rerum Novarum. Centesimus Annus is a summary of the entire Catholic social teaching. For the English translation of the latter document see <http://www.vatican.va/holy_father/john_paul_ii/encyclicals/documents/hf_jp-ii_enc_01051991_centesimus-annus_en.html>, accessed 10 September 2013.
16 The entire address is available at <http://www.thepapalvisit.org.uk/News-and-Media/News/News-Archive/Feb-April-2010/Pope-Benedict-XVI-Addresses-the-Bishops-of-Scotland>, accessed 10 September 2013.
17 ‘Crown considers appealing Celtic fan's not guilty verdict over Dundee disorder charge’, 11 April 2013, available at <http://www.bbc.co.uk/news/uk-scotland-tayside-central-22097356>, accessed 10 September 2013.
18 J Stuart, ‘Written submission from the Scottish Episcopal Church’, p 1, available at <http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/OB26._Scottish_Episcopal_Church.pdf>, accessed 10 September 2013.
19 ‘Written submission from the Scottish Council of Jewish Communities’, p 2, available at <http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/OB6._Scottish_Council_of_Jewish_Communities.pdf>, accessed 10 September 2013.
20 NFO Social Research, ‘Sectarianism in Glasgow: final report’ (January 2003), p 15, available at <http://www.glasgow.gov.uk/CHttpHandler.ashx?id=9735&p=0>, accessed 10 September 2013.
21 Ibid, p 10.
22 Ibid, pp 12–13.
23 Goodall, K, ‘Tackling sectarianism through the criminal law’, (2011) 15 Edinburgh Law Review 423–426Google Scholar at 423.
24 In fact, the ‘Supplementary written submission from the Catholic Church’ states: ‘This widening of the ambit of what the bill can catch is exemplified by the introduction of five forms of transgender identity discriminations which may give rise to criminal offence … This gives rise to concerns that a much wider agenda is being addressed by the provisions of the bill than that which is commonly perceived as being limited to football related sectarianism, which has commonly been accepted as referring to bigoted anti-social behaviour.’ J Deighan, ‘Supplementary written submission from the Catholic Church (on behalf of the Catholic Bishops’ Conference of Scotland)', p 2, available at <http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/OB9a._The_Catholic_Church_(supplementary_submission.pdf)>, accessed 10 September 2013.
25 Walters, M, ‘Hate Crimes in Australia: introducing Punishment Enhancers’, (2005) 29 Criminal Law Journal, pp 201–216Google Scholar, p 206.
26 ‘Hate crime in Scotland 2012–13’, 2013, available at <http://www.crownoffice.gov.uk/images/Documents/Equality_Diversity/Hate%20Crime%20in%20Scotland%202012-13.pdf>, accessed 31 January 2014.
27 Garland, J, ‘Difficulties in defining hate crime victimization’, (2011) 18 International Review of Victimology 25–37CrossRefGoogle Scholar at 27, emphasis in original.
28 D McArdle, ‘Too much heat, not enough light’, Journal of the Law Society of Scotland, 18 July 2011, <http://www.journalonline.co.uk/Magazine/56-7/1009962.aspx>, accessed 10 September 2013. The sanctions in clause 1(6) in the SP Bill 1 Offensive Behaviour at Football and Threatening Communications (Scotland) Bill [as introduced] 16 June 2011 (as with the equivalent section in the 2012 Act) were left unchanged in the new legislation.
29 A Goulding and B Cavanagh, ‘Religiously aggravated offending in Scotland 2012–13’, 2013, p 4, available at <http://www.scotland.gov.uk/Resource/0042/00424865.pdf>, accessed 10 September 2013.
30 Quotation from Baron Hume. See Law Commission, ‘Offences against religion and public worship’, Working Paper 79, 1981, p 40, available at <http://lawcommission.justice.gov.uk/areas/offences-against-religion-and-public-worship.htm>, accessed 12 February 2014.
31 In some jurisdictions, insults against the Blessed Virgin Mary could fall within the realm of blasphemy. The best example of this can be seen in the earlier definition of blasphemy in Italian law. In fact, the original version of Article 724 of the Italian Criminal Code considered insults against ‘The Persons or the Symbols venerated by the State Religion’ (when the Code was drafted, the Catholic Church was the state religion). However, Constitutional Court decision no 440/1995 ruled the unconstitutionality of the above-mentioned reference to the offence of blasphemy on the ground of the need for equality between the Catholic Church and other religious denominations. For a full account of Italian blasphemy law and its application during football matches, see A Gianfreda, ‘Religious offences in Italy: recent laws concerning blasphemy and sport’, (2011) 13 Ecc LJ 182–197 at 194.
32 For English law, see Public Order Act 1986, Part 3A; Goodall and Malloch, ‘Women, football and communities’, p 167. Compare this different legal standard to the Smith test (see above, n 5).