ONE of Scotland's most senior judges has said that the singing of the pro-IRA Roll of Honour by a significant group of fans will be regarded by a reasonable person as being both threatening and offensive.
Lord Carloway, the Lord Justice Clerk, gave the opinion while rejecting a claim that a charge under the controversial law designed to stamp out sectarian abuse at football matches led to the contravention of two convicted fans' human rights.
William Donnelly and Martin Walsh were convicted of charges surrounding the singing of the pro-IRA song at a match between Hibs and Celtic at Easter Road on 19 October 2013.
In February last year, the song reached the UK Top 40 Singles chart after the band Irish Brigade, were asked by supporters group Fans Against Criminalisation to cover the song to highlight their opposition to the Offensive Behaviour at Football and Threatening Communications (Scotland) Act.
The 1980s song celebrates the lives of 10 republican prisoners who died in 1981 at the Maze Prison.
Donnelly and Walsh's lawyers said they might not have appreciated that their rendition of the song could be regarded as threatening or offensive and thus render them liable to criminal conviction and sentence.
Leave to appeal had been granted over the conviction under Section One of the Offensive Behaviour act on the question of whether there was a conflict with Article Seven of the European Convention on Human Rights.
The leave to appeal involved whether there was, "in the circumstances of the case, a breach in the applicants' right to know, with sufficient clarity, of the nature of the crime, in terms of Article Seven".
But Lord Carloway in dismissing their appeal, said the pair were "were well aware of what they were engaging in".
He said: "The appellants must be presumed to have been aware that, in terms of the section, behaviour at a football match would be criminal if it involved conduct which was threatening or such that a reasonable person would be likely to consider offensive and if that conduct was likely to incite public disorder. "
He pointed out that it was established in a case decided a matter of months before the Easter Road match that "the singing of this particular song was potentially criminal".
He said that the sheriff's note recorded that the evidence had been that the song was widely regarded as sectarian and offensive and that warnings about sectarian songs were broadcast before matches and that both the club and the supporters' websites warned fans of the undesirability and dangers in singing this particular song.
He said 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 added: "In this case the song celebrates the activities of members of proscribed terrorist groups. 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...
"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: "There is no blanket ban on singing sectarian songs and the appellants are at liberty to indulge their desire to do so at many alternative venues. There is, however, a prohibition on doing so at football matches ... type of conduct here is precisely what the law is aimed at."
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules hereComments are closed on this article