APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Mackay of Drumadoon Lord Drummond Young	[2013] HCJAC 75 Appeal No: XC370/12   OPINION OF THE COURT   delivered by LADY PATON   in   APPEAL AGAINST CONVICTION AND SENTENCE   by   STEVEN McGOWAN   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: C M Mitchell; John Pryde & Co

Respondent: Wade, AD; Crown Agent

 

4 July 2013

Breach of the peace following a football match
[1] The appellant was convicted by a jury of a charge of breach of the peace near Celtic Park Stadium, Parkhead, Glasgow, in the following terms:

"On 28 October 2009 at Springfield Road, Glasgow, you [and others] ... did form part of a disorderly crowd, conduct yourselves in a disorderly manner, shout repeatedly, swear, incite and challenge others to fight and commit a breach of the peace."

 

[2] The appellant was indicted along with eleven others. Ultimately three accused (including the appellant) were convicted; nine were acquitted. The evidence implicating the appellant was given by two police officers, Acting Detective Sergeant Ian Spence and Sergeant Robert Mason.

[3] The circumstances of the offence as set out in the sheriff's reports were as follows. An evening match between Celtic and Hearts had taken place. Celtic had lost 0-1. Celtic fans were allowed to leave the stadium first, with Hearts fans leaving some 15 minutes later. As the Hearts supporters walked along Springfield Road outside the stadium, shouts of "Celtic Casuals are here" could be heard. There was some panic. Hearts fans (including women and children) tried to get out of the way. Some turned and ran back up Springfield Road. A group of about twenty men (including the appellant) were then seen walking northwards up the centre of Springfield Road. They were not wearing football colours. They were gesticulating, using both hands in a "come on" motion. They were shouting and swearing, "Come on then Hearts wankers", "Shite bags", and other similar comments and obscenities.

[4] Police officers on horseback arrived to assist officers on foot. The horses formed a barrier across the road. The group of twenty continued to shout and swear at the Hearts supporters behind the barrier. The appellant was in the middle of the group, near one of his co-accused namely Edward Ingram. Police officers ordered the group to "get back" but no-one obeyed. When more police officers arrived, the group turned and headed south. The incident lasted about three or four minutes.

[5] After trial, the appellant was sentenced on 14 June 2012. He received a custodial sentence of 12 months (reduced from 15 months to reflect the passage of time since the event). A football banning order was also imposed, in the following terms:

"The court being satisfied there are reasonable grounds to believe that making the football banning order would help prevent violence or disorder at or in connection with any football matches;

 

AND having explained to the offender the effect of this order (including the requirements set out below);

 

ORDERS that the offender shall report at the police station at Johnstone Police Station within 5 days beginning with the day on which the order is made

 

AND ORDERS that during a period of 5 years from the date of this order the offender shall:

 

1. be prohibited from entering any premises for the purpose of attending any regulated football matches in the United Kingdom;

 

2. report to a police station in accordance with Chapter 1 of Part 2 of the 2006 Act in connection with regulated football matches outside the United Kingdom;

 

3. where a relevant event as specified in Schedule 5 to the 2006 Act occurs, notify the football banning order authority of the prescribed information as defined in that schedule in relation to that event within 7 days beginning with the day on which the event occurs;

 

4. surrenders his passport in accordance with Chapter 1 of Part 2 of the 2006 Act in connection with regulated football matches outside the United Kingdom;

 

5. sign on at his local Police Station one hour after kick off in relation to all games that Celtic Football Club play in in any competition in Scotland including all friendly matches.""

 

[6] The two co-accused who were convicted also received custodial sentences and football banning orders. Edward Ingram was sentenced to 24 months imprisonment (reduced from 27 months), with a 7 year football banning order, and Anthony Begley was sentenced to 15 months imprisonment (reduced from 18 months), with a 7 year football banning order.

[7] After he had lodged his appeal, the appellant was granted interim liberation on 3 July 2012. He has spent 19 days in custody.

