Reader “Henry Clarson” made some detailed and thoughtful comments on my earlier post, so I thought it best to put them up as a separate piece, with my thoughts below.
Thanks Henry for taking the time and trouble to contribute!
Comment by Henry Clarson
Paul, I’ve read both of your Neil Lennon articles and also the one by Chris Fyffe. I don’t question for a moment that both of you are acting in good faith and are trying your best to learn from this case as well as avoid knee-jerk reactions.
I fear, however, that you’re asking too many of the wrong questions in the hope that the answers you find will be other than the fundamental one which is staring everybody in the face.
How many mature democracies have such a problem with sectarianism that they still need to discuss introducing specific legislation to address that issue in 2011? Scotland and where else?
In how many democracies in the Western world is the abolition of Catholic schools relentlessly debated at every level of society?
Notwithstanding imperfections in the current legislation, why is that the overwhelming majority of hate crime victims come from a minority group, namely, Catholics?
Mr McBride referred at the end of his Newsnight interview to jurors who can full of prejudices. If anything, he is understating the likelihood. In a sectarian society, it would be astonishing if it proved to be otherwise.
Lawyers and legal professionals can have all the intellectual discussions they want. At ground level, where I dwell, if I were giving evidence in court against a sectarian thug who had assaulted me I might have confidence in the prosecutor’s determination to secure a conviction. I might be prepared to believe that the judge would ensure that the law was scrupulously followed. I could even accept that the law itself had been framed by public-spirited legislators to protect ordinary people from harm. However, I would be wondering how many of the jurors would, in normal everyday life, curl a lip at someone entering a chapel or narrow their eyes at the sight of an acquaintance wearing a green tee-shirt. It might not matter when the verdict came in but it would nonetheless be a consideration.
The fact is that a great many people in this sad, nasty, wee country were pleased that Neil Lennon’s assailant got off with the assault charge. A great many more were not nearly as surprised by the verdict as has been made out. Some spoke of their ‘surprise’ but what they really meant was that they were disgusted, angry, sickened, deflated or in despair. It’s shocking and shameful but not much more ‘surprising’ than the routine scandal of a law-abiding black person being stopped and searched by the institutionally racist Met.
Not everyone who lives in Scotland is anti-Catholic, anti-Irish, anti-Celtic and anti-Neil Lennon but I would have no problem rounding up eight of them who would have delivered the same verdict that the jurors in Edinburgh returned. I could do that every day of the week for the rest of my life. McBride is quite right to bring up the issue of prejudice. It is the glaringly obvious reality from which every other debate is a digression.
My Thoughts in Response
What I was doing, and what Chris Fyffe was too, I think, was trying to address the specific circumstances of the John Wilson case. How could the court system possibly clear a man of a charge when literally thousands of people have seen the “assault” on television, on the Internet, and in the newspaper pictures? From time to time there are cases which shake public confidence in the “justice” system – and I feel that it helps if there are people who can make some comment to try to explain what happened.
As I have said in everything I’ve written about this case, the verdict of not guilty on the assault charge was a great surprise to me, but as Chris Fyffe pointed out, once the specifics of the charge, together with what little evidence was reported, are considered, it is possible to see where the jury (or at least eight of them) were coming from. Were they right to do so? They heard the whole case, evidence and legal submissions, and one should always be wary about criticising a court decision based on the evidence if one was not in court to hear it, or if one has not read a full transcript of the case.
Henry’s comment looks much wider than the specifics of the case. It can be true that those with a legal background might be more focussed on the particularities of a case, rather than upon the generalities. Usually, as here, there is a reason for doing so, partly because, when it comes to the debate on the wider issue of sectarianism in Scotland, there are many people far better qualified than I am to discuss it.
Before offering my view on the generalities, I would say the following about the specific issues Henry raises to make my views clear. (In response to one of the earlier pieces, I was labelled a “Hun apologist” on Twitter!)
1 There is no doubt that there is a serious problem with what is labelled “sectarianism” in Scotland, especially in the West.
2 It has been described by the First Minister as “Scotland’s shame” and as a “cancer” upon our society, and the Scottish Ministers are pledged to reduce and eliminate it.
3 The furore about the incidents last season, and the proposed new football related legislation in the summer made it clear that, throughout Scottish society there was an apparent recognition of the problem and a stated desire to act to remedy it. The issue was how best to do so.
4 The most common victims of “sectarian” offences are those perceived to be associated with Roman Catholicism.
5 There are repeated efforts to attack the Catholic education system, which is wrongly blamed for promoting “sectarianism” even though many non-Catholic parents prefer to send their children to such schools, rather than to non-denominational ones.
6 Jurors are human beings. They will have prejudices. The court system is designed, as far as possible, to eliminate these prejudices from jury verdicts.
7 I agree that there will be some who welcome this verdict and who see this, in some warped way, as carte blanche to try to emulate Mr Wilson (although I suspect that when he is finally sentenced for his breach of the peace, people might react with surprise about how severe a punishment a court can, and will, impose for that crime).
8 Are there people in Scotland prejudiced against Catholics, Irish people, Celtic fans and Neil Lennon? (which is not to say that those categories are always related – they are not) Of course there are.
