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Cite as: [2005] HCJAC 97, [2005] ScotHC HCJAC_97

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Wilson v. Procurator Fiscal [2005] ScotHC HCJAC_97 (02 September 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Philip

Lord McEwan

[2005HCJAC97]

Appeal No: XJ158/03

OPINION OF THE COURT

delivered by LORD OSBORNE

APPEAL

STATED CASE

in the cause

DAVID WILSON

Appellant;

against

PROCURATOR FISCAL, Glasgow

Respondent:

_______

Appellant: Party

Respondent: Di Rollo, Q.C., A.D.; Crown Agent

2 September 2005

[1] The appellant was charged on a summary complaint at the instance of the respondent, in which there was a single charge in the following terms:

"You DAVID WILSON did, while acting with others whose identities are meantime unknown to the complainer, on 15 July 2001 at St. Andrew's Drive, Glasgow and elsewhere in Pollokshields, Glasgow, distribute written material which is threatening, abusive or insulting and you did thereby intend to stir up racial hatred; CONTRARY to the Public Order Act 1986, section 19(1)(a)."

He pled not guilty and went to trial. On 24 October 2002, the sheriff found the appellant guilty as libelled. On 14 November 2002 the appellant was sentenced to 4 months imprisonment.

[2] By an application dated 20 November 2002 the appellant craved the court to state a case for the opinion of this court on the several matters set out in that application.

[3] Section 19 of the Public Order Act 1986, hereafter referred to as "the 1986 Act" is in the following terms:

"(1) A person who publishes or distributes written material which is threatening, abusive or insulting is guilty of an offence if -

(a) he intends thereby to stir up racial hatred, ...

(3) References in this Part to the publication or distribution of written material are to its publication or distribution to the public or a section of the public."

Section 17 of the 1986 Act defines "racial hatred" as

"hatred against a group of persons in Great Britain defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins."

[4] In the stated case, the sheriff has made a number of findings in fact. For the present purposes it is unnecessary to narrate these in their entirety. However, it is appropriate to refer to those which are crucial in the context of the present appeal. The sheriff has found as fact inter alia the following:

"1. Pollokshields is a multi-cultural area of Glasgow which has the highest population of non-indigenous ethnic minorities in Scotland. As at July 2001, the predominant ethnic group were Pakistani, comprising well in excess of half the local population. The vast majority - approximately 95% - of the black population in Pollokshields were Pakistani by origin and were Muslims by religion. The area is very well know throughout Scotland as one densely populated by Pakistanis.

(2) In Pollokshields the term 'Pakistani' and 'Muslim' are used inter-changeably in the community. They are recognised as synonymous by persons with a good knowledge of the local community. ...

(5) On 15 July 2001, the appellant delivered written material in the form of several hundred leaflets identical to Crown Production No. 1 to residents and members of the public in the Pollokshields area. He delivered leaflets to houses in and around St. Andrew's Drive there. ...

(20) The leaflet was threatening in character.

(21) The leaflet was likely to cause a breach of the peace and to provoke fear and alarm among residents in Pollokshields.

(22) The leaflet contained written material which had clear racist overtones.

(23) The leaflet contained information which was substantially inaccurate and which rendered it insulting and abusive to the Muslim population of Pollokshields. The inaccurate portrayal of the situation in Pollokshields was an affront to the dignity of the Muslims living in Pollokshields and undermined their position in the community. ...

(27) The appellant was a long-standing, active and informed member of the British National Party in July 2001.

(28) The appellant and six others delivered the leaflets on behalf of the British National Party as part of a pre-planned activity. ...

(32) The appellant was aware of the particular multi-cultural make-up of Pollokshields. He was aware that the area was densely populated by ethnic minorities and knew that a high percentage of the community there were black Muslims of Pakistani origin.

(33) The appellant distributed the leaflets in the knowledge that they would cause offence to the black, Muslim members of the community and alarm the white members of the community.

(34) To insult and abuse the Muslim community in Pollokshields was to insult and abuse the black, Pakistani members of the community there. It was obvious to the readers of the leaflet in Pollokshields that it referred to the black Pakistani residents.

(35) In distributing the said written material, the appellant intended to provoke ill-feeling and hostility and to stir up racial hatred against the black, Pakistani members of the community in Pollokshields on the basis of their colour and national origins."

[5] The sheriff, in response to the matters sought to be brought under review, has stated five questions in the stated case. These are:

1. On the evidence before me was I entitled to make finding-in-fact 20?

2. On the evidence before me was I entitled to make finding-in-fact 23?

3. On the evidence before me was I entitled to make findings-in-fact 32 and 33?

4. On the evidence before me was I entitled to make finding-in-fact 35?

5. On the facts stated was I entitled to convict the appellant of an offence under

section 19(1)(a) of the Public Order Act 1986?

