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Cite as: [2004] ScotHC 32

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Rankin v. Procurator Fiscal [2004] ScotHC 32 (01 June 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Hamilton

Lord Abernethy

Lord Philip

Appeal No: XJ343/03

OPINION OF THE COURT

delivered by LORD HAMILTON

APPEAL BY STATED CASE

JAMES RANKIN

Appellant;

against

PROCURATOR FISCAL, Ayr

Respondent:

_______

Appellant: Shead; Peacock Johnstone

Respondent: A. McMillan, A.D.; Crown Agent

1 June 2004

[1] The appellant was charged on summary complaint in Ayr Sheriff Court that on 13 January 2002 at Seacat Terminal, Harbour Road, Troon he

"did wear an article within the meaning of [the Terrorism Act 2000 (as amended)] 'namely, a yellow metal pendant and neckchain and two yellow metal "UVF" finger rings in such a way or in such circumstances as to arouse reasonable suspicion that you were a member or supporter of a proscribed organisation as defined by [the Act], namely, Ulster Volunteer Force (UVF)', in that you did openly wear said pendant and rings", contrary to section 13(1)(b) of the Act.

After trial he was convicted as libelled and admonished. He appeals by way of stated case to this court against his conviction.

[2] Section 13(1) is in the following terms:

"A person in a public place commits an offence if he -

(a) wears an item of clothing, or

(b) wears, carries or displays an article,

in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation".

[3] The conviction is challenged on two bases. First, it is maintained that the sheriff erred in law in rejecting a submission, made on the appellant's behalf at the close of the Crown case, that he had no case to answer. Second, it is maintained that on the facts proved, including certain explanations given in evidence by the appellant and certain witnesses called on his behalf, which explanations are not stated by the sheriff to have been disbelieved by him, the sheriff was not entitled to find the appellant guilty of this charge.

[4] The Ulster Volunteer Force is an organisation proscribed by section 3 of (as read with Schedule 2 to) the Terrorism Act 2000 (as amended). The Arrival Hall at the Seacat Terminal is a public place (see section 121). The Crown led evidence from two police officers that, while on duty there, they observed the appellant as a passenger who had arrived on the ferry from Belfast to Troon. Their attention was drawn to him because he was wearing certain jewellery, a neck chain and pendant and two finger rings. One finger ring in particular was noticed as having the distinct lettering UVF, which the officers recognised as the initials of the Ulster Volunteer Force. The lettering on the other items of jewellery was less prominent but was visible on closer examination. All the items of jewellery were clearly on display. The officers were suspicious that the open wearing of that jewellery might indicate that the appellant was a member or supporter of the Ulster Volunteer Force. The appellant was stopped and detained under powers conferred by the Act. In the course of questioning he stated, in relation to one of the rings, "I got it years ago as a present"; in relation to the ring with the more prominent UVF initials, he said that it was worn as a wedding ring. He also stated to them that he was not a member or supporter of the Ulster Volunteer Force. Having regard to what are now the live issues in this appeal, we find it unnecessary to narrate certain other evidence which was led from the officers.

[5] Mr. Shead for the appellant contended before us that, on the evidence we have narrated, the appellant had no case to answer. Had it not been for the raised pattern on one of the rings, the UVF initials, he suggested, would not have been noticed. On the basis of the evidence that the appellant was wearing that ring (or indeed all the jewellery in question), it could not be inferred that the appellant had committed this statutory offence. The section, which was side noted "uniform", was designed to strike at the wearing of items, such as black berets and dark sunglasses, which pointed clearly to an affiliation with a proscribed organisation. An offence was not committed simply by the wearing of an item or items but by the doing so "in such a way or in such circumstances" as to arouse reasonable suspicion of the specified kind. There was nothing about the way in which the jewellery was being worn by the appellant (which was on the conventional parts of the body for such items) or about the circumstances in which they were being worn by him which could arouse any reasonable suspicion of that kind. The circumstance that the appellant was travelling from Belfast to Troon was not significant. Although "supporter" was not defined in the statute, the terms of section 12 gave some indication of the kind of activity which the legislature had in mind. Section 13 should not be construed so as to criminalise, in the wearing of apparel, conduct which might be regarded as simply foolish or as a display of bravado. There had to be more than an indication of an interest in the organisation in question. It was also relevant to take into account the explanation which the appellant had given to the police officers at the time. Even if there was a case to answer, the sheriff, having heard the whole evidence, was not entitled to convict. The appellant, his wife and a friend had all given evidence. The sheriff had not, in the stated case, made any adverse comment on that evidence; this court should accordingly proceed on the basis that he accepted it as truthful and reliable. The appellant had testified that he wore the UVF ring on his wedding finger; that he had never been a member or supporter of the Ulster Volunteer Force and did not know it was a proscribed organisation; and that there had been a family connection with the Ulster Volunteer Force as a regiment in the British Army in the First World War. The appellant's wife had testified that she and her husband had gone to Belfast for a surprise party for the appellant with friends; that she had given the appellant the ring four or five years earlier; that neither she nor her husband were supporters of the Ulster Volunteer Force; that her husband played in a flute band and therefore she and he visited Belfast on many occasions over the years. The remaining witness, the appellant's brother-in-law, confirmed that the appellant was not a supporter of the Ulster Volunteer Force; that he and the appellant were members of the same flute band in which the appellant did not play an instrument but carried the Union Jack; that it was their normal practice to attend Belfast for twelfth of July activities. These facts, Mr. Shead submitted, at least raised a reasonable doubt as to whether the appellant had committed the statutory offence.

