What happened last weekend when the Green Brigade and its supporters decided to walk to Celtic Park together?
Depending on the sources you choose to accept, Saturday’s events constituted one, some or all of the following:-
- A Fascist gathering of terrorist supporters intent on destroying the British State
- A National Socialist gathering of terrorist supporters intent on destroying the British State
- A conspiracy of Catholic lawyers, politicians and journalists intent on undermining the rule of law
- A brutal episode of police brutality showing we live in a country under the jackboot of oppression
- A stroll on a bracing March Saturday by committed football fans to watch their favourite team and to draw attention to their unjustified oppression
- Proof that the Scottish Government is intent on criminalising football fans
I did think of having a poll with these options, but I do not think the answers would help.
What is clear is that Saturday’s events have been leapt upon by some for use as the latest battleground in the long history of Rangers fans disagreeing with Celtic fans, and vice versa.
Amongst others I see that various respected voices on the Rangers side of the rivalry, such as Bill McMurdo, Chris Graham, John Gow and David Leggat, have seen fit to contribute their views, as they are perfectly entitled to do.
However, as seems often to be the case, the debate has shot off in various directions, without anyone looking at what the legal basis of the stramash was. That is what I am here to do!
First of all I should make some things clear.
- I was not at the Green Brigade gathering last Saturday, notwithstanding the thinly veiled insinuation today by Mr Leggat that I was. I find it amusing that, once again, I am being falsely placed at a football-related gathering. There is a picture floating about which, apparently, shows me at an anti-Rangers protest last year at Hampden. Try as I might, I could not see myself in the picture, nor anyone who remotely looks like me. Being six feet four inches tall, it is rather hard to hide!
- In fact I can say that I have never knowingly met anyone who forms part of the Green Brigade.
- I have no direct knowledge of what went on before, during or after the gathering.
- If you look back in my blog to 2011, when the Offensive Behaviour etc Bill was going through the Scottish Parliament, you will see that I believed it then, and still see it now, as an unnecessary piece of legislation, passed “to send out a message” rather than because there was some gap in the law which needed filled.
- I believe that, generally, the police in this country do a good job, often under very trying circumstances. I do not come from the viewpoint of a caricature “liberal lawyer”, who believes that everything the police does is wrong.
I do feel that, having looked at the guidance which is applicable to the police’s use of “containment” and what has been said publicly regarding the arrests and tactics which the police deployed, there are legitimate questions to be asked. Was the allegedly heavy hand a result of the police being reluctant to allow a protest about their own actions?
As Juvenal said in his Satires:-
Quis custodiet ipsos custodies?
Thirteen arrests have been made after police moved in to break up what they said was an unauthorised march by the Green Brigade group of Celtic fans. Almost 200 officers were deployed to the gathering outside the Chrystal Bell pub in Glasgow’s Gallowgate.
Police said the crowd “appeared to be attempting to stage an illegal street procession and officers were deployed to prevent this”.
The arrests were made for alleged public order offences.
The Green Brigade had posted on its website ahead of the protest that it would be holding a “corteo to Celtic Park to raise awareness and show support for the growing list of Celtic supporters receiving and facing bans” from both the Scottish Premier League football club and the procurator fiscal.
It warned those taking part that police would “use every and any excuse to instigate trouble”.
Strathclyde Police said many of the people at the pub “were wearing similar hooded tops and using scarves to hide their identities” at about 13:00.
“The crowd were instructed that any procession on the road was illegal but that officers would facilitate a safe and orderly procession on the pavements toward their intended destination at Celtic Park,” said a statement.
“However, this was ignored and more officers were deployed as the crowd became increasingly confrontational and aggressive. The situation was contained a short time later. CCTV and helicopter footage was captured and will be studied as part of the investigation.”
Ahead of the protest before the home match against Aberdeen, the Green Brigade said: “It is no secret the level of harassment many fans receive at the hands of Strathclyde Police.
“Nor is Celtic plc’s complicity able to be ignored. As such, there is an ever-growing list of fans being denied their passion of following their team. Unlike previous corteos held by the Green Brigade, this one has a little more meaning.
