Today the High Court of Justiciary allowed an appeal by the Procurator Fiscal in Dingwall against the decision of a Sheriff to hold that there was no case to answer in relation to a charge under Section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. The decision by the court, which was made up of Lady Paton, Lord Brodie and Lord Philip in the case against Joseph Cairns, which can be read in full here, makes clear the full extent of the Offensive Behaviour Act, and confirms that, effectively, if the police give evidence that a particular song or chant is likely to be considered offensive by a reasonable person, then an offence is committed, whether or not there is anyone there who was, or indeed could have been, offended.
Whilst this decision is a correct interpretation of the legislation, and therefore the Court cannot be faulted for its reasoning, I think it shows the draconian extent of the legislation, and the scope for abuse of it which there could be, in the hands of unscrupulous prosecutors or police. It also shows the inconsistencies in the legislation and in deciding in what circumstances an offence can, and cannot, be committed.
In addition, it clearly, as far as I can see, runs into conflict with the rights to free expression which are enshrined in the European Convention on Human Rights.
Now, this is not to fall into the hysterical trap of saying that we now line in a police state, or that we are one piece of legislation away from being a totalitarian nation – but one can legitimately raise concerns without indulging in hyperbole!
Mr Cairns faced the following charge:
“(1) on 18th August 2012 at Victoria Park Football Stadium, Dingwall you Joseph Anthony Cairns, being a person in a ground where a regulated football match is being held, did engage in behaviour of a kind described in section 1(2)(d) and (e) of the aftermentioned Act, which is likely or would be likely to incite public disorder, in that you did chant phrases and songs in support of a proscribed terrorist organisation and make threatening gestures towards opposing fans; CONTRARY to the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 section 1(1)”
(I have struck through part of the charge which the Fiscal deleted at the close of the Crown case).
Two policemen gave evidence. At the close of the Crown case the defence solicitor argued that there was “no case to answer”. This effectively is a submission that, even if all of the Crown evidence is accepted as true, there is insufficient before the court to establish guilt. The Sheriff accepted this submission and finding no case to answer acquitted Mr Cairns.
The Fiscal appealed.
The relevant parts of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 provide as Noted at the foot of the article.
The Sheriff, in his report to the High Court, summarised the evidence of the two Crown witnesses. The full narrative is noted at the foot of this piece and is well worth a read.
The Sheriff explained his decision to uphold the defence submission. He noted that there were two elements to an offence under section 1(1) of the 2012 Act where, as in the present case, the Crown has led evidence of events related to a regulated football match.
The Crown must first prove that the accused had engaged in behaviour of a kind described in section 1(2). In this case, the Crown sought to prove that Mr Cairns had been guilty of behaviour such as is described in subsection 1(2)(e), that is behaviour that a reasonable person would be likely to consider offensive. The sheriff accepted that, in this case the Crown had led evidence which, taken at its highest, was sufficient to prove that the respondent had as a matter of fact sung songs the words of which expressed praise for Irish hunger strikers and contained a line about joining the IRA. He also took the view that it was conceivable that a reasonable person would consider it offensive if he were to hear such words in the course of trying to watch a football match between two Scottish football clubs on a Saturday afternoon in Dingwall. (Emphasis added).
The second element to the offence required the Crown had to prove that the behaviour in question was likely to incite public disorder or would be likely to incite public disorder. The sheriff found that the video recording which he had watched in the course of the witness’s evidence made it abundantly clear that, while Mr Cairns (and a great many other Celtic supporters), could be seen singing songs, it was quite impossible for the uninitiated listener to make out the words of what they were singing. Both the police officers who had given evidence freely admitted that they would have been unable to pick out the words of the songs being sung were it not for the knowledge that they had acquired in the course of their work as members of the FOCUS unit. These songs and the words of these songs, are accordingly clearly not familiar to the public at large. Even with their specialist knowledge, the police officers both required to study the video footage before they could confirm that the respondent could be seen singing what they regarded as the relevant offensive lyrics. The sheriff decided there was no proper basis for concluding that anyone who might have been incited to disorder would have been able to make out what it was that the respondent and others were singing (assuming that the respondent could in fact be seen to be singing at all by rival supporters who would inevitably have been much further from him than were the police officers who gave evidence). Since there was no proper basis for inferring that any person who might be incited to disorder would have been able to tell that the respondent was singing about the hunger strikers or joining the IRA there was equally no proper basis for inferring that the respondent’s behaviour was likely to incite public disorder
The High Court found that the Sheriff had erred in his analysis as stated above. He got wrong what the second element of the offence was.