 

Appeal against conviction
Evidence at the trial
[8] During the trial, the jury were given a joint minute which had attached to it certain excerpts from the operational statements prepared by police officers Spence and Mason following upon the incident. The excerpts were virtually identical in their terms, grammar, and punctuation. Nevertheless, as the sheriff noted in paragraph [12] of his report:

"Mr Spence and Mr Mason each asserted in evidence that he had made up his own statement; he had not consulted with anyone else about his statement; he had not colluded with any other officer in respect of this statement; and that he did not share any information contained in it with any other officer."

 

[9] Both in cross-examination of the officers, and in the defence jury speech, considerable emphasis was placed upon the similarity between the police statements, notwithstanding the two officers' denials of any form of collaboration. The jury were invited to disbelieve the officers' denials of co-operation or collaboration concerning their operational statements, and as a result, to find the officers generally incredible and/or unreliable such that their evidence about what had happened on 28 October 2009 should be rejected and the appellant acquitted.

[10] The sheriff specifically directed the jury on this matter, as follows:

"Now, to prove the first stage the Crown relies upon the evidence of three police officers, Mr Spence, Mr Mason and Mr McMillan, and to prove the second stage individually against each of the accused, the Crown relies upon the evidence of Mr Spence and Mr Mason. Now, you'll remember that each of these witnesses, Spence, Mason and McMillan, were asked if he had previously made a statement which differed from what he said in court, and you've heard some evidence about what was said by him on a previous or earlier occasion. ... But ladies and gentlemen, this has been put before you, because, of course, each of the officers said on oath to you in this court that they ... that he had made up his own statement, he didn't consult, he didn't do it ... he didn't collude, he didn't share, and so you are going to have to consider whether you can accept that, ladies and gentlemen . ... "

 

[11] The sheriff gave examples of identical texts, and continued:

"Well, ladies and gentlemen, it's for you to determine. As I say, these passages are not evidence against the accused either, they're not evidence of the truth of the statements and they don't corroborate either the witnesses' evidence in court and you can't replace what either Mr Spence and Mr Mason said in court with either of these statements. What you are entitled to do is to consider whether the evidence of each of Mr Mason and Mr Spence that they made their own statements and didn't share, didn't collude or consult, is credible and reliable. And if it's not then not only will you reject their evidence in that point but it does entitle you to consider, if you found that one or other or both of them has told you a lie or is in any way unreliable, what parts of the rest of their evidence you can accept. So this is a matter, ladies and gentlemen, which you are going to have to consider, are they both telling the truth and are they both reliable in what they say that they did not consult and this, what you have before you, is a self-dictated operational statement which was not the subject of consultation or discussion and was entirely the work, the own work, of each of them. So it's entirely a matter for you, it's a jury question and I simply draw the issue to your attention for your consideration."

 

[12] As noted above, the jury nevertheless convicted the appellant.

 

Ground of appeal against conviction
[13] In the note of appeal, the ground of appeal against conviction was set out as follows:

" No reasonable jury, having been directed as it was, could have concluded that the evidence of the two police witnesses whom the Crown relied on to convict the appellant were credible. In particular the officers contended that each of their near identical police statements were not as a result of the officers sharing, colluding or consulting with each other. Whilst it is accepted that it is open to a jury to have accepted parts of the evidence of the police and rejected other parts, the evidence of the police in this matter was essential to their overall credibility as witnesses. The Learned Judge directed the Jury that this was an issue for the Jury to consider. (Page 28 line 20 - page 34 Line 19) Notwithstanding that such a direct and pertinent direction was given to the Jury, it is submitted that no reasonable jury could have convicted the Appellant on the evidence of these officers in these circumstances."

 

Submissions for the appellant
[14] Miss Mitchell for the appellant referred to AJE v HM Advocate 2002 JC 215, in particular to paragraphs [24] to [37]. Section 106(3)(b) set an objective test. The appeal court had to decide whether the jury's verdict on the question of reasonable doubt was "reasonable" (paragraph [28] of AJE). In the present case, the evidence of the two police officers who identified and implicated the accused, and who denied having collaborated or colluded over their statements, was such that the appeal court should conclude that their evidence relating to their statements was incredible. That conclusion so powerfully undermined the officers' credibility that it cast a shadow over the rest of the officers' evidence. While therefore, as a generality, it was for a jury to decide what evidence to accept and what evidence to reject, the shadow cast by the incredible evidence put the officers' credibility and reliability into such doubt that the jury had failed properly to perform their task, and their verdict was one which no reasonable jury, properly directed, would in the circumstances have returned. A miscarriage of justice had occurred, and the conviction should be quashed.

