Lady Paton

Appellant: Brown QC, AD; Crown Agent

Respondent: Gilfedder, Solicitor Advocate; Paterson Bell, Edinburgh

20 June 2013

Introduction
[1] This is an appeal by way of stated case at the instance of the Procurator Fiscal, Dingwall. The respondent is Joseph Anthony Cairns.

[2] The respondent appeared before the sheriff at Dingwall on 4 February 2013 for trial on the following charge:

"(1) on 18^th August 2012 at Victoria Park Football Stadium, Dingwall you Joseph Anthony Cairns, being a person in a ground where a regulated football match is being held, did engage in behaviour of a kind described in section 1(2)(d) and (e) of the aftermentioned Act, which is likely or would be likely to incite public disorder, in that you did chant phrases and songs in support of a proscribed terrorist organisation and make threatening gestures towards opposing fans; CONTRARY to the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 section 1(1)"

Evidence was led by the appellant from two witnesses: police constable Barry Inglis and police constable Colin Stevenson. In addition there was lodged on behalf of the appellant a joint minute of agreement agreeing the terms of the lyrics to two songs known, respectively, as "The Roll of Honour" and "The Boys of the Old Brigade". At the conclusion of the Crown case on the unopposed motion of the appellant, the sheriff allowed the complaint to be amended by deleting the words "and make threatening gestures towards opposing fans" and "(d) and " where it occurs following "section 1(2)". The solicitor acting for the respondent then made a submission to the sheriff in terms of section 160 of the Criminal Procedure (Scotland) Act 1995 that there was no case to answer. After hearing both parties the sheriff sustained the submission and acquitted the respondent.

[3] The question stated by the sheriff for the opinion of the High Court is: "Did I err in law in upholding the submission of no case to answer?" For the reasons which follow, we would answer that question in the affirmative.

Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012
[4] The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 provides, inter alia, as follows:

"1 Offensive behaviour at regulated football matches

(1) A person commits an offence if, in relation to a regulated football match -

(a) the person engages in behaviour of a kind described in subsection (2), and

(b) the behaviour-

(i) is likely to incite public disorder, or

(ii) would be likely to incite public disorder.

(2) The behaviour is

(a) expressing hatred of, or stirring up hatred against, a group of persons based on their membership (or presumed membership) of-

(i) a religious group,

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

(iii) a group defined by reference to a thing mentioned in subsection (4),

(b) expressing hatred of, or stirring up hatred against, an individual based on the individual's membership (or presumed membership) of a group mentioned in any of sub‑paragraphs (i) to (iii) of paragraph (a),

(c) behaviour that is motivated (wholly or partly) by hatred of a group mentioned in any of those sub‑paragraphs,

(d) behaviour that is threatening, or

(e) other behaviour that a reasonable person would be likely to consider offensive.

(3) For the purposes of subsection (2)(a) and (b), it is irrelevant whether the hatred is also based (to any extent) on any other factor.

(4) The things referred to in subsection (2)(a)(iii) are-

(a) colour.

(b) race,

(c) nationality (including citizenship),

(d) ethnic or national origins,

(e) sexual orientation,

(f) transgender identity,

(g) disability.

(5) For the purposes of subsection (1)(b)(ii), behaviour would be likely to incite public disorder if public disorder would be likely to occur but for the fact that-

(a) measures are in place to prevent public disorder, or

(b) persons likely to be incited to public disorder are not present or are not present in sufficient numbers.

...

2 Regulated football match: definition and meaning of behaviour 'in relation to' match

...

(2) For the purposes of section 1(1), a person's behaviour is in relation to a regulated football match if-

(a) it occurs-

(i) in the ground where the regulated football match is being held on the day on which it is being held,

(ii) while the person is entering or leaving (or trying to enter or leave) the ground where the regulated football match is being held, or

(iii) on a journey to or from the regulated football match, or

(b) it is directed towards, or is engaged in together with, another person who is-

(i) in the ground where the regulated football match is being held on the day on which it is being held,

(ii) entering or leaving (or trying to enter or leave) the ground where the regulated football match is being held, or

(iii) on a journey to or from the regulated football match.

(3) The references in subsection (2)(a) and (b) to a regulated football match include a reference to any place (other than domestic premises) at which such a match is televised; and, in the case of such a place, the references in subsection (2)(a) and (b) to the ground where the regulated football match is being held are to be taken to be references to that place.

(4) For the purpose of subsection (2)(a) and (b)-

(a) a person may be regarded as having been on a journey to or from a regulated football match whether or not the person attended or intended to attend the match, and (b) a person's journey includes breaks (including overnight breaks).

...