9 Is there a perception that, in the same way that Rangers are alleged always to benefit from support within the football authorities, the Scottish State is biased against Catholics? Yes, there is. As the saying goes, just because you are paranoid, it doesn’t mean they are not out to get you!
10 I grew up in Coatbridge, and even there, with its Catholic reputation, the problems of sectarianism were apparent, whether involving Celtic and Rangers or, on a lesser scale, Albion Rovers and Airdrieonians. Noticeably, in my day, the problems between school pupils did not relate to whether their were of a different demonination – being a different school was enough.
As I said, there are many better able to debate these matters than me, but I hope I can offer something from a legal background which might be of value (or indeed might not).
There is no doubt that there are tensions present in Scotland which are categorised under the heading of “sectarianism”. Anyone who suggests differently is wrong. But we need to look at how that manifests itself.
The majority of “sectarian” offences, as defined, seem to be committed in connection with football. This may relate to offences at or near the football ground, at or near a pub or club showing a game, or based upon someone wearing what is taken by someone else to be the “wrong” colours.
The law has recognised that there are certain matters categorised as “hate-crimes”. As an aside that always seems a rather Orwellian term, and not in a good way, but it is what those in authority use to describe these matters.
Specifically, in relation to sectarianism, we are talking about religion. The present law is laid down in the Criminal Justice (Scotland) Act 2003 section 74 titled “Offences aggravated by religious prejudice”.
Subsection 2 states:-
“For the purposes of this section, an offence is aggravated by religious prejudice if—(a)at the time of committing the offence or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will based on the victim’s membership (or presumed membership) of a religious group, or of a social or cultural group with a perceived religious affiliation; or(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.”
The use of the term “Fenian b######” as Mr Wilson was alleged to have shouted, was considered by the Appeal Court in Walls v Procurator Fiscal, Kilmarnock [2009] HCJAC 59 where the court rejected Donald Findlay QC’s argument that the use of the word “Fenian” was a comment regarding politics, whereby his client had been referring to the “Fenian Brotherhood, a political society, set up originally in America in the 1850s, to bring about the independence of Ireland.”
The Appeal Court rejected this, stating “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.”
As a side issue, it is interesting that, in Mr Wilson’s case, the aggravation was not libelled as a racial one, as it was for Mr Walls, even though Neil Lennon is notably Irish!
What we find is that the authorities are treating supporters of, for example, Celtic Football Club as being members or presumed members of a “social or cultural group with a perceived religious affiliation”. In such a case abuse of a Celtic fan (or indeed of a Celtic manager), becomes a “religious” aggravation. Whilst football is very important to many, and some go as far as to refer to it as a religion, the fact is that football and religion are not synonymous. Rangers fans are not necessarily Protestants; Celtic fans not necessarily Catholics.
In an alternate universe, Celtic and Rangers might be disbanded. This would not solve the “sectarian” issue overnight, but undoubtedly would take some of the heat out of the tensions which exist. There have been problems between Protestant and Catholic in Scotland since the Reformation, but now the “badge” of each side seems to be the support of the appropriate football team.
But, for many reasons, and rightly so, Celtic and Rangers are here to stay (the HMRC involvement in Rangers’ financial affairs permitting). I don’t imagine that many of the people shouting vile abuse at the other side on a Saturday are in their place in the pews in the Kirk or Chapel on a Sunday. Yet these football hatreds are classified as “religious”.
One of the problems with the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, the most recent effort to solve this problem, is the linking, I think, of football and religion.
Footballing hatred does not sit exactly on top of religious hatred in the relevant Venn diagram, but the approach to these matters seems to assume that they do.
Trying to squeeze circumstances into the guise of an “offence religiously aggravated” when it involves references to old political bodies, or even more ancient battles, such as the Battle of the Boyne, creates the problems exemplified by the Wilson case. The issue about whether he called Neil Lennon a “Fenian b######” which would have been a religious aggravation or as he claimed a “f##### w#####” which would not, seems bizarre. The bottom line was that the man attacked Neil Lennon and caused a breach of the peace, potentially inciting a riot. The linkage of football rivalry to religious has caused the stushie we have seen in recent days.
If then we are not to disband one, other or both of the Old Firm, how might the problems be addressed?
Parliament can make clear that offences are worse if they take place in particular places, or involving particular people. An example is the legislation protecting emergency workers.
Let our MSP’s forget about bundling football and religion together. Bring in specific legislation indicating that offences in connection with football can be treated more severely by the courts, due to the knock on effects on other “supporters”. Remove the references to hatred of specific groups from the proposed legislation. Let the Procurator Fiscal prosecute without the restrictions placed on him by the classification of the mater as a “hate crime.”
Other action to deal with perceived “religious” hatreds, such as greater ability for local authorities and the police to restrict, re-route or prevent marches which are likely to cause disorder, are already in place.
The curse of alcohol related violence at football was greatly reduced by the Criminal Justice (Scotland) Act in 1980.
Perhaps a focus on specific football related crimes for a period, would clear some of the nonsense away, and let us see precisely what specific problems of religious hatred remain. We need a clear sight of the problem to give the country the best chance of solving it.
Taking action to strip away the “respectability” with which football seems to cloak sectarianism, and laying the issue out starkly, would give our nation the best chance of solving the problem and lifting the curse!
Random Thoughts Re Scots Law by Paul McConville 