Welcome to Scotland, a land where freedoms of expression and other liberties are treated so seriously that the police and prosecuting authorities would never dream of monitoring and judging the clothes you wear.
If that sounds like fantasy it’s because, alas, it is. Yes, this is now a country in which wearing the “wrong” kind of t-shirt will land you in court and, as likely as not, result in you being convicted of a breach of the peace. For real.
I draw your attention toa recent case at the High Court of Justiciary and the opinion delivered by Lord Carloway (a man who, it might be noted in passing, thinks the need for corroboration is a quaint and medieval relic that has no place in a modern justice system).
Last August Kevin Maguire was convicted of a breach of the peace. His crime? Attending a match between Celtic and Rangers while wearing a t-shirt emblazoned with the slogans INLA and FUCK YOUR POPPY REMEMBER DERRY. Not the most elegant garment, you may think, and a sentiment that you may find depressingly tedious. But so what? A liberal polity would not consider this anything that should require police intervention. Alas we inhabit no such polity.
The police officers testified that, in the volatile atmosphere of a Rangers and Celtic match and its aftermath, it was likely that the insignia of this organisation would be regarded as offensive and inflammatory by Rangers fans, and that there was the potential for this to provoke disorder and disturbance. The Celtic fans, although cordoned off from the opposing support in the immediate vicinity of the stadium, would merge with the Rangers fans a few hundred yards down Edmiston Drive. The officers also considered that there was a potential for the reference to the INLA to provoke Celtic supporters too. They would not appreciate their football club being associated with such an organisation. The police thought that any reasonable person would consider the slogan relative to the poppy to be offensive and upsetting, likely to be inflammatory and to provoke disorder. This would apply particularly in relation to any members of the public attending the match who had served in the Armed Forces or had family or friends in the Forces.
Accordingly the Sheriff found Mr Maguire guilty of a breach of the peace and imposed a Football Banning Order for a period of two years. (Incidentally, I see no reason why the feelings of members of the Armed Forces should be privileged in this fashion.)
It is true that Mr Maguire had a number of previous convictions for breaches of the peace, including one “aggravated by religious prejudice” at an Orange Order march. But so what? The game is rigged. Consider this:
[T]he test of whether a breach of the peace has been committed is well-known and settled. It is, in terms of Smith v Donnelly 2002 JC 65, whether the conduct is severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community. It is conduct which presents as genuinely alarming and disturbing in its context to any reasonable person.
Does a silly t-shirt – even one that might be thought witlessly provocative – rise to that level? Surely not. Is it “genuinely alarming and disturbing” in the context of a football match at which declarations of tribal identity, mutual loathing and much else besides are the norm rather than the exception? And, what’s more, a context in which there are actually very few “reasonable” people present. Again, I would suggest not. Indeed I’d go further, if a t-shirt of this kind can be considered a provocation liable to cause trouble then can’t the same be said of a Celtic or Rangers replica jersey? The difference is surely only of degree, not kind.
But it is also important to note that the game is rigged against the individual. That is:
If there is no evidence of actual alarm then, in terms of Jones v Carnegie 2004 JC 136 (at para ), the conduct requires to be “flagrant”.
Lord Carloway’s opinion makes no reference to any actual alarm being caused. And so poor Mr Maguire is convicted on the grounds that there could have been alarm even though there was not.
It matters not a jot that a reasonable person might consider Mr Maguire an unsavoury individual. He retains, surely, the right to express his political opinions even if other people might find them objectionable. Well, not in Scotland he doesn’t:
The actions of the appellant in wearing this top were not part of a legitimate protest […] The court does not consider that the appellant’s right to freedom of expression was in any way be affected by his arrest and subsequent conviction. Even if the appellant does wish to engage in genuine protests, either in relation to Remembrance Day, the events of “Bloody Sunday” or about the proscription of the INLA, he has plenty of suitable opportunities in which to do so without intentionally provoking serious disturbance, including violence, in the community.
Got that? Being arrested and convicted for sporting a political slogan on a t-shirt does not “in any way” affect your speech rights. Lord Carloway says so and thus it must be true. And if a mere t-shirt provokes the police to action then one wonders what remaining “suitable opportunities” there are for “genuine” political protests? I would not, for instance, recommend that Mr Maguire make any comment on Facebook since the online expression of opinions many people might find distasteful may also result in prosecution.
I have written about the Offensive Behaviour at Football and Threatening Communications Act before (most recently here) and it is appalling for many reasons. But, as this case makes clear, it is also redundant. The state’s authorities are perfectly capable of concocting cases against football supporters without recourse to this latest illiberal piece of legislation.
Truly, these things shame Scotland far more thoroughly than does the sectarianism these measures are supposedly designed to thwart.
UPDATE: Lallands Peat Worrier is just as outraged as I am. Quite right too.
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