Lord Justice Clerk

Appellant: A Ogg, Solicitor Advocate; Callahan McKeown & Co, Renfew

Respondent: M Stuart, AD; the Crown Agent

28 February 2013

[1] On 28 August 2012, at the Sheriff Court in Glasgow, the appellant was convicted of a charge which libelled that:

"on 18 September 2011 at Edmiston Drive, Glasgow you ... conduct (sic) yourself in a disorderly manner wear a top which displayed slogans of an insulting and abusive nature and commit a breach of the peace".

The offence was committed whilst the appellant was on bail from the same court; the bail order having been granted on 2 August 2011. The sheriff imposed a Football Banning Order for a period of two years.

[2] The sheriff reports that the evidence was in fairly short compass. The respondent adduced testimony from two police officers, who were on duty at Ibrox Stadium, where Rangers were playing Celtic. The match concluded at about 2.30pm and about 3,000 Celtic supporters were leaving the stadium. These included the appellant, who was wearing a black top which, in bright green letters approximately 3 to 4 inches in size, displayed the letters "INLA". On the back of the top was, again in large bright green letters, the slogan "F... YOUR POPPY REMEMBER DERRY". As is well-known, the initials INLA refer to the Irish National Liberation Army, which is a proscribed organisation in terms of schedule 2 to the Terrorism Act 2000. The reference to Derry is, of course, to the events in that town on 30 January 1972.

[3] The police officers testified that, in the volatile atmosphere of a Rangers and Celtic match and its aftermath, it was likely that the insignia of this organisation would be regarded as offensive and inflammatory by Rangers fans, and that there was the potential for this to provoke disorder and disturbance. The Celtic fans, although cordoned off from the opposing support in the immediate vicinity of the stadium, would merge with the Rangers fans a few hundred yards down Edmiston Drive. The officers also considered that there was a potential for the reference to the INLA to provoke Celtic supporters too. They would not appreciate their football club being associated with such an organisation. The police thought that any reasonable person would consider the slogan relative to the poppy to be offensive and upsetting, likely to be inflammatory and to provoke disorder. This would apply particularly in relation to any members of the public attending the match who had served in the Armed Forces or had family or friends in the Forces.

[4] The sheriff noted that violence at football matches between Rangers and Celtic was by no means uncommon. She noted that, in Wilson v Brown 1982 SCCR 49, Lord Dunpark had stated that it was the duty of the police to forestall the eruption of violence wherever possible. The police had the power to terminate provocative conduct by arrest, if that were necessary, before it led to violence. The sheriff applied the test, outlined in Dyer v Hutchison 2006 SCCR 377, of whether the appellant's conduct was likely to cause distress or alarm to a reasonable person in the vicinity. She concluded that the appellant's conduct was in that category. She took the view that it had the potential to cause a serious disturbance, including violence, and that there was accordingly sufficient evidence to conclude that the appellant's conduct constituted a breach of the peace. In due course, she made that finding in fact and convicted the appellant.

[5] The sheriff also noted that the appellant had a significant number of previous convictions including assault, three offences of breach of the peace, including one aggravated by religious prejudice, and sundry other matters. He was a season ticket holder at Celtic and had not come to the attention of the police in the context specifically of football related offending. The conviction for aggravated breach of the peace had taken place in connection with an Orange Order march. In mitigation, it was said to the sheriff that the appellant had met with certain family members from Northern Ireland before the match and had been given the top as a present. It was maintained that he had been unaware of what the lettering represented, but this was rejected by the sheriff as implausible. The Criminal Justice and Social Work Report had indicated that the court might wish to consider the imposition of a Football Banning Order, in terms of section 51 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 and that is ultimately what the sheriff did.

[6] In submissions, it was contended that the evidence was insufficient from which to draw the necessary inference, in terms of Smith v Donnelly 2002 JC 65, that a breach of the peace had been committed. Equally, it was submitted that the sheriff had not been entitled to make a finding to that effect and ultimately to convict the appellant. Reference was made to: Allison v Higson 2004 SCCR 720; Dyer v Hutchison 2006 SCCR 377; Owens v Donaldson 2005 GWD 24-437; Walls v Brown 2009 SCCR 711; and Jones v Carnegie 2004 JC136. In relation to Jones v Carnegie in particular, it was stressed that, where there was no evidence of actual alarm, the conduct in question required to be flagrant. Finally, it was said that the court ought to bear in mind the right to freedom of expression under Article 10 of the European Convention. The appellant had simply been engaging in legitimate protest.

[7] On the issue of sentence, reference was made to Doolan v Procurator Fiscal, Airdrie XJ946/12, in which it was apparently determined that a Football Banning Order was not proportionate where a person had thrown a smoke bomb inside a football stadium. The court decided that the sheriff in that case had failed to give adequate consideration to the proportionality of imposing such an order, which the court described as involving a substantial interference with the liberty and private life of the person concerned. This related specifically to the reporting requirements which such an order carries.

[8] In relation to the merits of the conviction, the test of whether a breach of the peace has been committed is well-known and settled. It is, in terms of Smith v Donnelly 2002 JC 65, whether the conduct is severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community. It is conduct which presents as genuinely alarming and disturbing in its context to any reasonable person. If there is no evidence of actual alarm then, in terms of Jones v Carnegie 2004 JC 136 (at para [2]), the conduct requires to be "flagrant".

[9] Applying that test to the evidence before, and ultimately the facts as found by, the sheriff, the court has no difficulty in concluding that the appellant's conduct amounted to a breach of the peace. The actions of the appellant in wearing this top were not part of a legitimate protest. Rather they amounted to a deliberately provocative gesture, calculated to cause precisely the type of disturbance which the court referred to in Smith v Donnelly. His conduct, in the context of this football match and its aftermath, presented as genuinely alarmingly and disturbing to any reasonable person.

[10] The court does not consider that the appellant's right to freedom of expression was in any way be affected by his arrest and subsequent conviction. Even if the appellant does wish to engage in genuine protests, either in relation to Remembrance Day, the events of "Bloody Sunday" or about the proscription of the INLA, he has plenty of suitable opportunities in which to do so without intentionally provoking serious disturbance, including violence, in the community. The court will accordingly answer the first question in the negative, the second and third questions in the affirmative and refuse the appeal against conviction.

[11] The court notes that, although there may have been no specific previous conviction relative to football related offending, the appellant has previous convictions for public disorder and one involving a sectarian element. When the present conviction is seen in light of his criminal record, the court has no difficulty in holding that this was a case in which the imposition of the banning order was entirely proportionate. It will accordingly answer the fourth question in the negative and refuse the appeal against sentence.

DL