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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> PROCURATOR FISCAL, DINGWALL v. JOSEPH CAIRNS [2013] ScotHC HCJAC_73 (20 June 2013) URL: http://www.bailii.org/scot/cases/ScotHC/2013/2013HCJAC73.html Cite as: [2013] HCJAC 73, 2013 SLT 929, 2013 SCL 666, 2013 GWD 23-437, [2013] ScotHC HCJAC_73, 2013 SCCR 422 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lady PatonLord Brodie Lord Philip
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[2013] HCJAC73 Case No. XJ266/13
OPINION OF THE COURT
delivered by LORD BRODIE
in
STATED CASE
by
PROCURATOR FISCAL, DINGWALL
Appellant;
against
JOSEPH ANTHONY CAIRNS
Respondent:
_____________ |
Appellant: Brown QC, AD; Crown Agent
Respondent: Gilfedder, Solicitor Advocate; Paterson Bell, Edinburgh
20 June 2013
Introduction
[1] This
is an appeal by way of stated case at the instance of the Procurator Fiscal,
Dingwall. The respondent is Joseph Anthony Cairns.
"(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)"
Evidence was led by the appellant from two witnesses: police constable Barry Inglis and police constable Colin Stevenson. In addition there was lodged on behalf of the appellant a joint minute of agreement agreeing the terms of the lyrics to two songs known, respectively, as "The Roll of Honour" and "The Boys of the Old Brigade". At the conclusion of the Crown case on the unopposed motion of the appellant, the sheriff allowed the complaint to be amended by deleting the words "and make threatening gestures towards opposing fans" and "(d) and " where it occurs following "section 1(2)". The solicitor acting for the respondent then made a submission to the sheriff in terms of section 160 of the Criminal Procedure (Scotland) Act 1995 that there was no case to answer. After hearing both parties the sheriff sustained the submission and acquitted the respondent.
Offensive Behaviour
at Football and Threatening Communications (Scotland) Act 2012
[4] The
Offensive Behaviour at Football and Threatening Communications (Scotland)
Act 2012 provides, inter alia, as follows:
"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-
(a) colour.
(b) race,
(c) nationality (including citizenship),
(d) ethnic or national origins,
(e) sexual orientation,
(f) transgender identity,
(g) disability.
(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."
Crown evidence
[5] The
sheriff summarised the evidence of the two Crown witnesses as follows:
"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."
[12] The sheriff
correctly identified that to be struck at by section 1(1) behaviour must
not only be such that a reasonable person would be likely to consider it offensive
but it must also either be likely to incite public disorder or would be likely
to incite public disorder. Because, on the evidence led, the sheriff
considered that there was no proper basis for inferring that any person who
might be incited to public disorder would have been able to tell that the
respondent was singing about the hunger strikers and the IRA, in his opinion
there was no proper basis for inferring that the respondent's behaviour was
likely to incite public disorder and, accordingly, the submission of no case to
answer fell to be upheld. We cannot agree with that conclusion. As the advocate
depute
argued, it is by no means clear why the sheriff came to the view that he did on
the evidence. Two police officers had given evidence that they recognised the
song and heard certain of the words sung. As the advocate depute argued, 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. However, be that as it may, the sheriff does not
appear to have considered the effect of section 1(5). That subsection
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. Thus, the Act distinguishes between, on the one
hand, "a reasonable person" and, on the other, a person "likely to be incited
to public disorder". 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. 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.