Lord Carloway

Sheriff Principal Dunlop QC

Sheriff Principal Lockhart

[2009] HCJAC 59

Appeal No: XJ230/09


delivered by LORD CARLOWAY

in the appeal by stated case







Act: Findlay QC, CM Mitchell; Drummond Miller LLP (for Bob McDowall, Glasgow)

Alt: Mackay AD; The Crown Agent

19 June 2009

1. Proceedings before the Sheriff

[1] On 26 November 2008, the appellant appeared for trial at Kilmarnock Sheriff Court on a summary complaint which libelled that:

"on 9 November 2008 at Rugby park ... Kilmarnock you ... did conduct yourself in a disorderly manner, shout, swear, sing sectarian songs, shout remarks of a religious and racial nature and commit a breach of the peace; you ... did commit this offence while on bail, ... and it will be proved in terms of section 74 of the Criminal Justice (Scotland) Act 2003 that the aforesaid offence was aggravated by religious prejudice and it will be proved in terms of section 96 of the Crime and Disorder Act 1998 that the aforesaid offence was racially aggravated".

[2] The respondent adduced evidence from three principal witnesses. The first was a Superintendent of Police, who was the match commander at what was a Kilmarnock against Rangers game attended by some 10,000 people. He gave evidence that sectarian and bigoted chants could have an impact on the behaviour of parts of a football crowd, were they to take offence. He referred to "the Famine Song", which he regarded as racist; explaining that it referred to the Irish Famine and to people of Irish descent, who lived in the West of Scotland. The song carried the refrain "the famine's over, why don't you go home". The Superintendent knew the rest of the words, as would most football fans, and found them offensive.

[3] Although the lyrics of the song were agreed at the trial by joint minute, they do not feature in the stated case prepared by the Sheriff and she makes no findings in fact relating to their precise terms.

[4] The second witness was a female steward, employed by Rangers, who policed the Rangers' section of the crowd. She too knew the refrain of the song, the singing of which was prohibited by Rangers under pain of suspension from attending Rangers' matches. The steward spoke to the appellant being part of the Rangers' section. The Sheriff records her evidence as follows:

"She saw [the appellant] repeatedly standing up singing the song, waving his arms in the air. She saw and heard him singing the refrain from the famine song. She heard him sing and say 'fenian bastards' or 'f*** the Pope' on two or three occasions. The [appellant] was warned a number of times and on one occasion he was asked to sit down. He refused to sit down. The [appellant] persisted in standing up 'conducting' the crowd. He stood in the aisles on occasions, which is a safety issue. ... once the majority had stopped singing, he would stand up with his hands in the air and get them to sing another few lines".

The witness had been concerned about the effect of the appellant's behaviour on the crowd, although there was no actual effect as she saw it.

[5] The third witness was another Rangers' steward, this time a male. As reported by the Sheriff, he spoke to the appellant having his hands raised and singing "the famine is over", "fenian bastard" and "f*** the Pope" on a number of occasions. He clearly sang the Famine Song refrain and was shouting abusive language. The appellant was gesturing to the Kilmarnock support. He stood in the aisle on many occasions. He had been asked to sit down by other stewards, but had refused to do so. He was concerned about the appellant's behaviour, which "bothered" him.

[6] At the conclusion of the crown case, the appellant made a "no case to answer" submission on the basis that there was insufficient evidence of a breach of the peace. There had been no evidence of fear and alarm or distress. The respondent countered under reference to dicta in Smith v Donnelly 2002 JC 65, Wilson v Brown 1982 SCCR 49, Allison v Higson 2004 SCCR 720 and Dyer v Hutchison 2006 SCCR 377, that it was sufficient that the conduct be likely to cause fear or alarm to a reasonable person in the vicinity.

[7] The Sheriff repelled the submission. In doing so, she applied herself to the test, contained in Smith v Donnelly (supra at para [17]), of whether the conduct complained of was "severe enough to cause alarm to ordinary people and threaten serious disturbance to the community". The conduct must be "genuinely alarming and disturbing, in its context, to any reasonable person". She referred also to Raffaelli v Heatly 1949 JC 101, where it was said that it was enough if the "conduct ... causes reasonable apprehension ... and ... that some mischief may result to the public peace". The Sheriff held that, taking the crown case at its highest:

"the [appellant] behaved in the way described in the charge and that in the circumstances in which it took place in the context of a football match, that that conduct was, or was likely to be, genuinely alarming and seriously disturbing to the ordinary reasonable person".

