Been there, done that, got the T-shirt …

Match Day at Celtic Park, Glasgow (Photo by Amadej Tauses on Unsplash)

Author’s note dated 17 March 2021: the Appeal Court of the High Court of Justiciary has since reinstated the convictions of the three men involved in this case. Please see the link below to the High Court’s judgement:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2021hcjac20.pdf?sfvrsn=0

A debate I’ve been having this last week with both my First and Second Year students has concerned the tension between the rights to free speech and freedom of expression and the right not to suffer discrimination – all of which are protected under the European Convention on Human Rights.

Can you say and do what you want even if such actions cause offence to another person? Up to a point, yes, but there are limits to freedom of speech and freedom of expression even in a democratic society which highly prizes such important examples of human rights. If you cross the line which divides acceptable from unacceptable behaviour you may well find that you are accused of a public order offence or, more seriously, hate crime.

To some extent, a case heard last week by the Criminal Division of the Sheriff Appeal Court in Edinburgh indirectly touched on some of these issues (see the Appeals of Daniel Ward, Martin Macaulay and Ryan Walker v Procurator Fiscal, Glasgow [2020] SAC (Crim) 006).

The appeals were submitted by three men who had attended a European Champions’ League qualifying tie at Celtic Park, Glasgow on 19 July 2017.

The background

Celtic FC, which has a predominantly Roman Catholic fan base, was playing against Linfield from Belfast, a Club which is mainly supported by Protestants in Northern Ireland. The men had worn T shirts with Irish Republican imagery to the match – undoubtedly a provocative gesture on their part.

To say that the potential for sectarian unrest at this fixture was very high would be something of an understatement. There had, in fact, been trouble between the opposing fans at the first leg of the tie in Belfast the week previously.

Proscribed not prescribed

The complaint issued by the Procurator Fiscal against Messrs Ward, Macaulay and Walker was set out in the following terms:

On 19 July 2017 at Celtic Park Football Stadium, Glasgow G40 3RE you
MARTIN MACAULAY, DANIEL WARD and RYAN WALKER 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 prescribed (sic) terrorist organisation namely The Irish Republican Army (IRA) and commit a breach of the peace.

It is worth highlighting a particular error in the above Complaint issued by Glasgow Procurator Fiscal’s office: there is a very important difference between the words prescribed and proscribed (the correct term which denotes an organisation e.g. a terrorist group which is banned by the State). Whether this error was a typo or ignorance on the part of someone at the Fiscal’s office, I’m unsure.

At the conclusion of their trial at Glasgow Sheriff Court in February 2020, Messrs Ward, Macaulay and Walker were convicted of a breach of the peace.

A large part of the prosecution’s evidence against the trio relied on the testimony of three Police Officers who were on duty at the match. Two of the officers (Constables Stirling and Taylor) served with Police Scotland and the third officer (Constable Nixon) served with the Police Service of Northern Ireland.

Now, you would have been forgiven for thinking that the Crown had met the requirement of corroboration – which is a fundamental principle of Scots criminal law. Corroboration is the duty placed on the Crown prosecutor to produce at least two independent sources of evidence which will prove beyond reasonable doubt that the accused is guilty.

The Sheriff at Glasgow certainly thought so as all three officers were able to describe the imagery displayed on the T-shirts worn by the three co-accused i.e. a man with aviator sunglasses wearing a black beret and a camouflage scarf with the Irish tricolour as a background.

As one of Scotland’s leading criminal defence lawyers, Donald Findlay QC interviewed as a participant in BBC Scotland programme Too young to die – Crime Scenes Scotland: Forensic Squad (first broadcast in 2014) observed:

The trial system that we have – whether you like it or not – is an adversarial system and it is for the Crown to overcome every legitimate hurdle that we put in the way of them proving their case. Thereby we hope that, if someone is convicted, the conviction is justified.

Mr Findlay goes on to remark that:

My part in the law is to say to the Crown that if you want to prove guilt, you’ve got to prove it beyond a reasonable doubt and we’ll do our best to make sure that you do. I can live with that – whatever the outcome.”

