An appeal by two men convicted of singing the “Roll of Honour” at a Hibs v Celtic match in October 2013 has been refused.
The question raised was somewhat unusual. The compatibility of Section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 with Article 7 of the European Convention on Human Rights was not challenged. It was not suggested that the Act itself created an uncertainty as to what conduct might or might not be criminal. Rather it was argued that the appellants might not have appreciated that their rendition of the song “The Roll of Honour” could be regarded as threatening or offensive and thus render them liable to criminal conviction and sentence.
Delivering the judgement of the court, the Lord Justice Clerk stated matters succinctly: –
“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. 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 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.”
Put bluntly, as the court quite properly acknowledged, the singing of known sectarian songs at football matches is exactly the sort of behaviour to which the Act is directed.
That does not, of itself, absolve the legislature of all criticism. Article 7 requires that “An offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the court’s interpretation of it, what acts and omissions will make him liable.” (Kokkinakis v Greece (1993) 17 EHRR 397)
There remains the possibility, given the wide ambit of the legislation, that other not quite so obviously offensive behaviour might, at a football match, be deemed criminal. As the Scottish Human Rights Commission stated; “There are serious concerns about the lack of clarity regarding which ‘offensive’ or ‘threatening’ acts are being targeted by the legislation, with suggestions that, in some circumstances, making the sign of the cross or singing the national anthem could constitute an offence.” (Getting it Right? Human Rights in Scotland, October 2012.)
Note: The full judgement can be found here Donnelly and Walsh v PF Edinburgh  HCJAC 35