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Why the fans who sing songs of hate are committing an offence

The controversy over the League Cup Final, and in particular the reported behaviour of some sections of the crowd who were in attendance, has been full of sound and fury but with little emerging in the way of legal clarity about what, if any, offences were committed (“Church to send Old Firm film to police”), The Herald, March 26).

A recent experience which I had in a Scottish court may shed some light on the issues involved.

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I was called to attend a case as an expert witness in a sheriff court in which the accused were charged under Section 74 of the Criminal Justice ( Scotland) Act 2003 with committing a breach of the peace aggravated by religious prejudice. I can only surmise that I was asked to take part in these proceedings because I had advised civil servants during the time of the McConnell government on anti-sectarian policy and also edited an academic study, Scotland’s Shame ? Bigotry and Sectarianism in Modern Scotland, published in 2000.

The accused were charged with singing sectarian songs in a public place. They stated they had indeed sung the Fields of Athenry as they were supporters of Glasgow Celtic and that the song was a firm favourite among the Parkhead crowd. However, they denied they had sung any other lyrics, suggested by the Crown, which included such phrases as “up the IRA”, “the black beret” and “Bobby Sands” .

Early in the proceedings the Sheriff ruled that the Fields of Athenry was an Irish folk ballad and in no way could be construed as having sectarian overtones. The court then proceeded to hear submissions on whether references to the IRA, especially those which implied approval of that organisation, could be considered an offence aggravated by religious prejudice under the 2003 legislation.

To understand which followed next it is important to be aware of the specifics of the Act. It states that an offence is aggravated by religious prejudice if : (a) “the offender evinces towards the victim (if any) of the offence malice and ill-will based on the victim’s membership or presumed membership of a religious group, or of a social or cultural group with a perceived religious affiliation; or (b) the offence is motivated (wholly or partly) by malice and ill-will towards members of a religious group, or of a social or cultural group with a perceived religious affiliation, based on their membership of that group”. The key issue therefore was: Could vocal approval of the IRA in a public place be considered not simply a potential breach of the peace but one aggravated by religious prejudice? The sheriff listened to the evidence, including my own statement, and the various submissions on this question both by defence lawyers and the Crown. He concluded that doubtless some members of the public might take offence at songs being sung in support of an organisation which the UK Government considered to be a terrorist movement. Nonetheless, he ruled that the IRA was a republican military organisation, was not sectarian in intent and that those who showed support for it, real or rhetorical, were not showing “malice or ill will towards members of a religious group’’. The charge could not therefore be sustained under the 2003 legislation and the accusation of a religiously aggravated breach was dismissed.

To my knowledge little of this case was reported in the press, which is a pity because its results have significant legal implications as to how Scottish law officers and the police respond to fan behaviour at these matches. One conclusion is abundantly clear. Those who sing songs of hate against another religious group are, prima facie, committing an offence under the 2003 Act. I was not present at the League Cup Final nor did I see it on television. But press reports suggest that many thousands of spectators were brazenly and enthusiastically singing such songs in full view of the cameras, the media, a large audience outside Scotland and the police at one of the major occasions in the Scottish sporting calendar.

As a democratic and civilised society we should hang our heads in collective shame, not simply as a result of the vile chants which were heard against the religious beliefs of our fellow citizens but because the forces of law and order did nothing to stop it.

Prof Tom Devine,

Sir William Fraser Professor of Scottish History and Palaeography,

University of Edinburgh,

Teviot Place, Edinburgh.

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