Appeal against conviction

The three co-accused appealed on a point of law in terms of Section 160 of the Criminal Procedure (Scotland) Act 1995 that the Sheriff had been wrong in his failure to consider their arguments, namely:

1. That the T-shirts did not convey support for a proscribed terrorist organisation (the IRA); and

2. Their behaviour at the football match was not a breach of the peace.

The testimony of each of the officers on the question of the imagery displayed on the T-shirts was highly consistent, but was it safe to say that the value of the evidence presented by each witness should be treated equally?

Alas for the Crown, this is where a major problem emerged. Absolutely no disrespect to the two Scottish Police officers, but they were not in a position to speak with authority on whether the three men by wearing these T shirts were expressing support for a proscribed terrorist organisation.

Significantly, the Sheriff Appeal Court drew specific attention to the decision in Smith v Donnelly 2002 JC 65 which emphasises that “it has been clear beyond doubt that a charge of breach of the peace requires to specify the conduct involved.

Only Constable Nixon with his direct experience of policing in the febrile environment of Northern Ireland was capable of validating the charges laid out in the complaint. Unfortunately, Constable Nixon’s testimony alone was not sufficient to meet the requirements of corroboration. In a criminal trial, the prosecution case requires certainty not probability.

Reference was made specifically to Lord Kirkwood’s remarks in Fox v HM Advocate 1998 JC 94:

It is a cardinal principle of our common law that no one can be found guilty of a crime upon the uncorroborated evidence of a single witness, however credible or reliable that witness may be. There must be evidence from at least two separate sources which is capable of establishing the facta probanda beyond reasonable doubt.

Consequently, the Sheriff Appeal Court quashed the convictions of the three men. This does not mean that the Sheriff Appeal Court is giving the green light to football fans to display such imagery on T shirts and other garments. Far from it: as the judges commented:

In the particular circumstances which pertained in this case, we would have regarded the wearing of a T-shirt which depicts an image in support of a proscribed organisation, such as the IRA, as so flagrant that the necessary inference could be drawn from it, in the absence of evidence of alarm or annoyance. It is difficult but to conclude that the wearing such T-shirts amounted to a deliberately provocative gesture directed towards the Linfield support. The wearing of such T-shirts in near proximity to the opposing supporters within or around a football stadium is conduct which, if proved, would in our view present as genuinely alarming and disturbing, in context, to any reasonable person.

Had the prosecution focused on corroborating the element of the charge which emphasised support for a proscribed terrorist organisation, the convictions of the three men might well have been upheld.

Football fans would do well to remember that their right to freedom of expression or freedom of speech could be severely restricted by the Authorities in order to prevent the commission of a crime, such as hate crime or public order offences. If you are still in any doubt, let me point you in the direction of the decision in an earlier appeal judgement of the High Court of Justiciary which reminds us that wearing a T shirt with paramilitary imagery can constitute a breach of the peace (see Maguire v Procurator Fiscal, Glasgow [2013] HCJAC).

A link to the judgement of the Sheriff Appeal Court can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/saccrim006.pdf?sfvrsn=0

Copyright Seán J Crossan, 29 November 2020

The love that dared not speak its name

Thanks to @ChouetteLaura for making this photo available freely on @unsplash 🎁

Every day is supposedly a school day and I have just learned that, 125 years ago today, Oscar Wilde, Victorian poet and novelist, began a sentence for 2 years’ imprisonment for the crime of gross indecency in terms of Section 11 of the Criminal Law (Amendment) Act 1885.

This was the culmination of several legal actions in which Wilde had become embroiled in order to end speculation about his sexual orientation. Although married and being the father of two children, Wilde had a secret: he was a gay man living in a very hostile environment.

It was such a hostile environment that Professor Dominic Janes of Keele University (and author of Oscar Wilde Prefigured: Queer Fashioning and British Caricature, 1750-1900) (University of Chicago Press, 2016) states that:

“Britain had some of the strongest anti-homosexuality laws in Europe … The death penalty was in place until 1861 [the last execution took place in 1835]. In general, one of the main images of what we’d call a gay or queer man was a sexual predator of younger men. Many people would have also been informed by religious arguments from the Old Testament.”

