Procurator Fiscal, Kilmarnock v. (1) Daniel Ward, (2) Martin MacAulay and (3) Ryan Walker [2021] HCJAC 20

Appeal from the Sheriff Appeal Court:- The respondents appeared on summary complaint and proceeded to trial at Glasgow Sheriff Court in relation to a charge of breach of the peace in the following terms:- ““on 19 July 2017 at Celtic Park Football Stadium ... you … 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.”  The circumstances were that Celtic FC and Linfield FC played a game at Celtic Park on 19 July2017. The respondents were part of the ‘Green Brigade’ and each of them wore a white t-shirt printed with an image showing the head of a male figure dressed in a black beret, clothing and sunglasses, with a camouflage scarf covered the mouth against the backdrop of the Irish flag. Numerous banners were unfurled which showed the same image and provoked a reaction from the away fans. The sheriff found the respondents guilty and imposed fines on each of them. They appealed by Stated Case and the Sheriff Appeal Court quashed the convictions holding that the Crown had failed to prove by corroborated evidence that the t-shirts had displayed an image of an IRA figure and the sheriff ought to have upheld the submission. The Crown appealed against that decision. It was submitted on behalf of the Crown that the essential facts which required to be corroborated were that the respondents:- (a) had attended the match; (b) had worn t-shirts depicting paramilitary imagery relating to Irish republicanism, which (c) alarmed normal citizens. It was submitted that the reference to the ‘IRA’ in the charge was narrative only and did not require to be corroborated. It was submitted that the sheriff was entitled to use his judicial knowledge to determine the link to the ‘IRA’ by looking at the still and moving images and was assisted in that by PC Nixon who gave evidence at trial in relation to what was depicted. On behalf of the respondents it was submitted that the charge specified the conduct which was said to form the breach of the peace, namely, that the t-shirts displayed an image of a figure related to and in support of a proscribed terrorist organisation, namely the IRA and that was a crucial fact which the Crown had to prove by corroborated evidence. It was further submitted that only PC Nixon had spoken to the significance of the image depicted on the t-shirt as neither of the other two police witnesses could corroborate PC Nixon’s evidence as they did not possess the necessary expertise or experience. It was further submitted that the issue was not within judicial knowledge. Here the court allowed the appeal and reinstated the conviction. The court considered that this was a straight forward case. The only issue was whether it was necessary for the Crown to corroborate the link to the IRA. The court considered that it did not and the reference to the IRA as a proscribed paramilitary organisation was narrative only. In relation to the question of judicial knowledge the court observed that there was no requirement for any degree of expertise to conclude that the figure shown on the t-shirt was a paramilitary figure associated with Irish republicanism, with the presence of the tricolour in the background and the sheriff was entitled to hold that the mage depicted a member of a terrorist organisation affiliated to Irish independence. The court considered that it would have been open for the sheriff to delete any reference to “proscribed” or “the IRA” and still convict the respondents of the charge.