4 Sections 1 and 2: interpretation

(1) Section 1(1) applies to-

(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done, and

(b) behaviour consisting of-

(i) a single act, or

(ii) a course of conduct."

Crown evidence
[5] The sheriff summarised the evidence of the two Crown witnesses as follows:

"Police Constable Inglis gave evidence that he was a police constable of Strathclyde Police based at Govan police office, Glasgow. On Saturday 18 August 2012 he was attached to FOCUS (the Football Co‑ordination Unit for Scotland) and was tasked, along with his colleague PC Stevenson, to travel to Dingwall where a football match was due to take place at Victoria Park between Ross County and Celtic. The match was an SPL (Scottish Premier League) fixture and as such was a regulated football match in terms of the 2012 Act.

PC Inglis said that FOCUS officers attend football matches in full uniform, and that they are equipped with hand held video cameras and bodycams. He was trained in the use of this equipment, the purpose of which is to record offensive behaviour for use as evidence in court proceedings. The video camera has a screen which can be looked at while filming is being undertaken. The bodycam can be clicked on and off, and is effective for close‑up shots only.

PC Inglis stated that his specific duties on the day in question were to monitor the away support for offensive singing and/or behaviour. To that end he took up a position between the north and west stands at Victoria Park. The away support was housed in the north stand, with some away supporters also accommodated in the east stand. He described the stadium as being 'fairly full' and estimated that there were between 3000 and 4000 spectators in the ground.

PC Inglis said that he became aware of a song entitled 'The Roll of Honour' being sung from the north stand. His observations focussed on certain individuals who were singing the song, one of whom was the respondent who had his shirt off and had his hands in the air. He could hear the respondent singing the song. PC Inglis used his hand-held video recorder to film the respondent singing.

PC Inglis gave evidence that at half time, accompanied by a local officer, he spoke to the respondent in the concourse at the rear of the north stand and informed him that he was suspected of having committed an offence under section 1 of the 2012 Act. The respondent was told that video footage would be reviewed and that if it was found to show offensive behaviour further action would be taken. PC Inglis stated that a couple of days later, along with his colleague PC Stevenson, he reviewed the video footage that had been taken.

At this point the procurator fiscal depute played Crown Label 1, which PC Inglis identified as a DVD of the video footage that had been taken at the match. This DVD consisted of two separate sections of footage, the first of which related to the incident narrated above. PC Inglis said that he could identify the respondent singing some of the words of 'The Roll of Honour'. PC Inglis then watched the second section of footage (which had been recorded later on during the match) and said that he could say that the respondent was singing the line 'I joined the IRA' from the song 'The Boys of the Old Brigade'. He said that he had been able to hear the respondent singing this at the time he recorded the video footage.

The procurator fiscal depute asked PC Inglis about the songs he had mentioned in his evidence. PC Inglis stated that he knew the words of these songs as a result of his work with the FOCUS unit. He was not familiar with these songs before that. He had now learned that both songs tend to be sung by Celtic supporters. 'The Roll of Honour' is about the hunger strike in the early 1980s. The persons named in the song are the ten paramilitary prisoners who died during the hunger strike. PC Inglis had learned that these persons were associated with the IRA and the INLA, both of which he understood to be prohibited organisations. 'The Boys of the Old Brigade' is a song which refers to the 1916 Easter Rising in Ireland and contains a reference to joining the IRA.

PC Inglis further stated that he and his colleague had reviewed the video footage on a frame by frame basis. Having done so he was able to say that, at one point, the respondent could be seen to be making a gesture which PC Inglis could interpret as mimicking the loading or firing of a rifle into the air. This was a gesture which he said he had seen before and he believed it was intended to mimic a paramilitary action. The video footage was played and stopped on a number of occasions until eventually it was frozen at a point where PC Inglis said that this gesture could be seen on the screen.

In cross examination, PC Inglis estimated that there were a total of maybe 2500 Celtic fans at the match, many of whom were singing. It was put to him that the IRA was an organisation of a different character in 1916. He replied that people hearing a song about the IRA would associate the reference with the modern‑day IRA. His position was that singing such a song was showing support to a terrorist organisation and that, in terms of the Lord Advocate's guidelines, this constituted an offence under section 1(2)(e) of the Act.

PC Inglis confirmed that he was unaware of any reaction from the home support to the songs that were being sung. Nor was he aware of any complaint having been made about the singing.

PC Colin Stevenson was the second Crown witness. He also spoke to being a member of the FOCUS unit who attended the Ross County v Celtic match (a regulated match in terms of the 2012 Act) at Victoria Park, Dingwall on Saturday 18 August 2012. Once inside the stadium he was positioned beside PC Inglis in the northwest corner, facing the majority of the Celtic supporters housed in the north stand. PC Stevenson was wearing a bodycam. He was aware of his colleague operating a hand held video camera.

