In The Court Of Public Opinion

21010524.jpg-pwrt3Let me tell you a story, and please … there’s a good reason why it’s this particular one.

Sometime In the middle of 1973, the Irish Republican Army Council held a meeting to decide on the future course of the Armed Struggle.

The war in the Six Counties had been stagnating and the Army Council believed that the British would only ever leave the North when the people of Britain better understood what was happening over there, and how it impacted on their own lives.

This view, widely held at the top of the Republican leadership, led to an historic, and deadly decision. They would launch a campaign against mainland Britain.

This was to have four key objectives; first, to maximise the economic damage to the British state; second, to “take the heat off Derry and Belfast”, as long term strategist Sean MacStiofain had put it the year before; third, to more readily target the infrastructure of the British state itself (as the early bombings of the High Court and Scotland Yard would ably accomplish) and fourth, and most importantly, with the objective of forcing the British people to more directly confront the consequences of remaining in Ireland and to force public opinion towards withdrawal.

In November 1974, shortly after the mainland campaign began, a Republican unit travelled to Birmingham and exploded two bombs in pubs. Public opinion moved alright, but not the way they had envisioned.

Anger exploded across the country.

Irish men and women who had no part in the bombing were targeted for reprisals by virtue of their nationality.

The outcry was so fearsome that an Irish mother who had lost two sons in the atrocity was refused service by local shops and businesses.

Within a week, public opinion across Britain was so venomous, and avowedly focussed on vengeance, that the government was able to pass the Prevention of Terrorism Act 1974, by a wide margin, amidst almost unanimous support. Amongst its many provisions was the right to arrest, detain, and question suspects for a period of up to seven days.

During the same fevered period, the House of Commons held a debate over whether to reintroduce the death penalty in terrorism cases, as the clamour amidst the general population reached fever pitch.

More than 200 MP’s voted in favour of that motion, but common sense prevailed in the House and it was defeated.

Within 24 hours of the Prevention of Terrorism Act becoming law, the police arrested six men in connection with the bombings. They were the first people ever to be held under that Act.

Over the course of the next few days they were tortured and subjected to fearsome psychological pressure, during which some of them were said to have made false confessions.

The defence was telling the world those facts from the first day of their trial.

The public wasn’t listening. Not then.

The court case was a travesty, a mixture of fabricated evidence, circumstantial evidence, heresy and botched, and slanted, forensic results.

In spite of the clear flaws in the case, public opinion was overwhelming against any possibility of a Not Guilty verdict, and their conviction was never really in much doubt. People had to pay and that’s exactly what happened.

It didn’t matter, not then, whether they were the right people or not.

A jury, acting in one of the most febrile and flammable atmospheres in the history of this island, found all six men guilty on 21 counts of murder.

Their first appeal was in 1976. It was rejected.

In 1982, the civil rights lawyer Gareth Pierce, who would also work on the Guildford Four case, went to see them and started working on their behalf. Three years later, the first documentary aired disputing their convictions.

It moved public opinion a fraction, but not enough.

A year later, in 1986, Chris Mullen wrote a book proclaiming their innocence.

It offered fresh evidence on their behalf, but it wasn’t enough either.

In 1987, the case went back to the Court of Appeal, and all the evidence was put in front of new judges.

They held off their verdict until 1988, and it shocked lawyers and civil rights activists everywhere, although the general public barely flinched. It upheld the convictions, stated that they were “safe” and at that point it seemed as if none of the men would ever see daylight again.

In March 1990, Granada Television produced a further documentary, this one called Who Bombed Birmingham? It did what none of the other campaigns had been able to do. Not only did it demonstrate the complete breakdown of the case, but it even named alternate suspects, some of whom were willing to discuss their involvement.

Public opinion swung wildly overnight.

By August, the case had been referred back to the Court of Appeal, and in March the following year the entire thing was dismissed as wholly unsafe and the Birmingham Six were released from prison, to a tumult of publicity at a scandal that had rocked faith in the British legal system from which it has never fully recovered.

