Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 19

HCA/2014/5142/XJ and
HCA/2014/5140/XJ

Lord Justice Clerk

Lord Brodie

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in the applications under section 180(8) of the Criminal Procedure (Scotland) Act 1995

by

WILLIAM DONNELLY and MARTIN WALSH

Applicants;

against

PROCURATOR FISCAL, EDINBURGH

Respondent:

Applicants: CM Mitchell; Paterson Bell

Respondent: A Brown QC AD; the Crown Agent

13 February 2015

[1]        On 16 October 2014, the applicants, who are said to be Celtic fans, were convicted of a contravention of section 1(1) of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 by singing the “Roll of Honour” song, which supports the activities of the proscribed IRA and INLA, at a match between Hibs and Celtic at Easter Road on 19 October 2013.

[2]        The applicants’ behaviour was spoken to by two police officers.  There were CCTV images of what had happened, although it is not entirely clear who spoke to these images.  Only one officer provided a view on the likely effect of the song.  The CCTV images had a sound track which contained booing, in response to the singing, by a section of the Hibs fans.

[3]        The Stated Case contains three questions: (1) was I entitled to repel the submission of no case to answer; (2) was I entitled on the evidence stated to convict the applicants; and, as interpreted by the court, (3) in the particular circumstances of the case, was the applicants’ right to know, with sufficient clarity, of the nature of the crime, in terms of Article 7 breached? 

[4]        The judge at first sift refused leave to appeal.  He stated that the sheriff had been entitled to find corroboration in three sources of evidence, including the CCTV images.  It being conceded that the Act is Convention compliant, the first sift judge reasoned that it could not be said that the applicants’ Article 7 rights had been breached.  The statute gave ample notice that the behaviour constituted an offence.

[5]        The second sift judges stated:

“We agree with the first sift judge that there was ample corroboration available in the evidence (GA1).  However, we consider that the second ground of appeal is arguable.”

[6]        The problem with the approach of all the sifting judges is that their references to a “ground of appeal” is not to any numbered ground contained in the stated case (1995 Act, s 180(1)(a) and (8)), but to the content of the statement of matters which the applicant wished to bring under review in his original application to the sheriff for a case.  A “ground of appeal in the stated case” is one which is raised in a question posed in the stated case itself.  Such a ground may, or may not, derive from the original application.  As the court has said relatively recently, the function of the court under the stated case procedure is to consider the questions posed and not to revert to the original application, other than when it is said that the sheriff or justice of the peace has failed properly to state a case focussing the issues which an applicant legitimately sought to raise.  Put shortly, once more, it is the questions posed that define the scope of the appeal and not the content of the application for the case (see Wallace v Thomson 2009 SCCR 421 at para [13] and Bello v PF Aberdeen [2015] HCJAC 14).  It is the applicant’s task to ensure that the proper question is posed.  He cannot of course guarantee that that is done and the failure of the sheriff or the justice to pose the correct question may result in this court proceeding on the basis that he ought to have done so.  But that aside, the relevance of the application is simply in relation to the form of case which the sheriff or JP requires to state.  The court remains focused thereafter on the questions posed and the effect of the answers to them.

[7]        In this case, the court is forced to make assumptions about what the second sift judges meant, when granting leaving in relation to the “second ground of appeal”, where there is no such ground.  That appears to be that leave to appeal is granted to argue the ground encapsulated in question 3.  The court will deem that to be the position.

[8]        On the merits of the application, the court is satisfied that it is not arguable that there was insufficient evidence for the sheriff to conclude that there was a likelihood that the song being sung would incite public disorder.  In particular, there was evidence, first, from the police officers of what was sung.  There was evidence, secondly, from one of the police officers that the song is widely regarded as sectarian and offensive; a fact recognised not only by the police but also by the official Celtic supporters organisation and the club itself.  There was, thirdly, the CCTV images, which actually recorded the adverse reaction to it from the Hibs fans.  On the basis of this evidence, the sheriff was entitled to form an objective view on the likely effect of the singing of the song.  Accordingly, this application to argue the ground will be refused.  The court wishes to stress, however, that this Opinion is not to be read as suggesting that all of this evidence was necessary.

[9]        The case will proceed only in relation to question 3 in the stated case.  That may involve, in due course, a consideration of whether the result of the answer to question 3 is that the conviction must be quashed.  Obviously, and although leave to appeal has not been granted on the general question 2, that will remain a matter for the court to resolve in due course.