Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Mackay of Drumadoon Lord Bonomy	[2012] HCJAC 53 Appeal No: XJ947/11 OPINION OF THE LORD JUSTICE CLERK in the APPEAL BY STATED CASE by PAUL DONNACHIE Appellant; against PROCURATOR FISCAL, CUPAR Respondent: _______

For the appellant: Scott QC, sol adv; Capital Defence

For the Crown: Prentice QC sol adv, AD; Crown Agent

1 May 2012

Introduction

[1] On 23 August 2011 at Cupar Sheriff Court, the appellant was convicted on complaint of the following charge:

"on 12th March 2011 at University of St Andrews ... you ... did act in a racially aggravated manner which caused or was intended to cause alarm and distress to a person namely [complainer], in respect that you did place your hands inside your trousers onto your genitals and thereafter rub your hand onto a flag of Israel and make comments of an offensive nature within his presence;

CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995 Section 50A(1)(b) and (5)."

A co-accused was acquitted on the same charge.

[2] The appellant and the complainer were students. They lived in the same hall of residence. The complainer shared a room with another student. Above his bed he had pinned an Israeli flag given to him by his brother, who was in the Israeli Defence Force. The complainer is Jewish. He is not a citizen of Israel and has never been there; but he has Israeli friends and feels a sense of connection with the State of Israel.

[3] At around 1.30am on the date libelled, when the complainer was asleep, his room-mate returned. He was drunk. Soon after, the appellant and the co-accused knocked on the complainer's door. They were concerned for his room-mate. They too were drunk.

[4] The appellant noticed the Israeli flag and said to the complainer "Israel is a terrorist state, the flag is a terrorist symbol and you are a terrorist." He said that students were not allowed to have flags in their rooms and said "Israel has no history here." The appellant stood close to the flag, put his hands down his trousers and pulled out pubic hair. He wiped this in the middle of the flag.

[5] The complainer screamed at the appellant and the co-accused to get out. The appellant then said repeatedly that the flag was a terrorist symbol. He said that the complainer was a terrorist. He and the co-accused then left the room. Outside the room the appellant talked loudly to other students. He said "It's a nation built on terrorism" and "They are all suicide bombers." The appellant's actions distressed the complainer.

The legislation

[6] Section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995, as amended, creates the offence of racially-aggravated harassment. It provides inter alia as follows:

"(1) A person is guilty of an offence under this section if he - ...

(b) acts in a manner which is racially aggravated and which causes, or is intended to cause, a person alarm or distress.

(2) For the purposes of this section a course of conduct or an action is racially aggravated if -

(a) immediately before, during or immediately after ... the ... action the offender evinces towards the person affected malice and ill-will based on that person's membership (or presumed membership) of a racial group; or

(b) the ... action is motivated (wholly or partly) by malice and ill-will towards members of a racial group based on their membership of that group.

(3) In subsection (2)(a) above -...

'membership', in relation to a racial group, includes association with members of that group ...

'presumed' means presumed by the offender.

(4) It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) above whether or not the offender's malice and ill-will is also based, to any extent, on - ...

(b) any other factor not mentioned in that paragraph ...

(6) In this section - ...

'conduct' includes speech ... ...

'racial group' means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins ... "

The trial

[7] The appellant said in evidence that he had strongly held and sincere views about the Palestinian question. He had an antipathy towards the state of Israel, but not towards Jews. He accepted that his conduct in the complainer's room was unacceptable; but said that it was motivated by his political beliefs. It was not intended to be an attack on the complainer personally, or to be an anti-Semitic attack.

[8] The sheriff asked him to what extent he could distinguish between the state of Israel and the actions of the Israeli government (the state/government issue). The appellant replied that he could make no such distinction. At this point it occurred to the appellant's solicitor that the sheriff regarded this question as being relevant to the charge. The solicitor therefore sought leave to call three people as witnesses on that question. All three were attending the trial. Two of them were members of Scottish Jews for a Just Peace, a political group whose views were to some extent critical of Israel. The third was a member of the Scottish Palestine Solidarity Campaign. The sheriff understood that the proposed witnesses would challenge the factual basis of the complainer's assumed association with the State of Israel. The Crown objected to the leading of these witnesses on the ground that their proposed evidence was irrelevant to the subject matter of the charge.

