Scottish Sheriff Court Decisions

PF Ref: GA12003915

 

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

 

N O T E

of

SHERIFF S. REID, Esq.,

in the Indictment of

HER MAJESTY'S ADVOCATE

against

ANDREW ALAN BLANCE

ALEXANDER GEORGE COCKBURN

WARNER KING EASTON

RYAN DAVID LOW

CHARLES DAVID RAYNES

LEON WILLIAM WALKER

 

Introduction

[1] In these solemn proceedings, the six accused are alleged to have engaged in threatening and offensive behaviour in relation to a regulated football match, contrary to the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, section 1(1). Specifically, it is alleged that each accused, being then "on a journey from a regulated football match" (namely a fixture between Ayr United and Hibernian, played at Ayr) formed part of a disorderly group on the concourse of Glasgow Central Station, fought, gesticulated and threw missiles. In the alternative, the indictment alleges a common law breach of the peace against all six accused.

[2] The matter came before me for debate on 26 April 2013. The issue to be debated (as it emerged in the course of submissions) was whether on the basis of certain conceded facts the alleged behaviour of the accused could properly be regarded as being "in relation to a regulated football match". Put shortly, the accused submitted that while the behaviour libelled might be said to be "related to football", it was not related to any particular regulated football match. Accordingly, the accused sought dismissal of the statutory alternative in the first charge.

 

The charges

[3] The first charge is as follows:-

"(001) on 10 March 2012 at Glasgow Central Railway Station, Glasgow, you ANDREW ALAN BLANCE, ALEXANDER GEORGE COCKBURN, WARNER KING EASTON, RYAN DAVID LOW, CHARLES DAVID RAYNES and LEON WILLIAM WALKER, being a person on a journey from a regulated football match, namely, Ayr United against Hibernian, played at Ayr, did engage in behaviour that is likely or would be likely to incite public disorder and that behaviour is of a kind described in section 1(2)(d) and (e) of the aftermentioned Act, in that you did on the public concourse of a railway station form part of disorderly crowd, fight, gesticulate, throw missiles, challenge the lieges to fight and place the lieges in a state of fear and alarm;

CONTRARY to the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, Section 1(1)

 

or alternatively

 

on 10 March 2012 at Glasgow Central Railway Station, Glasgow you ANDREW ALAN BLANCE, ALEXANDER GEORGE COCKBURN, WARNER KING EASTON, RYAN DAVID LOW, CHARLES DAVID RAYNES and LEON WILLIAM WALKER did conduct yourselves in a disorderly manner, form part of a disorderly crowd, fight, gesticulate, throw missiles, challenge the lieges to fight, place the lieges in a state of fear and alarm and commit a breach of the peace".

 

 

[4] A separate statutory offence is libelled against the fourth accused, the terms of which were not relevant to the issues in the debate.

 

The legislation

[5] Sections 1 & 2 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 ("the 2012 Act"), so far as material, provide as follows:-

Offensive behaviour at regulated football matches

1(1) A person commits an offence if, in relation to a regulated football match -

(a) the person engages in behaviour of a kind described in subsection (2), and

(b) the behaviour -

(i) is likely to incite public disorder, or

(ii) would be likely to incite public disorder

(2) The behaviour is -.....

(d) behaviour that is threatening, or

(e) other behaviour that a reasonable person would be likely to consider offensive...

 

Regulated football match: definition and the meaning of behaviour 'in relation to' match

 

2(1) In section 1 and this section, 'regulated football match' -

(a) has the same meaning as it has for the purposes of Chapter 1 (Football Banning Orders) of Part II of the Police, Public Order and Criminal Justice (Scotland) Act 2008 (see section 55(2) of that Act)...

(2) For the purposes of section 1(1) a person's behaviour is in relation to a regulated football match if -

(a) it occurs -

(i) in the ground where the regulated football match is being held on the day on which it is being held,

(ii) while the person is entering or leaving (or trying to enter or leave) the ground where the regulated football match is being held, or

(iii) on a journey to or from the regulated football match, or

(b) it is directed towards or is engaged in together with, another person who is -

(i) in the ground where the regulated football match is being held on the day on which it is being held,

(ii) entering or leaving (or trying to enter or leave) the ground where the regulated football match is being held, or

(iii) on a journey to or from the regulated football match

(3) The references in subsection (2)(a) and (b) to a regulated football match include a reference to any place (other than domestic premises) at which such a match is televised...

(4) For the purposes of subsection (2)(a) and (b) -

(a) a person may be regarded as having been on a journey to or from a regulated football match whether or not the person attended or intended to attend the match, and

(b) a person's journey includes breaks (including overnight breaks)"

 

 

[6] Sections 51 & 55 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 ("the 2006 Act"), so far as material, provide as follows:-

"Making of order on conviction of a football-related offence

 

51(1) This section applies where -

(a) a person is convicted of an offence; and

(b) the person was aged 16 or over at the time when the offence was committed.