She regarded the appellant's conduct as "flagrant", in terms of Young v Heatly 1959 JC 66, and likely to provoke violence even within the Rangers' section of the stadium.

[8] The appellant did not give evidence. He did lead evidence from two of his friends and co-supporters at the match, who denied that the appellant either sang any part of the Famine Song or referred to the Pope or Fenians. Their evidence was ultimately rejected by the Sheriff.

[9] When it came to closing submissions, the appellant conceded that the words "f*** the Pope" and "Fenian bastards" had a religious aspect in terms of section 74 of the Criminal Justice (Scotland) Act 2003. However, he argued that there was no racial element involved in the appellant's conduct, especially in relation to the Famine Song, in terms of section 96 of the Crime and Disorder Act 1998. The submission included the proposition that, even if the appellant had been singing the refrain from the song, it could not be inferred that he knew the rest of the words. The song consisted of "banter" between supporters of Rangers and Celtic and did not involve any racist element.

[10] The Sheriff convicted the appellant of the charge as libelled. She considered, for the same reasons as merited the rejection of the "no case to answer submission", that the conduct did amount to a breach of the peace. In relation to section 74, she held that singing "f*** the Pope" and "Fenian bastards" displayed malice and ill will towards a religious group, presumably Roman Catholics. In relation to section 96, she held that singing the refrain from the Famine Song, which referred to people of Irish descent being asked to return home, was clearly racist. The appellant was placed on probation for eighteen months and made the subject of a Football Banning Order for two years.

2. The Appeal

[11] The Stated Case poses four questions:

"1. In the light of the evidence led, did I err in law in rejecting the

submission of no case to answer?

2. In the light of the evidence led, was I entitled to make the finding in

fact 12 and hold that the Appellant's conduct amounted to a breach of the peace?

3. In the light of the evidence led, was I entitled to find that the

Appellant's conduct was racially aggravated?

4. On the facts stated, was I entitled to convict as libelled?"

There were no adjustments proposed by the appellant to these questions or to the findings in fact, which were as follows:

"1. On 9 November 2008, Superintendent [RS] was match commander in respect of the football game between Kilmarnock Football Club, and Rangers Football Club. Said football match took place at Rugby Park, Rugby Road, Kilmarnock. He addressed his officers and the match stewards on public safety and prevention of disorder.

2. The crowd attendance on that date was 10,150 people, Rangers supporters consisted of 6,489 and Kilmarnock supporters consisted of 3,661. The crowd was segregated, and in particular the Moffat stand was occupied exclusively by said Rangers Football Club. The Appellant was seated in said Moffat stand.

3. The Superintendent was familiar with what has become known as 'The famine song'. Various verses in the song refer to people of Irish descent in a derogatory fashion.

4. All that was sung on the day of the match was the refrain 'The famine is over why don't you go home.'

5. The police and stewards were instructed to take prompt and effective action to de-escalate any potential situation involving spectators engaging in sectarian, religious or racist behaviour.

6. The Appellant attracted the attention [NT] and [MR], both stewards employed by Range[r]s Football Club. Their duty was to assist in the control of supporters. The Appellant was repeatedly standing up, waving his hands in the air. The Appellant repeatedly shouted 'Fenian bastards' and 'F*** the Pope'. These comments are offensive and derogatory to the Catholic religion. In making said comments the Appellant was evincing malice and ill will or was motivated by malice and ill will towards members of the Catholic faith.

7. The Appellant also repeatedly sang the words from a song known as 'The famine song'. In particular he sang the words 'the famine is over why don't you go home'. The said song is widely known as a song sung by some persons connected with Rangers Football Club. The singing of the song is banned by said Rangers Football Club. The Appellant was seen to be encouraging others to sing the words of said song. He was conducting the singing. The verses of said song contain offensive reference[s] to person[s] of Irish nationality or Irish Roman Catholic descent to return to Ireland. By singing said song the Appellant was evincing malice and ill will or was motivate by malice or ill will towards persons of Irish nationality or Irish Roman Catholic descent.

8. No one complained to the stewards about the [Appellant's] conduct.

9. Both Stewards reported the accused to their supervisor for using foul and abusive language and singing sectarian and racist songs over a protracted period despite being asked to desist.