The High Court started by detailing the wide extent of the legislation saying:-
 In enacting section 1(1) the Parliament created a criminal offence with an extremely long reach. In the present case no question arises as to whether the respondent’s behaviour was “in relation to a regulated football match” but it is to be noted that behaviour may be in relation to a regulated football match not only if it occurs in the ground where the match is being held on the day in which it is being held (irrespective of the time of day) or while the person is entering or leaving the ground but also if the person is on a journey to or from such a match. Moreover, in terms of section 2(4) of the Act a person may be regarded as having been on a journey to or from a regulated football match whether or not the person attended or even intended to attend the match. The behaviour which is relevant for the purposes of section 1 includes not only the specific behaviours described in paragraph (a) and (b) and (c) of section 1(2) but, in terms of section 1(2)(d), behaviour that is threatening and, as can be seen in the present case, in terms of section 1(2)(e), other behaviour that a reasonable person would be likely to consider offensive.
The Court then went on to point out where the Sheriff had erred in paragraph 12 saying:-
It is by no means clear why the sheriff came to the view that there was no proper basis for finding that the behaviour was not likely to incite public disorder. Two police officers had given evidence that they recognised the song and heard certain of the words sung. … if the police officers were able to recognise the song and hear the words, other persons must also have been able to do so.
The sheriff appears to have adopted the view that the only candidates as persons likely to be incited to public disorder were the (apparently unperturbed) Ross County supporters. Why other persons might not be candidates, including persons standing close to or even among the “majority of the Celtic supporters housed in the north stand” is not explained by the sheriff.
The High Court pointed out that the Sheriff had not considered the effect of section 1(5) which provides that, for the purposes of section 1(1)(b)(ii), behaviour “would be likely to incite public disorder” if public disorder would be likely to occur but for the fact that either measures are in place to prevent public disorder, or persons likely to be incited to public disorder are not present or are not present in sufficient numbers. (Emphasis added).
The Court then noted that two different categories of people were envisaged as “victims” under the Act. The Act considers “a reasonable person” in deciding if activities are to be taken as offensive and a person “likely to be incited to public disorder” for the second element of the offence.
The Court said:-
It may be that a person likely to be incited to public disorder is of a more volatile temperament than a reasonable person or, to use the language of the sheriff, an uninitiated member of the public. The person likely to be incited to public disorder may have particular interests and particular knowledge. He may have particular views about the two songs in question or those who sing them.
The key to the decision then follows:-
As section 1(5)(b) provides that such persons need not be present for the purposes of determining whether specific behaviour would be likely to incite public disorder, it cannot be relevant to the question as to whether there has been a contravention of section 1(1)(b) that particular persons in a football ground could not actually hear the words being sung. In other words the actual context within which the behaviour occurs is not determinative. Where behaviour falls within any of the categories specified in section 1(2) it is sufficient for conviction that persons likely to be incited to public disorder would be likely to be incited to public disorder by the particular behaviour, whether or not they were present in sufficient numbers and whether or not they were subject to measures put in place to prevent public disorder. As it does not matter whether persons likely to be incited to public disorder are there in sufficient numbers or are there at all it cannot matter whether or not the persons who are present (whether likely to be incited to public disorder or otherwise) actually became aware of the relevant behaviour.
The Court therefore allowed the appeal and sent the case back to the Sheriff. What will happen to Mr Cairns therefore is that the trial would effectively re-convene at the close of the Crown case, the “no case to answer” submission now being repelled. Mr Cairns therefore could give evidence himself and from witnesses to dispute the evidence that he was singing, or that he was singing the songs mentioned, or that the songs are NOT offensive to the reasonable person. That procedure will take place in due course.
But the implications of the case are as critics, including me, pointed out when the Act was still merely a Bill.
The High Court states that if a reasonable person would find a song or other activity “offensive” then a crime is committed if ANYONE would be likely to be incited to public disorder by hearing or seeing it, WHETHER OR NOT THEY WERE THERE OR INDEED WHETHER OR NOT THERE WAS ANY PROPSPECT OF TRHEM HEARING OR SEEING IT!
Let’s take the “Roll of Honour” as the example.
