On 18th September 2011 Kevin Maguire attended the Rangers v Celtic match at Ibrox. One assumes he is a Celtic fan. One wonders if he had carefully chosen his wardrobe for the occasion.
As the High Court stated in its decision which can be found here in Maguire v PF Glasgow, Mr Maguire:-
“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.”
Two officers from Strathclyde Police saw Mr Maguire’s attire as he left the ground amongst the 3,000 Celtic fans present at the game. The officers considered that his T-shirt posed a threat of disturbance to public order.
Mr Maguire was arrested and, on 28th August 2012, appeared for trial at Glasgow Sheriff Court. He was charged 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”.
He was convicted. The sheriff imposed a Football Banning Order for a period of two years.
Mr Maguire appealed against conviction and sentence. The High Court, consisting of Lord Carloway (the Lord Justice Clerk), Lord Drummond Young and Lord Marnoch upheld both decisions of the Sheriff.
It might come as a surprise that a crime can be committed merely by wearing clothing which “displays slogans of an insulting and abusive nature”.
Separately too one might wonder how the courts decide if a statement is “insulting and abusive”.
One might also wonder how this relates to the rights under the European Convention on Human Rights. Article 10 states, in part:-
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
The police officers on the spot were very assiduous. They identified Mr Maguire’s clothing as potentially offensive and, as the High Court recorded their evidence to the Sheriff:-
“… 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.”
One hesitates to suggest that the thought process of the police at the scene might not have been as all-encompassing as they were once they got to court, but as well-trained officers, I have no doubt that they did consider all of these issues before dealing with Mr Maguire.
In deciding the Mr Maguire had been guilty of the offence, the High Court recorded:-
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.
Having found Mr Maguire guilty, he was sentenced, and it was revealed to the court that he 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.
The court recorded that the conviction for aggravated breach of the peace had taken place in connection with an Orange Order march.
A Football Banning Order lasting two years was imposed.
Mr Maguire duly appealed. It was argued 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 various cases on the nature of breach of the peace. In relation to Jones v Carnegie 2004 JC136 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.
(As an aside the argument that Mr Maguire was engaged in legitimate protest seems rather undermined by what was said to the Sheriff in mitigation after conviction. His defence agent told the court 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.” The Sheriff rejected that suggestion as implausible. It might have been the case that Mr Maguire’s legitimate protest centred only on the poppy and Derry. The suggestion that he had been handed it before the game, and that he did not understand what the letters referred to, does not, in my view, bolster his argument.)
The court considered the appeal against conviction and pronounced:-
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 ), the conduct requires to be “flagrant”.
Here, taking account of the facts as established by the Sheriff, the Court upheld the conviction.
The court noted that:-
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.
The court dealt briefly with the Human Rights point, saying:-
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.
Turning to sentence, it had been argued that, following the case of 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, it was inappropriate to make such an order here. The court in Doolan 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.
The High Court gave the argument on this ground as short shrift as it had that on conviction, saying:-
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.
What Does This Tell Us?
As with many cases which appear to throw up alarming results, this decision is less far-reaching than at first might appear. The High Court did not declare that it was a crime to wear a top promoting the INLA.
Instead the decision seems to have been founded upon the factual determination made by the Sheriff, and based upon the evidence of the arresting police officers.
Their evidence was that Mr Maguire was about to reach an area where Rangers and Celtic fans could mix.
In this area there was likelihood that the mere sight of Mr Maguire’s T-shirt would provoke Rangers fans to acts of violence, or at least to public disorder.
In addition, and even whilst he was within the group of 3,000 Celtic fans, the slogans on his T-shirt were of such a nature that Celtic fans walking with him would be provoked to disorder by the sentiments being expressed on Mr Maguire’s top, as these fans would violently take exception to their club being linked with these matters.
Either, with the greatest of respect, the police have a very low opinion of football fans and their self-restraint, or a remarkably prudent attitude to the prevention of disorder.
It is also of note that the offence of breach of the peace of which Mr Maguire was convicted included the allegation of wearing a top displaying “slogans of an insulting and abusive nature”.
