Poppy Wars.

The shirt is black with bright green lettering of three to four inches in height. On the front, it bears the legend "INLA". Flip it over, and it reads "FUCK YOUR POPPY REMEMBER DERRY", in similar lurid text.  Now, such a jabot isn't quite my style - I can't abide sloganising garments, and Leprechaun green on an ebony field combines unpalatably with my complexion - but if you caught sight of such a shirt, would you consider it conduct "severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community"? 

Quite so, according to three judges of the High Court, who have determined that the outfit and its message - worn, I might add, at a Celtic vs Rangers match in Glasgow in September 2011 - constituted a breach of the peace. (You may be struck by the gap between the trial at first instance before the sheriff, and this appeal. Nobody said that the cogs of justice grind swiftly). The appellant, Kevin Maguire, appealed against sentence and conviction. At trial, two police officers who had lifted him outside Ibrox gave evidence against him.

[3] The police officers testified that, in the volatile atmosphere of a Rangers and Celtic match and its aftermath, it was likely that the insignia of this organisation would be regarded as offensive and inflammatory by Rangers fans, and that there was the potential for this to provoke disorder and disturbance. The Celtic fans, although cordoned off from the opposing support in the immediate vicinity of the stadium, would merge with the Rangers fans a few hundred yards down Edmiston Drive. The officers also considered that there was a potential for the reference to the INLA to provoke Celtic supporters too. They would not appreciate their football club being associated with such an organisation. The police thought that any reasonable person would consider the slogan relative to the poppy to be offensive and upsetting, likely to be inflammatory and to provoke disorder. This would apply particularly in relation to any members of the public attending the match who had served in the Armed Forces or had family or friends in the Forces. 

There seems to be no evidence that disorder actually occurred as a result of Maquire's top. Per contra, the appellant argued that donning the shirt was simply engaging in a "legitimate protest", and invited the Court to "bear in mind the right to freedom of expression under Article 10 of the European Convention" in its construction of the common law offence of breach of the peace.  This sits - to put it generously - a little uneasily beside the mitigation made on his behalf to the sheriff, in which his brief had argued that "the appellant had met with certain family members from Northern Ireland before the match and had been given the top as a present. It was maintained that he had been unaware of what the lettering represented."

Lords Carloway, Drummond-Young and Marnoch were having none of it. Writing for the Court, the Lord Justice Clerk concluded:

[8] In relation to the merits of the conviction, the test of whether a breach of the peace has been committed is well-known and settled. It is, in terms of Smith v Donnelly 2002 JC 65, whether the conduct is severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community. It is conduct which presents as genuinely alarming and disturbing in its context to any reasonable person. If there is no evidence of actual alarm then, in terms of Jones v Carnegie 2004 JC 136 (at para [2]), the conduct requires to be "flagrant".

[9] Applying that test to the evidence before, and ultimately the facts as found by, the sheriff, the court has no difficulty in concluding that the appellant's conduct amounted to a breach of the peace. The actions of the appellant in wearing this top were not part of a legitimate protest. Rather they amounted to a deliberately provocative gesture, calculated to cause precisely the type of disturbance which the court referred to in Smith v Donnelly. His conduct, in the context of this football match and its aftermath, presented as genuinely alarmingly and disturbing to any reasonable person.

[10] The court does not consider that the appellant's right to freedom of expression was in any way be affected by his arrest and subsequent conviction. Even if the appellant does wish to engage in genuine protests, either in relation to Remembrance Day, the events of "Bloody Sunday" or about the proscription of the INLA, he has plenty of suitable opportunities in which to do so without intentionally provoking serious disturbance, including violence, in the community. The court will accordingly answer the first question in the negative, the second and third questions in the affirmative and refuse the appeal against conviction.

Context is clearly important, and the atmosphere when fans spill out onto the streets after an Old Firm match clearly differs from your ordinary saunter in the park. That said, isn't there an argument to be made that stepping out on any street in Scotland, one might encounter souls with backgrounds in military service? Might it be criminal in a recruiting town, known to have strong links with Scottish regiments, and less so in a spot sending fewer souls off to serve as sodgers? After all, conscription during World War II means that every family, give or take, is likely to have had a member who served in the armed forces in recent memory, who might look askance at the always controversial politics of (not) wearing a poppy around Remembrance Sunday.

A friend of mine in Oxford was recently assailed by a stranger in the street, who found her unadorned lapel sufficiently provoking to take to task for not wearing a poppy.  Another crony favours a white poppy instead, and found himself dragged into a furious row with a character in a pub, who thought the bleached flower was also "offensive and upsetting". His choice of white petals in lieu of blood red certainly provoked disturbance in that wood-panelled, lager-stained community. 

I am particularly struck by Carloway's distinction, dismissing the freedom of expression argument, between a "genuine" protest, and one which "intentionally provoking serious disturbance" in the community.  To my mind, intentionally disturbing the settled quiet of a community is precisely the object of most protests. Few are likely to prosper, or to promote their cause, without arresting the ordinary social course of things, drawing attention, making a hubbub. Which is not to say that Mr Maguire's fashion choices represented a wise move unlikely to cause a stramash outside Ibrox, but I'm not at all convinced that Carloway's neat distinction between authentic protest and inauthentic protest holds together terrifically coherently.

What's more, can it really be convincing that "the court does not consider that the appellant's right to freedom of expression was in any way affected by his arrest and subsequent conviction"? I think not. From the appellant's point of view, the message his outfit communicated brought him into police custody, pulled him before our courts, and has seen him banned from football for two years under threat of further criminal sanctions. His freedom of expression rights under Article 10 of the European Convention are clearly engaged by this state action and penalisation.  If this isn't a case which even engages fundamental rights of free expression, then I struggle to think of any case which does.

There may be an argument that the state's interference with his rights can be justified under Article 10's second paragraph, and that the criminal regulation of his expression serves a legitimate aim, is necessary in a democratic society and represents a proportionate response to the mischief contended with. It is disappointing, however, that the High Court seems to have contented itself with this wrong-headed, sweeping rejection of the bare applicability freedom of expression.  It makes for an impoverished analysis.