Celtic fan loses human rights challenge to ‘offensive behaviour at football’ law

A Celtic supporter accused of breaching “offensive behaviour at football” legislation by acting in a manner “likely to incite public disorder” after he allegedly wore a pro-IRA t-shirt during a match against Northern Irish team Linfield has had a human rights challenge against his prosecution dismissed.
The accused claimed that the controversial Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, which was repealed last month, was incompatible with articles 7 and 10 of the European Convention on Human Rights (ECHR), but a sheriff ruled that the legislation satisfied the requirements of “accessibility” and “foreseeability” and that the law was “proportionate to the legitimate aim pursued”.
‘Threatening and offensive behaviour’
Sheriff Stuart Reid at Glasgow Sheriff Court heard that the three accused “K”, “J” and “R” were alleged to have engaged in threatening and offensive behaviour at a regulated football match, contrary to section 1(1) of the 2012 Act.  
Specifically, it was alleged that the first and second accused attended Celtic Park while wearing shirts which displayed an image of a figure related to the Irish Republican Army (IRA), while the third accused was said to have done likewise and, in addition, was alleged to have displayed a banner bearing a similar image.   
The first accused lodged a minute challenging the compatibility of section 1(2)(e) of the 2012 Act with article 7 ECHR, which provides for “no punishment without law”, on the ground that the sub-section was “insufficiently precise” in its definition. 
The minute also challenged the compatibility of the legislation, so far as it criminalised certain types of behaviour, with the accused’s right to freedom of expression under article 10 ECHR. 
While it was conceded that the aims of preventing public disorder and crime were necessary in a democratic society, the alleged “criminalisation of expression at football matches” was said to be “unnecessary and disproportionate”. 
In relation to the alleged incompatibility with article 7, counsel for the accused submitted that section 1(2)(e) was framed in “very general terms” and that it lacked the necessary “certainty and foreseeability” required by article 7.  
Counsel criticised the use of a hypothetical “reasonable” person to determine whether behaviour was “offensive”, as the circumstances in which a person might be offended were so variable that the point at which behaviour became criminal was “incapable of objective determination”. 
Further, it was argued that the creation of the offence under section 1 of the 2012 Act was unnecessary as “sufficient remedy” already existed in criminal law to deal with any perceived need to prevent public disorder, namely the common law offence of breach of the peace or the statutory offence under section 38 of the Criminal Justice & Licensing (Scotland) Act 2010.
The court was also invited to conclude that it was a “relevant factor” in the determination of the minute that the Scottish Parliament had voted to repeal the 2012 Act by a resounding majority, specifically because of its “lack of clarity” and because it was “not fit for purpose”.
‘Oppressive and unfair’
In the alternative, counsel sought to rely upon a preliminary plea of “oppression”. 
Reference was made to directions that had allegedly been issued by the Lord Advocate to the effect that existing prosecutions under the 2012 Act were to continue until the Bill repealing the 2012 Act came into force. 
The gist of the submission was that the continuation of the present proceedings would be “grossly unfair” to the accused, in light of the then imminent repeal of the 2012 Act, which was officially removed from the statute book on 20 April 2018.
However, for the prosecutor it was submitted that section 1 of the 2012 Act was “sufficiently precise” to comply with article 7, as the dual principles of foreseeability and accessibility were complied with. 
Absolute clarity was not required by ECHR jurisprudence, and in any event the meaning of section 1(2)(e) of the 2012 Act could be “objectively determined”. 
The Crown also advised that it intended to lead evidence that the opposing team at the match was Linfield Football Club, a Northern Irish team traditionally associated with the protestant community there, and of the “irate reaction” of the Linfield supporters to the accused’s behaviour. 
‘Accessible and foreseeable’ 
In a judgment published just over two weeks before the 2012 Act was repealed, the sheriff refused the compatibility minute after ruling that the submissions for the accused were “not well-founded”. 
In a written note, Sheriff Reid said: “In my judgment, the impugned provision satisfies the implied qualitative requirement of ‘accessibility’ in terms of ECHR jurisprudence. The provision has a basis in domestic law. It can readily be found in section 1(2)(e) of the 2012 Act, with or without the benefit of informed legal advice. 
“In my judgment, the impugned provision also satisfies the implied qualitative requirement of ‘foreseeability’ in terms of ECHR jurisprudence. Specifically, I am satisfied that the accused can reasonably know from the relevant statutory wording – and, if need be, with the assistance of informed legal advice and the court’s interpretation of it – what acts and omissions will make him criminally liable, and the punishment that may follow
“In reaching that conclusion, I have had particular regard to four considerations: (i) the natural and ordinary meaning of the word ‘offensive’; (ii) the usual linguistic canons or principles of statutory interpretation that fall to be applied to assist in understanding the meaning of section 1(2)(e); (iii) the Scottish Parliamentary materials accompanying the presentation of this legislation to Parliament, prior to its enactment; and (iv) reported case-law on the judicial interpretation of the legislation and analogous common law offences.”
The sheriff also rejected criticism of the use of the hypothetical “reasonable person” and dismissed the argument that the legislation breached the right to freedom of expression, holding that the relevant impugned provisions were “compatible” with the accused’s rights under article 10 of the European Convention.
He added: “In my judgment, the alleged wearing of a shirt bearing an image in support of the IRA to a Scottish football match (a fortiori against a visiting team from Belfast with associations to the Protestant community there)…if proved, it would, viewed in context, be more akin to conduct of a hostile, antagonistic and ‘gratuitously offensive’ nature, imbued with the notion of provocation or attack, and calculated (or having effect) to cause harm, hurt or injury; conduct which the Scottish Parliament, in the exercise of its margin of appreciation, was entitled to restrict (within defined parameters) in the pursuit of nobler, legitimate aims, for the benefit of Scottish society as a whole.”