(2) Instead of an addition to any sentence which it could impose, the court which deals with the person in respect of the offence may, if satisfied as to the matters mentioned in subsection (3) make a football banning order against the person.

(3) Those matters are -

(a) that the offence was one to which subsection (4) applies; and

(b) that there are reasonable grounds to believe that making the football banning order would help to prevent violence or disorder at or in connection with any football matches

(4) This subsection applies to an offence if -

(a) the offence involved a person who committed it, engaging in violence or disorder; and

(b) the offence related to a football match...

(6) For the purposes of subsection (4)(b), an offence relates to a football match if it is committed -

(a) at a football match or while the person committing it is entering or leaving (or trying to enter or leave) the ground;

(b) on a journey to or from a football match; or

(c) otherwise, where it appears to the court from all the circumstances that the offence is motivated (wholly or partly) by a football match

(7) The reference is in subsection (6)(a) and (b) to a football match include a reference to any place (other than domestic premises) at which a football match is being televised...

 

'Football matches' and 'regulated football matches'

 

55(1) In this chapter, references to football matches -

(a) are to association football matches; and

(b) are to matches played or intended to be played."

 

 

Procedural history

[7] On various dates between March and May 2012, the six accused appeared on petition before the sheriff at Glasgow. They were all released on bail.

[8] Indictments were subsequently served. The first diet was assigned for 5 February 2013. The case was allocated to a trial sitting commencing on 18 February 2013.

[9] Sundry procedure followed. By the date of the debate on 26 April 2013, each accused had lodged minutes in terms of section 79(2)(b)(ii) & section 79(2)(b)(vi) of the 1995 Act. Firstly, each accused lodged a minute giving notice of a preliminary objection to the special capacity libelled in the statutory charge, namely that the accused was "a person on a journey from a regulated football match", in terms of section 79(2)(b)(ii) and section 255 of the 1995 Act. Secondly, each accused subsequently lodged a minute giving notice of a preliminary issue, in terms of section 79(2)(b)(vi) of the 1995 Act, being an issue which was said to be capable of being "resolved with advantage before the trial". With one exception, those preliminary issues are articulated in identical terms to the previous preliminary objections, namely that the accused was not "a person on a journey from a regulated football match".

[10] The one exception was the minute lodged on behalf of the fifth accused (Charles David Raynes) in terms of section 79(2)(b)(vi). This minute was worded slightly differently to the others. It described the preliminary issue for debate as being whether or not the fifth accused was "engaged in threatening or abusive behaviour in relation to a regulated football match as defined".

[11] In the event, at the hearing on 26 April 2013, all six accused came to define the preliminary issue for debate as being whether or not the alleged behaviour could properly be said to be "in relation to a regulated football match", for the purposes of section 1(1) of the 2010 Act. In this respect, the section 79(2)(b)(vi) minute lodged on behalf of the fifth accused most closely reflects the articulation of the preliminary issue as it came to be advanced in the course of submissions.

 

Submissions for the first accused

[12] The agent for the first accused made the following concessions for the purposes of the debate only, namely (i) that the libelled football game between Ayr United and Hibernian, played at Ayr on 10 March 2012, was a "regulated football match" for the purposes of section 1(1) of the 2012 Act; (ii) that the first accused had been at that football match; (iii) that at the time of the alleged offence, the first accused was on a journey back from that football match; (iv) that the behaviour depicted on the CCTV footage forming part of the disclosed Crown evidence, if attributed to the first accused, would constitute qualifying "behaviour" falling within sections 1(2)(d) & (e) of the 2012 Act; and (v) such behaviour would satisfy section 1(1)(b) of the 2012 Act, in that it would constitute behaviour that "is likely to incite public disorder" or "would be likely to incite public disorder".

[13] Notwithstanding the foregoing concessions, the first accused's solicitor submitted that the first accused could not be guilty of the statutory offence because the alleged behaviour was not "in relation to a regulated football match", in terms of section 1(1) of the 2012 Act.

[14] Accordingly, the agent for the first accused invited me to dismiss the statutory alternative in the first charge as irrelevant.