It is regarded as one of the greatest miscarriages of justice in history.

Condemnation of that time, and those verdicts, still rings out today.

I recently re-watched the brilliant Jimmy McGovern scripted drama series Cracker, starring Robbie Coltraine, where the big Scot, in an especially heated argument with Christopher Ecclestone’s character describes the first principle of British justice; “where a man is innocent until proven Irish.”

It was the hope of moving public opinion that pushed the Provisionals to bomb mainland Britain. They misjudged how that would manifest itself. Public opinion led to the passing of a draconian and dangerous law, and the first act under that law was to send innocent men to jail.

They would have stayed there too had public opinion not swung again, and demanded their release.

That only happened when those convictions were definitively held up as the outrage that they were.

I find it ironic that years after the war in the Six Counties has come to an end that a government here in Scotland has passed its own draconian law, one that more and more comes to be seen as something profoundly anti-Irish, whether that was the original intention or not.

This one has not come about as a consequence of a terrorist atrocity; it was the result of a football match.

Let’s not forget either that this football match didn’t end in a riot or a bloodbath.

It ended in a minor skirmish, the kind of thing you can see in leagues all across the world, every weekend.

But a group of politically motivated people, for their own reasons and in pursuit of their own agenda, saw a chance to make hay out of it and although calling themselves nationalists they were quite happy to torch the reputation of their own country in pursuit of that goal.

A summit was called, they said to tackle sectarianism, an issue they magnified a thousand times greater than it was, smearing the whole of the land they professed to love as some kind of backward hell-hole needing saving from itself.

From the first it was clear that this law was not designed to tackle the real issue, or the social and cultural causes of ignorance and bigotry.

An entire nation was declared half out of its mind by its own parliamentarians, and for what?

So they could police what songs were sung at the football.

I mean, come on. Seriously?

That law was hastily drafted and a narrow parliamentary majority – and emotive, misleading language in the media – allowed it to be passed despite glaring holes and serious civil rights issues.

It’s on the statute book to this day.

Every minute it remains there embarrasses and shames Scotland.

Nowadays simply singing about the Armed Struggle will put you in a courtroom and so young lads are having their lives put on hold, or even ruined, for a form of political expression in a country which we’re told is celebrating a brand new awaking of activism and engagement and which our political class is supposed to be fully supportive of.

What’s wrong with this picture?

Everything, my friends.

Every god damned thing.

What was it the famous Green Brigade banner said?

“The terrorist or the dreamer, the savage or the brave, depends whose vote you’re trying to catch or whose face you’re trying to save.”

The law was drafted by hypocrites and is defended by hypocrites.

And I say that as someone who was still prepared to vote for them, because, frankly, I’m not the sort to cast a ballot on any single issue and the alternative was so absolutely unequivocally awful that I simply couldn’t stomach it.

I don’t want this becoming a political discussion piece.

I cast that vote with the bigger picture in mind, but I’ve always been clear; if my fellow supporters of independence gain that only to try and set up the sort of police state where laws like this are commonplace, they’ll succeed only when they pry my cold dead fingers off the door knob of Bute House.

Public opinion supports this law.

That’s what people keep telling me, as if public opinion isn’t often the stuff of wild ignorance and the mood of any given day, as if it’s never been wrong.

Public opinion would have had the death penalty reinstated just in time to send Hugh Callaghan, Patrick Hill, Gerard Hunter, Richard McIlkenny, William Power and John Walker to the gallows.

Paul Hill, Gerard Conolan, Patrick Armstrong and Carole Richardson would have joined them in the cold, dark ground the following year.

Public opinion already has a lot to answer for; the current assault on the welfare state just for openers.

Besides, as I’ve demonstrated above, public opinion doesn’t support unsafe convictions.

It doesn’t support fit-ups and frauds, and perjured testimony.

