APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Sheriff Principal Lockhart	[2012] HCJAC 133 Appeal No: XJ569/12 OPINION OF THE COURT delivered by LADY PATON in appeal against sentence by RYAN MacDONALD Appellant; against PROCURATOR FISCAL GLASGOW Respondent: _______

Appellant: Haran, Solicitor Advocate; Public Defence Solicitors' Office, Glasgow

Respondent: Scullion, Advocate depute; Crown Agent

26 October 2012

Football banning order

[1] On 14 February 2012, the appellant placed a message on Twitter (a social media network) in the following terms:

"Lawwell needs a bullet. Simples"

"Lawwell" was Peter Lawwell, the chief executive of Celtic Football Club. The message was posted after Rangers Football Club had gone into administration and just after a press conference given by Mr Lawwell during which he made certain comments about the situation. The gist of the comments was that Celtic did not need Rangers, and was not interested in what was going on. The appellant reacted angrily, as described above.

[2] The appellant was charged with breach of the peace by sending a message of a threatening and offensive nature to a social media site. On 26 April 2012 he pled guilty. He was sentenced to a Community Payback Order (level 1) of 70 hours, and to a 3-year football banning order in terms of section 51(4)(b) of the Police, Public Order and Criminal Justice (Scotland) Act 2006.

[3] The appellant appeals against the football banning order. He contends first, that the order was incompetent as the statutory provisions do not extend to the circumstances of the offence. Secondly, he argues that there were no reasonable grounds to believe that the making of a football banning order would help prevent violence or disorder at or in connection with any football matches. Finally, he submits that if the order was both competent and appropriate, the period selected by the sheriff was excessive.

The legislation

[4] The Police, Public Order and Criminal Justice (Scotland) Act 2006 provides inter alia as follows:

"51 Making of order on conviction of a football-related offence

(1) This section applies where -

(a) a person is convicted of an offence; and

(b) the person was aged 16 or over at the time the offence was committed.

(2) Instead of or in addition to any sentence which it could impose, the court which deals with the person in respect of the offence may, if satisfied as to the matters mentioned in subsection (3), make a football banning order against the person.

(3) Those matters are -

(a) that the offence was one to which subsection (4) applies; and

(b) that there are reasonable grounds to believe that making the football banning order would help to prevent violence or disorder at or in connection with any football matches.

(4) This subsection applies to an offence if -

(a) the offence involved the person who committed it engaging in violence or disorder; and

(b) the offence related to a football match

(5) Where the court does not make a football banning order, but is nevertheless satisfied that the offence was one to which subsection (4) applies, it may declare that to be the case.

(6) For the purpose of subsection (4)(b), an offence relates to a football match if it is committed -

(a) at a football match or while the person committing it is entering or leaving (or trying to enter or leave) the ground;

(b) on a journey to or from a football match; or

(c) otherwise, where it appears to the court from all the circumstances that the offence is motivated (wholly or partly) by a football match.

(7) The references in subsection (6)(a) and (b) to a football match include a reference to any place (other than domestic premises) at which a football match is being televised; and, in the case of such a place, then reference in subsection (6)(a) to the ground is to be taken to be a reference to that place.

...

55 "Football matches" and "regulated football matches"

(1) In this Chapter, reference to football matches -

(a) are to association football matches; and

(b) are to matches played or intended to be played."

Submissions for the appellant

[5] It was submitted that the case demonstrated the dangers of social media. People could act impulsively without thinking, and post their views and thoughts on line for everyone to read. The police had been alerted by staff at Celtic Football Club. Statements were taken on 15 February 2012. On 17 February 2012 (three days after the offence) the police called at the appellant's home. The appellant co-operated fully. He accepted that what he had done was foolish, and commented "I was just being an idiot". The appellant had deleted the message 24 hours after it had been posted, having realised how foolish he had been.

[6] Order not competent: It was accepted that the appellant's behaviour was football-related. But it was going too far to say that the behaviour related to "a football match". Reference was made to sections 51(4)(b), 51(6)(c), and 55 of the 2006 Act. While there was a history between Rangers and Celtic in the context of football games played against each other, the present case involved the posting of a message about comments made by Celtic's chief executive relating to Rangers' financial difficulties and going into administration. Accordingly the conditions set out in sections 51(4) and (6)(c) had not been satisfied.

