Man who posted ‘Nazi dog’ video has human rights appeal bid dismissed as ‘unarguable and incompetent’

Mark Meechan, who was fined £800 for breaching the Communications Act 2003 and was seeking to appeal to the UK Supreme Court on human rights grounds, claimed that there was a “lacuna” in the law because he had no right to challenge the Sheriff Appeal Court’s decision to dismiss his appeal at the sifting stage.

But the Lord Justice General, Lord Carloway, sitting with the Lord Justice Clerk, Lady Dorrian, and Lord Menzies, refused the petition to the nobile officium, saying it had no power to grant leave to appeal, and that in any event the purpose of the relevant legislation was to prevent unarguable cases from proceeding.

‘Freedom of expression’

The court heard that the petitioner was convicted at Airdrie Sheriff Court on a summary complaint of a breach of section 127(1)(a) of the Communications Act 2003, an offence aggravated by religious prejudice and racism, after he posted a video entitled “Mate Yer Dugs a Nazi” on his “Count Dankula” YouTube channel, in which his girlfriend’s pet pug was shown to respond to commands such as “Sieg Heil” and “gas the Jews” by raising its paw.

He claimed that the video was intended as a “joke” to annoy his girlfriend, but the sheriff found – in fact – that the purpose was to make a highly offensive video to be viewed on the internet and shared.

At the stage of submissions at the conclusion of the trial, the sheriff asked parties whether they intended to address him on freedom of expression at common law or in terms of article 10 of the European Convention on Human Rights, but the defence made no reference to it and no compatibility issue was raised.

Despite this, the petitioner sought to introduce human rights issues when he appealed to the Sheriff Appeal Court (SAC).

Leave to appeal was refused at the first sift by a single appeal sheriff, who described the case as “unarguable” and “wholly misconceived”, having observed that “the article 10 argument was never advanced before the sheriff and [was] not elucidated in any way in the ground beyond bare assertion”, adding that the same was true of the petitioner’s claim that section 127(1) of the 2003 Act was incompatible with articles 7 and 10 ECHR.

The petitioner’s application for leave to appeal was refused again by the SAC at the second sift, meaning that he had no statutory route to pursue his case any further.

‘Lacuna in the law’

He therefore lodged a petition to the nobile officium, claiming that there was an error in the Courts Reform (Scotland) Act 2014, which created the Sheriff Appeal Court, whereby the ability to seek permission to appeal a compatibility issue from the High Court to the UK Supreme Court, which had previously existed in summary cases, was “accidentally omitted” in relation to cases in which leave to appeal to the SAC from the verdict of a sheriff had been refused. 

It was maintained that the issue could be remedied by the court by granting (or not granting) permission to appeal the sift decision of the SAC, not to the High Court as the final criminal court of appeal in Scotland, but directly to the UK Supreme Court.

The petition proceeded upon a proposition that the exercise of the nobile officium in favour of the petitioner was necessary to provide him with a remedy in “extraordinary and unforeseen circumstances”, for the purposes of “preventing injustice” and to provide for the proper administration of justice.

Before the inception of the Sheriff Appeal Court, second sift decisions, which had been taken by the High Court, could be appealed to the UK Supreme Court - as in the case of Cadder v HM Advocate 2011 SC (UKSC) 13 - including sift decision in summary cases. 

The petitioner maintained that he was now prevented from appealing to the High Court by the statutory appellate structure and also to the UK Supreme Court because of the terms of section 288AA of the Criminal Procedure (Scotland) Act 1995, which had remained unchanged despite the creation of the SAC.

It was submitted that there was “no policy reason” why a compatibility issue in a summary prosecution should be treated differently from those arising in prosecutions on indictment - there was therefore “an unanticipated and unintended lacuna”. 

‘Incompetent and irrelevant’

Refusing the petition, the appeal judges ruled that the test for the application of the nobile officium had not been met.

Delivering the opinion of the court, the Lord Justice General said: “The scheme of the 2014 Act is to prevent summary criminal cases proceeding, first, to the Sheriff Appeal Court unless they meet the sifting procedure test in the SAC and, secondly, to the High Court unless the second appeals test is met. This case fell at the first of these hurdles. 

“No lacuna exists. There are and were no extraordinary or unforeseen circumstances. The petitioner had an appropriate and effective remedy in the form of a proportionate appeal route through the stated case procedure. 

“Any problem, which he may think that he has, does not stem from a deficiency or lacuna in the legislation or because of the absence of remedy, but because his appeal by stated case did not, according to the SAC, meet the test of arguability. No appeal thus proceeded. That is an entirely normal circumstance in many effective appellate systems.”

Lord Carloway added: “This court has no power to grant leave to appeal from a sift decision of the Sheriff Appeal Court to itself. To do so would be to act in defiance of the statutory scheme. 

“It has no power to grant leave to appeal from a sift decision of the SAC direct to the UK Supreme Court. To do so would be not only in defiance of the statutory scheme but constitutionally inept, given the High Court of Justiciary’s role as the final court of criminal appeal in Scotland. 

“There is no lacuna in the statutory provision, but an appeal structure specifically designed to deal with cases at an appropriate and proportionate level. The petition is both incompetent and irrelevant.”