It doesn’t support the state when it uses poorly drafted legislation as a shield from behind which it persecutes its own citizens.

More and more, that’s what the Offensive Behaviour at Football Act does.

During the last week, the team at Fans Against Criminalisation, the group set up by football supporters in opposition to this bill, have been working hard behind the scenes trying to secure a rather unusual court proceeding of their own.

To summarise very quickly what’s been going on, (you can read the full thing by clicking on this link) they’ve been trying to get the Director of Public Prosecutions to look at evidence they’ve collected that suggests at least one serving police officer has committed perjury in an effort to secure a conviction in a case held under the auspices of the Offensive Behaviour Act.

They say this officer has given sworn testimony in several of the cases involving the people they represent.

If true, this blows those cases all to Hell and gone.

And it ought to blow this disgraceful law to pieces at the same time.

No wonder FAC’s efforts are meeting with a certain level of what we’ll call bureaucratic resistance.

After a long period in which they’ve tried numerous avenues to have this evidence taken seriously they were told, this week, to basically write a wee letter.

“Stick it all in an envelope,” one of their members was told when she called the Crown Office to finally get the complaint on the record, weeks after being told that it had already been looked into (with no-one ever seeing as much as a scrap of paper or hearing a single person make an on-the-record statement).

When asked if she should send it by recorded delivery the person on the other end of the phone nonchalantly told her “if you like …”

To say they’re not taking this seriously would, I think, be an understatement.

This law reeked, it stunk out the house like a dead animal under the floorboards, before this week.

As assaults on free speech go, it’s one of the worst ever conceived on this island.

When the Act was at the Bill stage, Liberty wrote a truly damning report on its implications, stating that “Any intrusion on the right to express ourselves brought about by broadly framed offences will have a chilling effect on free speech, whether it be the freedom to sing an age old anthem or express and exchange new ideas. It is an integral part of the right – and vital to the lifeblood of democracy – that individuals feel able to express their views (even distasteful and unpleasant views) without fear of criminal repercussion.”

That this law is an affront to free expression was never really in any doubt, and only a reactionary mind could try to excuse it as somehow being necessary anyway, in spite of the grave risks this Act and others like it pose to the freedoms of every single one of us.

But what more people do not realise is that it is wide open to official abuse, and allows the organs of the state more power than they should ever be allowed to have.

Because this is framed as to allow police officers and the courts the widest possible remit in determining whether a law has actually been broken.

Let me put that another way;

Laws are supposed to be clear cut.

They are meant to spell out specific offences and a range of punishments for breaking them.

They are not supposed to be open-ended, subject to “interpretation” or at the “discretion” of law enforcement officials or the judiciary.

That really is the road to the police state, where its sworn officers can decide, on the spot, whether something you have done or are doing falls outside the limits of the law.

Liberty were worried about this from the off.

“Giving police such a wide discretion based on subjective factors of what may be perceived to be offensive or hateful will only lead to misapplication and misuse,” they wrote in the same report cited above.

That this has happened, and is happening, is not in dispute either.

This law has been abused, as all vague and broadly sweeping laws will be, by the very people who are supposed to uphold it.

That at least one officer is being accused of perjury will not shock anyone who knows about these cases or about officialdom and its historic tendancy to bend its own rules in pursuit of what it deems justice to be.

What should shock everyone is that this is gilding the lily to an extent not even necessary; this Act is so based on individual interpretation that every single person who attends a football match in this country could be cited under it on any given day.

The framers of the Bill actually acknowledge that in its policy memorandum, recognising that the costs of actually imposing it to the fullest extent would be “unsustainable.”

So they let the police make the decision, on the day, about who to subject to it.

That’s in the Bill, in black and white, an admission that this law is targeted at individuals and relies on the police on the scene making a “judgement call” on who to arrest or charge.

I repeat; laws aren’t supposed to work this way, although far too many do.

The outstanding Scottish journalist Kevin McKenna wrote a lengthy piece on this law at the time when it was passed.