[15] By way of explanation, the first accused's agent submitted that there was only one "regulated football match" libelled in the indictment, namely, the fixture against Ayr United and Hibernian, played at Ayr on 10 March 2012. He conceded that the first accused had been at that match as a Hibs supporter. He conceded that the first accused was on a journey back from that match when he alighted from the train at Glasgow Central Station, en route to Edinburgh. At that stage, according to the disclosed Crown evidence, the group of Hibs supporters, of which the first accused formed part, was confronted by a separate group of Rangers supporters. (There may also have been a small number of Chelsea supporters.) There were no Ayr United supporters involved. The group of Hibs fans, of which the first accused formed part, was then attacked by the Rangers supporters. No regulated football match involving Rangers had taken place, or was intended to take place, that day; the Rangers fans involved in the incident had not attended any regulated football match that day; and they were not on a journey to or from any regulated football match. That being the extent of the disclosed Crown evidence, the agent for the first accused submitted that the libelled behaviour of the first accused could not constitute behaviour "in relation to a regulated football match". That was because the incident between, and the behaviour of, the Hibs and Rangers fans had nothing to do with any regulated football match played or intended to be played that day, specifically it had nothing to do with the fixture played at Ayr earlier that day. In short, while the incident on the concourse at Glasgow Central Railway Station might be said to have been "football-related", in the sense that it involved football supporters of different teams, it was going too far to say that the incident, or the behaviour of the accused, related to any regulated football match. There was no "link" between the alleged behaviour on the concourse of Glasgow Central Station on 10 March 2012 and the Ayr United v Hibs fixture played at Ayr that day, or indeed, any football match played or intended to be played that day. At best, he submitted, the behaviour constituted "commoner garden thuggery" to be dealt with at common law.

[16] The first accused's agent referred to the text of sections 1 to 3 & 10 of the 2012 Act. He noted that section 2(1) of the 2012 Act, in defining "regulated football match" cross-referred to Chapter 1 of Part II of the Police, Public Order and Criminal Justice (Scotland) Act 2006.

[17] The first accused's solicitor proffered a number of hypothetical scenarios to test the proper interpretation of the 2012 Act. Specifically, he mooted the possibility of a football fan, on a journey home from a regulated football match, becoming involved in an altercation with a railway ticket inspector. The altercation may have nothing whatsoever to do with football or with the match that he had attended. It may, for example, relate to a dispute about the validity of a ticket. The first accused's solicitor submitted that if a literal interpretation was applied to section 2(2) of the 2012 Act, then the person's behaviour may be said to fall within the scope of the statutory offence as it had occurred on a journey from the regulated football match. He submitted that that result would be absurd. He argued that Parliament could not have intended such a situation to be covered by the Act as, on any reasonable view, the offending behaviour did not relate to football and, more pertinently, it did not relate to any particular regulated football match. In another hypothetical illustration, the first accused's agent described a scenario in which a football supporter, on a journey home from a regulated football match, was collected from the train station by his wife; thereafter, in the car journey home a minor road traffic accident occurred, resulting in a "road rage" incident with a third party motorist in which both the football supporter and his wife become embroiled. On a literal reading of the definition in section 2(2) the football supporter may be said to have committed an offence under the 2012 Act because his behaviour occurred on a journey from a regulated football match (in terms of section 2(2)(a)(iii) of the 2012 Act); and, indeed, his wife may also be guilty of an offence under the Act because she may be said to have engaged in the qualifying behaviour together with her husband who was a person on a journey from a regulated football match (in terms of section 2(2)(b)(iii) of the 2012 Act). He submitted that such a result was, "if not "illogical, at least ridiculous".

[18] Reference was made to the opinion of the Appeal Court in Ryan Macdonald v Procurator Fiscal, Glasgow [2012] HCJAC 133 ; 2013 SLT 128. While he acknowledged that this decision dealt with the competency of a football banning order under the 2006 Act, he argued that it was of relevance because the 2012 Act took its definition of a "regulated football match" from the 2006 Act. He submitted that the decision was of relevance because it underlined the requirement to find a connection or "link" between the qualifying behaviour and a regulated football match. In the Macdonald case, while there may have been qualifying behaviour, in the sense that the offender had posted a threatening communication on a social media website, there was no "link" to any particular regulated football match (specifically to any regulated football match that was played or intended to be played) (section 55(1), 2006 Act)). Drawing an analogy with the conclusion of the Appeal Court in the MacDonald case (at paragraph [6] of the Opinion), the first accused's agent submitted that while the behaviour of the Hibs fans (including that of the first accused), in engaging with the Rangers fans, on the concourse at Glasgow Central Station, might be said to be football-related, it was not behaviour that was related to any particular football match, still less to the Ayr United fixture that was libelled. The first accused's agent drew support for that conclusion from paragraph 87 of the Explanatory Notes accompanying the 2006 Act. Paragraph 87 of the Notes described the necessity to find a "link" between the qualifying behaviour and a regulated football match. He reiterated that it was not sufficient for there to be a football history between the Hibs fans and the Rangers fans.

