APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal No: XJ845/03
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
in the appeal by
DAVID ELDER ALLISON
LEONARD A. HIGSON, Regional Procurator Fiscal, Glasgow
For the appellant: Brown; Brodies
For the Crown:McConnachie AD; Crown Agent
21 October 2004 The appellant was convicted at Glasgow Sheriff Court on 24 January 2003 on the following charge:
"On 3 October 2002 at Ibrox Stadium, Copland Road, Glasgow you DAVID ELDER ALLISON did conduct yourself in a disorderly manner run onto the playing surface waving a flag during the course of a football match and commit a breach of the peace."
On the occasion libelled a football match was being played at the locus between Rangers and a European team which the sheriff does not identify. The crowd consisted of about 50,000 Rangers supporters and about 20 supporters of the visiting team. At about 8.20 pm Rangers scored the first goal. The appellant immediately jumped over a wall at the foot of the Copland Road stand and made his way onto the field. He was carrying a flag. Once on the field, he turned to his fellow supporters and waved the flag at them. The findings do not disclose what sort of flag it was; but counsel were agreed that it was almost certainly a Union Jack. That seems to be a reasonable inference.  At this point the Rangers players were celebrating the scoring of the goal and the crowd was in a jubilant mood. The appellant was thereupon arrested by two uniformed constables. When arrested he said "I wasn't doing any harm."  The sheriff has made the following critical finding.
"6. The appellant's actions could reasonably have been expected to incite others to behave in a disorderly manner and lead to major crowd control problems."
Counsel for the appellant accepted that in deciding whether or not a breach of the peace had occurred the sheriff had applied the correct legal test and that, if this finding were soundly based, the appeal must fail; but he submitted that the sheriff had no proper basis on which she could reasonably conclude that the appellant's conduct could be conducive to alarm or public disturbance. He submitted that, unlike the incident in Butcher v Jessop (1989 SCCR 119), this incident had not occurred in an atmosphere of tribal animosity. The supporters were virtually all of one mind and were in celebratory mood. The appellant did not stop the play or delay its resumption. To wave his flag towards his fellow supporters could not create any reasonable apprehension of public disorder. The advocate depute submitted that the appellant's actions constituted a breach of the peace by reason of their context. The incident occurred during a major sporting event in a confined space. When the appellant ran onto the field, neither the players nor the crowd had any idea what his intentions were. One of the arresting officers had been concerned that other supporters might follow the appellant onto the field.  In our opinion the sheriff was fully entitled to make finding 6. In the charged atmosphere of a football match like this there is an ever-present risk of crowd trouble. In our opinion, for a spectator to run onto the field of play, where he has no right to be, at any stage during such an event is disorderly per se. It is disruptive, actually or potentially, to the progress of the game and it gives reasonable cause for concern as to the crowd reactions to which it may lead. While the appellant's actions took place in front of a jubilant audience, they created the serious risk that other supporters would follow his example. For these reasons we consider that the appellant's actions constituted a breach of the peace. We therefore refuse the appeal.  In the stated case the sheriff mentions that at a pre-match briefing all of the police officers on duty were instructed to arrest anyone who entered on the playing area. Counsel for the appellant submitted at one stage that the appellant had been arrested purely because of a police policy unrelated to the merits of the individual case. In our view a pre-match briefing of that kind represented good policing and a realistic awareness of the potential of pitch invasions to cause crowd disorder.