He identified four key areas of the Universal Declaration of Human Rights which come into direct conflict with the legislation, and reveal it to be blatantly discriminatory.

“Article 7: All are equal before the law.”

How can this be maintained when those who wrote the Bill accept that arrest and prosecution under it will be a matter for the police on the scene to decide, effectively ignoring large numbers of people committing the same alleged offence to target select individuals of their choosing?

Furthermore, how can singing a song which is legal elsewhere be illegal inside a football stadium or on the way to a game? If you were singing the same song on the way to a rugby match, you would be free to do so as you pleased.

“Article 9: No one shall be subjected to arbitrary arrest, detention or exile.”

The key word there is “arbitrary.”

To give it it’s textbook definition; “based on random choice or personal whim, rather than any reason or system.”

“Article 12: Everyone has the right to freedom of thought, conscience and religion.”

What this law does, in a crude but real way is mirror McGovern’s acerbic line; “Every opinion is permissible until proven Irish.”

“Article 19: Everyone has the right to freedom of opinions and expression; this right includes freedom to hold opinions without interference.”

Quite how the framers and the courts and the police get around this one baffles me.

I am sure that at least one of these cases is going to end up before the European Court, and when it does this Act will wind up in the bin alongside internment.

This law is that bad and attacks from the commentariat aren’t even confined to those on the left.

Even the right loathe this piece of excreta.

One of its fiercest critics has been Alex Massie of The Spectator, who’s been writing acid articles on it since it was passed.

In January of this year, he highlighted a tweet sent out by Police Scotland which read “Please be aware that we will continue to monitor comments on social media and any offensive comments will be investigated.”

Massie described that as “the most offensive tweet I’ve seen in months”, in an article entitled “Scotland: No Country For Free Speech.”

In it, he takes apart the Offensive Behaviour at Football Act and in particular the way in which it legislates against actions which might cause a “reasonable person to take offence.”

As he pointed out, said “offended persons” don’t even have to be in the vicinity of the “offence” for this to apply.

Indeed, they don’t even have to exist at all … they can be conjured out of thin air in the courtroom or police wagon, theoretical phantoms with fragile egos and easily splintered psyches.

Massie’s contempt for this notion is expressed thus;

“I remind you that the law as written and enforced allows for the creation of entirely fictitious or imaginary people who might have been offended had they existed and had they been present to hear the alleged criminal offences (songs, chiefly) being committed.”

Can you think of anything more dangerous than giving the state license to do this?

Here in Scotland we have.

Now, on top of this, the police appear to be resorting to fit-ups, to lying in open court, to secure convictions … and when they can’t get them clean under a law as broad as this, and that they won’t risk trying, should make everyone question what the real motivations here are.

It certainly isn’t about fighting sectarianism.

Perhaps something like this was always going to be needed to force the ugly side of the Act into the public gaze.

That FAC will not give up on their campaign to have this officer brought up on charges is clear enough; they’ve been trying to get a hearing for months and been rebuffed but it has not ended their determination to see this matter through.

This issue needs rammed into the public sphere.

That we are criminalising people for their political view is bad enough.

Some of the individuals who have fallen foul of this law have never committed a criminal offence in their lives before this, and will never do so again. But as a consequence of “police discretion” many of them have had to put their lives on hold whilst they await trial and sentencing and it is without doubt that some have had their lives ruined as a result.

Are we really a free and tolerant society if we allow this?

What is this “new Scotland” we keep hearing about worth if persecution and the criminalisation of free expression are part of its foundation?

Who wants to live in a country like that?

I know I sure as Hell don’t, and nor will I.

This law was conceived in a febrile atmosphere whipped up by the media in the aftermath of a single game of football.

It was public opinion – or a twisted measure of it – that saw it put on the statute books.

But public opinion changes like the weather, and it most often does so when people stop thinking reflexively and start examining issues on their actual merits.