PC Stevenson said that, shortly before kick off, the majority of Celtic fans in the north stand were singing 'The Roll of Honour'. Like his colleague, PC Stevenson said that he had become familiar with the words of this song as a result of his work with the FOCUS unit. He had also become familiar with the words of the song 'The Boys of the Old Brigade'. He understood the former to refer to the hunger strikers who died in the 1980s and who he understood to be connected to terrorist groups. It was his understanding that the latter referred to the 1916 rising. The song contains a line about joining the IRA. PC Stevenson said that he recognised the song 'The Roll of Honour' as soon as the Celtic fans started to sing it. (The clear inference from this evidence was that he recognised the tune). He subsequently (some days later) watched and reviewed the first clip of video footage that his colleague had taken at the match. He was asked by the procurator fiscal depute to view the footage and on doing so identified the respondent as a person singing the lines from 'The Roll of Honour'. He said that his attention had been drawn to the respondent because of his demeanour: he was quite vociferous, and was singing in the direction of the home support.

PC Stevenson said that, while he had not been aware of it at the time, review of the video footage had led him to the opinion that, at one point, the respondent made a gesture which mimicked the loading or shooting of a rifle. That was, he said, something he had seen being done previously by Celtic fans. He understood the gesture to be associated with the IRA. He said that, on this occasion, the gesture did not appear to be directed towards anyone.

PC Stevenson was then asked to view the second clip of footage taken by his colleague. He said that, although he had not been aware of it at the time, he could now say that it appeared to show the respondent singing lines from 'The Boys of the Old Brigade'. PC Stevenson then went on to give evidence about the respondent being spoken to at half time and the subsequent review of the video footage. He also stated that he subsequently arrested and charged the respondent."

The sheriff's reasoning
[6] In explaining why he had upheld the submission on behalf of the respondent that he had no case to answer, the sheriff began by noting that there were two elements to an offence under section 1(1) of the 2012 Act where, as in the present case, the Crown has led evidence of events related to a regulated football match. The Crown must first prove, as is provided by section 1(1)(a), that the accused had engaged in behaviour of a kind described in section 1(2). In this case, the Crown sought to prove that the respondent had been guilty of behaviour such as is described in subsection 1(2)(e), that is behaviour that a reasonable person would be likely to consider offensive. The sheriff took the view that in this case the Crown had led evidence which, taken at its highest, was sufficient to prove that the respondent had as a matter of fact sung songs the words of which expressed praise for Irish hunger strikers and contained a line about joining the IRA. He also took the view that it was conceivable that a reasonable person would consider it offensive if he were to hear such words in the course of trying to watch a football match between two Scottish football clubs on a Saturday afternoon in Dingwall.

[7] However there was also, the sheriff noted, a second element to the offence. In terms of section 1(1)(b) the Crown had to prove that the behaviour in question was likely to incite public disorder or would be likely to incite public disorder. In the view of the sheriff the video recording which he had watched in the course of the witness's evidence made it abundantly clear that, while the respondent (and a great many other Celtic supporters), could be seen singing songs, it was quite impossible for the uninitiated listener to make out the words of what they were singing. Both the police officers who had given evidence freely admitted that they would have been unable to pick out the words of the songs being sung were it not for the knowledge that they had acquired in the course of their work as members of the FOCUS unit. These songs and the words of these songs, are accordingly clearly not familiar to the public at large. Even with their specialist knowledge, the police officers both required to study the video footage before they could confirm that the respondent could be seen singing what they regarded as the relevant offensive lyrics. In the opinion of the sheriff there was accordingly no proper basis for concluding that anyone who might have been incited to disorder would have been able to make out what it was that the respondent and others were singing (assuming that the respondent could in fact be seen to be singing at all by rival supporters who would inevitably have been much further from him than were the police officers who gave evidence). Since there was no proper basis for inferring that any person who might be incited to disorder would have been able to tell that the respondent was singing about the hunger strikers or joining the IRA there was equally no proper basis for inferring that the respondent's behaviour was likely to incite public disorder