When Wilde’s ‘sexual transgressions’ with a number of younger men were finally exposed in court due, in a large part, to the work of a private detective, he didn’t really stand a chance against the ensuing moral outrage of Victorian society.

The trials and eventual prison sentence would ruin Wilde financially and reputationally – for good (or so it seemed at the time).

More information about the trials of Oscar Wilde can be found in an article which appeared in The Independent to mark the 125th anniversary of his downfall.

https://edition.independent.co.uk/editions/uk.co.independent.issue.250520/data/9525296/index.html

The long and winding road

If Victorian society was uniformly unforgiving and scornful of Wilde in 1895, contemporary British society has certainly rehabilitated his reputation. There is now almost universal agreement that Wilde was the victim of oppressive laws and social attitudes.

Wilde himself would probably be astounded at the amount of progress that members of the LBGTQI community have made in the intervening 125 years.

I’m also sure that he would be delighted to know that he is still the focus of discussion in 2020 (“There is only one thing in life worse than being talked about, and that is not being talked about.”).

It has been a a long and winding road for members of the LBGTI community to achieve legal recognition and protection.

Before the introduction of the Scotland Act 1998 and the Human Rights Act 1998, society (and particularly the work-place) could be very hostile for LGBTI people (see Macdonald v Lord Advocate; Pearce v Governing Body of Mayfield School [2003] UKHL 34).

Admittedly, the UK was (and still is in spite of Brexit) a signatory to the European Convention on Human Rights.

In particular, Article 8 of the Convention recognises the right to family and private life. It was this Article which was used to overturn extremely restrictive laws on same sex relationships which existed in Scotland, Northern Ireland, the Isle of Man and the Channel Islands.

Reinforcing Article 8 is Article 14 of the Convention is Article 14 which contains a general prohibition on discrimination.

The late 1960s are often referred to as the key period of the start of gay liberation in the UK with the passing of the Sexual Offences Act 1967 which decriminalised homosexual relationships between consenting adults (aged 21 or over) and as long as such conduct was in private. What is often overlooked is that the 1967 Act applied to England and Wales only. The picture was very different (and would remain so for over a decade – sometimes longer) in various parts of the British Isles.

Homosexual relationships were decriminalised in Scotland in 1980; in Northern Ireland in 1982; the UK Crown Dependency of Guernsey in 1983; the UK Crown Dependency of Jersey in 1990; and the UK Crown Dependency of the Isle of Man in 1994. The age of consent was set at 21 for all these parts of the British Isles; then reduced to 18; and then finally 16 years of age. Societal attitudes had moved on and the law had to follow.

In the last 20 years, the influence of the European Union has also been particularly profound regarding measures to combat sexual orientation discrimination. In spite of Brexit, there is a large body of anti-discrimination law which has been bequeathed to us as a result of our membership of the European Union.

In 1999, as a result of the Treaty of Amsterdam, the EU adopted two Directives which considerably expanded the scope of its anti-discrimination laws (the Racial Equality Directive (2000/43/EC) and the Employment Equality Directive (2000/78/EC). Of particular interest to this discussion is the Employment Equality Directive which made it unlawful to discriminate against a person on grounds of sexual orientation. Admittedly, this Directive was limited because it covered the areas of employment and vocational training only.

This body of law is not just going to disappear overnight when the transitional period for Brexit ends (as currently anticipated by the UK Government) on 31 December 2020. As I often remark, European Union has become hardwired into the various legal systems of this disunited Kingdom.

Indeed, a person’s sexual orientation is, of course, a protected characteristic in terms of Section 12 of the Equality Act 2010. Such individuals should not be subjected to direct discrimination (Section 13); indirect discrimination (Section 19); harassment (Section 26); and victimisation (Section 27).

Even greater strides towards equality were ushered in as a result of the Civil Partnerships Act 2004 which would give legal recognition (and protection) to gay and lesbian people who chose to enter such relationships. These rights would be further underpinned by permitting same sex couples to marry (in England and Wales in 2013 and in Scotland in 2014). Northern Ireland finally legalised same sex marriage in 2020.