[19] Lastly, the first accused's agent referred to a decision of the English Court of Appeal in R v Paul Roger Smith [2004] 1 Cr App Rep 341. The decision involved the broadly equivalent English legislation (Football Spectators Act 1989). A football fan, returning from a football match which he had not, in the event, attended, became involved in an argument with the police when he and others in his group were not allowed to alight from a train. The Court of Appeal held that the accused's behaviour did not relate to a football match. The first accused's agent equated the facts in Smith with his hypothetical scenario of a dispute between a football fan and a ticket inspector on a return journey from a match. He also submitted that the same logic applied in the present case in that the alleged behaviour between the Hibs fans (including the first accused) and the Rangers fans had nothing whatsoever to do with the regulated football match at Ayr. It therefore fell out with the scope of the statutory offence in section 1(1) of the 2012 Act.

[20] The first accused's agent acknowledged that if the Crown was proposing to lead evidence of a degree of pre-planning involving the first accused to confront the Rangers fans after the Ayr game, then the necessary "link" with the regulated football match may be capable of being established. However, he submitted that there was no such evidence in the present case. Instead, the Hibs fans (including the first accused) had simply been ambushed by an unconnected group, who happened to be supporters of a different football club unconnected to the regulated football match that was taking place that day. The first accused's agent submitted that Parliament did not intend to catch such circumstances within the scope of the offence. The court was invited to "draw the line somewhere" between what is, and what is not, qualifying behaviour "in relation to a regulated football match".

 

Submissions for the second accused

[21] The solicitor for the second accused adopted the submissions made on behalf of the first accused.

 

Submissions for the third accused

[22] The solicitor for the third accused adopted the submissions made on behalf of the first named accused. Specifically, he rejected the proposition that the definition provision in section 2(2) of the 2012 Act operated, in effect, as a deeming provision. He submitted that there must be some constraint on what kind of behaviour was to be included within the literal definition; and that constraint required the Crown to establish a "link" between the qualifying behaviour and the regulated football match.

 

Submissions for the fourth accused

[23] The solicitor for the fourth accused adopted the submissions made on behalf of the first accused.

 

Submissions for the fifth accused

[24] The solicitor for the fifth accused adopted the submissions made on behalf of the first accused, subject to the qualification that the fifth accused did not concede that he was on a journey to or from a regulated football match at the time of the alleged offence. He explained that he was happy to concede, for the purposes of the debate, that the fifth accused was on a journey - but he did not concede that he was on a journey to or from the libelled regulated football match. The fifth accused's position was that he was not at the Ayr fixture that day, and had no intention of going there.

[25] The agent offered two further illustrations of apparently "perverse" results if the definition in section 2 of the 2012 Act was applied literally. Firstly, he submitted that, applied literally, a person may fall foul of the 2012 Act if he directs threatening behaviour towards a person who is returning from a football match, notwithstanding that the accused may have had no knowledge whatsoever that the complainer was returning from a football match or was a football supporter. Likewise, he described a scenario in which a group of football supporters may be watching a televised regulated football match in an Ayr hotel at which a separate group of horticulturalists from Ayr Flower Show were also staying for the evening. A dispute may arise about the size of turnips, resulting in threatening or offensive behaviour. Applying section 2(2) of the 2012 Act literally (and section 2(3)), such behaviour might also be regarded as behaviour "in relation to a regulated football match". Both results were said to be "perverse" and not what the Scottish Parliament had intended.

[26] Separately, the solicitor for the fifth accused submitted that if the Hibs fans in the present case fell into any category, they necessarily fell into section 2(2)(a)(iii) and not section 2(2)(b)(iii). Support for that proposition could be found in the Explanatory Notes to the 2012 Act, paragraph 14. This paragraph indicated that subsection (2)(b) is intended to cover persons who are not themselves on a journey to a regulated football match but who direct behaviour at, or join in with, people who are on such a journey. On a proper interpretation, he submitted, a person cannot fall within both categories, namely section 2(2)(a)(iii) and section 2(2)(b)(iii).

 

Submissions for the sixth accused

[27] The solicitor for the sixth accused adopted the submissions made on behalf of the first accused.

 

Submissions for the Crown

[28] For the Crown, the procurator fiscal depute referred to and adopted a written submission that was tendered to the court. In that written submission, he stated that the legislation was drafted deliberately widely to reflect Parliament's intention to target not only those whose behaviour was offensive or threatening within the football ground itself but also those travelling to or from the match and, indeed, qualifying behaviour perpetrated well away from police presence at the football ground. In order to establish the offence, the Crown need do no more than prove that the accused's qualifying behaviour occurred on a journey from the regulated football match at Ayr. Alternatively, he submitted that it was open to the Crown to prove that the accused's qualifying behaviour was directed towards, or more pertinently, engaged together with a person who was, on a journey from a regulated football match (by virtue of section 2(2)(b)(iii). (I suggested that this alternative position would require an amendment of the indictment. This did not appear to be disputed by the Crown.)

