MAGUIRE v. THE UNITED KINGDOM
Inadmissible
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. The applicant, Mr Kevin Maguire, is a British national, who was born in 1983 and lives in Glasgow. He was represented before the Court by Callahan McKeown & Co. Ltd., a firm of solicitors based in Renfrew. 2. 3. On 18 September 2011 the applicant attended a football match at Ibrox football stadium in Glasgow. The stadium was home to Rangers Football Club, who were that day playing Celtic Football Club (the two teams are collectively known as the “Old Firm”). Sectarian violence between the two clubs’ respective rival Protestant and Catholic supporters often accompanies Old Firm matches. Because of the history of trouble there was a heavy police presence at the match. 4. The applicant was wearing a black top which, in bright green letters approximately three to four inches in size, displayed on the front the letters “INLA”. On the back of the top, in large bright green letters, was the slogan “FUCK YOUR POPPY REMEMBER DERRY”. The initials INLA refer to the Irish National Liberation Army, which is a proscribed organisation in terms of the Terrorism Act 2000 (“the 2000 Act” – see paragraphs 30-31 below). In the United Kingdom, the poppy symbolises remembrance of the members of the armed forces who have died in the line of duty and is widely worn around 11 November (“Remembrance Day”). Derry is a town in Northern Ireland where thirteen civil rights protesters and bystanders were killed by soldiers of the British Army during a civil rights march in January 1972 (“Bloody Sunday”). 5. After the football match ended, the applicant, together with other Celtic supporters, was leaving the stadium when he was approached by two police officers whose attention had been drawn by the top he was wearing. He was arrested and taken to the police station where he was initially charged with an offence under section 13 of the Terrorism Act 2000 (see paragraphs 30-31 below), namely that he was wearing a garment in such circumstances as to arouse suspicion that he was a member or supporter of a proscribed organisation. That charge was not pursued and the applicant was instead subsequently charged with breach of the peace. 6. The trial took place on 28 August 2012. The charge read: “[O]n 18th September 2011 at Edminston Drive, Glasgow, you ... [did] conduct yourself in a disorderly manner wear[ing] a top which displayed slogans of an insulting and abusive nature and commit a breach of the peace ...” 7. The applicant pleaded not guilty to the charge. The prosecution called as witnesses the two police officers who had arrested the applicant. 8. The officers gave evidence that their attention was drawn to the applicant because of the top he was wearing. He had not been shouting, swearing, gesticulating or engaging in any other behaviour that caused concern. The officers explained that because the initials “INLA” referred to a proscribed organisation under the 2000 Act, they had considered that they had reasonable cause to suspect that the applicant was a member or supporter of a proscribed organisation. The wearing of the insignia of a proscribed organisation in a public place was an offence under section 13 of the 2000 Act. The officers testified that in the volatile atmosphere in the aftermath of a football match between Rangers and Celtic it was likely that the insignia would be regarded as offensive and inflammatory by Rangers football fans and the officers had been concerned that this would provoke disorder or cause a disturbance. 9. The officers also gave evidence that any reasonable person would consider the slogan on the back of the top offensive and would be upset by it. In a context where there had been widespread media coverage of the issue of football players wearing poppies on their strips, such a slogan was inflammatory and likely to provoke disorder. The officers considered that any member of the public who had a connection with the armed forces would be upset and angered by the slogan. In the highly volatile situation of the immediate aftermath of a football match between Rangers and Celtic, they were genuinely concerned that it might cause a disturbance. 10. In cross-examination, the applicant’s solicitor put to the officers that members of the public attending the match would have been unlikely to know the significance of the initials “INLA”. The officers did not agree, responding that a significant proportion of members of the public attending that particular match would be well aware what the initials denoted. It was also put to the officers that the area in which the applicant was arrested was segregated and heavily policed and that surrounding members of the public were Celtic supporters. The officers replied that it was possible that Rangers supporters would have been able to see the applicant and, in any case, around one hundred yards down the road the two sets of fans intermingled. They were alarmed about the risk of a serious disturbance at that point. 11. The officers were also asked in cross-examination whether they had received any complaints prior to the applicant’s arrest. They confirmed that they had not. When asked why they did not initially charge the applicant with breach of the peace, the officers referred to the fact that the applicant had been arrested while still in the segregated area of Celtic football fans and that they had decided to act pro-actively. They had therefore considered the appropriate charge to be one under section 13 of the 2000 Act. Although it was clear at the police station that his conduct also amounted to a breach of the peace, it was not considered appropriate for two charges to be libelled in relation to the same conduct. 