When Oscar Wilde was serving part of his sentence in Reading Gaol (which inspired his Ballad of the same name) he could hardly have contemplated life as we know it in 2020.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/02/02/the-only-gay-in-the-village/

https://seancrossansscotslaw.com/2020/01/04/pansexual/

https://seancrossansscotslaw.com/2019/12/31/civil-partner-i-do/

https://seancrossansscotslaw.com/2019/12/08/different-standards/

https://seancrossansscotslaw.com/2019/12/06/biased-blood/

https://seancrossansscotslaw.com/2019/10/04/a-very-civil-partnership/

https://seancrossansscotslaw.com/2019/02/20/love-and-marriage/

https://seancrossansscotslaw.com/2019/02/08/the-gay-cake-row/

Copyright Seán J Crossan, 25 May 2020

What a difference a day makes …

Photo by Jim Wilson on Unsplash

Only yesterday, I was discussing provisions of the Coronavirus (Scotland) Bill which would have led to the suspension of trial by jury for indictable offences in Scotland.

It seems that the Scottish Government has had second thoughts about this issue and has decided not to proceed with these proposals – although Humza Yousaf MSP, Cabinet Secretary for Justice has said that the Government will revisit the matter sometime in the next month.

This is the essential problem with emergency legislation – the unexpected consequences which arise in such situations due to the fact that there is a lack of effective oversight or supervision.

Were the Government’s proposals a sinister attempt to undermine trial by jury or were they simply a necessary evil determined by social distancing requirements during the COVID-19 crisis?

Whatever reason you prefer, the Scottish Government has found itself at the centre of a backlash from the usual suspects – the Scottish Criminal Bar Association – and from its own supporters e.g. Joanna Cherry QC MP (see below):

This has led to a situation which no Government (irrespective of its political colours) likes to be in: having to make an embarrassing U-turn.

In normal times, of course, the Government would have circulated its proposals in a discussion paper well in advance of any draft legislation being published. In this way, various interested parties, such as the Faculty of Advocates and the Law Society of Scotland, could have made their views known and, for the Government, this allows a useful measurement of the temperature to be taken.

The Law Society of Scotland, which represents solicitors, bemoaned the lack of consultation by the Scottish Government (see below):

This is why emergency legislation should always contain a clause or a provision which allows it to be regularly reviewed by Parliament. In this way, very simple questions can be posed:

  • Is the law working properly?
  • Is it still necessary?

Please find below a link to the story about this development on the BBC website:

www.bbc.co.uk/news/uk-scotland-scotland-politics-52111412

Related Blog articles:

https://seancrossansscotslaw.com/2020/03/31/trial-without-jury/

https://seancrossansscotslaw.com/2020/03/23/tholing-his-assize-alex-salmond-former-scottish-first-minister-acquitted-of-13-charges-of-sexual-offences-some-reflections-on-criminal-prosecutions-in-scotland-the-burden-of-proof-required-to-secu

https://seancrossansscotslaw.com/2020/02/15/oh-brother/

https://seancrossansscotslaw.com/2019/05/02/consent/

https://seancrossansscotslaw.com/2019/02/25/the-jury/

https://seancrossansscotslaw.com/2020/03/15/kaboom/

Copyright Seán J Crossan, 1 April 2020

Trial without jury?

Screen capture by Seán J Crossan

I seem to be on a theme today due to COVID-19.

The latest legal development is the Scottish Government’s attempt to deal with the crisis by passing an emergency Bill through the Scottish Parliament in one day. The Coronavirus (Scotland) Bill undoubtedly contains welcome measures e.g. protection for tenants against eviction by their landlords throughout the duration of the crisis.

The relevant provisions of the Bill are contained in Section 11(1) and (4) respectively and are as follows:

“The Scottish Ministers may by regulations provide that trials on indictment are to be conducted by the court sitting without a jury.”

This would, in effect, create a situation where a Sheriff or a Lord Commissioner of Justiciary in a solemn trial was both Master of the Law and Master of fact.

