Celtic fans found guilty of ‘offensive behaviour at football’ granted leave to bring human rights appeal

The Criminal Appeal Court will be asked to consider whether the applicants’ rights under Article 7 of the European Convention on Human Rights, which provides that no one shall be held guilty of any crime which did not constitute a criminal offence at the time when it was committed, were infringed.

The Lord Justice Clerk, Lord Carloway, sitting with Lord Brodie and Lord Drummond Young, heard that in October 2014, the applicants 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 by singing the “Roll of Honour” at a match in October 2013 between Hibernian and Celtic at Easter Road in Edinburgh.

The stated case contained three questions: (1) was I entitled to repel the submission of no case to answer; (2) was I entitled on the evidence stated to convict the applicants; and, as interpreted by the court, (3) 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?

The judge at first sift refused leave to appeal after concluding that the sheriff had been entitled to find corroboration in the evidence of two police officers and CCTV images. It being conceded that the Act is Convention compliant, the first sift judge reasoned that it could not be said that the applicants’ Article 7 rights had been breached, as the statute gave ample notice that the behaviour constituted an offence.

The second sift judges stated that they agreed with the first sift judge that there was ample corroboration available in the evidence, but considered that the second ground of appeal was “arguable”

The Criminal Appeal Court was therefore forced to make assumptions about what the second sift judges meant when granting leaving in relation to the “second ground of appeal”, where there was no such ground.

Lord Carloway said: “The problem with the approach of all the sifting judges is that their references to a ‘ground of appeal’ is not to any numbered ground contained in the stated case, but to the content of the statement of matters which the applicant wished to bring under review in his original application to the sheriff for a case. A ‘ground of appeal in the stated case’ is one which is raised in a question posed in the stated case itself. Such a ground may, or may not, derive from the original application.”

He explained that the function of the court under the stated case procedure was to consider the questions posed and not to revert to the original application, other than where a sheriff or justice of the peace was said to have failed properly to state a case focussing the issues which an applicant sought to raise.

The appeal judges held that leave to appeal appeared to have been granted to the applicants to argue the ground encapsulated in question 3 and deemed that to be the position.

Delivering the opinion of the court, the Lord Justice Clerk said: “On the merits of the application, the court is satisfied that it is not arguable that there was insufficient evidence for the sheriff to conclude that there was a likelihood that the song being sung would incite public disorder.

“In particular, there was evidence, first, from the police officers of what was sung. There was evidence, secondly, from one of the police officers that the song is widely regarded as sectarian and offensive; a fact recognised not only by the police but also by the official Celtic supporters organisation and the club itself. There was, thirdly, the CCTV images, which actually recorded the adverse reaction to it from the Hibs fans.

“On the basis of this evidence, the sheriff was entitled to form an objective view on the likely effect of the singing of the song. Accordingly, this application to argue the ground will be refused.

“The case will proceed only in relation to question 3 in the stated case. That may involve, in due course, a consideration of whether the result of the answer to question 3 is that the conviction must be quashed. Obviously, and although leave to appeal has not been granted on the general question 2, that will remain a matter for the court to resolve in due course.”