“While we urge as many fans as possible to turn out in support of all those currently banned and those facing ongoing harassment, it is important to remember the purpose behind this march. Therefore, we would appreciate it if colour was kept to a minimum in the form of flags and banners; similarly any chanting should be kept relevant to the topic at hand.
“The Green Brigade will be supplying 300 black t-shirts bearing the slogan ‘The banned Bhoys stand with us’ and these will be distributed to section members. We’d appreciate it if these shirts were worn on the march and also within the stadium to further highlight the situation.”
So It’s The Offensive Behaviour etc Act That’s To Blame?
Despite the clamour suggesting that the arrests were made under that Act, as the police stated, the arrests were for “public order offences”. The Crown Office, under Lord Advocate Frank Mulholland (possibly the highest ranking lawyer ever to emerge from Coatbridge), and the Scottish police forces are proud of the arrests they have made under the Act and will frequently publish details of the numbers of arrest and charges under that legislation to show that it is working as a vital tool in keeping the country safe.
If arrests had been made under the Act, then I am sure this would have been made clear. It is possible that further investigations will lead to charges under the Act, but there were clearly none at the time.
One of the odd issues in the Offensive Behaviour etc Act is that actions on the way to, or from, a football match can fall foul of the law, even where the person is not actually intending to go into the match! But, as I said, none of the arrests reported above were for “Offensive Behaviour” as defined. A critic of the Act could point out that indeed the law existing prior to the 2011 Act was sufficient for the police to deal with this incident.
Nor, from the initial report, were the arrests for carrying of weapons, which I saw on Twitter on Saturday was the allegation being bandied about. I suspect that, if the group was the knife-wielding gang of thugs referred to by some, the police might have mentioned it.
The Offensive Behaviour etc Act however seems to have been the catalyst for the gathering, although even then I think the Green Brigade are mistaken. The Act did not give the police additional powers which are being used, allegedly, to harass them. Instead the Act passed in an atmosphere where the First Minister wanted to be seen to be doing something and the police were happy to go along with this. As Graeme Pearson, MSP, and former Head of the Scottish Drug Enforcement Agency, said in the debates on the Bill in 2011, the police are never known to turn down additional powers!
So, to get to the bottom of this, we should look at the rules about walks and marches.
What Do You Need To Do To Hold a March in Scotland?
The rules are contained in the Civic Government (Scotland) Act 1982, as amended.
Section 62 states, where relevant:-
(1) A person proposing to hold a procession in public shall give written notice of that proposal in accordance with subsections (2) and (3) below
(a) to the local authority in whose area the procession is to be held … and
(b) to the chief constable.
(2) Notice shall be given for the purposes of subsection (1) above by—
(a) its being posted to the main office of the local authority and … and to the office of the chief constable so that in the normal course of post it might be expected to arrive not later than 28 days before the date when the procession is to be held; or
(b) its being delivered by hand to those offices not later than 28 days before that date.
(3) The notice to be given under subsection (1) above shall specify—
(a) the date and time when the procession is to be held;
(b) its route;
(c) the number of persons likely to take part in it;
(d) the arrangements for its control being made by the person proposing to hold it; and
(e) the name and address of that person.
(4) A local authority may, on application in accordance with subsection (5) below by a person proposing to hold a procession in public in their area;
(a) made to them; and
(b) intimated to the chief constable,
within the period of 28 days before the date when the procession is to be held, make an order dispensing with the requirements of subsection (2) above in relation to the time limits for the giving of notice of that proposal.
(5) An application under subsection (4) above shall
(a) set out the reason why notice of the proposal was not given in accordance with subsections (1) and (2) above; and
(b) specify the matters mentioned in subsection (3) above,
and, where an order has been made under the said subsection (4), the application for it shall be treated as notice duly given for the purposes of subsection (1) above.
(9) The local authority shall, before making an order under subsection (4) above, consult the chief constable.
(11B) This section does not apply to a procession—
(a) which is a funeral procession organised by a funeral director acting in the ordinary course of his business; or
(b) which is specified in, or is within a description specified in, an order made by the Scottish Ministers.
(11C) In subsection (11B) above, a “funeral director” is a person whose business consists of or includes the arrangement and conduct of funerals.
(12) In this section and in sections 63 to 65 of this Act—
“procession in public” means a procession in a public place;
“public place” has the same meaning as in Part II of the Public Order Act 1986.
