David Di Pinto v. His Majesty’s Advocate [2024] HCJAC 7

Appeal from the Sheriff Appeal Court:- Appeal from the Sheriff Court:- On 13 March 2023, at Glasgow Sheriff Court, the appellant was convicted on a summary complaint after trial of a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 by inter alia uttering a sectarian remark at Hampden Park, Glasgow which conduct was aggravated by religious prejudice under Section 74 of the Criminal Justice (Scotland) Act 2003. The appellant was fined £500 and made subject to a Football Banning Order for a period of 12 months. The case involved the appellant using the word “hun” to describe police officers who arrested him during the course of a football match. The appellant appealed to the Sheriff Appeal Court it being contended that the term “hun” was not a sectarian remark. The SAC considered was it within judicial knowledge that, in a footballing context, the term “hun” was used by some factions of the population as a derogatory description of members of the Protestant faith. The SAC reaffirmed the decision of the summary sheriff at trial and held that the appellant evinced malice or ill-will towards the police on his perception that they were Rangers supporters and Protestants, with the SAC being of the view that in modern Scotland the term ‘hun” was recognised as an abusive sectarian term to cause offence to Protestants and not just a reference to a Rangers supporter and the appeal was refused. The appellant appealed to the high court against that decision and the appeal was allowed to the extent of the conviction relating to the uttering of a sectarian remark and to the religious aggravation. The high court considered that ‘judicial knowledge’ as referred to by the SAC was restricted to matters which were beyond dispute and its purpose was not to usurp the function of the evidence. The court considered the historical context of the use of the term and the differing views as to its origins and the extent to which it could indisputably be said to be an offensive sectarian term. The court was of the view that it could not be said to be the case that the term was within judicial knowledge to be sectarian as that was not immediately ascertainable from sources of indisputable accuracy or be so notorious as to be indisputable. The court noted that during the trial the Crown had led evidence from a Glasgow police officer on what the appellant’s use of the word “hun” meant and he replied that it was a reference to the officer being a Rangers fan which was not sectarian. The sheriff’s ‘judicial knowledge’ of the meaning of “hun” could not replace the evidence which had been led from the police officer. The court also considered the term under reference to the Scottish National Dictionary and Scottish novelists, including Irvine Welsh, and concluded that in the present case the term was used in reference to Rangers supporters, rather than Protestants, albeit the court observed that there may be circumstances where the use of the slur would clearly be intended in a sectarian sense or in a manner demonstrating religious prejudice.