During its bumpy and frequently unedifying passage through Holyrood, I made no secret of my hostility towards the Offensive Behaviour at Football legislation . The Act is a boorach, in principle and form. The law has - rightly - been slagged off as poorly drafted from the bench. One learned sheriff, in the language of the butcher's shop, dubbed it "mince" . The football offences are woolly, imprecise, and difficult to understand.

This has implications for attendees on the terraces - but also to anybody in transition to and from regulated matches - but also extends to anyone in a pub, with the game quietly rolling in the background. And for police officers, and prosecutors, pondering how to apply the law to particular cases. What might a "the reasonable person find offensive"? A Palestinian flag? A Che Guevara T-shirt? A poppy? A shirt slagging off poppies? A Yes badge? But matters get even grimmer when it comes to the second part of the Football Act's offences. The Crown have to demonstrate, not only that the behaviour could offend the sensibilities of the reasonable person, but that it was capable of "inciting public disorder".

During its passage through Holyrood, this was dressed up as a safeguard for punters, but as the High Court has demonstrated, it is nothing of the kind. In the absence of any actual people inflamed to mischief by remarks or shirts or songs or chants, the Act requires the court to invent imaginary mischief-makers. The sheriff must conjure fictional, potentially unreasonable, incitees from the the ether. If no North Koreans are conveniently on hand trash the place, thin-skinned patriotic and muscular wreckers are to be invented - and the accused held responsible for their equally imaginary public disorder. As Lady Paton observed

"Thus, the Act distinguishes between, on the one hand, "a reasonable person" and, on the other, a person "likely to be incited to public disorder". It may be that a person likely to be incited to public disorder is of a more volatile temperament than a reasonable person or, to use the language of the sheriff, an uninitiated member of the public. The person likely to be incited to public disorder may have particular interests and particular knowledge. He may have particular views about the two songs in question or those who sing them."





Under the Offensive Behaviour Act, the Scottish Government is obliged to report on the operation of the legislation by the end of 2015. On the evidence, all does not augur well for the Scottish Government. These football laws were a classic essay in the worst political instincts of our late First Minister: sketchy, defensive, only half thought through, a pompous mess, hazy, made on the hoof. Alex Salmond had the cunning to dump the duty on Kenny MacAskill's desk, who aped his boss by abandoning poor Roseanna Cunningham to make the case for it in public.



Now, years on, this incoherent, illiberal and ineffective piece of legislation is Nicola's stress headache.







In short, the court must invent a whole cast of touchy, grievance seeking, conspiratorial, irrational figures, and ask whether they might kick off in response to the hapless accused's conduct. This is madness. And if the recent statistics from our criminal courts are anything to go by, remarkably ineffective madness.According to statistics released at the end of last year , the legislation has been an unprecedented calamity for Scottish prosecutors. First, a little context. The conviction rate for rape in this country has been reckoned a scandal. Across all offences - theft, fraud, murder, assault - the average rate of conviction is 87%. For the past few years, the rape conviction rate in Scotland hovered under 60% of cases brought to court by the Procurator Fiscal. Although not much discussed just before Christmas, the conviction rate for rape charges taken to court in Scotland took a massive dip in 2013/14.Of the 214 people prosecuted, only 87 - 41% - were convicted. Why? During 2013/14, more people were prosecuted for rape in Scotland, but the number of individuals convicted did not increase significantly. With the corroboration debate unresolved, the 2013/14 figures should remind folk - there's a yawning gulf between (a) more people being prosecuted and (b) a greater percentage of people being convicted for sexual offences.So what about the offences created by the new football legislation? According to the government figures, conviction rates for Offensive Behaviour and Football complaints and indictments are - remarkably - low. Of the 154 folk prosecuted for football-related offences, a stonking 74 were acquitted. That gives us a parlous conviction rate under the law of 52%. The overwhelming majority of these acquittals will be from sheriffs - from professional judges - not juries. This stinking conviction rate can't be blamed on the paradoxical conclusions of the Airdrie jury, or the partisan, Old Firm panel of fifteen ordinary punters. It speaks to the vices of the original Bill that was rushed so loyally and so inadequately through Holyrood.