Category Archives: Jury System

What Does the Neil Lennon Case Tell Us about the Issues of Sectarianism and Anti-Catholicism in Scotland?

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!

 

 

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Some More Thoughts Re the Neil Lennon’s Case – by Me @ Scotzine.Com

Scotzine.com is a comprehensive website covering all aspects of Scottish football.

 

In response to a piece by Joanne Lennie earlier today regarding the layperson’s view of the acquittal of John Wilson on the assault charge   I penned a few thoughts in the hope of clarifying and expanding upon various points.

Think of this as a follow on from my earlier posts about the John Wilson case. I think it’s worth a read (but then I wrote it!)

You will find it on the Scotzine site here.

Once you’ve read it, hang around and take in other stuff on the site. Well worth your time.

Thank you!

I will see you back here for the densely written and esoteric legal stuff soon!

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Why Did the Jury Acquit Neil Lennon’s Attacker? Paul McBride QC Thinks He Knows

 

 

Following on from the furore regarding the acquittal of John Wilson on the charge of assaulting Neil Lennon last season at Tynecastle, Paul McBride QC turned up on Newsnight to discuss the verdict.

Mr McBride is one of the finest lawyers in Scotland, and his courage in dealing with having an alleged letter bomb allegedly sent to him is much to be admired.

However I think that he was slightly less than fair in all that he said, and I wonder if his comments are a preview of a position which will become more widely adopted.

Mr McBride expressed astonishment at the verdict passed by the jury. He commented that he had spoken to no one, whether in the legal profession or outside, who could remotely understand the verdict of not guilty on the assault charge. As he was speaking, various people, some with legal backgrounds, were seeking to explain the verdict if not seeking to justify it.

Chris Fyffe, a Dundee solicitor-advocate, in a detailed and thoughtful analysis commented at length regarding the matters which had been publicised to point out how the jury might have arrived at its decision.

The process by which a jury reaches its verdict is shrouded in mystery, and under Section 8 of the Contempt of Court Act 1981  it is an offence to “obtain, disclose or solicit” details of the jurors’ deliberations. The Scottish Courts have regularly confirmed that it is impossible to go past the jury room door once the judge has sent the jury off to consider its verdict, for example in the case of Scottish Criminal Cases Review Commission, Petitioners in which the decision was handed down on 25th July 2001 and which is reported here.

So all that anyone can do is to guess at quite how or why the jury reached its verdict as regards Mr Wilson.

Mr McBride however did appear to be well aware of what was, in his view, relevant to the decision. He commented that the Crown had presented an excellent case. Bearing in mind that Mr McBride was not present in court throughout the case, as I have had confirmed to me, one wonders how he is in position to comment on how the case was presented. It is not uncommon for an apparently watertight case to leak like a colander once the lawyers start talking, and witnesses enter the witness box. That is why, after all, we actually hold a trial!

Whilst I have read and heard opinions expressed that the Crown must, in some way have botched the presentation of the case, I am in an equally poor position as Mr McBride to comment on how the case was laid out in court as I was not there either. Any criticism I have of Crown Office relates to the background of the apparent removal of discretion from the individual prosecutor, rather than anything done in Edinburgh Sheriff Court by them.

But Mr McBride concluded with a statement which is, to me, of great concern. Whilst he did not specifically relate it to this jury (and neither he nor anyone else is capable of speaking with authority about this particular jury) his comment by implication did seem directed towards the jury box at Edinburgh Sheriff Court.

He complained that in Scotland, unlike many other systems, we had jurors who could not read, who could not write and who were laden with prejudices. Something had to be done, said Mr McBride, to resolve this problem.

Mr McBride, as well as his prominent position in the legal firmament, is closely linked with the Conservative Party, having left the Labour Party behind.

In light of that, might his musings about the defects in the jury system be given greater credence, than those of other lawyers?

Many lawyers over the years have blamed the jury and its quirks for a case ending in a way they did not like. This applies equally to prosecution and defence. It’s like blaming the referee for losing a football game, or the doctor stating that the operation was a success, but the patient died.

Is the Scottish court system imperilled by illiterate, innumerate and prejudiced jurors? Have we now reached a stage where the jurors’ oath and the directions of the judge are no longer sufficient to ensure that justice is done? Does Mr McBride want a return to the days of “peremptory challenges” of jurors, where generally the defence would object to any teacher sitting on the jury and if a person turned up for jury duty with a suit, bowler hat, rolled umbrella and copy of the Daily Telegraph, they would be objected to before they had had a chance to move towards the jury box?

Does Mr McBride want to have jury vetting, as in the United States? In a recent high profile case there, where the baseball star Roger Clemens was tried for perjury, jury selection went on for over a week, before the trial, having started, collapsed on Day 2! Whilst the legal profession might delight in the extra work such a process would bring, it would do nothing for the hard pressed courts and the amounts of work that has to be processed.

Should there be pre-jury service questionnaires to establish competence on the part of prospective jurors? I suspect some would try to “fail” such tests so as to avoid service! Should we revert to some form of property or other qualification for jurors? For example, must they be a home owner and in employment, and how does that deal with the questions of competence and prejudice?

I may be making far too much of a throw away remark by Mr McBride QC, but he is not a man known for that. Generally his comments are well thought out and delivered clearly. If he feels that the jury system needs revised in some way, then I am sure he could persuade others to that view. Where might that lead?

In conclusion, the maxim that “Hard Cases make bad law” is figuratively engraved on anyone who has studied law. Taking unique or especially troubling, distressing or baffling cases or incidents and trying to establish some across the board change as a result is usually a recipe for disaster, for example with the Dangerous Dogs Act. Let’s hope that the decision of the jury in Mr Wilson’s case, who were of course the best placed people to determine the issue of Wilson’s guilt or innocence, is not used to make radical changes of any sort.

 

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