 

Submissions for the Crown
[15] In reply, the advocate depute referred to King v HM Advocate 1999 JC 266, and McNally v HM Advocate [2012] HCJAC 156. The high test outlined in King had not been met. The jury were entitled to accept parts of the evidence, and to reject parts. If they did not believe the officers about the preparation of their statements, they were nevertheless entitled to accept the officers' oral evidence in court, about what they had seen and heard during the incident. The advocate depute also drew attention to certain features of the trial, for example, that both officers had been cross-examined at length about the similarities in their statements; that the sheriff in his charge had emphasised the difficulties presented by this aspect of the evidence; and that the jury's verdict had been a discerning one, with nine accused acquitted "not proven", and three convicted.

 

Discussion and decision
[16] In King v HM Advocate 1999 JC 266, at pages 228G to 229A, and 229I to 230B, Lord Rodger of Earlsferry gave the following guidance:

"'In seeking to formulate the appropriate test we begin with the words of section 106(3)(b). If we ask in what circumstances there may be the kind of miscarriage of justice which the provision covers, then it is obvious first of all that the jury will have returned a verdict convicting the appellant, since section 106 as a whole deals with appeals by persons who have pled guilty or been convicted by a jury. So the verdict to which section 106(3)(b) refers is a guilty verdict. The miscarriage of justice therefore arises where the jury return a guilty verdict which no reasonable jury properly directed could have returned. The test is objective: the court must be able to say that no reasonable jury could have returned a guilty verdict on the evidence before them. Since in any case where the provision is invoked the jury will ex hypothesi have returned a guilty verdict, their verdict will have implied that they were satisfied beyond reasonable doubt that the appellant was guilty. What the appellant must establish therefore is that, on the evidence led at the trial, no reasonable jury could have been satisfied beyond reasonable doubt that the appellant was guilty ...'

 

The court went on to state (at pages 229I to 230B):

 

'It follows from what we have said about the approach which this court should adopt that, although we require to examine the evidence which was before the jury, it is not for us simply to substitute our view of that evidence for the view which the jury took. In particular, a miscarriage of justice is not identified simply because, in any given case, the members of this court might have entertained a reasonable doubt on the evidence. If that were all that was required, Parliament would have gone far towards replacing trial by jury with trial by the judges of this court. The words in the provision were clearly chosen to avoid any risk of that. Applying the words which Parliament has enacted, we can quash the verdict of a jury only if we are satisfied that, on the evidence led at the trial, no reasonable jury could have been satisfied beyond a reasonable doubt that the appellant was guilty.' "

 

[17] In the more recent case of McNally v HM Advocate [2012] HCJAC 156, Lord Clarke observed:

"The decision in Jenkins was, it appears, the first example of the court allowing an appeal on the basis of the statutory provisions when the attack was one in relation to the jury's acceptance of the reliability of a witness's evidence in relation, in that case, to identification. At various places in its judgment, the court was at pains to make clear that that case was truly exceptional on its facts and circumstances. That is not to say, however, that the decision falls to be regarded as necessarily unique. But careful consideration of the facts and circumstances in Jenkins will readily inform the reader that those were far removed from those of the present case. The court, in particular, did not depart from the previous statements of the law in cases such as King and Mitchell as to the high test to be met before an appeal relying on the statutory provisions will succeed. What the court did in Jenkins was to scrutinise, in detail, the evidence of the witness whose evidence was being impugned and, having done so, determined that it was so grossly riddled with deficiencies, contradictions and inconsistencies that no reasonable jury, properly directed, could have stamped it with the description of being reliable. As the witness's evidence was essential for the obtaining of a conviction by the Crown, the appeal under section 106(3)(b) succeeded. The decision in that case should not be read as giving any general licence for attacks on credibility and reliability findings of juries being opened up simply because of inconsistencies, the presence of some contradictions and other difficulties in their evidence which might conceivably raise a question mark as to the reliability and credibility of otherwise acceptable evidence."

