Roll of Honour

It is a short, technical-seeming judgment, and like many brief, technical-seeming judgments, it is more significant than it appears. In Donnelly and Walsh v. Procurator Fiscal, Edinburgh, Lord Carloway and his colleagues had to decode a decision by two of his fellow judges, to grant leave to appeal against a conviction in Edinburgh Sheriff Court. So much, so banal. 

Where matters get more interesting, however, is that the appellants, William Donnelly and Martin Walsh, were convicted by the sheriff of having committed offensive behaviour at football under the Offensive Behaviour and Threatening Communications (Scotland) Act 2012.  The sheriff found that Walsh and Donnolly had belted out "Roll of Honour" at a match between Hibs and Celtic at Easter Road in October 2013, concluding that this behaviour was caught by one of the Act's broad prohibitions, and was likely to incite public disorder.

Donnelly and Walsh are attempting to challenge their convictions under Article 7 of the European Convention on Human rights, which provides that:

1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

Article 7 has a bit of history in Scottish criminal jurisprudence. The old catch all common law offence of breach of the peace was gradually worn down and clarified by the courts, anxious that the vagueness of the offence would not satisfy European human rights criteria.  In Smith v. Donnelly, still the decisive word on the definition of breach in Scots law, Lord Coulsfield noted that "the Convention requires that any law creating a criminal offence must meet a certain standard of clarity and comprehensibility." It is not enough that the convictions of Walsh and Donnelly can be hung on section 1 of the 2012 Act: in order to satisfy Article 7, the criminal offences created "must be clearly defined in the law." In the language of the Strasbourg court:

"... this requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him criminally liable." S.W. v. The United Kingdom [1995] para 35.

Do the offences created by the football legislation pass this test? 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? I would be surprised if Walsh and Donnelly prevail here. The crimes set out in the 2012 Act are arguably at least as clear as Smith v. Donnelly's definition of the crime of breach of the peace as "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community." But leave to appeal having been granted, the High Court will now have to embark on its first substantial review of the football legislation on human rights grounds since it was so hastily passed by Holyrood. One to watch.