I know one thing, the people who defend this law in the Scottish Parliament only do so because public opinion still appears to be on their side.

If that were to change then you had better believe they’d find cause to repeal it in due course.

Time to start writing letters to MP’s and MSP’s.

Time to start filling their inboxes.

Everyone who reads this should share it or do at least one thing to raise awareness about the issues in it.

You should all bookmark FAC’s website, and keep abreast of the campaign and read the stories of the supporters they represent, and who have been targeted by this obscene law.

More than that, this story needs to be told to the widest possible audience and that can never be achieved by the bloggers alone.

It needs to be pushed into the spotlight where it is picked up by the media and highlighted properly, perhaps by someone like Mark Daly.

It needs to be investigated by his sort of mind and sharp intellect.

It is more imperative than ever that we wash away not only the social and legal case for the retention of this dire law but any remaining shred of moral authority on which those who devised claim t it still rests.

I’ve never been convinced that such existed in the first place.

It sure as Hell doesn’t exist now.

(Writing is my full time job friends and neighbours, and the support of my readers is vital. If you want to support it, you can make a donation at the link. If every reader was able to donate just £5 a year that would keep the site going strong well into the future. Many thanks in advance.)


James Forrest

James Forrest is a writer and blogger from Glasgow, and the author of two books, Fragments and Believers, which are available on Amazon.

4 thoughts on “In The Court Of Public Opinion

  • 30 August, 2015 at 9:29 pm

    So let me get this straight James,I can be on my way to Murrayfield singing ‘Flower of Scotland’ which contains inflammatory words against the English and nobody gives a damn,yet in the same way I could be going tae Celtic Park and be arrested for singing ‘Boys of the old brigade’ or ‘Roll of Honour,’ and have my door bashed in at 5 a.m. Next morning?

    In a nutshell that means there is no such thing as Freedom of Speech.
    If that’s the case then our SNP government need’s to bin this law immediately otherwise I’ll be cancelling my membership pronto,I don’t think I’ll be the only one either.

  • 31 August, 2015 at 8:27 am

    Living in Australia now I’ve not had to encounter this ‘law’
    It’s astonishing how it can be held up in court. Hopefully FAC, your blog and others like it can show this for what it is
    Keep up the good work

  • 31 August, 2015 at 3:00 pm

    Scotland is a police state these days. It was only a year ago that Police Scotland took it upon themselves to put armed officers on the streets for routine patrols, without consulting MSPs or the public. They didn’t even stop because they were forced to, they chose to stop. They still have the power to do it again.

  • 1 September, 2015 at 6:19 am

    Excellent assessment for those of us hard of comprehension, James. Indeed this is a ‘law’ more in tune with The Stazi or the Rumanian Siguranta Statului of cold war Europe. The ‘interpretation’ of any law is for a qualified judge, and only subsequently, by a High Court Judge, if challenged. The idea that HM Constabulary should exercise ‘judgement’ when determining if a law is transgressed is risible. The police, when arresting an individual must state the act, and any revision or ammendment of which, said individual is in contravention of. They MUST also provide reason , if requested by the arrested party, as to why the act is being contravened. Failure of the arresting constable (and they must be a constable- not always the same as a police officer) to accurately represent these facts and reason to the arrestee constitutes an illegal arrest and will be dismissed upon appearance at sherrif/ magistrates court if proven. Generally the availability of two, or more, independent witnesses is required to counteract the possibility of defendant bias, unless other submissable evidence, such as mobile phone footage is presented.
    It is highly unlikely that any charge levied against an individual said to be in contravention of the OBAF act will stand up to this level of scrutiny. Therefore , if arrested under this act then ask, in front if witnesses, the reasons for which your behaviour contravenes the act. Do not simply plead guilty just to get it over with. The establishment rely on you doing just that.

    Slightly off topic, James but the observation of ‘innocent until proven Irish’ really should be amended to ‘innocent until perceived to be Irish’ RIP, Harry Stanley

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