[6] This appeal came before the Criminal Appeal Court on 28 April 2004 when the solicitor advocate for the appellant tendered what were described as additional grounds of appeal, together with a devolution issue minute. The court then did not allow these grounds and that minute to be received, but continued consideration of them and the appeal to a date to be afterwards fixed. When the appeal came before us on 17 August 2005, the appellant was not legally represented, he having refused to accept advice tendered to him by his former legal advisers. The appellant commenced by moving the court to allow the additional grounds of appeal and the devolution issue minute to be received. On being pressed to explain how "cause" could be shown for the reception of these grounds and the minute at this very late stage, he stated that the case was a very unusual one. There had been irregularities in it from the start. The contents of the new grounds of appeal and the devolution issue minute were of importance to him. They sought to introduce reliance upon Article 10 of the European Convention on Human Rights and Fundamental Freedoms, hereafter referred to as "the Convention", which was concerned with freedom of speech. The appellant frankly agreed that he could not explain or justify the procedural irregularities which the presentation of these grounds and the minute would involve at this stage. However, he suggested that, in the interests of justice, his motion should be granted.

[7] The Advocate depute, in reply to this motion, dealt first of all with the motion so far as it related to the devolution issue minute. He pointed out that under Rule 40.5 of the Act of Adjournal (Criminal Procedure Rules) 1996, hereafter referred to as "the Act of Adjournal", "cause" had to be shown why the minute should be received at a stage such as this, long after the trial had been concluded. He submitted that no relevant explanation had been given. Furthermore, the contents of the devolution issue minute were open to criticism. It appeared to be suggested that section 19(1) of the 1986 Act was inconsistent with Article 10 of the Convention, although there was no suggestion in the minute that a declaration of incompatibility was being sought in terms of section 4 of the Human Rights Act 1998, hereafter referred to as the 1998 Act. In any event, even if such a declaration could be made, the provisions of section 4(6) of the 1998 Act were such that the making of that declaration would not have the effect of detracting from the force of section 19 of the 1986 Act in the context of the present case. In any event, on a proper view of the matter, there was no incompatibility, having regard to the qualifications contained in Article 10(2) of the Convention. In a later part of the devolution issue minute, it was contended that the sheriff had failed to "read down" the terms of section 19 of the 1986 Act, so as to render it compatible with the provisions of Article 10 of the Convention. However, there was no indication in the minute as to how it was said that that should have been done.

[8] Turning to the additional grounds of appeal tendered, the Advocate depute pointed out that grounds 2 and 4 merely duplicated matters to be found in the devolution issue minute. As regards grounds 1 and 5, the position was different. The first related to an issue of sufficiency of evidence, which had never previously been raised. The latter related to an allegation concerning the wrongful admission of evidence in the form of the transcript of an interview of the appellant by certain police officers. The Advocate depute pointed out that section 182(3) of the Criminal Procedure (Scotland) Act 1995, hereafter referred to as "the 1995 Act", required that "cause" should be shown as to why grounds of appeal should be received at this very late stage after the stating and adjustment of the stated case. He relied upon Stein v. Procurator Fiscal, Edinburgh 1991 S.C.C.R. 692, a case which showed that the court was most reluctant to allow grounds of appeal to be raised not contained in the application for a stated case.

[9] In reply the appellant stated that it was crucial to his appeal that Article 10 of the Convention should be read along with the 1986 Act. He was unable to explain why this matter had not been introduced in the proceedings at the time of the trial. As regards the grounds of appeal relating to the admission of evidence, he said that he had relied on his legal representatives to take appropriate action at the time of the trial. He recognised that objection to the evidence concerned had been taken and that a trial within a trial had been held. He had not given evidence in the trial within the trial. The sheriff had repelled the objection taken on the appellant's behalf. Nevertheless, the appellant urged upon us that the evidence in question had been wrongly admitted. As regards the significance of Article 10 of the Convention, the appellant referred to Handyside v. The United Kingdom [1976] ECHR 5, paragraph 49. It showed that the margin of appreciation conferred on contracting States was not unlimited. Restrictions on the freedom of speech had to be proportionate to the object sought to be achieved.

[10] Having heard the appellant in support of the motion for the reception of the devolution issue minute and the additional grounds of appeal and the Advocate depute in reply, we reached the conclusion that the appellant's motion should be refused. Dealing first of all with the devolution issue minute, while we had very considerable doubts as to the relevance and specification of the material which it contains, it is not appropriate for us to embark upon a consideration of its merits at this time. Suffice it to say that, before we could properly have allowed it to be received, we would require to have been satisfied in terms of Rule 40.5 of the Act of Adjournal that "cause" had been shown as to why it should be received at this very late stage in these proceedings. Essentially the minute is concerned with the impact of Article 10 of the Convention upon the interpretation of section 19 of the 1986 Act. That is a matter which could without any difficulty have been raised timeously in terms of Rule 40.3 of the Act of Adjournal. No explanation was proffered by the appellant as to why that had not been done. In these circumstances we were quite satisfied that "cause" had not been shown why the minute should now be received.

