Several news media sources have continually printed lies, half-truths and misunderstandings about the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. The legislation is itself a half-baked quagmire pushed through with little thought given to the civil liberties of citizens.

The purpose of this short article is to clear the air with regards to several aspects of the legislation, as a means of protecting Rangers fans from unjust prosecution. The information presented has been acquired from Police Scotland through a series of freedom of information requests.

1: There is no list of banned songs in Scotland

Several newspapers, including the Scottish Sun and the Daily Record have criticized Rangers fans for singing ‘banned’ songs. The clear implication is that the relevant legislation includes a list of circumscribed songs. However, this is false. In correspondence dated 29th of February 2012, J.M Begbie, then policy advisor for the Criminal Justice and Disclosure Team of Police Scotland made this quite clear:

“The new legislation will not, however, provide a list of flags, banners, songs or chants that will be deemed to be offensive in terms of the Act. In accordance with existing law, all reports submitted by the police alleging criminal conduct will be considered on their own facts and circumstances and the context in which the alleged offence took place. Criminal proceedings will be commenced where there is sufficient evidence of a criminal offence and proceedings are in the public interest.”

Criminal proceedings are only brought forth against the accused in conjunction with what the police deem to be sufficient cause for a charge of incitement of violence, where this is a matter of ‘circumstance’. There is no set of ‘flags, banners, songs or chants’ which are, in and of themselves, offensive.

2: The Billy Boys is not proscribed

While the Billy Boys is not proscribed –  there is no set of banned songs – the line in the song linking violence with Fenianism has been construed as constituting ‘offensive behaviour’ and Rangers fans have been prosecuted on these grounds. Page 4 of the Lord Advocate’s Guidelines regarding the legislation defines offensive behaviour as follows:

“The singing of songs and chants, or the display of banners, that are clearly motivated by hatred on racial, religious, cultural or social grounds or by hatred of a group based on their sexual orientation, transgender identity or disability or which are threatening are examples of the type of behaviour that will be caught by this offence if they are likely to cause public disorder.  Such conduct is unacceptable and has no place at a football match.”

Because Fenianism is not a racial, religious or social group, nor a sexual orientation, the only way it can plausibly be construed as offensive is if it’s ‘threatening’. And it is only threatening under the legislation when placed with the word ‘blood’. It is the pairing of these two terms which violates the law.

It’s also worth noting that the club has not banned the song, or indeed any song. While various media sources have maintained that the Billy Boys is indeed banned, this is false, and part of their propaganda war against the club. During the Murray era, the club warned fans of a ‘UEFA letter’ outlining songs that would get Rangers into trouble. However, when pressed, no person of official capacity within the club has ever produced the aforementioned letter. It doesn’t exist. What’s needed is for the support to have a grown up discussion as a means of changing the problematic lyric out of the song altogether; as there is no longer any reason to mention a now-defeated terrorist group.

3. Two-tier interpretation

Despite the wide scope of the legislation, it has not been interpreted or enforced with consistency. Celtic FC has numerous chants which express hatred towards the Queen, which, given that the Queen is the head of the Church of England, should fall under religious hatred. However, little has been done to prosecute those who belt these out every weekend. Another example is the following Partick Thistle chant:

Hello! Hello! How do you do?

We hate the boys in royal blue,

We hate the boys in emerald green,

So f*ck your pope and f*ck your queen!

In terms of the legislation, the lyrics of this chant are as much in violation of ‘causing offence’ as the Billy Boys. However, again, little attention has come to Partick fans over it. Same can be said about Dundee fans who sing about ‘Arab blood’. By parity of reasoning, this should count as ‘threatening’ if the Billy Boys does – it has the exact same connotation. Despite this, however, Dundee fans are not taken to task for singing this verse. There is, therefore only one conclusion that can be drawn: the legislation has two interpretative tiers. One is for Rangers fans, whom are held to a stringent standard, and one is for all other clubs, who are held to a lower standard. The Scottish government is using the legislation as a means of targeting one particular set of fans. This is intolerable.

One angle often persued by enemies of the club is that the ‘Billy’ in Billy Boys refers not to King William, but to Fullerton of the Glasgow razor gang. There is little support for this reading. But beyond this, if ‘Billy’, on its own, is threatening, then ‘Tim’ should also be construed as such, for ‘Tim’ refers to an individual who belonged to a terror group of a type explicitly proscribed by the relevant legislation. The fact that the former is controversial and the latter is not is further evidence of a two-tier system.

4. The legislation is complex, contextual, and difficult to apply

As may be apparent, the legislation is very complex. Police officers must determine whether a particular song or chant constitutes ‘offensive behaviour’ in the sense outlined above. This means that they must determine intent in the particular context, and provide evidence of this context. As page 4 of the Lord Advocate’s Guidelines states:

“It is a matter for the judgment of a police officer, at the time of the commission of the offence, having regard to the nature and words of the song, including any non-standard lyrics or “add-ons”, the surrounding circumstances and the context in which it is being sung, to determine whether a song or lyrics are threatening or expressing hatred.”

Police officers must, in a court of law, establish – in accordance with accepted legal standards – that the accused intended to cause public disorder. This is a difficult task given the evidential difficulties in establishing intent. Thus, all Rangers fans accused under the relevant law should plead not guilty.