Let’s imagine that Joe O’Bloggs holds a party where fellow supporters of the struggle for Irish independence, or indeed others who simply like the tune, join in singing the song. Joe later mentions in the pub that he and his friends had a good night in and that they sang the song. A police officer overhears this, and notes what Joe has said. Joe mentions that, whilst they were singing, Sportscene was on showing an SPL game. The officer is fully aware of the Lord Advocate’s guidelines, and as a member of the FOCUS team knows how offensive these songs are. The assiduous police officer makes enquiries at Joe’s neighbours who agree that they heard “Roll of Honour” being sung.
Now the offence is committed, whether or not anyone actually does anything about it, but in the scenario above, Joe and his fellow guests could face trial for singing a song expressing political opinions in private, having ensured that there was no one in the vicinity who might possibly have been offended.
It will be very easy for any reader to come up with a list of songs and chants which others would find “likely to incite public disorder”. Singing “Roll of Honour” in the middle of an Orange Order meeting would likely incite public disorder and would be an offence if a football match was on TV at the time.
Singing “The Sash” in the infamous old pub in Coatbridge, Phil Cole’s, would undoubtedly incite public disorder and would be an offence if a football match was on TV in the pub at the time.
As long as a “reasonable person” would find the song offensive, then an offence is committed.
Effectively therefore the effect of the High Court decision, which, as I said, is entirely consistent with the legislation, means that the second part of the offence becomes almost automatic. It is hard to see how a court could decide that a song would be deemed offensive by a “reasonable person” but that there would be no one who would be “incited” by it, especially where the person being incited is NOT required to be reasonable.
It is clear from the evidence of the police officers above that FOCUS has identified songs and chants which they are looking to prohibit.
The wide reach of the Act means that it is NOT only the singing of these songs at football games which is prohibited. A person sitting alone in his car driving to or from a football match would commit the offence by singing a song a “reasonable person” would deem offensive.
A person driving to or from an Orange Walk however would not be committing such an offence, nor someone going to a rugby match.
A person driving to or from a pub to watch a Scottish football game would be guilty of the offence in those circumstances, but someone driving to watch a Confederations Cup match on TV would not.
None of this is necessarily intended to be in support or otherwise of the songs discussed. That is not the point. The problem in all cases where there are efforts to control speech relate to the more marginal cases.
There are songs and chants which everyone would deem offensive.
But, a song about Bobby Sands, for example, could be argued to be argued to be about an elected Member of the UK Parliament. What about a song praising Gerry Adams or Martin McGuinness? What about a song about Irish Freedom Fighters which did not mentions the IRA or a specific organisation?
PC Inglis, in his evidence, rejected the suggestion that a song about the Easter Rising in 1916 which mentioned the IRA was a very different matter from a song about the Provisional IRA of the 1970s, 80s and 90s.
As the Sheriff recorded:- It was put to him that the IRA was an organisation of a different character in 1916. He replied that people hearing a song about the IRA would associate the reference with the modern‑day IRA. His position was that singing such a song was showing support to a terrorist organisation and that, in terms of the Lord Advocate’s guidelines, this constituted an offence under section 1(2)(e) of the Act.
And PC Inglis confirmed that no one complained about any singing.
So what have we learned from the High Court today?
The Offensive Behaviour etc Act has a very wide reach.
One effect of that is that there are glaring inconsistencies in how the legislation can be effective – it might all depend on what football game is on TV at the time!
The police are giving evidence about what a “reasonable person” will find “offensive”, rather than having any “reasonable people” come to court to explain this.
There is clearly a wide range of political comment which could be deemed offensive and therefore almost automatically “likely to incite disorder”. This would be criminalised if there is a link to football, but not in other circumstances.
I suspect that, in due course, the Act will be considered by the European Court, but that is likely to be many years in the future.
Till then, be very careful what you sing at or on the way to and from the football – and be careful when football is on TV as well.
Posted by Paul McConville
“1 Offensive behaviour at regulated football matches
(1) A person commits an offence if, in relation to a regulated football match –
(a) the person engages in behaviour of a kind described in subsection (2), and
(b) the behaviour-
(i) is likely to incite public disorder, or
(ii) would be likely to incite public disorder.