12. At the close of the prosecution case counsel for the applicant submitted that there was no case to answer. He argued that while there was evidence that the conduct was pertinent to a charge under section 13 of the 2000 Act, there was insufficient evidence to establish fear or alarm causing a serious disturbance to the community since the arrest had occurred in a segregated area which was heavily policed. The prosecution argued that there was ample evidence to convict. In particular, it was important to have regard to the context in which the conduct had occurred and to the fact that football matches, particularly those between Celtic and Rangers, were often marred by disturbances. 13. The sheriff rejected the no-case-to-answer submission. She observed that both police officers had given evidence that they were offended by the slogan on the back of the applicant’s top and were further alarmed that the wearing of the garment in the particular context was likely to provoke disorder or violence. She noted that violence at Old Firm football matches was by not uncommon. In her stated case prepared in the context of the applicant’s later appeal (see paragraph 19 below), the sheriff explained: “[18] ... While there was no evidence of actual distress or alarm on the part of members of the public in the immediate vicinity at the time of the offence, in my view ... the appellant’s conduct was likely to cause distress or alarm to a reasonable person in the vicinity. First, while the appellant was wearing the garment within a segregated area the police cordon was not a closed one and the evidence was that Rangers supporters may have been able to see him. Secondly, members of the public in the immediate vicinity were likely to be offended and upset by the slogan ‘fuck your poppy remember Derry’ particularly those with any personal connection to those serving in the armed forces. Celtic supporters were also likely to be alarmed about the potential that the appellant’s conduct had to provoke violence or disturbance to the community. Finally, there was substantial risk of both violence and disorder when the appellant walked 100 metres ... and mingled with Rangers supporters.” 14. The sheriff convicted the applicant. Sentence was deferred for a Criminal Justice and Social Work report to be prepared. 15. On 25 September 2012 the applicant was sentenced to a two-year football banning order. The order prohibited the applicant, inter alia, from entering any premises for the purpose of attending any regulated football matches in the United Kingdom 16. In her subsequent stated case, the sheriff referred to the applicant’s criminal record, which included convictions for three separate charges of breach of the peace in 2008, the second of which had been subject to an aggravation for religious prejudice. She noted the applicant’s explanation that it had taken place in the context of an assault on the applicant by members of the Orange Order (a Protestant organisation). She also referred to the fact that the present offence had been committed while the applicant was on bail. She took into account that fact that the applicant had been a Celtic season ticket holder for over twenty years and had never previously come to the attention of the police in the context of football-related offending. 17. As to the applicant’s explanation that he had received the top as a present from his uncle and was unaware of what the lettering meant, the sheriff found this not to be credible. She considered that since the applicant had attended Celtic matches in Glasgow for over twenty years, had close family members living in Northern Ireland and had previously been assaulted by members of the Orange Order, he was likely to have been very well aware of what the initials stood for. In any case he could not have failed to be aware of the significance and offensive nature of the slogan on the back of the top. He would also have been well aware of the volatile atmosphere which accompanied Old Firm football matches and the potential for disorder or violence in that context. 18. Finally, the sheriff considered the Criminal Justice and Social Work report, which suggested a disposal prohibiting the applicant from attending football matches. She considered that the offence for which the applicant had been convicted was a football-related offence in terms of section 51(5) of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (see paragraphs 32-33 below) and constituted precisely the type of conduct to which that legislation was directed. In her stated case, she concluded: “The imposition of a football banning order was not only appropriate in terms of the nature of the offence by correlating the penalty directly to the conduct involved but will further serve to protect the public from further conduct of this nature during the period of the order.” 19. The applicant sought leave to appeal and a stated case was prepared by the sheriff. The applicant argued, inter alia, that the sheriff had erred in finding the charge of breach of the peace proven beyond reasonable doubt and was wrong to convict him. He also argued that the imposition of a twoyear football banning order was excessive. 20. Leave to appeal was refused at the first sift on 10 December 2012. The judge considered that the sheriff had applied the correct test in law and that the sentence was well merited and within the range open to her. 21. The applicant appealed to the second sift. In addition to the grounds of appeal previously provided, he submitted an opinion of a solicitoradvocate. In that opinion, it was argued that in a case such as the applicant’s it was necessary to bear in mind the importance of freedom of expression under Article 10 of the Convention and that the courts had the duty to act compatibly with the Convention. It was further argued that the arrest of the applicant was disproportionate to the legitimate aim of preventing disorder. 