Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Tuesday, 8 November 2011

On sectarianism as hate crime

As I write the Scottish SNP government is trying to push through the Offensive Behaviour at Football and Threatening Communications (S.) Bill. It is hard to know where to start with a piece of legislation like this. As the title of the Bill suggests it is a response to particular incidents that occurred during the last football season - on the one hand the singing of offensive songs or chants at or around football matches and on the other, the posting of threats and sending threatening material to high profile individuals connected with a certain football club. While this might seem like an extraordinary reaction to a few isolated incidents it makes a bit more sense in the Scottish context where there is a concern about sectarian crimes.

What is sectarianism? Often described as 'Scotland's shame', there is little agreement over its precise nature or qualities. It has its origins in the divide between religious communities - Catholic and Protestant - and has particularly manifested itself around the support for Glasgow's two main football teams, Celtic (Catholic) and Rangers (Protestant) - hence the concerns addressed by the legislation. Beyond that, though, it is usually now agreed that it is not primarily about religion, but reflects other social and political divisions, though there is disagreement about what these are, and of the significance to be attached to certain cultural symbols such as the flags, songs and chants of football supporters.

This context points to the special difficulties in determining the political need for such a piece of legislation. But rather than adding to the discussion of these issues I want to confine myself to some comments on the content. Here it is hard to avoid the conclusion that the section 1 offence (offensive behaviour) is just extremely poorly drafted. The offence is defined as engaging in behaviour likely to incite public disorder - which would be virtually indistinguishable from the existing common law crime of breach of the peace, given that 'incite' must be understood in this context as meaning 'cause'. 'Behaviour' is then defined in s.1(2) as variously expressing hatred of, or stirring up hatred against, an individual or group on the basis of religion, colour, race, nationality, ethnic origins, sexual orientation, transgender identity or disability, or behaviour motivated by such hatred, or behaviour that is threatening or offensive. A person found guilty of this on indictment would be potentially liable for a sentence of up to 5 years imprisonment.

Even if we leave aside the last two categories here (threatening and offensive behaviour), which seem to have been added only out of a failure of the drafter's nerve and have no clear connection with problem the legislation is aimed at, there are some significant difficulties here. First is why the offence should have been defined in terms of the incitement of public disorder. The problem here is presumably that such conduct in the context in which it occurs (at or near football grounds, or in public places where matches are being shown) is already inflammatory - that is, to shout sectarian slogans at a football match would already be 'inciting' public disorder - which is why there is the concern in the first place. There seems to be no need for this first limb of the offence, unless inciting was specifically understood as urging others to commit a crime. However, since the definition is fulfilled by the behaviour itself there is no need for this.

But what about the definition of 'behaviour'. This is defined in terms of hatred of groups or individuals defined in terms of religion etc. The problem here is that while every kind of conceivable group identity is listed (in spite of the fact that most of these, including religious hatred, are already defined as aggravations in law), the key term 'hatred' is undefined. This may not be thought to be a problem, as there are already other existing aggravations in law defined in terms of 'hatred', but it is surely a greater problem in this context where the nature of the problem (sectarianism) is itself so contested. The traditional songs and chants may be offensive, but do they express hatred? Or is the hatred expressed in the song or does it depend on the motivation of the person singing it - in which case even more ostensibly 'neutral' songs might become more problematic.

The legislation has been condemned by the political opponents of the SNP on the grounds that it is unworkable. This seems to be based on the suggestion that the police and prosecution would not be able to use the offence, because it is too vague and overlaps with existing offences. However, there is a more important sense in which legislation might be unworkable, and that is that it might simply be incomprehensible to those citizens whose conduct it is supposed to regulate. This seems to be the most important sense here. If politicians are unable to agree on the type of conduct that is covered by the legislation, and lawyers even struggle to understand its content, it seems like a serious abdication of responsibility on the part of the legislator, and an invitation to injustice to even attempt to enforce a law such as this.

I don't mean to suggest for a moment here that there is not a serious problem or even that it does not require some sort of special response. I do, however, seriously doubt whether this particular Bill, which is poorly drafted and adds little to the already existing offences in Scots law, is the appropriate solution.

No comments:

Post a Comment