William Donnelly and Martin Walsh v. Procurator Fiscal, Edinburgh [2015] HCJAC 35

Appeal by Stated Cases:- on 19 October 2013 the appellants were apprehended by police officers at Easter Road Footaball Stadium in Edinburgh during the course of a Hibs v. Celtic match. The appellants were both heard to be singing, along with a number of other supporters in the away end, a song called “The Roll of Honour” a song whose lyrics proclaim support for members of proscribed terrorist organisations who died during the hunger strike at the Maze Prison in Northern Ireland in 1981. The two appellants were subsequently convicted of acting contrary to section 1 The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 on account of their singing of the song. The appellants appealed against their convictions on the grounds that the appellants’ rights under Article 7 of the European Convention had been infringed, not by reason of the definition of the offence under section 1 being incompatible on account of uncertainty, but because the appellants might not have appreciated that their rendition of the song “The Roll of Honour” could be regarded as threatening or offensive and thus render them liable to criminal conviction and sentence. The question posed by the sheriff was:-“In the particular circumstances of the case, was the appellants’ right to know, with sufficient clarity of the nature of the crime, in terms of Article 7 [of the European Convention] breached?”. It was submitted on behalf of the appellants that they did not know that singing the song had potential criminal consequences. On behalf of the Crown it was submitted that there were 3 stages to the statute:- (1) the person had to be at a match; (2) the person had to use threatening or offensive behaviour; and (3) that behaviour had to be likely to incite public disorder and in the circumstances of the present case it would have been obvious to the appellants that singing the song would be criminal. Here the court refused the appeal and observed that to ensure compatibility with Article 7 an offence must be clearly defined and that requirement is satisfied where the individual can know from the wording of the relevant provision and, if necessary, through the assistance of the court’s interpretation of it, what acts and omissions will make him criminally liable such judicial interpretation to produce clarity being legitimate. It had previously been decided in the case of MacDonald v Cairns 2013 SCCR 442 that singing the particular song was criminal in the setting of a football match and there is no requirement for proof of knowledge that the particular supporter was aware of the law or the status of the song. The court went on to observe that if the appellants wish to sing sectarian songs they are free to do so in certain circumstances, however, not at football matches where there is a prohibition from such threatening and offensive behaviour.