Lady Smith

Appellants: (1) Collins, Sol Adv; Capital Defence, Edinburgh (2); McElroy, Belmonte & Co, Edinburgh (3) Borthwick, Swinborne & Co, Glasgow (4) McQuillan, Sol Adv; Hughes Walker, Edinburgh (5) Allan, Sol Adv; BCKM, Edinburgh (6) Mackenzie; Beaumont & Co, Edinburgh

Respondent: McSporran, Sol Adv, AD; Crown Agent

28 June 2013

[1] At the outset of the hearing today, there were six appeals before the court but, as we explain below, two were withdrawn. This is our decision in relation to the remaining four appeals at the instance of Andrew Blance, Ryan Low, Charles Raynes and Leon Walker.

[2] In these cases it is alleged, in terms of charge (1) on the indictment that the appellants contravened section 1(1) of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.

[3] As the sheriff explains in his report at paragraph 12, at an earlier stage, "special capacity" challenges were raised by minutes under section 255 of the Criminal Procedure (Scotland) Act 1995. Those minutes were, however, overtaken by minutes stated as being presented under and in terms of section 79(2)(b)(6) of the 1995 Act. Those minutes came before the sheriff on 26 April 2013. The sheriff explains, at paragraph 14, that the appellants came to define the preliminary issue for debate as being: "Whether or not the alleged behaviour could properly be said to be "in relation to a regulated football match" for the purposes of section 11 of the 2012 Act".

[4] The sheriff then heard debate on the issue. Certain concessions were intimated, as recorded by the sheriff at paragraph 15 of his report, which we do not propose to rehearse in detail. They were not incorporated into a joint minute.

[5] Before us today, it was submitted for the appellants that, whilst there was no challenge to the relevancy of charge (1), we should provide, in essence, an interpretation of sections 1 and 2 of the 2012 Act and that that interpretation ought to be to the effect that it was not enough to be on a journey from a regulated football match; the behaviour alleged also required to be in relation to the regulated football match.

[6] For the Crown, the advocate depute submitted that the court could not properly adjudicate upon the issue raised by the appellants. What had happened here was that there was no preliminary issue identifying the libel as being irrelevant. Rather on the back of minutes which had challenged special capacity, the appellants had gone on to engage in a wide ranging debate. That debate had proceeded, essentially, on the basis of hypotheses in circumstances where no evidence had been led. It was necessary that the matter go to trial. Only thereafter would it be possible to identify whether or not any error had been made - by the trial sheriff - in relation to the interpretation of the statute. The points raised and discussed by the sheriff were interesting ones but there was no proper context. The advocate depute pointed to the possibility of evidence going beyond the fact of the appellants being on a journey.

[7] The advocate depute submitted that it was premature for the sheriff to have taken up, discussed and in any way, determined the issue raised in the absence of any assertion that the libel was irrelevant. The advocate depute observed that there was no incompatibility minute. It was, he submitted, difficult to see the focus of the appeal. The answer provided by the sheriff seemed to have been to a question which had not been asked. It was not for this court to give guidance which, to some extent, seemed to be the approach of the appellants. That would, inevitably, be guidance only in relation to hypotheses and would have no practical effect. The appeals could not be productive of any useful answer.

[8] Finally, the advocate depute submitted that the appellants' motion was incompetent. The minutes were said to be presented under section 79(2)(b)(6) of the 1995 Act but those provisions did not cover what the appellants were seeking to do here. They were trying to raise matters that went beyond what was envisaged by those statutory terms.

[9] In response to the advocate depute's submissions, Mr Collins invited us notwithstanding the matters raised, to rule on the interpretation on the 2012 Act. He confirmed that he was not saying the statutory charge was irrelevant, but the appellants were looking for a ruling on this matter to assist them in going forward. It was not accepted that the minutes were incompetent. His submissions were adopted by Miss McQuillan, Mr Allan and Miss MacKenzie.

[10] Mr McElroy and Mr Borthwick did not adopt Mr Collins' submissions in reply to the advocate depute. They both stated that, on reflection, they accepted that the advocate depute's approach was correct and they withdrew the appeals for those appellants who they represented.

Decision

[11] The sheriff was being asked to determine what was, essentially, a hypothetical question. There was no challenge to the relevancy or competency of this statutory charge. He was simply being asked to interpret the statute in advance of trial. Evidence had not yet been led, nor was there agreement as to the totality of the relevant facts; we refer, for instance, to the explanation provided by the procurator fiscal that is referred to at paragraph 33 of the sheriff's report regarding what evidence the Crown proposed to lead in addition to those facts which had been conceded for the purposes of the debate. Further, as we have already observed, those matters had not been made the subject of a joint minute..

[12] We would add that we are not satisfied that the issue to which the appellants asked the sheriff to address his mind, although presented in the form of section 79(2)(b)(6) minutes was one which in the circumstances could properly be raised under those statutory provisions. It was not a preliminary issue of the type that is covered by them. In essence, what the appellants were looking for from the sheriff, and what they are looking for from this court, is a text book type analysis of or commentary on what the legislation means and how it might be applied in a hypothetical case. That, however, interesting as it might prove to be, is not the court's function. We are satisfied that the advocate depute was correct in his submission that the sheriff should not have been asked to and should not have entertained, this debate which, in the event, caused him to apply himself carefully and diligently to a consideration of the questions that might be raised by the legislation.

[13] It follows from our decision that the outstanding appeals must be refused.