[11] As regards the additional grounds of appeal, grounds 2 and 4 are essentially a repetition of the material contained in the devolution issue minute. Our observations about that are equally applicable to them. As regards grounds 1 and 5, there being no ground 3, those are matters which could readily have been included in the original application for the stated case, dated 20 November 2002. Once again no explanation was offered to the court as to why that had not been done. Accordingly, we found that "cause" had not been shown for the reception of these grounds now in terms of section 182(3) of the 1995 Act. For these reasons we therefore have refused the appellant's motion.

[12] The foregoing motion having been refused, the appellant addressed the court in relation to the stated case itself. He dealt with each of the questions posed by the sheriff in turn. As regards question 1, raising the issue of the sheriff's entitlement to make finding-in-fact 20, the appellant agreed that the character of the leaflet was essentially a question of fact, although Article 10 of the Convention had to be taken into account. Turning to question 2, which raised the issue of the entitlement of the sheriff to make finding-in-fact 23, the appellant pointed out that that finding-in-fact was focused upon the effect of the contents of the leaflet upon the Muslim population of Pollokshields. However, section 17 of the 1986 Act defined "racial hatred" in such a way that religion had no part to play in the definition. The hatred had to be

"hatred against a group of persons in Great Britain defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins."

Accordingly, finding-in-fact 23 was irrelevant in the context of the case. However, the appellant recognised that the sheriff had made finding-in-fact 2, which involved equiparating Muslims and Pakistanis in Pollokshields. He contended that that finding-in-fact was open to challenge, although he recognised that it had not in fact been challenged in the stated case. Reverting to finding-in-fact 23 he contended that the leaflet had not contained "hate speech" or threats. It was essentially a political tract. It did not contain abusive material.

[13] Turning to question 3, which was focused upon the entitlement of the sheriff to make findings-in-fact 32 and 33, the appellant made no submissions. Question 4 was focused upon the sheriff's entitlement to make finding-in-fact 35, a finding relating to the appellant's intention in distributing the written material. As regards this he simply stated that he had not intended to break the law. He had never previously been convicted of any crime. However, he refused to comment on the intention which he had had in relation to any of the actions involved in the incident giving rise to the prosecution. Question 5 was focused upon the entitlement of the sheriff to convict on the basis of the findings-in-fact made. The appellant submitted that the sheriff had not been entitled to convict. He drew attention to the terms of legal advice which he had received to the effect that the conviction was questionable.

[14] In reply the Advocate depute contended that the stated case was in detailed terms. The sheriff had given careful consideration to all of the issues which had arisen. Her decisions had been sound. The questions in the stated case should all be answered in the affirmative.

[15] As regards the first question arising, the appellant himself recognised that the character of the leaflet was essentially a question of fact. He did not examine the written material distributed at all, with a view to showing that the sheriff's finding-in-fact 20 was unsound. In our view, nothing has been brought to our attention to suggest that the sheriff was not entitled to make finding-in-fact 20. Accordingly we shall answer question 1 in the affirmative. As regards question 2, once again, in our view this is essentially a question of fact for the sheriff. The point raised by the appellant, based upon the definition of "racial hatred" in section 17 of the 1986 Act, appears to us to be destroyed by the terms of finding-in-fact 2, already quoted, in which the sheriff finds that, in Pollokshields, the terms "Pakistani" and "Muslim" are used interchangeably in the community. Reading findings-in-fact 2 and 23 together, it appears to us plain that the sheriff has found that the contents of the written materials distributed were abusive to persons defined by reference to national origins and also colour.

[16] Turning to question 3, raising the question of the sheriff's entitlement to make findings-in-fact 32 and 33, the appellant made no submissions to the court. As regards question 4, focused upon the sheriff's entitlement to make finding-in-fact 35 concerning the appellant's intentions, the appellant confined himself to saying that he had not intended to break the law. He refused to comment as regards his intention vis-à-vis the actions giving rise to the charge against him. In our view the sheriff was plainly entitled to make finding-in-fact 35 as a matter of inference from the other findings in fact in the case.

[17] Finally, on the general issue raised in question 5, we have reached the conclusion that the sheriff was quite entitled to convict the appellant of the offence charged, having regard to the findings in fact which she made and to the terms of section 19(1)(a) of the 1986 Act.

[18] In all the circumstances we shall answer all of the questions in the affirmative. The appeal is refused.