[7] No reasonable grounds to believe that the making of the order would help prevent violence or disorder at or in connection with any football matches: Even if the court took the view that the message was partly related to a football match, the message did not constitute conduct relating to a specific football match. There were no grounds to believe that the order would help to prevent violence or disorder at or in connection with a football match.

[8] A 3-year ban was excessive: The appellant has no previous history of causing trouble or violence. He had co-operated with the police. He had expressed remorse, and might be thought to have learned his lesson. The maximum football banning order which could be imposed was 5 years. The sheriff had selected 3 years. While the comment made by the appellant had been a particularly nasty one, directed to an individual, his behaviour was nevertheless different from violence at matches. In all the circumstances the 3-year ban was excessive.

Submissions for the Crown

[9] The advocate depute did not seek to address the court on the third argument.

[10] It was accepted first, that the words "football match" were to be construed as relating to a particular match on a certain date, and secondly that there was no particular football match to which the message had been directed. But the comments posted had to be viewed in context. The sheriff was entitled to conclude that the relationship between the two clubs centred on football matches, played or to be played. It was open to the sheriff to conclude that part of the appellant's frustration related to Rangers' ability to continue to participate in such football matches: that was, after all, the whole point of the organisation. It was not therefore possible to divorce the circumstances from participation in football matches. The 2006 Act was designed to cover a situation where rival fans agreed not to attend a football match, but to go to an alternative location to indulge in violence. The focus of the dispute between the clubs was football matches. A football banning order could not prevent a posting on Twitter, but could prevent someone with a certain attitude (which could contribute to disorder at football matches) from entering football stadiums and inciting others. The wording of section 51(6)(c) was broad enough to cover the present circumstances. Admittedly, had a similar offence been prosecuted in England in terms of section 14(8) of the Football Spectators Act 1989 (an Act upon which some features of the Scottish legislation had been modelled), it would not have been competent to impose a football banning order. Reference was made to section 14(7) and Schedule 1 of the 1989 Act. That statutory wording required the identification of a particular football match, and a relevant period. But those provisions were not repeated in sections 51 to 56 of the Scottish legislation. Standing the absence of references to a particular football match and a relevant period in the 2006 Act, the sheriff was entitled to impose an order in the circumstances.

Reply for the appellant

[11] Mr Haran referred to the Explanatory Notes published with the Police, Public Order and Criminal Justice (Scotland) Act 2006, and in particular paragraph 87. The Notes tended to suggest that the Crown had to establish a link between the behaviour and a football match (and not "football matches" in the wider sense). In the present case, the motivation was wholly related to Rangers being placed in administration, and not to any particular football match.

Discussion

[12] Section 55(1) of the Police, Public Order and Criminal Justice (Scotland) Act 2006 provides that references to football matches are references to "matches played or intended to be played". Section 51(1) to (4) provides that a football banning order may be made where a person is convicted of an offence involving violence or disorder, the offence being "related to a football match" (section 51(4)(b)). An offence relates to a football match where, inter alia, " ... it appears to the court from all the circumstances that the offence is motivated (wholly or partly) by a football match" (section 51(6)(c)). Paragraph 87 of the Explanatory Notes accompanying the 2006 Act explains inter alia:

" ... the court will need to find some link between the behaviour and a football match. This could include, for example, where groups of rival supporters do not go to a football match but instead meet at a different place for a pre-arranged fight."

In our opinion, the circumstances in the present case do not fall within sections 51 and 55 of the 2006 Act. The appellant's posting of the message on Twitter could not be said to be an offence "related to a football match ... played or intended to be played" (sections 51(4)(b) and 55(1)). Nor, in our view, could the offence properly be categorised as "motivated (wholly or party) by a football match ... played or intended to be played" (sections 51(4)(b), 51(6)(c), and 55(1)). Thus the imposition of a football banning order was, in our view, incompetent.

[13] In the result therefore, the appellant's appeal against the football banning order succeeds on the basis of his first argument. It is unnecessary for us to decide the remaining two arguments.

Decision

[14] We shall allow the appeal and quash the football banning order.