22. On 7 January 2013 leave to appeal against conviction and sentence was granted. 23. The Appeal Court of the High Court of Justiciary handed down its judgment on 28 February 2013. It dismissed the appeal against conviction and sentence. 24. As regards the argument that the breach of the peace charge had not been proven, the court referred to the test set out in Smith v Donnelly (see paragraph 27 below) and considered that, applying that test to the evidence and the facts as found by the sheriff, there was no difficulty in concluding that the applicant’s conduct had amounted to a breach of the peace. It explained: “9. ... His actions in wearing this top were not part of a legitimate protest. Rather they amounted to a deliberately provocative gesture, calculated to cause precisely the type of disturbance which the court referred to in Smith v Donnelly. His conduct, in the context of this football match and its aftermath, presented as genuinely alarmingly and disturbing to any reasonable person.” 25. As to the applicant’s argument that his arrest and conviction breached his right to freedom of expression, the court said: “10. The court does not consider that the appellant’s right to freedom of expression was in any way affected by his arrest and subsequent conviction. Even if the appellant does wish to engage in genuine protests, either in relation to Remembrance Day, the events of ‘Bloody Sunday’ or about the proscription of the INLA, he has plenty of suitable opportunities in which to do so without intentionally provoking serious disturbance, including violence, in the community.” 26. In respect of the appeal against sentence, the court noted that although the applicant had no specific previous convictions relative to football-related offending, he had previous convictions for public disorder, one of which had involved a sectarian element. It therefore concluded: “11. ... When the present conviction is seen in light of his criminal record, the court has no difficulty in holding that this was a case in which the imposition of the banning order was entirely proportionate.” 27. The leading case as to what constitutes a breach of the peace under Scots law is Smith v. Donnelly 2002 JC 65, where the Appeal Court said: “17. The crime of breach of the peace can be committed in a wide variety of circumstances, and, in many cases, it is a relatively minor crime. It has therefore been said, more than once, that a comprehensive definition which would cover all possible circumstances is neither possible nor desirable. Equally, in our view, it is neither possible nor desirable to derive a comprehensive definition from a close analysis of the facts of individual cases in which it has been held that a breach of the peace had been committed ... [I]t is, in our view, clear that what is required to constitute the crime is conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community ... What is required, therefore, it seems to us, is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person. 18. That interpretation is supported by the fact that ... if there is no evidence of actual alarm, the conduct must be ‘flagrant’ if it is to justify a conviction. ‘Flagrant’ is a strong word and the use of that word points to a standard of conduct which would be alarming or seriously disturbing to any reasonable person in the particular circumstances ... We therefore conclude that the definition of the crime found in the principal authorities does meet the requirements of the Convention.” 28. In Her Majesty’s Advocate v. Harris [2010] HCJAC 102, the Appeal Court, citing Smith, emphasised that it was now clear that the crime of breach of the peace involved two elements: conduct (1) severe enough to cause alarm to ordinary people and (2) which threatened serious disturbance to the community. 29. The maximum sentence for breach of the peace depends upon the court in which the offence is tried. When prosecuted in summary proceedings in the Sheriff Court, the maximum sentence is a fine of up to five thousand pounds sterling or imprisonment of one year. 30. Section 13(1) of the 2000 Act provides that a person in a public place commits an offence if he wears an item of clothing or wears, carries or displays an article in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation. 31. Schedule 2 to the 2000 Act sets out a list of proscribed organisations. It includes the Irish National Liberation Army. 32. Section 51 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 provides that where a person has been convicted of an offence, the court may make a football banning order against him provided that it is satisfied that the conditions in section 51(3) are met. Those conditions are: “(a) that the offence was one to which subsection (4) applies; and (b) that there are reasonable grounds to believe that making the football banning order would help to prevent violence or disorder at or in connection with any football matches.” 33. Subsection (4) applies where the offence involved the person who committed it engaging in violence or disorder; and the offence related to a football match. An offence is deemed to relate to a football match if it is committed at a football match or while the person committing it is entering or leaving the ground; on a journey to or from a football match; or otherwise, where it appears to the court from all the circumstances that the offence is motivated (wholly or partly) by a football match. 34. The Scottish Government are committed to eradicating sectarianism in Scotland. The Minister for Community Safety and Legal Affairs appointed the independent Advisory Group on Tackling Sectarianism in Scotland in August 2012 to provide Scottish Ministers with impartial advice on tackling sectarianism in Scotland. 