[9] The sheriff sustained the objection. He considered that the views of the proposed witnesses on the political situation in Israel could have no bearing on the question whether the complainer had an association with Israel of a kind that qualified him as a member of a racial group for the purposes of section 50A(3) (supra). The factual basis of the complainer's beliefs was irrelevant (Note, para [9]). The sheriff's decision on this point is the only remaining issue in this appeal.

The sheriff's report

[10] The sheriff reports that he convicted the appellant on the basis that he had evinced malice and ill will towards the complainer because of his association with Israel and his assumed Israeli nationality (ibid, para [16]). He confirms that the appellant's answer to him on the state/government issue formed no part of his decision (ibid, para [17]).

Submissions for the appellant

[11] The solicitor advocate for the appellant explained that the defence motion at the trial had been prompted by the sheriff's question regarding the state/government issue. It was difficult to see what bearing that question could have had on the issues before the sheriff. However, the question having been asked, it was legitimate for the defence to lead evidence on the issue. The sheriff had misapprehended the nature of the proposed evidence. The defence did not intend to attack the legitimacy of the complainer's association with the State of Israel. The purpose of the proposed evidence was to put the appellant's comment in context. Although the sheriff explained in the stated case that he had given no weight to the appellant's answer to his question, an objective onlooker would have perceived that there was an appearance of unfairness in his raising the issue and then denying the appellant the opportunity to lead evidence about it. The sheriff had said nothing at the trial to suggest that he had disregarded the appellant's answer to his question.

Conclusions

[12] The defence motion arose only because of the sheriff's question. On the face of it, that question had no bearing on the terms of the complaint. Understandably, it raised in the defence solicitor's mind the possibility that the sheriff thought that the issue was material. He would not otherwise have sought to lead evidence on the point.

[13] The sheriff is at pains to emphasis in the stated case that the state/government issue played no part in his decision. The solicitor advocate for the appellant accepted that this was the case, but submitted that the appearance mattered as much as the substance.

[14] In my view, the submission for the appellant is unsound. The sheriff's perhaps incautious question had no relevance to any question of fact or law raised by the complaint. The asking of the question caused no prejudice to the defence. As the sheriff himself recognised, it was irrelevant. In refusing the defence motion, expressly on the ground that the proposed evidence was irrelevant, the sheriff publicly acknowledged that the issue would have no bearing on his decision. There was therefore no substantive miscarriage of justice; nor was there an appearance of injustice.

Disposal

[15] I propose to your Lordships that we should refuse the appeal.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Mackay of Drumadoon Lord Bonomy	[2012] HCJAC 53 Appeal No: XJ947/11 OPINION OF LORD MACKAY OF DRUMADOON in the APPEAL BY STATED CASE by PAUL DONNACHIE Appellant; against PROCURATOR FISCAL, CUPAR Respondent: _______

For the appellant: Scott QC, sol adv; Capital Defence

For the Crown: Prentice QC sol adv, AD; Crown Agent

1 May 2012

[16] For the reasons given by your Lordship in the chair, I agree that the appeal

should be refused.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Mackay of Drumadoon Lord Bonomy	[2012] HCJAC 53 Appeal No: XJ947/11 OPINION OF LORD BONOMY in the APPEAL BY STATED CASE by PAUL DONNACHIE Appellant; against PROCURATOR FISCAL, CUPAR Respondent: _______

For the appellant: Scott QC, sol adv; Capital Defence

For the Crown: Prentice QC sol adv, AD; Crown Agent

1 May 2012

[17] I agree that this appeal should be refused for the reasons given by your Lordship in the chair.