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’.Footnote ² The regulation regarding sectarianism might also require a reappraisal of the common view that blasphemy is no longer an offence in Scottish law.Footnote ³

The 2009 Scottish case Walls v Brown is one of the few reported cases about sectarianism in football.Footnote ⁴ This comment explores the law on sectarianism and suggests that sectarian law forbids blasphemous pronouncements at least in certain limited circumstances, such as at football matches.

On 26 November 2008, during a football match between Kilmarnock and Rangers, Walls sang part of the notorious anti-Irish ‘Famine Song’, which included swearing at Irish people, following which he went on to insult the pope. Walls appealed against conviction for breach of the peace aggravated both by religious prejudice (under section 74 of the Criminal Justice (Scotland) Act 2003) and by a racial element (under section 96 of the Crime and Disorder Act 1998). The decision of the High Court, which endorses the views of the Sheriff and confirms the correct application of the Smith v Donnelly test,Footnote ⁵ confirmed that ‘it was sufficient that the conduct be likely to cause fear or alarm to a reasonable person in the vicinity’.Footnote ⁶

Owing to a number of serious incidents related to football which occurred in 2010 and 2011, the Scottish government pushed for new legislation.Footnote ⁷ A Policy Memorandum accompanied the introduction of the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill.Footnote ⁸ For the government, ‘The objective of the Bill is to tackle sectarianism by preventing offensive and threatening behaviour related to football matches and preventing the communication of threatening material, particularly where it incites religious hatred.’Footnote ⁹

However, the aggravated forms of breach of the peace in Walls were left unchanged by the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 (hereafter the 2012 Act). Furthermore, according to the Policy Memorandum, both freedom of religion and freedom of expression ‘allow crucially for satirical comment, criticism and even harsh words, whether expressed by young or old, at home, on the street, or on the stage’.Footnote ¹⁰ Importantly, the bill was not intended to criminalise blasphemy by means of a statutory offence. However, there are at least two criticisms of this premise. First, under the statute, it is a crime to express ‘hatred of, or stirring up hatred against, [a group of persons or] an individual based on the individual's membership (or presumed membership) of a group’, as defined in the statute.Footnote ¹¹ However, there may be something of a paradox here because section 1(2)(e) in the Act criminalises ‘other behaviour that a reasonable person would be likely to consider offensive’ – this might very well include a blasphemous pronouncement (if another person considered such a pronouncement to be offensive). Secondly, according to persuasive Scottish authority, blasphemous statements fall within the realm of breach of the peace.Footnote ¹² The consequence is to consider this statement applicable to the 2012 Act, because this crime could be considered a statutory breach of the peace.

Given these considerations, it is surprising that the Churches did not suggest interpreting the new statute as a blasphemy law. During the debate in the Scottish Parliament leading to the enactment of the 2012 Act, several religious groups made written submissions which expressed their understanding of sectarianism – and all the groups (including the Grand Orange Lodge of Scotland and the Evangelical Alliance Scotland) strongly condemned sectarianism. For example, the Church of Scotland supported the proposed legislation, though it had some reservations about possible limitations on freedom of speech.Footnote ¹³ Indeed, the Church of Scotland recognised in 2002 that ‘our Church's record on this issue in times past is far from blameless’.Footnote ¹⁴ The Catholic Bishops' Conference of Scotland repeated traditional Catholic social teaching contained in the encyclical Centesimus Annus (1991) in its submission and considered ‘the current legal provision inadequate’.Footnote ¹⁵ However, in the Papal Address to Scotland's Catholic Bishops in 2010 Pope Benedict XVI said:

Indeed, in the case of HMA v McLeish (2013 unreported), the court took the view that schools might contribute directly to sectarianism. In the Dundee Sheriff Court the defendant, a Celtic fan, was prosecuted under section 1 of the 2012 Act, ‘Offensive behaviour at regulated football matches’. He had been filmed by police singing ‘Rule of Honour’ in a park on Boxing Day, a song classified by the police as pro-terrorist. However, ‘Sheriff Richard Davidson ruled that police officers could not give “opinion” evidence that the song was linked to proscribed terrorist organisations’. Moreover, the Sheriff explicitly criticised the 2012 Act, adding:

Indeed, the Scottish Episcopal Church also regarded the bill with scepticism, noting that ‘The proposed legislation addresses symptom rather than cause’; the Church also urged ‘faith groups … to be particularly sensitive to the religious dimension which is a core element of sectarianism’.Footnote ¹⁸ The Scottish Council of Jewish Communities criticised the lack of criminal law on offensive communications outside football grounds and advocated greater protection for religious groups.Footnote ¹⁹