The words “insulting and abusive” appear in the decision only in the charge. Whilst the police gave evidence that the insignia of the INLA would be viewed as “offensive and inflammatory” that is, I suggest, different from being “insulting and abusive”. There might not be a lot of difference, but there surely is one?
The police officers also testified that the poppy reference would be “offensive and upsetting, likely to be inflammatory and to provoke disorder.” Is that the same as “insulting and abusive”?
What About “Free Speech”?
The judges’ opinion seems to suggest that Mr Maguire’s rights to freedom of expression are maintained, as long as he does not exercise them where it is inappropriate to do so.
How far however does that go?
Would Mr Maguire have been arrested for wearing that T-shirt at Celtic Park? On the evidence of the police, to the effect that they believed Celtic fans would become violent and disorderly if they thought their team was being connected to the INLA, then the logic is that Mr Maguire would fall to be arrested there too.
As far as the poppy part of the T-shirt went, the police evidence was noted as follows:-
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.
Presumably then Mr Maguire wearing the T-shirt on a busy shopping street would lead to his arrest? After all, here would be “reasonable people” who, as reasonable people, would found it to be inflammatory.
And, one might also ask, where does the Appeal Court consider that it would be appropriate to make such a protest?
Somewhere where the protest cannot be seen?
Why Was The Matter Dealt With in This Way?
Here is what I think happened.
(I was not at Ibrox that day, nor was I at court for the trial or the appeal. However, based on what the High Court has said, and upon experience of how police deal with potentially problematic gatherings, I think the following scenario makes sense. If it is in error I apologise to the officers or Mr Maguire, as appropriate.)
Mr Maguire may have been down-hearted, Celtic having lost 4-2 and Charlie Mulgrew having been sent off.
Mr Maguire, being a man whose convictions suggest he does not hide his light under a bushel, may well have taken exception to the police as he made his way along Edmiston Drive. He may even have been rude to them.
The police from time to time will make an example of someone (but only of course where an offence had been committed) pour encourager les autres.
I suspect that Mr Maguire found himself in the hands of the police as a result of him exchanging pleasantries with the police, which the police did not find pleasant. After all, I find it surprising that this was the most offensive T-shirt, flag or banner on display, or even that this, as opposed to any other, was the one to attract police attention.
If Mr Maguire was correct that he had been presented with the T-shirt that day at the match, then presumably he had other clothing, and if the interest of the police was in stopping disorder, he could have been told to put his coat or jumper on!
So one suspects that there is much more to this than meets the eye, and thus less to the general principle.
The Appeal Court too would have been aware of the list of Mr Maguire’s previous convictions when deciding on the appeal. One wonders, idly, if they might have had a different view on the conviction if the accused had been an alleged first offender?
In addition, I suspect that the contention by the accused that he did not know what INLA stood for might not have helped.
(In the case of Walls v PF Kilmarnock, Lord Carloway, in upholding the conviction of a man for singing “the Famine Song” and shouting “F… the Pope” and about “Fenian b…….” at a Rangers v Kilmarnock match, was unimpressed by the defence QC’s argument that the comments about Fenians were directed politically at the secret society formed on New York in the 1860s, namely the Fenian Brotherhood.)
I suspect that the Appeal Court may have considered that Mr Maguire well knew what INLA stood for and that it was within their “margin of appreciation” to uphold the conviction.
What if it had not referred to a proscribed organisation?
What if it only commented on the poppy?
What if it only mentioned the INLA?
I do not suppose that the police will use this case as authority for arresting people left right and centre for their abusive clothing. However, on the back of issues about policing at football matches, it will not help the atmosphere.
The biggest dangers come, I think, from two sources.
Firstly an over-efficient police officer might view the case as encouraging arrests of people wearing offensive clothes.
Secondly, it might lead to people making complaints to the police about people wearing clothing they deem offensive or which is provoking them to disorder. What happens to the next person wearing such a T-shirt if the police stop him? On the Maguire authority, they are guilty of breach of the peace, whether the slogan is deemed to be abusive, insulting, offensive, threatening or whatever.
Posted by Paul McConville
(and not wearing an INLA T-shirt … just in case)