Celtic fans convicted of ‘offensive behaviour at football’ for singing ‘Roll of Honour’ fail in Article 7 ECHR appeal

The Criminal Appeal Court was asked to consider whether the appellants’ rights were infringed in terms of Article 7 of the European Convention on Human Rights (ECHR) – which enshrines the principle of “no punishment without law” – but the judges ruled that they the appellants must have known that their behaviour was “potentially criminal”.

The Lord Justice Clerk, Lord Carloway, sitting with Lord Bracadale and Lord Boyd of Duncansby, heard that in October 2014 the appellants William Donnelly and Martin Walsh were convicted of a contravention of section 1(1) of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 for singing the “Roll of Honour” at a match between Hibernian and Celtic at Easter Road in October 2013.

The appeal judges explained that the “rather unusual point” raised in the appeals by stated case was whether the appellants’ rights under Article 7 of the ECHR had been infringed, not by reason of the definition of the offence under section 1 being incompatible on account of uncertainty, but because they might not have appreciated that their rendition of the song could be regarded as threatening or offensive and thus render them liable to criminal conviction and sentence.

The background contention was that there was “uncertainty” about which songs could, or could not, be sung at football matches.

Some sheriffs had acquitted persons singing the Roll of Honour, such as in the 2013 cases of PF (Inverness) v Calum Graham and MacDonald v Cairns, which had led some politicians and journalists to criticise the terms of the legislation.

It was contended that the appellants had a right “to foresee, to a degree that is reasonable in the circumstances the consequences which a given action may entail” and that they could not know that singing the song had potential criminal consequences.

The advocate depute responded by maintaining that MacDonald v Cairns was the “complete answer” to the appeal because in that case, in advance of the appellants’ actions, the court had stated that an accused person singing this song at a football match would have a case to answer.

In any event it was argued that it would have been “evident” to the appellants that singing a song about proscribed terrorist organisations at Easter Road would be criminal.

Refusing the appeal, the judges explained that Article 7 “embodies the principle that only the law can define a crime and prescribe a penalty”, adding that the appellants’ conduct was “precisely” what the 2012 Act was aimed at.

Delivering the opinion of the court, the Lord Justice Clerk said: “An offence must be clearly defined. 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 court’s interpretation of it, what acts and omissions will make him criminally liable.

“The appellants must be presumed to have been aware that, in terms of the section, behaviour at a football match would be criminal if it involved conduct which was threatening or such that a reasonable person would be likely to consider offensive and if that conduct was likely to incite public disorder.

“It was established in MacDonald v Cairns 2013 SCCR 442, which was decided months before the match at Easter Road, that the signing of this particular song was potentially criminal. The appellants must be taken to have been aware of that.”

Lord Carloway added: “The short point here is that it is firmly established in law, and incidentally very well-known, that singing songs of a sectarian nature at football matches is likely to be a criminal act. In this case the song celebrates the activities of members of proscribed terrorist groups.

“It cannot come as a surprise that the singing of such a song by a significant group of fans at a match will be regarded by a reasonable person as being both threatening and offensive or that, but for the fact that football fans in Scotland are, as noted above, relatively inured to this type of conduct, likely to incite public disorder.

“There is no need for proof of knowledge that the particular supporter was aware of the law or the status of the song. The appellants were well aware of what they were engaging in.

“There is no blanket ban on singing sectarian songs and the appellants are at liberty to indulge their desire to do so at many alternative venues. There is, however, a prohibition on doing so at football matches for the reasons outlined in the policy memorandum to the Bill. Indeed, the type of conduct here is precisely what the law is aimed at.”