(2) The behaviour is
(a) expressing hatred of, or stirring up hatred against, a group of persons based on their membership (or presumed membership) of-
(i) a religious group,
(ii) a social or cultural group with a perceived religious affiliation,
(iii) a group defined by reference to a thing mentioned in subsection (4),
(b) expressing hatred of, or stirring up hatred against, an individual based on the individual’s membership (or presumed membership) of a group mentioned in any of sub‑paragraphs (i) to (iii) of paragraph (a),
(c) behaviour that is motivated (wholly or partly) by hatred of a group mentioned in any of those sub‑paragraphs,
(d) behaviour that is threatening, or
(e) other behaviour that a reasonable person would be likely to consider offensive.
(3) For the purposes of subsection (2)(a) and (b), it is irrelevant whether the hatred is also based (to any extent) on any other factor.
(4) The things referred to in subsection (2)(a)(iii) are-
(c) nationality (including citizenship),
(d) ethnic or national origins,
(e) sexual orientation,
(f) transgender identity,
(5) For the purposes of subsection (1)(b)(ii), behaviour would be likely to incite public disorder if public disorder would be likely to occur but for the fact that-
(a) measures are in place to prevent public disorder, or
(b) persons likely to be incited to public disorder are not present or are not present in sufficient numbers.
2 Regulated football match: definition and meaning of behaviour ‘in relation to’ match
(2) For the purposes of section 1(1), a person’s behaviour is in relation to a regulated football match if-
(a) it occurs-
(i) in the ground where the regulated football match is being held on the day on which it is being held,
(ii) while the person is entering or leaving (or trying to enter or leave) the ground where the regulated football match is being held, or
(iii) on a journey to or from the regulated football match, or
(b) it is directed towards, or is engaged in together with, another person who is-
(i) in the ground where the regulated football match is being held on the day on which it is being held,
(ii) entering or leaving (or trying to enter or leave) the ground where the regulated football match is being held, or
(iii) on a journey to or from the regulated football match.
(3) The references in subsection (2)(a) and (b) to a regulated football match include a reference to any place (other than domestic premises) at which such a match is televised; and, in the case of such a place, the references in subsection (2)(a) and (b) to the ground where the regulated football match is being held are to be taken to be references to that place.
(4) For the purpose of subsection (2)(a) and (b)-
(a) a person may be regarded as having been on a journey to or from a regulated football match whether or not the person attended or intended to attend the match, and (b) a person’s journey includes breaks (including overnight breaks).
4 Sections 1 and 2: interpretation
(1) Section 1(1) applies to-
(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done, and
(b) behaviour consisting of-
(i) a single act, or
(ii) a course of conduct.”
The Sheriff’s Summary of the Evidence
“Police Constable Inglis gave evidence that he was a police constable of Strathclyde Police based at Govan police office, Glasgow. On Saturday 18 August 2012 he was attached to FOCUS (the Football Co‑ordination Unit for Scotland) and was tasked, along with his colleague PC Stevenson, to travel to Dingwall where a football match was due to take place at Victoria Park between Ross County and Celtic. The match was an SPL (Scottish Premier League) fixture and as such was a regulated football match in terms of the 2012 Act.
PC Inglis said that FOCUS officers attend football matches in full uniform, and that they are equipped with hand held video cameras and bodycams. He was trained in the use of this equipment, the purpose of which is to record offensive behaviour for use as evidence in court proceedings. The video camera has a screen which can be looked at while filming is being undertaken. The bodycam can be clicked on and off, and is effective for close‑up shots only.
PC Inglis stated that his specific duties on the day in question were to monitor the away support for offensive singing and/or behaviour. To that end he took up a position between the north and west stands at Victoria Park. The away support was housed in the north stand, with some away supporters also accommodated in the east stand. He described the stadium as being ‘fairly full’ and estimated that there were between 3000 and 4000 spectators in the ground.
PC Inglis said that he became aware of a song entitled ‘The Roll of Honour’ being sung from the north stand. His observations focussed on certain individuals who were singing the song, one of whom was the respondent who had his shirt off and had his hands in the air. He could hear the respondent singing the song. PC Inglis used his hand-held video recorder to film the respondent singing.
PC Inglis gave evidence that at half time, accompanied by a local officer, he spoke to the respondent in the concourse at the rear of the north stand and informed him that he was suspected of having committed an offence under section 1 of the 2012 Act. The respondent was told that video footage would be reviewed and that if it was found to show offensive behaviour further action would be taken. PC Inglis stated that a couple of days later, along with his colleague PC Stevenson, he reviewed the video footage that had been taken.
