Stated Cases By William Donnelly And Martin Walsh Against Procurator Fical, Edinburgh
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lord Boyd of Duncansby,Lord Justice Clerk |
| Judgment Date | 19 March 2015 |
| Neutral Citation | [2015] HCJAC 35 |
| Court | High Court of Justiciary |
| Published date | 15 April 2015 |
| Docket Number | HCA/2014 |
| Date | 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...
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