These updates were last reviewed in July 2013

When determining whether the offence under s.1(1) of the Act has been committed, it is essential that the prosecution prove not only that the defendant has engaged in the offensive behaviour defined in s.1(2) at a regulated football match, but also that one of the alternative conditions set out in s.1(1)(b), as defined in s.1(5), are met, Procurator Fiscal, Dingwall v Cairns [2013] HCJAC 73. Section 1(1)(b) requires that the behaviour either (i) is likely to incite public disorder, or (ii) would be likely to incite public disorder. Section 1(5) provides that the latter condition under s.1(1)(b)(ii) is met where public disorder would be likely to occur but for the fact that measures are in place to prevent public disorder, or persons likely to be incited to public disorder are not present or are not present in sufficient numbers. Thus, the offence is made out if the policing of a football match at which racial or religion-based offensive singing and/or chanting takes place is of a level that no public disorder can break out or, even more widely, when there is no representative of the target group, or too few of them to react in a disorderly fashion, present at the game. This would seem to suggest that there is a move towards a form of strict liability for the mens rea of this offence: where the defendant has sung a song which is offensive to a specific group based on their membership, actual or perceived, of a racial or religious group (as was the case here), then if it is likely to incite public disorder amongst those present, or would have done if the policing was inadequate, or would have done if the offended group was present, or present in sufficient numbers to respond, then the offence is made out. As there is no need to prove that anyone present was actually offended, it appears that the singing of offensive sectarian songs is now of itself unlawful.