35. The Advisory Group submitted its report to Scottish Ministers on 13 December 2013. The specific form of sectarianism considered by the Advisory Group was that arising from the Catholic-Protestant tensions that are part of the historic legacy of Scotland. The report proposed the following “working definition” of sectarianism: “Sectarianism in Scotland is a complex of perceptions, attitudes, beliefs, actions and structures, at personal and communal levels, which originate in religious difference and can involve a negative mixing of religion with politics, sporting allegiance and national identifications. It arises from a distorted expression of identity and belonging. It is expressed in destructive patterns of relating which segregate, exclude, discriminate against or are violent towards a specified religious other with significant personal and social consequences.” 36. The foreword of the report explained: “While we recognise that sectarianism in Scotland is a complex social issue which needs to be addressed in a wide range of ways, we also have a great deal of hope for the future and believe that it is well within the capabilities of people from across Scottish society to tackle sectarianism once and for all. It is, perhaps, not surprising that the deep rootedness of sectarianism in Scotland has led to a culture which fluctuates between silence and sensationalism, while other equality issues have been driven forward in a more holistic and coordinated way. But what has been obvious to us is that sectarianism has had its day in Scotland, and there is an increasingly large groundswell of people who are tired of its worn-out rhetoric and the way in which it manifests itself in exclusionary and confrontational behaviour.” 37. The report summarised the Group’s findings and conclusions regarding sectarianism in football as follows: “16. Football is an integral part of Scottish life and has a powerful influence and impact. However, it is impossible to ignore the fact that sectarianism continues to exist at many levels in Scottish football. We need to go beyond tokenistic and superficial gestures to deeply embed an anti-sectarian ethos into, and across, every area. There are good examples of where this has been done and Scottish football’s governing bodies should consider how anti-sectarian work can become deeply embedded in this way ... In addition, we believe that Scottish football’s governing bodies and clubs should financially support work to tackle sectarianism through grassroots football, including pro-active work to tackle sectarianism within youth, amateur and junior football ... 17. We also believe that sporting sanctions should be introduced and applied to clubs where sectarianism persists. We recommend that Scottish football’s governing bodies introduce a system of penalties for football clubs along the lines of the UEFA (Union of European Football Associations) anti-racism guidelines ... 18. We also recommend that: Scottish football’s governing bodies and clubs should provide active support to allow coaches and officials to tackle any sectarian behaviour they encounter ...; Scottish football’s governing bodies, clubs and supporter groups should publicly recognise that sectarianism belittles everyone involved in football and actively work to define football clubs in a positive rather than negative way ...; Football clubs should clearly and publicly disassociate themselves from sectarian behaviour, both inside and outside the grounds, through positive, public cross-club engagement and by becoming role models of anti-sectarian behaviours ...; Police Scotland should be given full support by football’s governing bodies and clubs to deal with criminal football-related sectarianism in appropriate and proportionate ways and to standardise the policing of such behaviour across Scotland ...” 38. A Football Summit, chaired by the First Minister and attended by Scottish Ministers, the police, football clubs and football authorities, took place on 8 March 2011. The Summit was organised to try and address a pattern of increased violence and disorder during Old Firm games. Following the Summit, a joint statement was issued which included an eight-point commitment plan to tackle violence, bigotry and alcohol misuse in Scottish football and more widely across Scottish society. 39. A Joint Action Group was set up to take forward the commitments of the Summit. On 11 July 2011 it published a report containing recommendations to help improve the game and to contribute positively to wider efforts to tackle these social issues. 40. The Scottish Parliament subsequently enacted the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, which entered into force on 1 March 2012. The Act criminalises behaviour which is threatening, hateful or otherwise offensive at a regulated football match. It also criminalises the communication of threats of serious violence and threats intended to incite religious hatred. 41. The European Convention on Spectator Violence and Misbehaviour at Sports Events and in particular at Football Matches (CETS No. 120) was ratified by the United Kingdom in 1985. 42. In its preamble, it expresses concern at violence and misbehaviour amongst spectators at sports events, and in particular at football matches. It further notes that violence is a current social phenomenon with wide repercussions, whose origins lie mainly outside sport, and that sport is often the scene for outbreaks of violence. It sets out a number of measures, aimed at preventing violence and controlling the problem of violence and misbehaviour by spectators at sports events. These measures include close co-operation between police forces involved; prosecution of offenders and application of appropriate penalties; strict control of ticket sales; restrictions on the sale of alcoholic drinks; and appropriate design and physical fabric of stadia to prevent violence and allow effective crowd control and safety.