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STATED CASES BY WILLIAM DONNELLY AND MARTIN WALSH AGAINST PROCURATOR FICAL, EDINBURGH


Submitted: 19 March 2015

 

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 35

HCA/2014/5142/XJ and HCA/2014/5140/XJ

Lord Justice Clerk

Lord Bracadale

Lord Boyd of Duncansby

 

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

STATED CASES

by

WILLIAM DONNELLY and MARTIN WALSH

Appellants;

against

PROCURATOR FISCAL, EDINBURGH

Respondent:

Appellants: CM Mitchell; Paterson Bell

Respondent: R Goddard, Solicitor Advocate AD; the Crown Agent

 

19 March 2015

Introduction
[1]        The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 is a measure introduced to address what many, but by no means all, consider to be the serious social issue of sectarianism in football.  The main, but not exclusive, focus is on the behaviour of certain Celtic and Rangers fans with their long standing attachment to opposing factions involved in the politics of Ireland, and Ulster in particular.  The continuing relevance of such issues to sport is a source of some bafflement to many, even if their cultural origins are easily traced.  As the Policy Memorandum published with the Bill stated:

“There is a small often determined minority for whom provoking, antagonising, threatening and offending are seen as part and parcel of what it means to support a football team.  Whatever their motivation, this Bill seeks to demonstrate that such a view is mistaken and will no longer be accepted”.

 

[2]        Section 1 of the Act provides, inter alia, that it is an offence for a person, at a regulated football match, to engage in behaviour which is [(2)(d)] threatening or [(2)(e)] offensive (judged objectively) and likely to incite public disorder.  There is an additional definition (s 1(5)) whereby behaviour is likely to incite public disorder if such disorder would be likely to occur, but for measures put in place to prevent it or the absence of persons likely to be incited.  The latter provision is presumably intended to exclude a defence based upon the fact that those attending the match are so inured to the threatening or offensive behaviour that they will choose to tolerate it in silence rather than challenge it and thus create disorder themselves.

[3]        The rather unusual point raised in the appeals, in so far as leave has been given, is whether the appellants’ rights under Article 7 of the European Convention (No punishment without law) have been infringed, not by reason of the definition of the offence under section 1 being incompatible on account of uncertainty, but because the appellants might not have appreciated that their rendition of the song “The Roll of Honour” could be regarded as threatening or offensive and thus render them liable to criminal conviction and sentence.

 

Facts
[4]        The two appellants were convicted of acting contrary to section 1 in respect of threatening and offensive behaviour on 19 October 2013 at Easter Road stadium, in that they sang a song in support of a proscribed terrorist organisation.  The sheriff found in fact that the appellants were sitting together in the away stand when they, and others around them, began to sing a song called “The Roll of Honour”.  This song is one whose lyrics proclaim support for members of the Irish Republican Army and the Irish National Liberation Army, who died during the hunger strike at the Maze Prison near Belfast in 1981.  The IRA and the INLA are both proscribed terrorist organisations (Terrorism Act 2000).  The lyrics contain such lines as “England you’re a monster.   Don’t think that you have won.  We will never be defeated while Ireland has such sons” and “Your souls cry out.  Remember our deaths were not in vain.  Fight and make our Homeland a nation once again”. 

[5]        The singing of the song provoked boos from the Hibernian fans.  There is a specific finding of fact, which is not in dispute, that the singing was likely or would be likely to incite public disorder.  There is also a finding that the appellants’ behaviour was in breach of the section.  This carries with it, in the absence of challenge, the implied elements of the behaviour being threatening and offensive.  Although the appellants raised a point en passant about the absence of findings of fact on these matters, the issue in the appeal is not whether the appellants’ actions were threatening or offensive (as the sheriff plainly concluded they were) but whether the appellants would have appreciated that their behaviour might contravene the section.  No adjustments were proposed by the appellants in relation to the nature of the conduct.

[6]        In his Note, the sheriff does make certain pertinent observations on the evidence.  He mentions that one of the police officers, who was part of a specially trained group tasked with dealing with the not infrequent occurrence of violence and disorder at matches, was from the east end of Glasgow.  She was fully familiar with the history of the song and its cultural significance (as, incidentally, was the sheriff).  It was, she said, widely regarded as sectarian and offensive.  This was recognised by the official Celtic supporters’ organisations and the football club itself.  Warnings about singing sectarian songs were broadcast before matches and the club and supporters’ websites warned of the undesirability and dangers of singing this particular song, among others.  The appellants had been in the middle of the upper tier of the stand amongst a group of 15 or 20 all singing loudly and lustily.

