FJB16153
Case Comment
Offensive behaviour football matches: Donnelly v Dunn
INTRODUCTION
Donnelly v Dunn raises the point of whether necessary to prove accused appreciated behaviour threatening or offensive. It all so touches upon whether conviction for singing sectarian song at football match in breach of statute incompatible with European Convention on Human Rights 1950 article.7 because accused might not have appreciated it could be regarded as threating or offensive.
THE FACTS
Appeal by stated case.
The appellants William Donnelly and Martian Walsh were charged with a breach of section 1 Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 by the singing of a song in support of a proscribed terrorist group.
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Some sheriffs had acquitted person singing ‘The roll of honour’. In Macdonald v Cairns 2013 SCCR 422 the appellant had ultimately been acquitted, although the basis for that was not clear.
LEGISLATION
Legislation referred to is the 2012 Act (Supra) Section1. In particular S1(B)(i) and (ii) which describes the behaviour that is necessary to commit an offence at a regulated football match; the behaviour— (i) is likely to incite public disorder, or (ii) would be likely to incite public disorder .
Terrorism Act 2000 Schedule 2 gives a list of groups who are deemed as a terrorist organisation.
DECISION
Article 7 “embodies the principle that only the law can define a crime and a proscribed penalty’ (SW v United Kingdom (1996) 21 EHRR 363 at para 35 following Kokkinakis v Greece (1994) 17 EGRR 397) . An offence must be clearly defined. This is satisfied where the individual can know from the wording of the relevant provision and if need be, with the assistance of the court’s interpretation of it, what acts and omissions will make him criminally liable. Judicial interpretation to produce clarity is legitimate if the resultant development “is consistent with the essence of the offence and could reasonably have been foreseen” . The appeal in this case was
The Bryan v McPherson case is in reference to the use of a Taser gun. Carl Bryan was stopped by Coronado Police Department Officer McPherson for not wearing his seatbelt. Bryan was irate with himself for not putting it back on after being stopped and cited by the California Highway Patrol for speeding just a short time prior to encountering Officer McPherson. Officer McPherson stated that Mr. Bryan was acting irrational, not listening to verbal commands, and exited his vehicle after being told to stay in his vehicle. “Then, without any warning, Officer McPherson shot Bryan with his ModelX26 Taser gun” (Wu, 2010, p. 365). As a result of being shot with a Taser, he fell to the asphalt face first causing severe damage to his teeth and bruising
In order to solve this case, where James Keegstra was charged under the s. 319(2) of the criminal code for spreading the hate propaganda and where he appealed that this was opposed to his right of freedom of speech; the court followed a detailed and intensive procedure.
(7) Right to appellate review: The Supreme Court did not rule regarding appeal since their ruling was this case was to be remanded back to the lower courts.
R N Howie and P A Johnson, Annotated Criminal Legislation NSW, 2011-2102, (Lexis Nexis Butterworths 2012) 17769-1774
The anti-social behaviour act was made in 2003. The reason for why this was made was to make the rules of anti-social behaviour better and work more efficient also to do the same with the fixed penalty notices. The rules of this act is no one that is under the age of 16 is allowed to buy spray paint due to graffiti on private properties, no group of teenagers are allowed to do anything wrong to the public and also no public drunkenness which can lead to people disturbing the peace. An example for this could be the ASBO’s.
...rationale for limiting the ability to express such hate is made clear. Society owes protection to individual within a nation that undermines an individual’s human dignity. Parliament upheld its democratic duty in charging and convicting James Keegstra for his willful promoted and hatred and clear lack of any more conscience.
