Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2021/2021_HCJAC_20.html
Cite as: [2021] HCJAC 20, [2021] ScotHC HCJAC_20, 2021 GWD 11-142

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2021] HCJAC 20

HCA/2020/359/XC

HCA/2020/360XC

HCA/2020/361/XC

Lord Justice General

Lord Woolman

Lord Matthews

OPINION OF THE COURT

delivered by LORD MATTHEWS

in the appeal from the Sheriff Appeal Court

THE PROCURATOR FISCAL, GLASGOW

Appellant

against

(1) DANIEL WARD; (2) MARTIN MACAULAY; and (3) RYAN WALKER

Respondents

Appellant: Edwards QC AD; the Crown Agent

Respondents: (1) Mackintosh QC; Paterson Bell (for KM Law, Glasgow)

(2) I Paterson (sol adv); Paterson Bell (for Murphy Robb & Sutherland, Glasgow)

(3) I Paterson (sol adv); Paterson Bell (for Penmans, Glasgow)

4 March 2021

Background

[1]

On 19 July 2017 the respondents attended a football match at Celtic Park. It was a

high profile fixture between the home team and Linfield FC. There had been crowd trouble

at the previous fixture played at Linfield's ground in Belfast. Celtic FC is perceived to have

a predominantly Catholic support. Linfield FC is perceived to have a predominantly

Protestant support.

[2]

There is an area of Celtic Park where a group of home fans known as `the Green

Brigade' congregate. At the match, the respondents stood there. Each of them wore a white

T-shirt printed with an image showing the head of a black-clad male figure against the

backdrop of the Irish flag. The figure wore a black beret and sunglasses, while a camouflage

scarf covered the mouth. A number of banners were unfurled in the same area of the

ground. They showed the same image and had provoked an immediate and hostile reaction

from some of the Linfield supporters

[3]

The Crown charged the respondents in the following terms:

"on 19 July 2017 at Celtic Park Football Stadium ... you MARTIN

MACAULAY, DANIEL WARD AND RYAN WALKER did conduct

yourselves in a disorderly manner within said Celtic Park Football Stadium

in that you did attend at a regulated football match there whilst wearing a

shirt which displayed an image of a figure related to and in support of a

proscribed terrorist organisation, namely the Irish Republican Army (IRA)

and commit a breach of the peace."

[4]

The respondents stood trial at Glasgow Sheriff Court. The sheriff found all three

guilty and imposed fines on each of them.

[5]

They appealed by Stated Case. Ward was granted leave to appeal in relation to the

questions whether the sheriff was entitled to repel the no case to answer submission which

had been made on his behalf and, if so, to convict? These are questions 2 and 4 in the Stated

Case. Macaulay and Walker were granted leave to appeal in relation to questions 2, 3 and 4,

question 3 being a subsidiary matter.

[6]

The Sheriff Appeal Court quashed the convictions. It concluded that the Crown had

failed to prove by corroborated evidence that the T-shirts had displayed an image of an IRA

figure. Accordingly, the sheriff ought to have upheld the submission. The Crown now

appeals against that decision.

Evidence at trial

[7]

At the trial the Crown had relied on CCTV footage and still photographs taken at the

match. That evidence showed the respondents wearing the t-shirts and the banners being

unfurled. The Crown also led evidence from three police constables: Samantha Stirling and

Karen Taylor of Police Scotland, and Simon Nixon of the Police Service of Northern Ireland.

The officers, each of whom had been on duty at the match, gave the following descriptions

of the image on the t-shirts:

PC Stirling

a paramilitary figure, wearing a black beret with sunglasses covering

the eyes and a camouflage scarf covering the mouth.

PC Taylor

a caricature of a head with the mouth covered with a camouflage

scarf, wearing a black beret and aviator style sunglasses within a

circle with the tricolour flag of the Republic of Ireland in the

background.

PC Nixon

a head or face wearing a black beret, sunglasses, green scarf and

green jacket.

[8]

PC Taylor was concerned because, like PC Stirling, she thought that the image had

clear paramilitary connotations. PC Nixon went further in identifying its significance. He

had viewed numerous IRA parades and funerals in Northern Ireland. Members of that

organisation had dressed in that fashion. In his view, the image was clearly intended to

depict an IRA "soldier".

Submissions

Crown

[9]

The Advocate Depute submitted that the essential facts were that the respondents (a)

had attended the match, (b) worn t-shirts depicting paramilitary imagery relating to Irish

republicanism, which (c) alarmed normal citizens. The reference to the IRA in the charge

was merely narrative and did not require corroboration: Campbell v Vannet 1998 SCCR 207.

The sheriff had to determine the link to the IRA. He could do so using judicial knowledge in

looking at the still and moving images, and was also assisted by the evidence of Constable

Nixon. On one view, he was an expert.