[6] The Advocate depute submitted that the statute should be interpreted in accordance with the ordinary meaning of the words used. The significant averment in the charge (which was supported by the evidence led) was that the appellant was displaying the jewellery openly - in particular the ring with the prominent UVF initials was so positioned on his finger that these initials were clearly visible. The wearing of such jewellery so prominently displayed by a traveller from Ulster to the West of Scotland could properly arouse a reasonable suspicion, on the part of an objective observer, that the wearer was, at least, a supporter of the proscribed organisation - as the police officers had in fact suspected. The whole circumstances disclosed in the Crown case had to be taken into account. The police evidence having been accepted by the sheriff, the defence evidence was not such (even if accepted) as to disentitle the sheriff to convict.

[7] Part II of the Terrorism Act 2000 makes provision in respect of proscribed organisations, including certain offences in relation to them. Section 13, the substantive provisions of which are set out above, appears within that Part. The word "supporter" is not defined in the statute. Although section 12, within the same Part, creates certain offences in respect of the (actual) support of proscribed organisations, we do not find that section of assistance in the construction or application of section 13. Nor can the side note "uniform" have the effect of restricting the offence under section 13 to the wearing of some distinctive comprehensive attire. In terms of the section, the carrying or displaying of a single article may, if done in a relevant way or in relevant circumstances, be sufficient to arouse reasonable suspicion of the specified kind. In this case the evidence led by the Crown was to the effect that, amongst other items of jewellery being worn by the appellant as he passed from Ulster through a West of Scotland port, was a ring on which prominently appeared the initials UVF. That ring was being so worn on the appellant's finger that these initials could readily be seen. That these initials represent the Ulster Volunteer Force is well-known both in Ulster and in the West of Scotland. It is not suggested that the appellant was unaware of that representation, whatever his knowledge or ignorance of the status of that body as a statutorily proscribed organisation. The wearing of that article in that way and in that place was, in our view, amply sufficient to arouse in the mind of an objective observer reasonable suspicion that the appellant was a supporter, if not a member, of that body. The police officers in fact had, on the basis of what they observed, such a suspicion. Nothing said by the appellant in the context of his examination at the port was such as to negative the basis for that suspicion. In these circumstances the sheriff rightly repelled the submission of no case to answer.

[8] Evidence was led from the appellant to the effect that he had received the UVF ring some years earlier as a gift from his wife; that he regularly visited Northern Ireland and participated there in lawful Loyalist activities; and that he was not in fact a member or supporter of the Ulster Volunteer Force. The sheriff does not indicate that he disbelieved any of that evidence. But, on the assumption that these facts are to be taken as having been established, they go no way, in our view, to negative the actual suspicion entertained by the officers nor the objectively reasonable basis for that suspicion.

[9] While the manner and circumstances of the offending in this case may, as reflected by the sheriff's disposal, be at the least serious end of the spectrum of conduct against which section 13 strikes, it is not, in our view, outwith the range of the legislative intent. We shall accordingly answer question 1 in the stated case in the negative and question 3 in the affirmative and find it unnecessary to answer the remaining questions; and we shall refuse the appeal.