[29] In his oral submission, the procurator fiscal depute submitted that the disputed issue was focused upon whether or not the alleged behaviour (which was conceded to constitute qualifying behaviour for the purposes of the Act) was "in relation to a regulated football match". He said that that particular phrase was not a matter for conjecture. It was spelled out and defined in section 2 of the 2012 Act. He described it as a simple "deeming provision". A person's behaviour was deemed to be in relation to a regulated football match if it occurred on a journey to or from the regulated football match. In the present case, by virtue of the concessions made for the purposes of the debate, the court was faced with a situation where all accused (with the possible exception of the fifth accused) were on a journey from a regulated football match when the qualifying behaviour took place. He submitted that the Crown need go no further to establish the offence. There was no need for further evidence of a link.

[30] That said, the procurator fiscal depute submitted that, nevertheless, the Crown was offering in this case to lead evidence of a further link between the qualifying behaviour and the regulated football match, namely, evidence of a pre-arranged, pre-meditated and orchestrated plan of violence.

[31] He submitted that the purpose of the legislation was to protect those who at, or entering or leaving, a football ground, or travelling to and from a regulated football match; and to protect those members of the public who are unfortunate enough to come into contact with persons travelling to or from a regulated football match. In that sense, the statutory provision reflects the Parliamentary intention.

[32] The procurator fiscal depute invited me to refuse the defence minutes.

 

Reply on behalf of the first accused

[33] In response to the Crown submission, the agent for the first accused submitted that he was unaware of any disclosed evidence to suggest a "link" between the alleged behaviour and the football match in the nature of any form of pre-meditated or pre-planned arrangement by on or behalf of the Hibs fans.

 

Discussion

[34] The issue turns upon the proper interpretation of an Act of the Scottish Parliament.

[35] A person commits an offence if he behaves in certain specified ways "in relation to a regulated football match" and that behaviour is, or would be, likely to incite public disorder (s.1(1), 2012 Act).

[36] The Act defines when a person's behaviour is "in relation to a regulated football match" (s. 2(2), 2012 Act). A person's behaviour is stated to be "in relation to a regulated football match" if:-

"(a) it occurs -

(i) in the ground where the regulated football match is being held on the day in which it is being held,

(ii) while the person is entering or leaving (or trying to enter or leave) the ground where the regulated football match is being held, or

(iii) on a journey to or from the regulated football match, or

(b) it is directed towards, or is engaged in together with, another person who is -

(i) in the ground where the regulated football match is being held...

(ii) entering or leaving (or trying to enter or leave) the ground...or

(iii) on a journey to or from the regulated football match"

 

[37] The common feature of the definitions in sections 2(2)(a) & (b) is the identification of certain locations, namely within a relevant football ground, or in the entrances or exits to that ground, or on a journey to or from a regulated football match.

[38] In short, therefore, there are three key component elements to the statutory offence. Firstly, there must be qualifying "behaviour"; secondly, that behaviour must be likely to incite (or would be likely to incite) public disorder; and, thirdly, the behaviour must occur in a qualifying location, for the purposes of section 2(2)(a) (or, alternatively, for the purposes of section 2(2)(b), it must be directed towards another person who is in such a qualifying location, or it is engaged in together with another person who is in such a qualifying location).

[39] The qualifying behaviour is defined in section 1(2). The qualifying locations are defined in section 2(2). Both definitions are self-contained, comprehensive and unambiguous.

[40] In my judgment, applying ordinary principles of statutory interpretation, the proper meaning of section 2(2) of the 2012 Act is this : if the qualifying behaviour occurs in a qualifying location (or is directed towards, or is engaged in together with, another person who is in such a qualifying location), then such behaviour is to be treated as being "in relation to a regulated football match". Section 2(2) of the 2012 Act is not, in its terms, an express deeming provision, but the practical effect of such a clear, self-contained and comprehensive definition clause is the same.

[41] The Act does not, in its terms, require any other "link" or causal connection between the alleged behaviour and the regulated football match. There is no requirement that the alleged behaviour be caused or motivated by, or linked with, or otherwise attributable to, the regulated football match (or indeed to football).

[42] I reach that conclusion for the following reasons. In the first place, as a general rule, in construing an enactment, the text of the enactment, in its setting within the Act, is the primary indication of the legislator's intention. Prima facie the meaning of an enactment is that which corresponds to its literal meaning (Bennion on Statutory Interpretation ((5^th ed.), page 863).