Not everyone is welcoming the Bill in its entirety: the Scottish Criminal Bar Association has been extremely critical of proposals which would, in particular, permit the temporary abolition of trial by jury (solemn trials).

Prominent members of the Scottish National Party, such as Joanna Cherry QC MP, have stated their extremely strong opposition to the proposals (see Tweet below):

Ronnie Renucci QC, Chair of the Scottish Criminal Bar Association, issued the following statement attacking the Bill’s provisions in relation to jury trials:

The proposals in this bill include attacks on principles that have been built over 600 years and are at the very cornerstone of Scotland’s criminal justice system and democratic tradition. … Any changes, however temporary, should not erode important principles of our legal system which would have the effect of undermining or ignoring the citizen’s rights to justice. They should not at a stroke remove the fundamental principle of the right of those citizens charged with serious offences to a trial by a jury of their peers within a reasonable time. … The SCBA believes that these draconian measures seeking to bring about seismic changes to our system of justice are premature, disproportionate and ill-advised. They are at best a knee-jerk reaction to an as yet unquantified problem instigated by panic or at worst, something far more sinister.”

As Mr Renucci also points out in his statement, juries have been in existence in Scotland since the reign of King Alexander II (1214-49). Even during the Second World War, the practice of trial by jury continued – albeit restricted to 7 jurors as opposed to the usual number of 15.

I should, of course, point out that the vast majority of criminal trials (95%) in Scotland are conducted in the lower criminal courts – the Justice of the Peace and Sheriff Courts – under summary procedure. In England and Wales, the figures are similar. Yet, the emotional attachment to the right of trial by jury remains very strong in both jurisdictions.

We should not, however, ignore or downplay the value of solemn trials in that they permit someone who is accused of serious criminal offences (e.g. former Scottish First Minister, Alex Salmond) to be tried by a jury of his/her peers. A

There are unhappy precedents for restricting the right to trial by jury.

In Northern Ireland, during the period known euphemistically as ‘The Troubles‘, the Diplock Courts were established under the provisions of the Northern Ireland Act 1973. This legislation abolished the right to trial by jury for terrorism related offences. The rationale behind this development was to curb juror intimidation by paramilitary organisations such as the Provisional IRA and the Ulster Defence Association. These courts, where one judge presided, were highly controversial. They were only abolished comparatively recently as a result of the introduction of the Justice and Security (Northern Ireland) Act 2007.

During the first and second terms of the Blair Government (1997-2001 and 2001-2005 respectively), attempts were made to curtail the right to trial by jury in England and Wales. This would have applied to offences triable either way i.e. they could be tried under summary procedure or on indictment. In such situations, it is the choice of the accused (the defendant) to decide which sort of trial they should face – trial by magistrates or trial by jury. The Blair Government’s proposals were not welcomed and eventually sank beneath the waves of protest from a number of Mr Blair’s own MPs, members of the House of Lords, the Law Society and the Bar Council (to name but a few opponents).

https://www.theguardian.com/politics/2000/jan/21/jurytrials.law2

https://www.independent.co.uk/news/uk/politics/labour-rebels-to-ambush-blair-over-trial-by-jury-105088.html

Conclusion

Some 20 years ago, when Prime Minister Blair’s Government proposed restrictions on the right to trial by jury, the words of Lord Devlin, a former Law Lord, were often quoted. Lord Devlin’s remarks are worth repeating in the current context:

“…trial by jury is more than an instrument of Justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.”

Related Blog articles:

https://seancrossansscotslaw.com/2020/03/23/tholing-his-assize-alex-salmond-former-scottish-first-minister-acquitted-of-13-charges-of-sexual-offences-some-reflections-on-criminal-prosecutions-in-scotland-the-burden-of-proof-required-to-secu

https://seancrossansscotslaw.com/2020/02/15/oh-brother/

https://seancrossansscotslaw.com/2019/05/02/consent/

https://seancrossansscotslaw.com/2019/02/25/the-jury/

https://seancrossansscotslaw.com/2020/03/15/kaboom/

Copyright Seán J Crossan, 31 March 2020