10. The [Appellant] was asked to leave and refused to go.

11. NT gave evidence that she thought the song was offensive. MR describes the [Appellant] as badgering the other supporters, singing 'fenian bastard', 'f*** the pope' and using foul and abusive language.

12. The conduct of the Appellant was conduct likely to cause alarm and distress to any reasonable person and in the context of it having occurred in a football stadium the conduct was conduct likely to cause or provoke a more serious disturbance or violence".

[12] The appellant first requested an adjournment to allow him to raise a Devolution Issue concerning the compatibility of the complaint, notably the aggravations, with articles 8 (right to private and family life) and 10 (freedom of expression) of the European Convention on Human Rights and Fundamental Freedoms. It was accepted that neither article had been raised before the Sheriff either at the trial or in the application for a Stated Case. Indeed, the appellant had conceded the religious prejudice aspect of some of the remarks made, even although that concession was not now considered to have been correctly made.

[13] The Advocate Depute's submission was simply that he found it difficult to take a position in the absence of a written Notice of the Devolution Issue.

[14] It is neither practicable nor possible to consider a Devolution Issue within the context of a stated case which raises four specific questions, none of which touch upon that Issue. A Devolution Issue does not have an existence separate from the process in which it is taken. If a Devolution Issue arises then the point requires to be raised at the appropriate time. In the context of an appeal against a summary conviction, it required, in a case such as this, to be raised at the latest in the course of the application for, and adjustment of, the stated case (see Criminal Procedure (Scotland) Act 1995, sections 176(1)(b) and (3), 182(3)). This is simply because the stated case procedure is designed to focus questions for the Court to answer. It does not allow an appeal at large. Leave to appeal is granted only on the basis of the questions raised (1995 Act, section 180(1) and (2)). Of course, the Court could conceivably remit the case to the Sheriff to be restated having regard to the proposed Devolution Issue (1995 Act, section 182(6)) but it would be reluctant to do so where the Issue has not been raised at all during the past proceedings. In all these circumstances, the Court refused to adjourn the hearing.

[15] The appellant's submission on the merits focussed upon the singing of the Famine Song. He attempted to lay before the Court the actual words of the song as agreed in the Joint Minute, but it was pointed out that the Court would not normally go outwith the four corners of the Stated Case. There were no findings in fact about the precise wording of the lyrics; nor had the Sheriff rehearsed these words or referred to the Joint Minute in her Note on the evidence. The Court Minutes do record the lodging of a Joint Minute at the trial diet, but apparently at the end of the proceedings.

[16] The appellant maintained that the Famine Song did not contain racist elements. In particular, the refrain "the famine is over, why don't you go home" was not racist. It was just an expression of political opinion permitted by the general right of freedom of speech contained in article 10 of the European Convention (supra). It was no more racist than some of the lines in "Flower of Scotland", which bid King Edward to return to England to think again, or "God Save the Queen", which referred to "crushing" "rebellious Scots". The latter could be sung with impunity at any time and on any occasion (see also Owens v Procurator Fiscal, Hamilton, unreported, High Court on Appeal, 14 June 2005). The reference to Fenians was also a political one. "Fenians" was a reference to the Fenian Brotherhood, a political society, set up originally in America in the 1850s, to bring about the independence of Ireland. If the references were seen in their proper context, given that there was no evidence of any alarm or distress, the appellant's conduct could not be seen as amounting to a breach of the peace or to having a racially aggravated element. In the context of football matches, an exchange of abuse between supporters was part and parcel of going to a game. Shouting and swearing was commonplace. The fact that a song might cause offence was not enough. Something said which was true might cause offence. All that the appellant had done was sing the refrain element and knowledge of the remainder of the song could not be imputed to him.

[17] Under reference to Smith v Donnelly (supra) and Dyer v Hutchison (supra) the Advocate Depute submitted that there was sufficient evidence from the Superintendent and the stewards to entitle the Sheriff make the findings in fact. The religious aspect had been conceded and there was also sufficient evidence of racial prejudice.