 

[18] In this case it was accepted that the jury were properly directed, including directions relating to the preparation of the two police officers' statements. In particular, the possibility that the officers collaborated when preparing their statements was specifically drawn to the jury's attention. It was also accepted that in general, a jury are entitled to accept parts of a witness's evidence, and to reject other parts. Thirdly, it was accepted that issues of credibility and reliability are normally matters entirely for a jury's assessment.

[19] In our view, it is clear that the two officers' evidence gave rise to the possibility that they had in fact collaborated to some extent in the preparation of their statements, and that they did not tell the truth in court when they denied doing so. However we do not accept that such a situation would preclude a reasonable jury, properly directed, from reaching the verdict they did in this case. On the contrary, we consider that it was open to the jury, having heard and seen the officers give evidence, and having assessed their demeanour and the way in which they gave their evidence together with all the other evidence in the case, to believe the evidence of each officer about what he saw and heard at the locus so far as relating to the appellant, while doubting or disbelieving the officer's evidence that he did not collaborate to some extent in the compilation of the statements. The circumstances in AJE, involving as it did the evidence of two young girls, the Moorov doctrine, and medical evidence (or the lack of it) were very different from those in the present case. Having regard to the terms of section 106(3)(b), the guidance given in AJE, King v HM Advocate 1999 JC 226 at pages 228G to 229A, and 229I to 230B, and McNally v HM Advocate [2012] HCJAC 156, and to the particular circumstances of this case, we are not persuaded that the high test set out in section 106(3)(b) has been met. We shall therefore refuse the appeal against conviction.

 

Appeal against sentence
Submissions for the appellant
[20] Counsel submitted that it was inappropriate and excessive to impose a custodial sentence and a football banning order. The appellant was in a different position from the other two convicted accused, who had also received custodial sentences and football banning orders. One had a previous football-related conviction, while the other had a substantial criminal record. By contrast the appellant's record was relatively short and non-analogous. He was aged 20 at the time of the offence. He was in full-time employment with a company supplying support services to Sky TV. His family life was stable as he had a settled personal relationship with his fiancée, and lived with his grandparents. He had never been in custody before. There had been no evidence at the trial that the appellant was a known Celtic risk supporter (ie a Celtic supporter likely to cause trouble at matches) or that he was a member of the Celtic Casuals or the Celtic Soccer Crew. What had occurred had happened spontaneously: it had not been planned or pre-arranged. Immaturity and alcohol had contributed to the offending behaviour. By 2009 (the date of the incident) the appellant had kept out of trouble for two years. By 2012 (the date of sentencing) he had remained out of trouble. The criminal justice social work report suggested that there was a low risk of re-offending

[21] For the appeal court's information (although these details were obviously not before the sheriff) the appellant had remained out of trouble since being sentenced in June 2012. He had no further convictions and no outstanding cases. At home, he helped to care for his grandfather who was suffering from Alzheimer's disease. While he was in custody, his mother had to travel from Eyemouth every day to assist his grandfather. As a result of being in custody for 19 days, the appellant had lost his job with the support company for Sky. Nevertheless he had now found another full-time job as a sales adviser for Orange.

[22] Counsel submitted, in terms of section 204(2) of the Criminal Procedure (Scotland) Act 1995, that the sheriff had a duty to consider alternatives to custody, and if possible to opt for a non-custodial disposal. While accepting the gravity of the offence, counsel invited the court to quash the 12 month sentence and to substitute a community service order (still applicable because of the age of the offence). The football banning order should also be quashed. There had been no further acts suggesting that the appellant would persist in causing trouble at or near football matches. Admittedly he had been restricted by bail conditions, including a bail order imposed on 29 October 2009 prohibiting him from entering within 500 yards of Celtic Park, Glasgow (sheriff's report paragraph [4]). Also he had been restricted by the football banning order itself. However the appellant had no prior history of football violence, and had never been in football-related trouble before. Thus the imposition of a football banning order was inappropriate in itself. Esto a banning order was appropriate, the terms imposed were excessive: for example, the 5 year period; and the conditions which had the effect that when Celtic had a match outside Scotland, the appellant had to surrender his passport, and when Celtic played in Scotland, the appellant had to "sign on" at the police station on the day of the match. These conditions were having a disproportionate effect on his life. While such conditions might be appropriate for someone who was a known football agitator and who made a habit of travelling to countries abroad in order to be involved in football violence, the appellant was not such an individual. Accordingly if the football banning order was to remain, the conditions should be altered and restricted.