 

The Question
[7]        The question posed by the sheriff contains what must be a number of typographical errors.  The court has interpreted it ([2015] HCJAC 19) as meaning:

“In the particular circumstances of the case, was the appellants’ right to know, with sufficient clarity of the nature of the crime, in terms of Article 7 [of the European Convention] breached?”.

 

That is the only question which the court requires to answer; being the only one for which leave to appeal has been granted.

 

Submissions
[8]        Given that the appellants were not contending that the terms of section 1 of the 2012 Act were themselves incompatible with the Article 7 right, the court had some difficulty in grasping the essence of the complaint and how the point might be formulated.  The background contention was that there was uncertainty at large about which songs could, or could not, be sung at football matches.  Some sheriffs had acquitted persons singing the Roll of Honour (PF (Inverness) v Calum Graham, Inverness Sheriff Court, 27 May 2013) and this had led some politicians and journalists to criticise the terms of the legislation.  The appellant in MacDonald v Cairns 2013 SCCR 422 had ultimately been acquitted, although the basis for that was not clear.  The Scottish Human Rights Commission had made representations to the United Nations Human Rights Committee in July 2014 about the scope of the Act.

[9]        Under reference to Smith v Donnelly 2002 JC 65 (at para 69) and its citation of dicta in SW v United Kingdom (1996) 21 EHRR 363 and Steel v United Kingdom (1999) 28 EHRR 603, it was contended that the appellants had a right “to foresee, to a degree that is reasonable in the circumstances the consequences which a given action may entail”.  The appellants here could not know that singing the song had potential criminal consequences.

[10]      The advocate depute responded by maintaining that MacDonald v Cairns (supra) was the complete answer to the appeal.  There, in advance of the appellants’ actions, the court had stated that an accused person singing this song at a football match would have a case to answer.  Legislation could be clarified by the decisions of the court and that had been done in relation to this song.  In any event, the statute envisaged 3 stages.  The person had to be at a match.  He had to use threatening or offensive behaviour.  That behaviour had to be likely to incite public disorder.  It would have been evident to the appellants that singing a song about proscribed terrorist organisations at Easter Road would be criminal.

 

Decision
[11]      Article 7 “embodies the principle that only the law can define a crime and prescribe a penalty” (SW v United Kingdom (1996) 21 EHRR 363 at para 35, following Kokkinakis v Greece (1994) 17 EHRR 397).  An offence must be clearly defined.  This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the court’s interpretation of it, what acts and omissions will make him criminally liable (ibid).  Judicial interpretation to produce clarity is legitimate if the resultant development “is consistent with the essence of the offence and could reasonably have been foreseen” (ibid para 36).

[12]      The appellants must be presumed to have been aware that, in terms of the section, behaviour at a football match would be criminal if it involved conduct which was threatening or such that a reasonable person would be likely to consider offensive and if that conduct was likely to incite public disorder.  It was established in MacDonald v Cairns 2013 SCCR 442, which was decided months before the match at Easter Road, that the singing of this particular song was potentially criminal.  The appellants must be taken to have been aware of that.  Quantum valeat, in the sheriff’s note it is recorded that the evidence had been that the song was widely regarded as sectarian and offensive and that warnings about sectarian songs were broadcast before matches and that both the club and the supporters’ websites warned fans of the undesirability and dangers in singing this particular song.

[13]      The short point here is that it is firmly established in law, and incidentally very well-known, that singing songs of a sectarian nature at football matches is likely to be a criminal act.  In this case the song celebrates the activities of members of proscribed terrorist groups.  It cannot come as a surprise that the singing of such a song by a significant group of fans at a match will be regarded by a reasonable person as being both threatening and offensive or that, but for the fact that football fans in Scotland are, as noted above, relatively inured to this type of conduct, likely to incite public disorder.  There is no need for proof of knowledge that the particular supporter was aware of the law or the status of the song.  The appellants were well aware of what they were engaging in. 

[14]      There is no blanket ban on singing sectarian songs and the appellants are at liberty to indulge their desire to do so at many alternative venues.  There is, however, a prohibition on doing so at football matches for the reasons outlined in the policy memorandum to the Bill (supra).  Indeed, the type of conduct here is precisely what the law is aimed at.  The questions will be answered in the negative and the appeals refused.