Hear no evil, see no evil...

Back on the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, this morning, the High Court of Justiciary handed down its first major judgment under the legislation.  

The case was a Crown appeal against the acquittal of Joseph Cairns in Dingwall, who was prosecuted for "behaviour which the reasonable person would find offensive" under the Act, by singing "Roll of Honour" and "Boys of the Old Brigade" at a Ross County vs Celtic match.  According to the police evidence, "the majority of the Celtic supporters housed in the north stand" of Victoria Park joined in the singing.  In the Sheriff Court, Cairns was acquitted, the judge finding that he had no case to answer:

"Since there was no proper basis for inferring that any person who might be incited to disorder would have been able to tell that the respondent was singing about the hunger strikers or joining the IRA there was equally no proper basis for inferring that the respondent's behaviour was likely to incite public disorder."

On appeal, Lady Paton and Lords Philip and Brodie disagreed, drawing the sheriff's attention to section 1(5) of the Act.  As you may recall, not only do the Crown have to prove that the accused has "expressed hatred", threats, or "behaviour which the reasonable person would find offensive" at a regulated football match. Prosecutors also have to show that the behaviour is or would be likely to incite public disorder. During the law's speedy push through Holyrood, this incitement provision was characterised by Scottish Ministers as a safeguard, raising the bar of conduct criminalised by the Act. As the High Court recognise in this case, the government immediately lowered that hurdle by introducing the qualification that:

For the purposes of subsection (1)(b)(ii), behaviour would be likely to incite public disorder if public disorder would be likely to occur but for the fact that—  (a) measures are in place to prevent public disorder, or (b) persons likely to be incited to public disorder are not present or are not present in sufficient numbers.

The High Court explain the scope and significance of this provision in paragraph twelve, the critical section of the judgment.  In the absence of any disorder, or any real likelihood of disorder, the Act instructs judges to invent fictional incitees and to give them seats around the terraces. Theoretically, at least, this might include anyone under the sun, including furious North Koreans. The sheriff presiding at first instance, say appeal court judges, failed to exercise his imagination sufficiently.

[12] The sheriff correctly identified that to be struck at by section 1(1) behaviour ["offensive behaviour at football"] must not only be such that a reasonable person would be likely to consider it offensive but it must also either be likely to incite public disorder or would be likely to incite public disorder. Because, on the evidence led, the sheriff considered that there was no proper basis for inferring that any person who might be incited to public disorder would have been able to tell that the respondent was singing about the hunger strikers and the IRA, in his opinion there was no proper basis for inferring that the respondent's behaviour was likely to incite public disorder and, accordingly, the submission of no case to answer fell to be upheld. 

We cannot agree with that conclusion. As the advocate depute argued, it is by no means clear why the sheriff came to the view that he did on the evidence. Two police officers had given evidence that they recognised the song and heard certain of the words sung. As the advocate depute argued, if the police officers were able to recognise the song and hear the words, other persons must also have been able to do so. The sheriff appears to have adopted the view that the only candidates as persons likely to be incited to public disorder were the (apparently unperturbed) Ross County supporters. Why other persons might not be candidates, including persons standing close to or even among the "majority of the Celtic supporters housed in the north stand" is not explained by the sheriff. 

However, be that as it may, the sheriff does not appear to have considered the effect of section 1(5). That subsection provides that for the purposes of section 1(1)(b)(ii), behaviour "would be likely to incite public disorder" if public disorder would be likely to occur but for the fact that either measures are in place to prevent public disorder, or persons likely to be incited to public disorder are not present or are not present in sufficient numbers.

Thus, the Act distinguishes between, on the one hand, "a reasonable person" and, on the other, a person "likely to be incited to public disorder". It may be that a person likely to be incited to public disorder is of a more volatile temperament than a reasonable person or, to use the language of the sheriff, an uninitiated member of the public. The person likely to be incited to public disorder may have particular interests and particular knowledge. He may have particular views about the two songs in question or those who sing them. 

As section 1(5)(b) provides that such persons need not be present for the purposes of determining whether specific behaviour would be likely to incite public disorder, it cannot be relevant to the question as to whether there has been a contravention of section 1(1)(b) that particular persons in a football ground could not actually hear the words being sung.

In other words the actual context within which the behaviour occurs is not determinative. Where behaviour falls within any of the categories specified in section 1(2) it is sufficient for conviction that persons likely to be incited to public disorder would be likely to be incited to public disorder by the particular behaviour, whether or not they were present in sufficient numbers and whether or not they were subject to measures put in place to prevent public disorder

As it does not matter whether persons likely to be incited to public disorder are there in sufficient numbers or are there at all it cannot matter whether or not the persons who are present (whether likely to be incited to public disorder or otherwise) actually became aware of the relevant behaviour.

Paul McConville has more, as does Alex Massie over at the Spectator.