Defence

[10]

Mr Mackintosh submitted that the charge must specify the conduct said to form the

breach of the peace. It had done so. The complaint alleged that the t-shirts displayed an

image of a figure related to and in support of a proscribed terrorist organisation, namely the

IRA. That being a crucial fact, the Crown required to prove it by means of corroborated

evidence.

[11]

Only PC Nixon had spoken to the meaning and significance of the image. Neither of

the other two officers could corroborate his evidence, because they did not have the

necessary expertise or experience. Further, the matter was not within judicial knowledge. A

sheriff could not be expected to recognise terrorist iconography in general, or the difference

between that of the IRA and other Northern Irish paramilitary organisations in particular.

The Sheriff Appeal Court had been correct.

Decision

[12]

This is a straightforward case. The respondents attended the match at Celtic Park.

They wore t-shirts embossed with a paramilitary image associated with Irish terrorism.

Neither point is in dispute. The only issue is whether the Crown required to corroborate the

link to the IRA.

[13]

We conclude that the reference to the IRA in the charge was narrative. Looking at

the images himself, the sheriff was entitled to come to the view that the image depicted a

member of a terrorist organisation affiliated to Irish independence. We shall revert to this.

[14]

PC Nixon's evidence was available to assist the sheriff in his task but it did not

require corroboration: Davie v Edinburgh Corporation 1953 SC 34. In some cases such

guidance will be more necessary than in others. At one end of the range might be the

famous image of Che Guevara. At the other end might be someone wearing the garb of an

obscure terrorist organisation based in the Far East. Here the image is perfectly clear and

the sheriff could assess what was shown for himself. There was in any event ample

confirmation or support for PC Nixon's evidence in that of the other officers and the real

evidence of the image itself.

[15]

Accordingly we are satisfied that the sheriff was correct. The Sheriff Appeal Court,

who did not formally answer the appropriate question, opined that the circumstances, if

proved, amounted to a breach of the peace and we heard no argument to the contrary. The

Crown appeal is allowed in each case and the convictions are restored. We shall answer the

questions in the stated cases in the affirmative.

Judicial knowledge

[16]

What is the scope of judicial knowledge in Scots law? In Herkes v Dickie 1958 JC 51,

Lord Patrick stated (at 55) that:

"if any matter requires to be proved in a criminal prosecution, the want of proof of

the matter cannot be mended by the private knowledge of the judge".

[17]

As a generality, that remains a correct statement of the law of evidence.

Nevertheless, as it is neatly put in Wilkinson: Evidence (at 128):

"facts which are common knowledge, either in the sense that every well informed

person knows them or that they are generally accepted by informed persons and can

be ascertained by consulting appropriate works of reference are deemed to be within

judicial knowledge".

[18]

Davidson: Evidence (at para 3.01) cites a passage from Morgan: Some Problems of Proof

(at 42) which refers to part of the function of judicial knowledge being to prevent a party

"from perverting the true function of the court by presenting a moot issue or

securing a wrong result by disputing what is demonstrably indisputable".

[19]

An example of that can be seen in the "unattractive and unrealistic" attempt in Doyle

v Ruxton 1998 SCCR 467 to persuade the court that it had not been proved that McEwans

Export, Guinness and Carlsberg Special were of such alcoholic strength that they could only

be sold by a person holding the appropriate licence. The court explained (at 470) that it

would be "reluctant to hold that information of which the public is ... so widely aware is not

within judicial knowledge".

[20]

What a particular image is intended to represent may or may not be within judicial

knowledge. The image in this case, which the appellants were proved to have been

displaying, consists of the Irish tricolour upon which is superimposed a representation of a

man in military garb, wearing a beret and sunglasses. All well informed persons know that

this is a depiction of a member of a proscribed Irish republican terrorist group such as the

IRA or similar organisations. There is no need to prove this by "expert" evidence. Any

attempt either to confirm or contradict that fact was at best superfluous.

[21]

It was not necessary for evidence about the latter to have been led before a Glasgow

sheriff. It did not require any degree of expertise to be able to conclude that the figure

shown on the T-shirt was a paramilitary figure associated with the Republic of Ireland,

given the presence of the tricolour. Even without any formal evidence that the figure

represented a member of the IRA, the sheriff would have been entitled to find that the

wearing of the T-shirts was designed to antagonise the Linfield supporters and amounted to

a breach of the peace. The reference to the IRA was merely narrative. The sheriff was

entitled to look at the image and come to the view that it depicted a member of a terrorist

organisation affiliated to Irish independence. The word "proscribed" and the reference to

the Irish Republican Army could have been deleted. On that basis alone there was sufficient

evidence to allow the sheriff to convict.

[22]

In these circumstances it is concerning that a summary trial, which primarily

involved readily ascertainable and undisputable facts, took several days to resolve.