[43] In the present case, the literal meaning of the text in section 2(2), viewed within its setting in the 2012 Act, is plain. A person's behaviour is to be treated as being "in relation to a regulated football match" if it occurs in any of the locations described in section 2(2)(a) (or, for the purposes of section 2(2)(b), is directed against, or engaged in together with, another person who is in such a qualifying location).

[44] That this is indeed the literal meaning of the section is not disputed by the accused. They argue, though, that the literal meaning produces absurd results. I shall address that separate issue below.

[45] The thrust of the primary defence submission was that the defined term ("in relation to") necessarily implied a link between the qualifying behaviour and the regulated football match. I accept that, in the context of a definition clause, the potency of the term defined should not be overlooked. In other words:-

"...a definition may give the words or phrases a meaning different from their ordinary meaning. But that does not mean that the choice of words adopted by Parliament must be wholly ignored. If the terms of the definition are ambiguous, the choice of the term to be defined may throw some light on what they mean." (Macdonald (Inspector of Taxes) v Dextra Accessories Ltd [2005] 4 All ER 107 at [18]

However, the difficulty with this argument is that I can detect no ambiguity in the definition in section 2(2). Such "light" as the defined term may cast on the definitions is dim at best, if not wholly extinguished by the explicit terms of the definition.

[46] In the second place, the same conclusion is reached by applying a purposive interpretation to the statutory provision. A purposive interpretation is one which gives effect to the perceived legislative purpose by either (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose or (b) applying a strained construction where the literal meaning is not in accordance with the legislative purpose (Bennion, supra, page 944).

[47] The Scottish Government's Policy Memorandum, which accompanied the Bill upon its presentation to the Scottish Parliament, sheds light on the mischief that the Bill sought to address and on the underlying legislative objectives. The Policy Memorandum noted that there were "serious social issues affecting Scottish football including sectarianism, alcohol misuse and violence" (para. 8). In the 2010/11 football season, some of these problems were seen to reach:

"an intolerable level, with sectarian and offensive behaviour, misconduct from players and managers, death threats and live ammunition and bombs sent to prominent figures directly and indirectly associated with football."

 

 

The incidents in the 2010/11 football season were regarded as demanding "a serious and immediate response". The Bill was said to form "a central part of that response". (Indeed the Bill initially proceeded as an Emergency Bill.) Specifically, the Policy Memorandum states:-

"It is a critical assumption of this Bill that there is something very specific and increasingly unacceptable about attitudes and behaviour expressed at football matches, whether that be sectarian, racist or homophobic...The unacceptable cost to individuals, communities and ultimately society means that we can no longer afford to think that football matches are contexts within which anyone has the right to say and do as they please. Preventing the serious harm to individuals and communities caused, whether inside or outside the stadia, must be the overriding priority, and this means that everyone must moderate their attitudes and behaviour... There is a small often determined minority for whom provoking, antagonising, threatening and offending are seen as part and parcel of what it means to support a football team. Whatever their motivation, this Bill seeks to demonstrate that such a view is mistaken and will no longer be accepted" (my emphasis).

 

[48] In summary, in my judgment the underlying policy rationale for the legislation was that football matches were considered to have become the "contexts" within which unacceptable attitudes and behaviour were increasingly being expressed and displayed. Whatever the sociological reasons for the increase in offending behaviour in the context of football fixtures - whether it be attributable to alcohol consumption, stoked historic rivalries, a rush of adrenalin, or the false bravado associated with membership of a large crowd - the underlying legislative policy was to "moderate... attitudes and behaviour" "whether inside or outside the [football] stadia". The "motivation" for the behaviour was not considered to be relevant. By logical extension, the precise cause of the behaviour may be wholly unconnected to a football match or to football. The cause may emerge from religious bigotry, personal animosity or territorial rivalry; or from a menacing glance or a spilled pint in a pub; or it may be unknown and unknowable. The underlying rationale of the legislation is that football matches have, for a determined minority, become the "contexts" for (though not necessarily the causes of) public disorder and violence.

[49] Against that background, the legislative purpose can readily be discerned to be the imposition of "trouble-free" zones or locations associated with regulated football fixtures. Those locations comprise the area within the relevant football ground itself, in the entrances and exits to that ground, and throughout the length of the travel "corridors" through which persons may journey to and from a regulated football match. Within those specified locations, football supporters, and all those who come into contact with football supporters, are to be protected from the qualifying behaviour.

[50] If that articulation of the legislative purpose is correct, then the literal meaning of the text in section 2(2) can be seen to be consistent with that legislative purpose.

[51] In the third place, in my judgment there is no absurdity in the literal meaning of the words used, viewed in the context of the legislative purpose or of the mischief that the Act was designed to address.

