Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012

Threatening communications

6 Threatening communications

(1) A person commits an offence if—

(a) the person communicates material to another person, and

(b) either Condition A or Condition B is satisfied.

(2) Condition A is that—

(a) the material consists of, contains or implies a threat, or an incitement, to carry out a seriously violent act against a person or against persons of a particular description,

(b) the material or the communication of it would be likely to cause a reasonable person to suffer fear or alarm, and

(c) the person communicating the material—

(i) intends by doing so to cause fear or alarm, or

(ii) is reckless as to whether the communication of the material would cause fear or alarm.

(3) For the purposes of Condition A, where the material consists of or includes an image (whether still or moving), the image is taken to imply a threat or incitement such as is mentioned in paragraph (a) of subsection (2) if—

(a) the image depicts or implies the carrying out of a seriously violent act (whether actual or fictitious) against a person or against persons of a particular description (whether the person or persons depicted are living or dead or actual or fictitious), and

(b) a reasonable person would be likely to consider that the image implies the carrying out of a seriously violent act against an actual person or against actual persons of a particular description.

(4) Subsection (3) does not affect the generality of subsection (2)(a).

(5) Condition B is that—

(a) the material is threatening, and

(b) the person communicating it intends by doing so to stir up hatred on religious grounds.

(6) It is a defence for a person charged with an offence under subsection (1) to show that the communication of the material was, in the particular circumstances, reasonable.

(7) A person guilty of an offence under subsection (1) is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or

(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

7 Protection of freedom of expression

(1) For the avoidance of doubt, nothing in section 6(5) prohibits or restricts—

(a) discussion or criticism of religions or the beliefs or practices of adherents of religions,

(b) expressions of antipathy, dislike, ridicule, insult or abuse towards those matters,

(c) proselytising, or

(d) urging of adherents of religions to cease practising their religions.

(2) In subsection (1), “religions” includes—

(a) religions generally,

(b) particular religions,

(c) other belief systems.

8 Section 6: interpretation

(1) Subsections (2) to (5) define expressions used in section 6.

(2) “Communicates” means communicates by any means (other than by means of unrecorded speech); and related expressions are to be construed accordingly.

(3) “Material” means anything that is capable of being read, looked at, watched or listened to, either directly or after conversion from data stored in another form.

(4) “Hatred on religious grounds” means hatred against—

(a) a group of persons based on their membership (or presumed membership) of—

(i) a religious group (within the meaning given by section 74(7) of the Criminal Justice (Scotland) Act 2003 (asp 7)),

(ii) a social or cultural group with a perceived religious affiliation, or

(b) an individual based on the individual’s membership (or presumed membership) of a group mentioned in either of sub-paragraphs (i) and (ii) of paragraph (a).

(5) “Seriously violent act” means an act that would cause serious injury to, or the death of, a person.

(6) In subsection (4)—

(a) “membership”, in relation to a group, includes association with members of that group, and

(b) “presumed” means presumed by the person making the communication.

9 Power to modify sections 6(5)(b) and 8

(1) The Scottish Ministers may by order—

(a) modify section 6(5)(b) so as to—

(i) add or remove a ground of hatred to or from those for the time being mentioned in that section,

(ii) vary a ground of hatred for the time being mentioned in that section,

(b) modify section 8 so as to—

(i) add or remove a definition to or from those for the time being mentioned in that section in consequence of a modification made under paragraph (a),

(ii) vary a definition that relates to a ground of hatred for the time being mentioned in section 6(5)(b).

(2) An order under subsection (1) may—

(a) specify grounds of hatred by reference to hatred against groups of persons, or individuals, of specified descriptions,

(b) specify such descriptions by reference to specified personal characteristics,

(c) in relation to any ground added by the order, modify this Act so as to make such provision for the same or similar purposes as that in section 7 as the Scottish Ministers consider necessary or appropriate,

(d) remove or vary any provision made under paragraph (c).

(3) An order under subsection (1)—

(a) may make such consequential, transitional, transitory or saving provision as the Scottish Ministers consider appropriate,

(b) may, for the purpose of making consequential provision under paragraph (a), modify this Act,

(c) is subject to the affirmative procedure.