At this point the procurator fiscal depute played Crown Label 1, which PC Inglis identified as a DVD of the video footage that had been taken at the match. This DVD consisted of two separate sections of footage, the first of which related to the incident narrated above. PC Inglis said that he could identify the respondent singing some of the words of ‘The Roll of Honour’. PC Inglis then watched the second section of footage (which had been recorded later on during the match) and said that he could say that the respondent was singing the line ‘I joined the IRA’ from the song ‘The Boys of the Old Brigade’. He said that he had been able to hear the respondent singing this at the time he recorded the video footage.
The procurator fiscal depute asked PC Inglis about the songs he had mentioned in his evidence. PC Inglis stated that he knew the words of these songs as a result of his work with the FOCUS unit. He was not familiar with these songs before that. He had now learned that both songs tend to be sung by Celtic supporters. ‘The Roll of Honour’ is about the hunger strike in the early 1980s. The persons named in the song are the ten paramilitary prisoners who died during the hunger strike. PC Inglis had learned that these persons were associated with the IRA and the INLA, both of which he understood to be prohibited organisations. ‘The Boys of the Old Brigade’ is a song which refers to the 1916 Easter Rising in Ireland and contains a reference to joining the IRA.
PC Inglis further stated that he and his colleague had reviewed the video footage on a frame by frame basis. Having done so he was able to say that, at one point, the respondent could be seen to be making a gesture which PC Inglis could interpret as mimicking the loading or firing of a rifle into the air. This was a gesture which he said he had seen before and he believed it was intended to mimic a paramilitary action. The video footage was played and stopped on a number of occasions until eventually it was frozen at a point where PC Inglis said that this gesture could be seen on the screen.
In cross examination, PC Inglis estimated that there were a total of maybe 2500 Celtic fans at the match, many of whom were singing. It was put to him that the IRA was an organisation of a different character in 1916. He replied that people hearing a song about the IRA would associate the reference with the modern‑day IRA. His position was that singing such a song was showing support to a terrorist organisation and that, in terms of the Lord Advocate’s guidelines, this constituted an offence under section 1(2)(e) of the Act.
PC Inglis confirmed that he was unaware of any reaction from the home support to the songs that were being sung. Nor was he aware of any complaint having been made about the singing.
PC Colin Stevenson was the second Crown witness. He also spoke to being a member of the FOCUS unit who attended the Ross County v Celtic match (a regulated match in terms of the 2012 Act) at Victoria Park, Dingwall on Saturday 18 August 2012. Once inside the stadium he was positioned beside PC Inglis in the northwest corner, facing the majority of the Celtic supporters housed in the north stand. PC Stevenson was wearing a bodycam. He was aware of his colleague operating a hand held video camera.
PC Stevenson said that, shortly before kick-off, the majority of Celtic fans in the north stand were singing ‘The Roll of Honour’. Like his colleague, PC Stevenson said that he had become familiar with the words of this song as a result of his work with the FOCUS unit. He had also become familiar with the words of the song ‘The Boys of the Old Brigade’. He understood the former to refer to the hunger strikers who died in the 1980s and who he understood to be connected to terrorist groups. It was his understanding that the latter referred to the 1916 rising. The song contains a line about joining the IRA. PC Stevenson said that he recognised the song ‘The Roll of Honour’ as soon as the Celtic fans started to sing it. (The clear inference from this evidence was that he recognised the tune). He subsequently (some days later) watched and reviewed the first clip of video footage that his colleague had taken at the match. He was asked by the procurator fiscal depute to view the footage and on doing so identified the respondent as a person singing the lines from ‘The Roll of Honour’. He said that his attention had been drawn to the respondent because of his demeanour: he was quite vociferous, and was singing in the direction of the home support.
PC Stevenson said that, while he had not been aware of it at the time, review of the video footage had led him to the opinion that, at one point, the respondent made a gesture which mimicked the loading or shooting of a rifle. That was, he said, something he had seen being done previously by Celtic fans. He understood the gesture to be associated with the IRA. He said that, on this occasion, the gesture did not appear to be directed towards anyone.
PC Stevenson was then asked to view the second clip of footage taken by his colleague. He said that, although he had not been aware of it at the time, he could now say that it appeared to show the respondent singing lines from ‘The Boys of the Old Brigade’. PC Stevenson then went on to give evidence about the respondent being spoken to at half time and the subsequent review of the video footage. He also stated that he subsequently arrested and charged the respondent.”