That definition, in Section 16 of the 1986 Act, states:-
“public place” means—
(a) any highway, or in Scotland any road within the meaning of the Roads (Scotland) Act 1984, and
(b) any place to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission;
Therefore, if you want to organise a march, you need to give the police and the local Council 28 days’ notice. It used to be seven days, but was extended to allow the local authority to canvass views of local, if necessary, before consenting to allowing a walk.
The Council can, after consultation with the police, allow a march applied for less than 28 days in advance, as long as they are satisfied on the reasons for this time period not being complied with.
There are, or were, two exemptions worth noting.
First of all, there is no need for Council permission under the Act for a funeral procession, as long as the strict requirements are met. So, if a family organises its own funeral procession, that would require consent, but if a funeral director does it, then that is in order. Why mention funerals?
You will have noted the reference to the Green Brigade holding a “corteo”. “Corteo” is Italian for cortege, or funeral procession!
That subsection only came into the Act on 1st April 2007 when the Police, Public Order and Criminal Justice (Scotland) Act 2006 commenced. At the same time another subsection was repealed. This stated:-
This section does not apply in relation to processions commonly or customarily held;
This change came about because of the issues which arose where marchers insisted on walking a particular route, and not needing consent to do so, because “we do it every year”. The political reason for the change was disquiet over the number of marches connected, loosely or closely, to religion, or to perceptions of religion, such as those embodied in Orange parades.
From 2007 onwards any procession needed consent. Otherwise the Green Brigade could have claimed that they were simply making a “commonly held” procession!
But you cannot get round the requirements by calling your march a “corteo”. Unless it is a real funeral organised by a funeral director, that exception will not help.
I do not know if consent was applied for in this instance or not. In either case it is irrelevant because there was no local authority consent for a march last Saturday.
What Can Police Do About an Illegal March?
Section 65 of the Act lays down the rules about offences under the Act and enforcement of it. It states, where relevant:-
(1) Subject to subsection (3) below, a person who holds a procession in public—
(a) not having given or being a person who is treated as having given notice in accordance with section 62 of this Act of his proposal to do so;
(b) in contravention of an order under section 63(1) or (1A) or 64(6)(a)(ii) of this Act prohibiting the holding of it;
shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale or to imprisonment for a period not exceeding 3 months or to both.
(2) Subject to subsection (3) below, a person who takes part in a procession in public—
(a) in respect of which—
(i) notice has not been or is not treated as having been given in accordance with section 62 of this Act;
(b) in relation to which an order has been made under section 63(1)or (1A) or 64(6)(a)(ii) of this Act prohibiting the holding of it;
and refuses to desist when required to do so by a constable in uniform shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.
(4) Subject to subsection (5) below, a constable may arrest without warrant a person whom he reasonably suspects of committing or having committed an offence under this section.
(5) A constable who is not in uniform shall produce his identification if required to do so by any person whom he is arresting under subsection (4) above.
It is therefore an offence to for the organiser to hold a procession without applying for consent, or having had consent refused.
It is an offence to take part in a procession if “required to desist” by a uniformed officer.
So, confronted by a gathering which was determined by the police to be a procession (rather than a “corteo”), they had the right to arrest organisers and participants, in certain circumstances.
Therefore Everyone in the Corteo Was Committing an Offence?
No. Whilst it IS an offence to organise such a procession, it is not an offence to take part in it, until an officer tells one to desist.
This raises some interesting legal questions.
First of all, it might not be clear who the organiser or organisers were, especially as some of the participants were trying not to be identified.
It is of course NOT an offence to disguise oneself. It is NOT an offence to cover one’s face. It is NOT an offence to take action to stop the police identifying you on video (being one of the police activities which the Green Brigade take exception to).
A further question arises as to how one is told to desist. Would a loudhailer announcement suffice? Does it require a personal request to each participant?
It seems a throwback to the reading of the Riot Act, which was the 19th century way of triggering police or militia intervention into a riotous gathering.
There is also an issue about police asking people who are all going to the same destination anyway to desist from forming a procession. When does a gathering of people going the same way become a procession? The police could have required the gathering to be dispersed. However, would the members of the corteo have been liable to arrest for continuing on their way to the match?
