A CELTIC fan who was acquitted of breaching controversial anti-bigotry legislation is to face prosecution again after a ruling by appeal judges.
Joseph Cairns, 20, had denied taking part in behaviour which would be likely to incite public disorder by chanting songs in support of the IRA at a match between Ross County and Celtic.
Police officers claimed during Mr Cairns's trial at Dingwall Sheriff Court that he had been singing lyrics from The Roll of Honour, a song about Republican hunger strikers, and the pro-IRA The Boys of the Old Brigade.
Mr Cairns, of Glasgow, was cleared by Sheriff Jamie Gilchrist, QC, after a no case to answer submission was made.
Prosecutors appealed against the decision and judges at the Justiciary Appeal Court in Edinburgh have recalled the acquittal and sent the case back to the sheriff to proceed with it.
Sheriff Gilchrist had taken the view the Crown had led evidence which, taken at its highest, was enough to prove he had sung words which expressed praise for hunger strikers and contained a line about joining the IRA.
However, the sheriff also had to believe the behaviour would be likely to incite public disorder. He told the court video evidence made it clear Mr Cairns and many other fans could be seen singing songs.
But he said: "It was quite impossible for the uninitiated listener to make out the words of what they were singing. Since there was no proper basis for inferring any person who might be incited to disorder would have been able to tell he was singing about the hunger strikers and the IRA, there was no proper basis for inferring his behaviour was likely to incite public disorder."
Lord Brodie, who heard the appeal with Lady Paton and Lord Philip, said they could not agree.
He said that, in enacting the initial clause of the offensive behaviour at football matches legislation, the Scottish Parliament had "created a criminal offence with an extremely long reach".
Advocate depute Andrew Brown, QC, said that as the police officers were able to recognise the song and hear words other people must have been able to do so.
Lord Brodie said the act distinguished between "a reasonable person" and a person "likely to be incited to public disorder".
The judge said: "The person likely to be incited to public disorder may have particular interests and particular knowledge. He may have particular views about the two songs in question and those who sing them."
However, he said the legislation meant such people need not be present for the purposes of deciding whether specific behaviour was likely to incite disorder.
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