All this makes it clear that there is no single definition of sectarianism. While the court in Walls referred to ‘sectarian chants and songs’, the 2012 Act does not mention the word ‘sectarian’. Neither the court nor the legislation defines sectarianism or refers to the Catholic school issue; it is possible that the court did not need to do so as the legal definition of breach of the peace was sufficient to dispose of the case. However, a general definition of sectarianism is given in the 2003 report ‘Sectarianism in Glasgow’, commissioned by Glasgow City Council: ‘In popular understanding, sectarianism describes religious conflict rather than religious difference.’Footnote ²⁰ Furthermore, the report states that, for many, sectarianism includes ‘rivalry between Rangers and Celtic’ (which reflects ‘divisions between Catholic and Protestants in Glasgow’);Footnote ²¹ ‘the continuation of Catholic schools represented tangible evidence’ of ‘religious division’ (even ‘intolerance to other traditions’); and some organisations (eg the Loyal Orange Order and Republican James Connolly Society) could be ‘provocative’ and ‘intimidating’.Footnote ²² This approach may be useful for a workable legal understanding of sectarianism. However, it focuses only on religion, without considering racism and homophobia.

Nevertheless, some scholars stress the fact that sectarianism ‘is not predominantly “about religion”’.Footnote ²³ In fact, according to Walls, sectarianism is something slightly different from religious hate and bigotry. These scholars refer to ‘sectarian and bigoted chants’ and ‘sectarian, religious or racist behaviour’. In contrast, the Scottish Government observed: ‘it is a critical assumption of this Bill that there is something very specific and increasingly unacceptable about attitudes and behaviour expressed at football matches, whether that be “sectarian”, racist or homophobic’.Footnote ²⁴ This is due to the lack of a clear definition of sectarianism, which is sometimes seen as related more to religious hatred or occasionally related more to racism or to homophobia.

Some commentators point out the risk that hate crime legislation is simply symbolic. However, they say:

The new Scottish statute is seen as tackling hate crimes related to football.Footnote ²⁶ Another issue which was not addressed satisfactorily concerns the consequences of this understanding: what are the consequences of considering football hate crimes as a category of offences per se? One of the key feature of hate crimes is the fact that the

Can we actually consider those involved in football matches in any capacity as a category that needs different protection? If the answer is affirmative, why is there no substantial difference between the punishment of the new statutory crimes and the old aggravated breach of the peace?Footnote ²⁸ Furthermore ‘In 2012–13 687 charges were reported with a religious aggravation under s 74 of the Criminal Justice (Scotland) Act 2003. This is a 24% decrease compared to 2011–12.’ Part of the reason for the decrease lies in the 2012 Act, which ‘criminalises religious hatred that is connected to football and may be used instead of section 74 [of the Criminal Justice (Scotland) Act 2003] in certain circumstances’.Footnote ²⁹ This could cause a misunderstanding of the data and a false perception of racism and religious hatred.

In fact, whatever sectarianism might be, it is related to religious hatred and racism and there can be different approaches to criminal policy in this area. One could be to create a new more serious crime tackling the general phenomenon of sectarianism. Another could be to split up the phenomenon of sectarianism in all its components (racism, religion, etc) and punish each single crime by itself. However, the new Scottish Act seems to establish the former solution, albeit partially.

While sectarianism is not necessarily related to religious hatred, can it include blasphemy? The old common law crime was

This is a narrow definition of blasphemous behaviour because it does not include insult against, for instance, the Blessed Virgin Mary.Footnote ³¹ In Walls, insult against the pope, which was not covered by blasphemy law, is, however, covered by breach of the peace, and the new legislation protects against these kinds of insults at least in situations related to football matches. The result is that the concept of blasphemy has been broadened and can include heads of religious groups, who can be considered vehicles for insulting their followers.

In conclusion, however sectarianism may be defined, there is an undeniable religious dimension that could also be considered an act of blasphemy, which covers a different medium. An example could be the distribution of blasphemous leaflets at a football match. A new way of labelling these cases is desirable. The idea that blasphemy has only come back into play where it forms part of another crime is problematic. The notion that the old offence of blasphemy aimed to protect God while the new legislation aims to protect a believer or a group of believers is an interesting one. The fact is that the statute does not take into full account the perpetrator's intention and the perception of the victim/believer.

In England and Wales, incitement to religious hatred, for instance, requires that the person intends to stir up religious hatred by his or her actions. The Scottish section 1 provision does not require that the person intends this. Although there is the extra element of public disorder, it does not require that public disorder is actually stirred up by his or her expression of hatred. It does not even require the presence of enough people to be likely to result in public disorder. It is easy to see why this wording is there: it would be frustrating if a person could not be prosecuted simply because it was heard by a small group of people or because there were enough police officers present to control trouble. However, the ambit of the offence will raise concern.Footnote ³²

In any case, this clearly constitutes a remnant of blasphemy law and that cannot be underestimated. There is the risk of these cases falling within breach of the peace and the 2012 Act not being considered blasphemy. The latter phenomenon is older than sectarianism, which requires different monitoring and understanding.