Why Do We Have These Rules?
Various local authorities publish guidance to the operation of the legislation.
Glasgow City Council’s own guidance starts as follows:-
Glasgow is a multicultural City in which, over many years, communities and individuals of different backgrounds and cultures have found a home. Glasgow is a City looking to the future, yet, at the same time, it is conscious of the importance of its history.
One aspect of this is the tradition of public processions and demonstrations. The use of the term ‘procession’ in this code of conduct covers all parades, marches, cavalcades and demonstrations where demonstrators proceed from one point to another. These tend to be organised by civic, cultural, political, arts or religious organisations, community groups or other interest groups.
Whilst this tradition has many positive aspects, it also poses a series of challenges to the City. These challenges include:
- a significant number of processions overall within the City and a large number whose route includes the City Centre;
- the increasing importance of retail, leisure, business and conference tourism to the City and the impact which such a significant number of public processions has upon these sectors;
- disruption caused to public transport and traffic flow in the City, particularly in theCity Centre;
- continuing instances of public disorder problems around some processions and demonstrations;
- feedback from Glasgow’s residents strongly favouring a reduction in the number of processions in local areas and in the City Centre;
- substantial physical improvements to the City, especially the significant investment in the City Centre, which is vital to Glasgow’s economy; and
- increasing costs required to police processions, in both financial resources and police hours. This is at a time when pressures on overall public expenditure are increasingly acute.
There have been occasions when participants in processions (or followers) have displayed an overtly controversial political or religious affiliation which has caused offence to others and, in a number of cases, has provoked public disorder. Glasgow City Council cannot condone such behaviour. It is inconsistent with a friendly, inclusive and tolerant City. It also has a negative impact on how Glasgow is seen by the wider world.
The guidance is based on the following three principles:-
the rights to peaceful assembly and freedom of expression, as outlined in theEuropean Convention on Human Rights, are fundamental rights which the Council believes should be open to all;
these rights are not absolute, however, they must be balanced by the responsibility to ensure that the rights of others are not infringed. These rights are subject to proportionate limitations where it is necessary to do so; and
the exercise of these rights brings specific responsibilities, both to those organising and participating in processions, especially in relation to those residents and businesses who may suffer from disruption caused by a particular procession.
I think there are clearly questions for the police arising from their actions on Saturday (but this is not meant to be critical of them). The corteo consisted of people going to a football match. If the Green Brigade decided to process, for example, past the front door of Ibrox Stadium before a Rangers game, then clearly there would be major issues for public order. Equally a march through Glasgow when there was not a football game going on, or if the intention was to march away from the ground against the flow of fans going to the game, would cause issues of disruption.
However the areas around Celtic Park and Ibrox are greatly restricted on match days. The locals experience huge disruption every two weeks. On this basis, one wonders what consideration was given to the effect of the corteo on the traffic flows to the game. One would assume that the Police Commander on the scene took account of all of the relevant factors in reaching the decision to “kettle” the participants.
What About “Kettling”?
A recent development in crowd control in the UK has been the process of “kettling” – It involves the formation of large cordons of police officers who then move to contain a crowd within a limited area. Protesters are left only one choice of exit, determined by the police, or are completely prevented from leaving.
The Association of Chief Police Officers produce a Manual of Guidance for Keeping the Peace.
This 146 page document explains how the police should deal with these issues, in great detail. This includes recognition that police action must comply with the principles of the European Convention on Human Rights.
Article 11 states:-
Article 11 – Freedom of assembly and association
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.
The guidance emphasises that the intentions of the organisers are very relevant to the matter of policing. Are those intentions “peaceful”?
The Green Brigade statement, quoted above, seems to emphasise that it was to be peaceful (although the road to hell is paved with good intentions).
The guidance refers to the Public Order Act 1986 which states that the police can be allowed to restrict a procession or assembly where they believe it may result in:
- Serious public disorder
- Serious damage to property
- Serious disruption to the life of the community
- Or the purpose of those organising it is the intimidation of others.
The police referred to in the BBC extract above seem to suggest that it was the fact that it was an illegal procession per se which prompted their action.
As regards “kettling” or “containment” the guidance makes clear that it must not infringe Article 5 of the ECHR. This refers to the right to liberty and security.
