Essay: MacDonald v Cairns

In MacDonald v Cairns the accused, Joseph Anthony Cairns was charged under s1.(1) of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 for “chanting phrases and songs in support of a proscribed terrorist organisation” The IRA.
A. THE FACTS
The accused, Joseph Anthony Cairns was charged with chanting songs in support of a proscribed terrorist group at the Celtic v Ross County football match on Saturday 18 August 2012. The accused’s actions were contrary to the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 which was created with the main intention to criminalise the singing of sectarian songs at football matches. The facts of the case are that PC Inglis and PC Colin Stevenson were on duty monitoring the football match and they became aware of the song ‘The Roll of Honour’ being sung during the match. They focused on certain individuals who they were aware of singing the song, the accused being one of them. Both PCs had cameras on them and were able to film Cairns not only singing the song but “the respondent could be seen to be making a gesture which PC Inglis could interpret as mimicking the loading or firing of a rifle into the air”
The trial was heard by a Sheriff “who sustained his submission of no case to answer”. This was on the basis that there were no proper grounds for deciding whether or not a person looking to incite public order would in fact hear the accused singing about the organisation, or if the rival supporters could see him at all. However the Crown appealed the Sheriff’s decision on the basis that the Sheriff had been “misdirected” on what the Crown actually had to prove under the Offensive Behaviour at Football and Threatening Communications (Scotland) Act.
B. PRINCIPLES OF OFFENSIVE BEHAVIOUR AT FOOTBALL
A person can be charged under the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 if their behaviour (i) is likely to incite public disorder, or (ii) would be likely to incite public disorder. Section 5 of the Act is the part most relevant to the Cairns case – “behaviour would be likely to incite public disorder if public disorder would be likely to occur but for the fact that – (a) measures are in place to prevent public disorder, or (b) persons likely to be incited to public disorder are not present or are not present in sufficient numbers.” During the trial the Sheriff concluded that the PCs on duty that day were only aware of the songs being sung in support for the proscribed terrorist group because of their training in the FOCUS unit. The Sheriff said that it was unlikely that anyone who was likely to incite public disorder would actually have been able to make out what they were singing. However, the Crown appealed this and it was held before the High Court. The Court heard that the accused’s behaviour would be enough to incite public disorder because a reasonable person would be likely to find it offensive, mainly due to the fact that it was in support for the IRA.
In the case of Maguire v Dunn the appellant wore a black top with bright writing that said “F…YOUR POPPY REMEMBER DERRY.” This, similarly to the Cairn’s case was in support of the IRA and the police officers stated that “the insignia of this organisation would be regarded as offensive and inflammatory by Rangers fans and there was a potential for this to provoke disorder and disturbance.”
C. OFFENSIVE BEHAVIOUR AT FOOTBALL
The Sheriff said that under the 2012 Act the Crown had to prove that the behaviour in question was likely to incite public disorder or would be likely to incite public disorder. Due to this section of the Act, the Sheriff concluded that it was almost impossible for people listening to the singing to actually make out the words being sung. The police officers were only aware of the lyrics due to their training with the FOCUS unit and were “clearly not familiar to the public at large.”
This raises the question of whether or not something would in fact be likely to incite public disorder. Cairns was clearly aware that the songs he was singing were in support of the proscribed terrorist organisation and as the Crown pointed out it didn’t matter that no public disorder was incited, they could still be charged with breaching the 2012 Act.
In the Wilson v Brown case the accused was charged under the Offensive Behaviour at Football and Threatening Communications Act for making rude ‘V signs’ with his hand and shouting ‘f-wanks’. The Courts heard that there was bound to be a large number of people shouting and making rude gestures but that there was no evidence of anyone being “alarmed or upset”. This links back to the Cairns case and whether or not his actions would be likely to offend people and therefore incite public disorder.
However, in Cairns although the accused’s behaviour didn’t actually incite any public disorder the Crown concluded that the Sheriff “hadn’t properly directed himself to terms of the S1(5) and thereby fell into error. The appeal was allowed and remitted back to the Sheriff. Therefore it doesn’t matter whether or not public disorder was incited or not.