 

Discussion and decision

[23] In our opinion, this case was a good example of the frightening and destructive nature of football hooliganism. When supporters of a particular team join together - even spontaneously - to present an aggressive, foul-mouthed band clearly looking for trouble, the potential for fear, panic, violence, and injury is very real. On this occasion, but for the presence and intervention of the police, matters would undoubtedly have escalated. We therefore wholly agree with the sheriff's assessment of the offence as a grave one, prima facie meriting both a custodial sentence and a football banning order.

[24] Nevertheless each participant must be assessed individually. For example, in the case of Edward Ingram who had (as noted in the opinion of the court dated 20 September 2012, reference XC379/12) a significant record of previous convictions, there was no question but that he merited a custodial sentence together with a significant football banning order, and the only question at issue in his appeal was a condition in the order. In the case of the present appellant, we have reached the view that there were some factors of importance which were given insufficient weight, particularly bearing in mind section 204(2) of the Criminal Procedure (Scotland) Act 1995 which is in the following terms:

"A court shall not pass a sentence of imprisonment on a person of or over twenty-one years of age who has not been previously sentenced to imprisonment or detention by a court in any part of the United Kingdom ... unless the court considers that no other method of dealing with him is appropriate ..."

 

[25] With section 204(2) in mind, we consider that, in the appellant's case, insufficient weight was given to the following matters:

·       the appellant was young, being aged 20 at the date of the offence on 28 October 2009, and 23 at the date of sentencing in June 2012

·       he was in full-time employment with a company providing support services for Sky television; by the date of sentencing, he was in a managerial position

·       his home circumstances were stable, as he lived with his grandparents and had a settled relationship with his fiancée

·       he helped to provide care for his grandfather who has Alzheimer's disease

·       he had not previously been involved in any football-related incidents or violence

·       he had not been in trouble for almost three years from the date of the incident on 28 October 2009 until the date of sentencing in June 2012.

·       his record was relatively minor and contained no convictions for violence or analogous offences

·       he was assessed in the criminal justice social work report as being at low risk of future offending

[26] While therefore emphasising yet again our agreement with the sheriff about the gravity of the offence, and endorsing the view that if members of the public choose to become part of an aggressive, menacing crowd of football supporters intent on doing harm, they can expect little leniency from the courts, nevertheless in the appellant's particular circumstances we are persuaded that the aims of retribution, deterrence, and protection of the public can be met by a non-custodial disposal. In all the circumstances we shall quash the custodial sentence and substitute therefor a one-year community service order with inter alia 100 hours unpaid work in the community.

[27] As for the football banning order, we consider that such an order is appropriate in the appellant's case. However we accept that he is not in the category of intransigent football offenders who require the imposition of the full complement of conditions over a protracted period. In the appellant's circumstances, we consider that the aim of preventing violence or disorder at or in connection with football matches can be met by the imposition of a 2 year football banning order with two conditions, namely that the appellant is not to enter any premises for the purpose of attending any regulated football matches in the United Kingdom, nor is he to approach within 500 metres of Celtic Football Park, Parkhead, whenever any home fixture is taking place there.

 

Decision
[28] For the reasons given above, the appeal against conviction is refused. The appeal against sentence is allowed to the extent that (a) we quash the custodial sentence and substitute therefor a one-year community service order with 100 hours of unpaid work; (b) in respect of the 5 year football banning order (containing, as it does, five conditions) we quash the period of 5 years and substitute therefor a period of 2 years; and we quash conditions 2 to 5, and substitute therefor condition 2 in the following terms:

"2. be prohibited from approaching within 500 metres of Celtic Football Park, Parkhead, whenever any home fixture is taking place there, and that includes 1 hour before the start of the game until 2 hours after the conclusion of the game".