[52] I was afforded the benefit of several well-considered hypothetical scenarios. These were said to illustrate absurd, perverse or ridiculous results, if effect was given to the literal meaning of the text. In order to avoid that absurdity, I was urged to "read in" or imply a "link" between the qualifying behaviour and the regulated football match.

[53] In my judgment, the objective of the legislation is to improve standards of behaviour at, in the immediate vicinity of, and on journeys to and from, regulated football matches. By legislating in those terms, the Scottish Parliament has, in effect, placed all persons in those qualifying locations (or anyone directing offending behaviour towards, or engaging in offending behaviour with, another person who is in such a qualifying location) on notice that they must be on their best behaviour. Behaviour that might otherwise have been regarded as commoner garden thuggery may now, by virtue of it having occurred in one of the designated "trouble-free" zones or qualifying locations (or having been directed at, or engaged in together with, another person in such a qualifying location), also constitute the new statutory offence of "offensive behaviour in relation to a regulated football match", attracting the consequential sentencing options.

[54] Thus, a supporter within a football stadium during a regulated football match may become embroiled in a violent altercation with a pie seller. The dispute may have nothing to do with football or the match. It may relate to the quality of the pie. On both a literal and a purposive interpretation of the 2012 Act, the behaviour of both the supporter and the pie seller would fall within the ambit of the statutory offence. Likewise, a supporter on a return train journey home from a match may become offensive towards a ticket inspector. The argument may have nothing to do with football or the match. It may relate to an alleged unpaid fare. On both a literal and a purposive interpretation of the 2012 Act, the behaviour of the supporter would fall within the ambit of the statutory offence. Or the amateur horticulturalists, returning to their hotel from a visit to the Ayr Flower Show, who are drawn into a fight with fellow guests who are watching a live televised football match in the hotel lounge. The fight may have nothing to do with football or the match. It may relate to the size of turnips. On both a literal and a purposive interpretation of the 2012 Act, the behaviour of all participants would fall within the ambit of the statutory offence. There is no absurdity in these results. It accords with the "overriding priority" (per the Policy Memorandum) of the legislation which is to improve the unacceptable behaviour and attitudes increasingly displayed at, around, or on journeys to and from, regulated football matches, whatever the motivation for the offending behaviour. Parliament has designated "trouble free" zones in the context of regulated football matches - and persons finding themselves, or happening upon others, in such qualifying locations must take particular care to moderate their behaviour accordingly.

 

The Macdonald Opinion

[55] The agents for the accused placed particular reliance upon the opinion of the High Court in Ryan Macdonald v Procurator Fiscal, Glasgow, supra. It was submitted that the decision underlined the necessity for the Crown to establish a "link" between the qualifying behaviour and a regulated football match.

[56] In my judgment, the reasoning in Macdonald is distinguishable.

[57] Firstly, it concerns the competency of a football banning order imposed by virtue of the Police, Public Order and Criminal Justice (Scotland) Act 2006, section 51(4)(b). The structure and terminology of the 2006 Act is broadly similar to that of the 2012 Act. However, there are important differences. In the first place, section 2(1) of the 2012 Act refers to section 55(2) of the 2006 Act - but only for the purpose of assisting in the definition of the words "regulated football match". The 2012 Act does not cross-refer to the 2006 Act for the purpose of defining the phrase "in relation to a regulated football match". In the second place, the phrase "in relation to a regulated football match" does not appear in Chapter 1 of Part II of the 2006 Act. Instead, the 2006 Act empowers a court to make a football banning order if a qualifying offence "relates to a football match". In the third place, while the structure and terminology of the 2006 Act is broadly similar to the 2012 Act, it contains a crucial difference in one subsection. In section 51(6) of the 2006 Act, an offence "relates to a football match" if it is committed -

"(a) at a football match or while the person committing it is entering or leaving (or trying to enter or leave) the ground;

(b) on a journey to or from a football match; or

(c) otherwise where it appears to the court from all the circumstances that the offence is motivated (wholly or partly) by a football match".

 

The text of this latter subsection (i.e. section 51(6)(c)) of the 2006 Act does not appear in the 2012 Act, nor is there any equivalent provision in the 2012 Act. That distinction is significant because the concept of a "link" between the qualifying behaviour and a football match derives from this particular subsection of the 2006 Act. The accused founded upon the Explanatory Notes accompanying the 2006 Act, from which the terminology of a "link" between the qualifying behaviour and the football match can be traced. Those Notes state (with reference to section 51(6)(c)) that:

"....an offence will be regarded as relating to a match if it appears from all the circumstances that the offence was motivated wholly or partly by a football match. In other words, the court will need to find some link between the behaviour and a football match. This could include, for example, where groups of rival supporters do not go to a football match but instead meet at a different place for a pre-arranged fight" (my emphasis)

 

[58] However, that particular subsection of the 2006 Act (which, in its terms, involves an inquiry into the motivation for the offence) does not appear, and has no equivalent in, the 2012 Act.