Submissions
[8] Having drawn the court's attention to sheriff's summary of the evidence, the advocate depute submitted that it demonstrated that the sheriff had heard that the two songs in question were songs that were commonly sung at football matches, that the tunes were familiar, and that the officers did hear the words or at least the words that referred to the hunger strikers and to joining the IRA. These were reference to relatively recent events in British history. The relevant behaviour engaged in by the respondent was the act of singing the two songs. What the sheriff was required to do was to assess the quality of that act. The Crown relied on section 1(2)(e) - behaviour that a reasonable person would be likely to consider offensive. The sheriff had found that it was conceivable that a reasonable person might consider the singing of songs containing the words to which he referred to be offensive but he took the view that the uninitiated would have to have been able to make out these words in the particular context in which they were sung by the respondent before it could be inferred that the respondent's behaviour was likely to incite public disorder or would be likely to incite public disorder. In this the sheriff erred. If the officers could hear the words, others could hear the words also. It was to be borne in mind that according to the evidence the respondent was singing towards the opposing team's supporters. As the courts have had occasion to observe, public disorder at football matches is by no means uncommon: Wilson v Brown 1982 SCCR 49 at 52, Allison v Higson 2004 SCCR 720 at para 6.

[9] Mr Gilfedder, on behalf of the respondent, urged the court to refuse the appeal. He supported the reasoning of the sheriff. It was important that the court should keep within the parameters of the narrative of evidence led. He accepted the first element which the Crown required to prove - offensive to a reasonable person - had been established. The second element had not been established. It was only because of the police officers' specialist training that they were aware of the words being sung. The sheriff had found that the songs were not familiar to the public at large and the public at large would not have been able to make out the words sung by the respondent. Given these difficulties, the sheriff had been correct in finding that the respondent had no case to answer.

Discussion
[10] In our opinion the sheriff misdirected himself on what the Crown had to prove in order to secure a conviction of a contravention of section 1(1) of the 2012 Act.

[11] In enacting section 1(1) the Parliament created a criminal offence with an extremely long reach. In the present case no question arises as to whether the respondent's behaviour was "in relation to a regulated football match" but it is to be noted that behaviour may be in relation to a regulated football match not only if it occurs in the ground where the match is being held on the day in which it is being held (irrespective of the time of day) or while the person is entering or leaving the ground but also if the person is on a journey to or from such a match. Moreover, in terms of section 2(4) of the Act a person may be regarded as having been on a journey to or from a regulated football match whether or not the person attended or even intended to attend the match. The behaviour which is relevant for the purposes of section 1 includes not only the specific behaviours described in paragraph (a) and (b) and (c) of section 1(2) but, in terms of section 1(2)(d), behaviour that is threatening and, as can be seen in the present case, in terms of section 1(2)(e), other behaviour that a reasonable person would be likely to consider offensive.

[12] The sheriff correctly identified that to be struck at by section 1(1) behaviour must not only be such that a reasonable person would be likely to consider it offensive but it must also either be likely to incite public disorder or would be likely to incite public disorder. Because, on the evidence led, the sheriff considered that there was no proper basis for inferring that any person who might be incited to public disorder would have been able to tell that the respondent was singing about the hunger strikers and the IRA, in his opinion there was no proper basis for inferring that the respondent's behaviour was likely to incite public disorder and, accordingly, the submission of no case to answer fell to be upheld. We cannot agree with that conclusion. As the advocate depute argued, it is by no means clear why the sheriff came to the view that he did on the evidence. Two police officers had given evidence that they recognised the song and heard certain of the words sung. As the advocate depute argued, if the police officers were able to recognise the song and hear the words, other persons must also have been able to do so. The sheriff appears to have adopted the view that the only candidates as persons likely to be incited to public disorder were the (apparently unperturbed) Ross County supporters. Why other persons might not be candidates, including persons standing close to or even among the "majority of the Celtic supporters housed in the north stand" is not explained by the sheriff. However, be that as it may, the sheriff does not appear to have considered the effect of section 1(5). That subsection provides that for the purposes of section 1(1)(b)(ii), behaviour "would be likely to incite public disorder" if public disorder would be likely to occur but for the fact that either 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 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. As section 1(5)(b) provides that such persons need not be present for the purposes of determining whether specific behaviour would be likely to incite public disorder, it cannot be relevant to the question as to whether there has been a contravention of section 1(1)(b) that particular persons in a football ground could not actually hear the words being sung. In other words the actual context within which the behaviour occurs is not determinative. Where behaviour falls within any of the categories specified in section 1(2) it is sufficient for conviction that persons likely to be incited to public disorder would be likely to be incited to public disorder by the particular behaviour, whether or not they were present in sufficient numbers and whether or not they were subject to measures put in place to prevent public disorder. As it does not matter whether persons likely to be incited to public disorder are there in sufficient numbers or are there at all it cannot matter whether or not the persons who are present (whether likely to be incited to public disorder or otherwise) actually became aware of the relevant behaviour.

[13] It does not appear to us that the sheriff properly directed himself to the terms of section 1(5) and thereby fell into error. We shall accordingly allow the appeal and remit to the sheriff to proceed as accords.