Anent legal affairs in Auld Reekie, there’s a stushie brewing about the acquittal of the Hearts fan accused of assaulting Celtic manager Neil Lennon in a notorious and passably disgraceful incident at Tynecastle last season. The jury – seven women, eight men – deliberated for nearly three hours before returning a Not Proven verdict on the charge of Assault, Aggravated by Religious Prejudice. On a seperate charge, the jury found John Wilson guilty of a breach of the peace.
Given that the episode took place on national television and Mr Wilson clearly seemed intent upon attacking Mr Lennon the verdict has, predictably, been met with equal parts derision, disbelief and outrage. But, on balance or at least as the case has been reported, the verdict may not be quite as curious as many consider it. (The usual caveat about the shortcomings of court reporting applies. Nevertheless, ’tis all the layman has to go on.)
Regardless, those angered by the jury’s decision might divert their rancour to the Crown Office who insisted that Mr Wilson’s actions were aggravated by religious animosity and rejected his offer to plead guilty to both charges if prosecutors dropped the aggravating factors. The Crown Office’s refusal invited the uncertainty of a jury trial and even though the prospects of a conviction must have seemed good taking the case before a jury of the plain people of Scotland opens the door to risk.
Even so, it does seem curious that having deleted the mention of religious prejudice in the breach of the peace charge the jury does not appear to have done so with regard to the assualt charge. They could, I understand, have done so and found Mr Wilson guilty of assault, albeit without any aggravating factor. That they did not do so appears, on the face of matters, odd. Perhaps, however, their verdict may be explained by their doubt as to whether an assault – as opposed to the intention to assault Mr Lennon – actually took place. As Chris Fyffe, a Solicitor-Advocate, explains:
Perhaps there is some form of explanation contained in the earlier evidence from 30th August as reported in the Record. This was from the accused’s police interview: – “I was running at Neil Lennon but I realised what I was doing and as I got closer, I slipped. I have done a stupid thing by running on the park but I never assaulted anybody.” When asked if he remembered making contact with Lennon, he replied: “I never made contact with him.” Here, the accused gives an explanation that although he ran at Neil Lennon he slipped. Although he denies making contact with Lennon, this can be seen on the video. Could it be said that the jury were not convinced by the accused’s apparent admission when he gave evidence because of what he said at interview about having slipped? Of course, if the accused had slipped and the contact with Lennon was unintentional then there would be no assault. Neil Lennon was not able to say exactly how he was struck. However another witness did speak to seeing the accused approach Lennon. From the same report in the Record comes this account of the evidence of Tynecastle security guard Peter Croy: – “Mr Croy, G4S’s east of Scotland boss, said he had seen Wilson jump out of the stand and run towards the Celtic bench. The 61-year-old said: “I realised the person was not going on the pitch, he was making his way towards Neil Lennon. ”I ran in front of Neil Lennon. The person who ran towards him had slipped or something and fell in front of him and I just jumped on top of him.” Proof of a crime in the criminal courts in Scotland means proof beyond reasonable doubt. We can all look at a video, but none of us heard the evidence. Only the jury did. They were the only persons in position to make a calm, detached and reasoned verdict. Taking the accused’s interview together with the evidence of Mr Croy, there would appear to be a body of evidence that points towards the accused slipping at the vital moment.
Again, we cannot know what the jury deliberated (and Contempt of Court rules mean we can never know how or why they reached their verdict). Nevertheless, there appears to be some reason for supposing the case was not quite as clear-cut as the television footage appeared to indicate. If so then the Not Proven judgement – that is, the evidence against the accused is not strong enough, despite appearances, to return a Guilty (or Proven) verdict – could be considered appropriate. It’s speculation on my part of course, but one would not be surprised if the jury had split on this matter and reached Not Proven as a compromise verdict.
This may make the law seem ridiculous. Perhaps the jury were confused or simply got it wrong. There you have it. Rather more serious, and to my mind quite plausible, is the view taken by Scots Law Thoughts that the increasing lack of discretion given to prosecutors when cases arise that could have a religious or racial component. Hence, if this is the case, the Crown’s refusal to drop the sectarian aspects of the charges against Mr Wilson.
Here again we run into the problems of Thought Crimes. It was alleged that Mr Wilson had shouted “Lennon, you Fenian bastard“. The defendent denied this, insisting he had simply called Lennon a “fucking wanker”. The prosecution’s allegation – though reliant on a single witness – seems quite plausible but, though Section 74 of the 2003 Criminal Justice Act (Scotland) does not require corroboration for offences aggravated by religious prejudice (itself troubling, in my view), this aspect of the case came down to a He Said vs He Said argument and, in those circumstances, one can see why a jury might be minded to acquit.
Section 74 is also troubling since it states that
[An] offence is aggravated by religious prejudice if — (a) at the time of committing the offence or immediately before or after doing so, 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.
A “religious group” is further defined as:
[A] group of persons defined by reference to their — (a) religious belief or lack of religious belief; (b) membership of or adherence to a church or religious organisation; (c) support for the culture and traditions of a church or religious organisation; or (d) participation in activities associated with such a culture or such traditions.
In the matter of football, then, the law as it is presently interpreted appears to define Celtic and Rangers as religious – that is, sectarian – groups even as both clubs try (or claim to be trying) to move beyond old sectarian affiliations. In other words, the law seems to reinforce sectarian stereotypes even as it attempts to increase the penalty for offences motivated by malice predicated on the stereotypes perpetuated by the law itself. This seems a strange way to carry on and, for that matter, an unsatisfactory way to consider mere football clubs. Affording Celtic and Rangers fans additional legal protections – unavailable to supporters of other clubs incidentally – on the basis of their footballing loyalties is, surely, unusual? (So, for that matter, is the law’s apparent contention that a “religious group” may be defined by their “lack of religious belief” but that’s a matter for another time.)
In any case, Thought Crimes, especially when filtered through the sieve of footballing passions and prejudice, are problematic and, generally speaking, to be avoided especially since the context of a football match is, in all sorts of ways, rather different from the context of a stroll down your local high street of a Sunday morning.
All this brouhaha leads one to fear that the authorities will return to and beef-up their stalled-but-sadly-still-alive Offensive Behaviour and Threatenig Communications Act (Scotland) bill. This is probably inevitable; it will still be wrong.
Disclosure: To the extent I can be persuaded to care about Scottish football these days, I hitch my colours to the mast of Heart of Midlothian. Even in these chastening times there’s still some reason to feel warmly towards a club whose main battle honours are Loos, Arras and Ypres.
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