On sectarianism and the criminal law (again)

Last week saw the conviction of a man, David Craig, in Glasgow for so called 'internet sectarianism'. The man had, in March 2011, posted threatening and abusive messages on Facebook, together with an image of the Celtic Football club manager, Neil Lennon, photoshopped to appear as if he had been shot. This, at the time it took place, was one example of the type of conduct during the football season 2010/11 which led the Scottish Government to push through the Offensive Behaviour at Football and Threatening Communications (S.) Act 2012.

This Act created two new offences - one of which was threatening or offensive behaviour at football matches (discussed here, in an earlier post), and the other of which was the use of the internet or other means to communicate serious threats - both of which were deemed necessary because the existing law did not give police or prosecutors adequate powers to deal with this conduct.

But hang on a minute. If the conduct took place in March 2011 and the new legislation does not come into force until 1st March 2012 how could this man have been prosecuted? After all, if the Crown did not possess the necessary powers to prosecute this sort of conduct (and the legislation was not retroactive) it might have been expected that there could be no prosecution.

It appears though that Craig was prosecuted under s.38(1) of the Criminal Justice and Licensing (S.) Act 2010 for threatening and abusive behaviour. This offence was legislated as recently as 2010, to address a loophole created by an Appeal Court ruling on the scope of the crime of breach of the peace, and carries exactly the same punishment as the new threatening communication offence.

So what conclusions are we to draw from this? One obvious conclusion is that it is far from clear that the new offence was necessary. Why should police and prosecutors use the powers under the 2012 Act rather than the equally generous powers provided by the 2010 Act - especially since the former would require the Crown to show an intention to "stir up religious hatred". More than ever this confirms the impression that this legislation was unnecessary and ill thought out.