Court rejects contention that football sectarian singing law unclear
Two football supporters have failed to overturn their conviction for singing a sectarian song at a match, by arguing that the law was insufficiently clear to comply with article 7 of the European Convention on Human Rights.
William Donnelly and Martin Walsh were convicted under s 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, having been among a group of Celtic supporters singing the pro-IRA song "The Roll of Honour" at an away match.
There was evidence that the song was widely regarded as sectarian and offensive, and that this was recognised by Celtic and its official supporters' organisations, warnings about it and other songs being broadcast at matches and elsewhere. However the contention of uncertainty was based on reported acquittals by some sheriffs of those singing the song, and subsequent public criticism of the legislation. It was argued, under reference to Smith v Donnelly (2002), 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.
Lord Justice Clerk Carloway, speaking for the court which also comprised Lord Bracadale and Lord Boyd of Duncansby, said that MacDonald v Cairns (2013), decided some months before the present offences, had decided that singing this particular song was potentially criminal and the appellants must be taken to have been aware of that.
"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", he continued. "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."
He added that there was "no blanket ban on singing sectarian songs", and the appellants were at liberty to indulge their desire to do so at many alternative venues – but there was a prohibition on doing so at football matches, for the policy reasons behind the legislation. "Indeed, the type of conduct here is precisely what the law is aimed at."