Therefore, there would be 1) a wrongful disliked mental state 2) in violation of a persons rights (setback to their interests) in order for something to violate the offense principle. Only wrongful disliked mental states in violation of a persons right allows for the need to prevent “some people from wrongfully offending others” through the use of legislation (Feinberg, p. 1). However, the offensive act “must be taken by the offended person to wrong him [or her] whether in fact it does or not” (Feinberg, p. 2). The use of the swastika armband is a good example of offense in the strict sense. This is because the conventional symbol is deemed offensive and wrong whether or not the victim feels that they have been wronged when being confronted with it (Feinberg, p. 2). Subsequently, the very existence of the swastika has a profound offensiveness to it whether seen or not. It is not simply that the swastika symbol on the armband causes personal resentment or caused an experience that one would like to avoid, but it is the fact that “one is outraged at the offending conduct [of the wearing of swastika armband] quite independent of the effect on oneself” (Feinberg, “Offenses to Others”, p. 93). Simply because it offensive in and of
In an incident last year in Townsville police were called out to a junior rugby league match after players and also spectators were involved in an on field brawl. The brawl occurred in the u15 match with spectator’s rushing to the field to get involved, the Cowboys inaugural coach said “He will be pushing for strong punishment and charges to be laid”. The QRL did not end up going to the police so charges were not laid but instead lifetime bans were enforced on all players and parents involved in the ugly
The majority of these parades passed off peacefully and majority of who took part did not seek to incite violence. The 2004 marches ended peacefully and it was reported “so long as the rest of the summer passes off without serious violence, officials in London and Dublin are hopeful that they can create a positive atmosphere before fresh political talks in September.” However in 2005 the marches were used as a rallying call for extremists such as Johnny “mad dog” Adair whose use of violence highlights the frustration of the hardliners. Of course people such as this are only the tools used by more sinister forces such as the Ulster Volunteer Force (UVF), Red Hand Commandos and other such Para-militaries, who probably use violent means to destabilise the peace process.
that it is a disgrace to England and that it was set up for publicity.
This would fail as there is no evidence of Phillip being intoxicated as in Dietschman and Dowds, and if there were, such a defence failed in both cases. The second defence was called provocation under the Homicide Act 1957 and is now called loss of control under the Coroners and Justice Act 2009. Primarily applicable to crimes of passion, the “reasonable man” debate from Lesbini 1914 is now subject to two qualifying triggers under the 2009 Act. First, Phillip must apprehend violence, secondly, the circumstances must be of extremely grave character and Phillip must have a justified sense of being seriously wronged . The banality of Phillips situation cannot satisfy either.
The Defendant inflicted a serious leg injury upon the victim whilst attempting to make a sliding tackle during an amateur football match. The tackle which caused the injury was crushing, late, unnecessary, reckless and high. The referee sent off Barnes and also gave evidence saying that it was not a sliding tackle and that it was two footed. He was convicted on one count of unlawfully and maliciously inflicting grievous bodily harm, contrary to section 20 of the Offences against the Person Act 1861. He appealed against the conviction.
2.4.3. Previous criminal convictions The other important matter included in the individual’s conduct concept is the element of the previous criminal convictions of the individual concerned. Under the CDR, these convictions shall not ‘in themselves’ constitute justification for expulsion or exclusion on grounds of public policy or public security.
Thompson v. Church, one of the earliest authorities regarding inadmissibility of character evidence in trials, proposed the principle ““The business of the court is to try the case, and not the man”. Though principally true, the question of admissibility of evidence is nevertheless filled with complexities that have led scholars and academicians to call it one of the most controversial areas in the law of evidence. Under Common Law, ‘character’ has traditionally referred to “a person’s reputation, whether in general or in some particular respect, or his/her disposition to conduct himself in some way or other”, although evidence is accepted of general reputation only.
Thus, in the 1980s it was quite common for terrorist suspects arrested in Northern Ireland under what is now s. 14 of the Prevention of Terrorist Act 1989 not to say anything . Clive Walker provides that it was a widespread belief among security forces that maintaining silence was evidence of training in anti-interrogation techniques . However, during the 1980s, terrorist activity in England and Wales was much lower than in Northern Ireland . Therefore, it could be argued that the right to silence was not being used to such a detrimental effect on the prosecution process in England and Wales in comparison to Northern Ireland. Although, the metropolitan police cited that there was 27.6 per cent of overall use of the right to silence in police questioning in 1990 .Therefore, it may be suggested that the right to silence was causing the police an issue before the enactment of the CJPOA 1994 .