Procurator Fiscal, Dingwall v. Joseph Anthony Cairns [2013] HCJAC73

Criminal Appeal by Stated Case:- The respondent appeared on summary complaint for trial at Dingwall Sheriff Court on 4 February 2013 in relation to a contravention of section 1(1) of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 by chanting phrases and songs in support of the IRA, a proscribed terrorist organisation, and making threatening gestures towards opposing fans. During the trial evidence was led from two police witnesses. At the conclusion of the Crown case the sheriff allowed the complaint to be amended by deleting the words "and make threatening gestures towards opposing fans". The solicitor acting for the respondent then made a submission to the sheriff in terms of section 160 of the Criminal Procedure (Scotland) Act 1995 that there was no case to answer and after hearing both parties the sheriff sustained the submission and acquitted the respondent of the charge. The Crown appealed against the decision. The sheriff noted in his report to the court that in his opinion there was no proper basis for inferring that the respondent's behaviour was likely to incite public disorder and the submission of no case to answer fell to be upheld. The circumstances were that two police officers had given evidence that they recognised the song, which referred to the hunger strikers and to joining the IRA, and heard certain of the words sung. Here the court considered the effect of section 1(5) which provides that for the purposes of section 1(1)(b)(ii), behaviour "would be likely to incite public disorder" if public disorder would be likely to occur but for the fact that either measures are in place to prevent public disorder, or persons likely to be incited to public disorder are not present or are not present in sufficient numbers. Here in allowing the appeal the court considered that a distinction requires to be drawn between "a reasonable person" and a person "likely to be incited to public disorder", the latter of whom may have particular interests, knowledge or views about the songs in question and importantly section 1(5)(b) provides that such persons need not be present for the purposes of determining whether specific behaviour would be likely to incite public disorder. The court held that where behaviour falls within any of the categories in section 1(2) it is sufficient that persons likely to be incited to public disorder would be likely to be so incited by the particular behaviour concerned, regardless of whether they were present in sufficient numbers and whether or not they were subject to measures put in place to prevent public disorder.