3. Decision

[18] In analysing the evidence, the Sheriff applied herself to the correct test, which is that set out in Smith v Donnelly (supra at para [17]). A breach of the peace may occur where the conduct complained of is "severe enough to cause alarm to ordinary people and threaten serious disturbance to the community". The conduct must be "genuinely alarming and disturbing, in its context, to any reasonable person". The Court has no doubt that the conduct of the appellant did amount to a breach of the peace, even in the context of a football match where at least shouting and singing, or hearing shouting and signing, are undoubtedly part of the match experience expected by all attending the stadium. As a generality, a complaint of someone shouting and singing could not ground a complaint of breach of the peace at a football match, as it might at other locations. Equally, occasional standing up and even leading communal singing are unlikely to amount to conduct severe enough to threaten serious disturbance. However, presence inside a football stadium does not give a spectator a free hand to behave as he pleases. There are limits and the appellant's conduct went well beyond those limits.

[19] First, he was repeatedly shouting religious abuse in the form of "f***" the Pope". Whatever relevance the appellant thought this expression had to a match between Kilmarnock and Rangers, it is conduct which some, perhaps many, attending a football match are likely to find offensive. Secondly, the appellant was repeatedly shouting "Fenian bastards". The Court does not accept that the appellant was referring to members of the American brotherhood formed in the 1850s. It is within judicial knowledge that the term "Fenian" is used by a certain section of the population to describe a person either of Irish ancestry or even a person of the Roman Catholic faith, whether of Irish ancestry or not. Coupled with the derogatory term "bastard", this is either an expression of religious prejudice or racial bigotry or both. Again, some, perhaps many, persons at a football match are likely to find it offensive. Thirdly, the appellant was singing the refrain from the Famine Song. It is slightly unfortunate that the Sheriff did not make any findings on the precise terms of the lyrics of the song, but she has adequately set out that the witnesses described the song as offensive and referring to the "Irish Famine", presumably the potato famine of the 1840s. The song calls upon persons of Irish descent, who are living in Scotland, to go back to the land of their ancestors, namely Ireland. The Court does not consider that the lyrics of this refrain bear any reasonable comparison to those of "Flower of Scotland" or indeed "God Save the Queen". Rather they are racist in calling upon people native to Scotland to leave the country because of their racial origins. This is a sentiment which, once more, many persons will find offensive.

[20] Thus far, therefore, the appellant was repeatedly using offensive and abusive language. That in itself may be sufficient to merit a conviction for a breach of the peace since, even in the context of a football match, such conduct may be so flagrant that it can be regarded as severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community. It may be "genuinely alarming and disturbing, in its context, to any reasonable person", given that there are many spectators at football matches who actually want to watch the game rather than spend their time abusing the opposition support. In that connection, the next thing that the appellant was observed doing was repeatedly (not just occasionally) standing up. Coupled with this, however, is the fact that those charged with control of the crowd at the match have repeatedly asked the appellant to stop behaving as he was doing. But he repeatedly refused to do so. Once more, where that is occurring, it is a legitimate inference that persons in the crowd are likely to be alarmed and disturbed by such behaviour and that it does have the potential to cause or threaten serious disturbance. In all these circumstances, the Sheriff was entitled to repel the "no case to answer" submission, to make finding in fact 12 and to convict the appellant of a breach of the peace.

[21] In relation to the aggravations, section 74(2) of the 2003 Act (supra) provides, in part, that :

"(2) ... an offence is aggravated by religious prejudice if-


(b) the offence is motivated (wholly or partly) by malice and ill-will

towards members of a religious group, or of a social or cultural group with a perceived religious affiliation, based on their membership of that group".

For the reasons given above, the Court has no difficulty in accepting the Sheriff's conclusion that the use of words such as "f*** the Pope" and "Fenian bastards" display malice and ill will towards those of the Roman Catholic faith.

[22] Section 96(2) of the 1998 Act (supra) provides, in part, that:

"An offence is racially aggravated ... if-


(b) the offence is motivated (wholly or partly) by malice and ill-will

towards members of a racial group based on their membership of that


For the reasons given above, the Court also has no difficulty in accepting the Sheriff's conclusion that singing the refrain from the "Famine Song" and referring to persons as "Fenian Bastards" displays malice and ill-will towards people of Irish descent living in Scotland. In the context of a football fanatic, such as the appellant, who has presumably attended other Rangers' matches where this song has been sung, even if he did not know all the words to all the verses, he would be well acquainted with their general import and sentiment.

[23] The Court will answer the first question in the negative and the second, third and fourth questions in the affirmative. The appeal is therefore refused.