Containment would be legitimate if:-
- Resorted to in good faith
- Proportionate to the situation making the measure necessary; and
- Enforced for no longer than is reasonably necessary.
The Appendix indicates the objectives and considerations in relation to containment.
It states that it is a tactic to be used when “alternative tactics to prevent serious disorder, serious injury or loss of life have failed or are expected to fail.” It states that the police “must have reasonable grounds for believing there is actual violence or a threat of imminent violence.”
The guidelines direct that those identified as non-violent should be released from containment as soon as it is safe to do so. It also states that “Production of a UK Press Card should allow the holder release from any area subject to containment, unless the behaviour of the holder is cause for concern”.
Did the police follow these guidelines?
What intelligence did they have regarding possible violence?
What problems did they think they were stopping?
Was this simply a tactic used to deal with the participants in the corteo, who, of course, would not be committing an offence until told to desist. But, once the containment took place, the participants could not disperse!
The Police Response
Assistant Chief Constable Bernard Higgins wrote to the Herald today and said:-
I WRITE in response to your article “Top QC Says Response to March Like a ‘Police State'” (The Herald, March 18).
Strathclyde Police did have a large number of officers on duty but this was to police a number of events in the city and not specifically for this incident.
Comment has been made with regard to the use of the police helicopter. The force helicopter is available daily for use as part of the comprehensive policing response communities across the Strathclyde Police area have become accustomed to. It is deployed to deal with a wide range of matters including demonstrations, parades, significant public order events, missing people, vehicle pursuits and other incidents.
It is the duty of the police to facilitate peaceful protest, which we do regularly. On Saturday we had other groups protesting in the city centre and these events were peaceful.
In policing on behalf of the public, we are not prepared to allow large groups of people to take over streets. This serves only to disrupt residents and endanger the safety of protesters and road users. We are not prepared to place officers at increased risk of injury while trying to keep people safe.
We are reviewing a significant amount of CCTV footage captured on the day.
This footage will be made available to the courts in order that they can deal appropriately with the 13 people arrested.
Unfortunately, we are prevented from releasing the full footage into the public domain due to ongoing legal proceedings. However, we will, in time, make it all public.
I believe our officers acted professionally and proportionately. Any complaint we receive with be thoroughly investigated.
ACC Higgins refers to not allowing “large groups of people to take over streets”. That can hardly be questioned, but, in my experience, the crowds going to football matches “take over the streets”. As I mentioned above, what extra disruption would the corteo have brought, over and above the “normal” football disruption?
The events of last week seem only to have re-trenched the respective sides’ views.
So the Green Brigade view this as an attempt to trample on their rights of free assembly and free expression.
The “opposition” view this as the police doing a fine job.
But that comes against the backcloth of mistaken understanding of the issues.
So, when Chris Graham states:-
“the Green Brigade members who turned up to the march on Saturday were breaking the law. The police are perfectly within their rights to veto requests for marches which they believe to be contentious”
he is incorrect. As explained above, mere presence on an unauthorised procession is not an offence. Nor is the march being “contentious” a ground in law for it to be cancelled by the police. Indeed, as we have seen, the Civic Government (Scotland) Act states that it is the council’s decision, including police advice, not the police itself.
Therefore, based on the analysis above, I can see why some eminent lawyers, including Brian McConnachie QC, have criticised the police for over-reaction. The actions we are aware of seem not to tally precisely with the criteria laid down in the guidance.
It seems, from my perspective, to be reaching the stage of the Green Brigade’s complaints now being a self-fulfilling prophecy.
If one critics the police and want to make a protest about it, by definition the police might see that as an event liable to cause disorder.
The policing of the protest is likely to lead to further protests.
If the Green Brigade apply properly for a procession and are refused, then there is a right of appeal. Maybe the best way to resolve the matter would be by them doing that, in which case the issue would land on the desk of one of the Glasgow Sheriffs, who would have to decide if the Council decision to refuse to allow the corteo was lawful and reasonable.
Other than something like that, one can definitely see the protest continuing, and the policing issues remaining. (And we have not even addressed the Green Brigade’s views of Celtic’s treatment of them).
But equally the debate is not helped by people misrepresenting, whether through ignorance or malice, the contentious events.
Posted by Paul McConville