Prosecuting bigotry offences

Section 50A, so far as relevant, provides as follows:

"(1) A person is guilty of an offence under this section if he–... (b) acts in a manner which is racially aggravated and which causes, or is intended to cause, a person alarm or distress.

"

Here there was no suggestion that the players themselves heard anything, or that the accused had directed any insults towards Mr McBurney. Who, then, is "a person" for the purposes of section 50A(1)(b) – does it include someone who was not the target of the abuse but merely a bystander?

The appeal court in Martin held that it does not:

This answers a question left unresolved by Anderson v Griffiths 2005 SCCR 41, another football case. In contrast to Martin, the "complainers" were the two black players (named in the charge) at whom the abuse was directed, not the supporters who overheard it. The appellant had been convicted of contravening section 50A by shouting "black bastard" and "asylum seeker" at the players during a game between St Johnstone and Livingston. He did not shout loudly enough to be heard by the players themselves, but other supporters gave evidence that they had been upset and disgusted by his behaviour (though as the complaint libelled only alarm and distress to the players, the relevance of that evidence is perhaps questionable). Given the lack of evidence that the abuse caused actual alarm or distress to the players, the decisive consideration for the appeal court in quashing the conviction was that the sheriff had not found in fact that the appellant’s actions were intended to cause them alarm or distress. In the circumstances the Crown conceded that the conviction under section 50A could not stand. The court therefore did not have to consider whether for conviction of this offence the only alarm and distress that could be taken into account was that of the person at whom the abuse was directed (or indeed, whether the term "asylum seeker" was racially abusive).

The court in Martin recognised that its construction of section 50A may inhibit the use of this provision in the prosecution of conduct other than specific abuse aimed at a specific person. It did however note that section 50A(1)(b) contains the phrase "intended to cause", observing:

There remains the option of using the common law offence of breach of the peace to prosecute such behaviour. That the accused directed his abuse at A but only B and C were alarmed by it would not preclude a relevant complaint of breach of the peace, provided the behaviour is severe enough to meet the test laid down in Jones v Carnegie 2004 JC 136 – that is, conduct which presents as genuinely alarming and disturbing, in its context, to any reasonable person.

Accordingly in both Anderson and Martin the appeal court substituted for conviction under section 50A conviction for breach of the peace racially aggravated within the meaning of section 96 of the Crime and Disorder Act 1998. Section 96 provides:

"(2) An offence is racially aggravated for the purposes of this section if–

Finally, section 74 of the Criminal Justice (Scotland) Act 2003 provides a new statutory aggravation of religious prejudice, where the offence is motivated wholly or partly by malice and ill-will towards members of a religious group, or of a social or cultural group with a perceived religious affiliation, based on their membership of that group. In the type of situation described in this article section 74 is perhaps of particular interest, given the long association between football and sectarian rivalry in Scotland and the Executive’s widely publicised desire to eradicate such behaviour.