[59] Interestingly, though, in contrast, when addressing sections 51(6)(a) & (b) of the 2006 Act (being provisions which do have direct equivalents in the 2012 Act), paragraph 87 of the Explanatory Notes to the 2006 Act states:

"...an offence will automatically be regarded as related to a football match if it is committed at the match or on the way to or from a football match. As an example, where football fans who are attending different matches engage in violence or disorder with each other on the way to their respective matches, the offences would be regarded as being related to a football match" (my emphasis).

 

 

Thus, to the extent that the Explanatory Notes to the 2006 Act address provisions that have direct equivalents to the 2012 Act, those Notes tend to support my conclusion that the definition in section 2(2) operates as a comprehensive and exhaustive definition of the circumstances in which behaviour is to be treated as being "in relation to a regulated football match" and, in practical effect, operates as a deeming provision.

[60] The facts of the Macdonald case are also materially different. The appellant's behaviour did not occur at a football match, or while he was entering or leaving a football match, or while he was on a journey to or from a football match. Accordingly, of necessity, the Crown was compelled to rely upon section 51(6)(c) of the 2006 Act, and to argue that the offence was "motivated (wholly or partly) by a football match". It was in the context of that specific subsection that the Appeal Court concluded that the Crown had to establish a link between the offending behaviour and a particular football match played or intended to be played. In light of the Crown's concession in the MacDonald case that there was no particular football match to which the appellant's message had been directed, it was unsurprising that the Appeal Court concluded that the necessary "link" had not been established and that the offence was not one "related to a football match".

 

The Smith Decision

[61] Lastly, the defence relied upon a decision of the English Court of Appeal in R v Paul Roger Smith, supra. The decision relates to separate, though similar, English legislation.

[62] The decision is not binding upon me, though I accord it due persuasive weight. It should be noted, though, that the decision is explicitly fact-specific. Indeed, the Court of Appeal went out of its way to say that the decision was "not in any way to be interpreted as a conclusion in principle". To that extent, its authority as a precedent may be diminished. Further, while the reasoning of the court is not entirely clear from the reported judgment, it may be that the true ratio of the decision is that Mr Smith's "journey" from the regulated football match had, in practical terms, come to an end; and that instead he was, at the time of the offence, simply on a series of unconnected journeys. This explanation of the ratio can be derived from the Court of Appeal's narration of the peculiar journey of Mr Smith. The Court noted that the appellant had been on a journey back from a football match (which he did not actually attend) and that he had then been:

"....put back on a train from Kidderminster to Smethick. [He] arrived at Smethick, [was] put on another train to Birmingham. [He] got off that train in Birmingham with the permission of the police and went to the pub. [He and others] were then rounded up by the police, put back on the train and put on another train to Wolverhampton. They got off at Wolverhampton and with the permission of the police and went to the pub again. They were then rounded up again and put on a train at Wolverhampton back towards Shrewsbury, and that was the Chester train that is referred to in the papers" (per Penry-Davey J. at pages 343/344 of the appeal judgment, quoting from the defence submission to the trial judge at first instance).

 

 

[63] There is no necessity that a journey to and from a regulated football match must begin and end at the same point. A journey might commence at a workplace but end at home; or it may commence at home and end at work; or the journey to or from the match may be abandoned part-way through, and the journey may take on an entirely different character. If, for practical purposes, the journey to or from the football match is exhausted and, on the facts, a new journey has commenced, then I can envisage that the offending behaviour may fall outwith the ambit of the 2012 Act. If that is the ratio of Smith, then I take no issue with it. That said, the Court of Appeal in Smith explicitly envisaged "instances of offences being committed at a considerable physical remove from football matches and at a considerable remove in time" which could still constitute "an offence or offences related to football matches".

[64] However, if the ratio of the Smith decision is that Mr Smith's behaviour was not, in some sense, "motivated by" or referable to a football match (notwithstanding that he was still on a journey from a football match) then I respectively decline to follow it.

 

Decision

[65] For the foregoing reasons, I refuse the minutes of the six accused bearing to raise preliminary issues pursuant to section 79(2)(b)(vi) of the 1995 Act.

[66] The separate minutes bearing to give notice, in terms of section 79(2)(b)(ii) and section 255 of the 1995 Act, of a preliminary objection to the special capacity libelled in the statutory charge (namely that the accused was "a person on a journey from a regulated football match") remain extant to the extent that the Crown is placed on notice of the necessity to lead evidence on that issue.

 

 

 

Sheriff

Glasgow, 16 May 2013