The High Court of Justiciary has found that the conduct of a Scottish League Cup final attendee who was charged with a breach of the peace by shouting the word “hun” at a police officer was not aggravated by religious prejudice but refused to alter the sentence given as a result.

David Di Pinto, who was fined £500 and given a 12-month Football Banning Order on summary conviction, sought to overturn a Sheriff Appeal Court decision upholding the summary sheriff’s finding that the aggravation had been made out. It was argued that use of the term “hun” in a sectarian manner did not come within the scope of judicial knowledge and the Crown had failed to prove a religious aggravation.

Not demonstrably indisputable

On 19 December 2021 the appellant attended the Scottish League Cup final between Celtic and Hibs at Hampden. Two police officers were approached by members of the public who complained about his behaviour. The officers asked the appellant to refrain from causing a disturbance. The appellant shouted and swore at the officers, including use of the term “hun”, typically addressed to supporters of Rangers FC, and was subsequently arrested.

Evidence was given by the officer who was called a “hun”, who testified that, while he was not an expert in theology, the term was slang for a Rangers fan. The procurator fiscal depute invited the summary sheriff to accept that, as a matter of judicial knowledge, the word “hun” was a sectarian remark used as an insult to Protestants. The sheriff agreed with this submission and convicted the appellant as libelled, including the religious aggravation.

The Sheriff Appeal Court considered that, within the narrow context of football, the sheriff’s local knowledge of the use of “hun” ought to be afforded considerable respect. A well-informed person in the west of Scotland would recognise the term as intended to cause offence to Protestants and not simply as a reference to Rangers supporters.

For the appellant it was submitted that it was not demonstrably indisputable that “hun” was an abusive sectarian term. To allow judicial knowledge to be applied, the meaning of hun would have to be immediately ascertainable from sources of indisputable accuracy or be so notorious as to be indisputable. That could not be said to be the case in the context of other Sheriff Court cases and noting that an Ofcom survey in 2016 ranked the offensiveness of the term as “mild”.

 

Ignored evidence

Lord Carloway, delivering the opinion of the court, began by explaining: 

“The fundamental problem for the respondent is that the Procurator Fiscal Depute elected to lead evidence from a Glasgow police officer, who was presumably involved in crowd control at the match, on what the appellant’s use of the word ‘hun’ meant. He replied that it was a reference to the officer being a Rangers fan. An accusation of being such a fan is neither sectarian nor religious in content.”

He continued: 

“Given that the officer expressed a clear view on what it meant, presumably in the specific context of the football match, it was hardly legitimate for the PFD to request the sheriff to ignore this evidence on the basis of contrary judicial knowledge.”

Asking whether the term’s meaning was within judicial knowledge, Lord Carloway said: 

“As was said in PF Glasgow v Ward (2021), [judicial knowledge is] ‘facts which are common knowledge, either in the sense that every well informed person knows them or that they are generally accepted by informed persons and can be ascertained by consulting appropriate works of reference’.”

He went on to say: 

“The answer to the first question, of whether every well-informed person knows that ‘hun’ refers to Protestants generally, as distinct from Rangers fans in particular, must be in the negative. Unless it is to be assumed that the police officer was an ignoramus, it is immediately clear that not every well-informed person is imbued with the relevant knowledge including police in the stadium.”

He added on the second question: 

“The Scottish National Dictionary gives, as the primary definition, ‘Abusive name for a person who supports, or a footballer who plays for, Rangers …’. Two prominent Scottish novelists are cited; Irvine Welsh referring to Hibs playing ‘the huns in the semi at Hampden’ and Christopher Brookmyre, from Glasgow, mentioning ‘policing the Huns’ next visit’. It cannot be said that these comments, both in the football context, are referring not to Rangers or their fans but to Protestants generally.”

Lord Carloway concluded: 

“It was undoubtedly disputed that the appellant’s use of the term ‘hun’ in its particular context referred to Protestants as distinct from Rangers supporters. The evidence, such as it was, pointed to the latter. The term, as a reference to Protestants, is not ‘so notorious as to be indisputable’. That is essentially an end of the matter.”

The first three questions of appeal were accordingly answered in the affirmative.

Modest penalty

Having determined there was no aggravation, the court turned to the question of whether to reduce the length of the 12-month Football Banning Order as sought by the appellant. No challenge to the amount of the fine was made.

On this matter, Lord Carloway said: 

“It is unusual for the police to be asked by members of the crowd to remove an individual. This is no doubt partly because the individual will normally be supporting the same team as those around him. However, there are limits and some spectators will prefer wanting to watch at least some of the game rather than abusing opposition supporters for no other reason than that they are simply that.”

He therefore concluded:

“What the appellant, whose address in Renfrew might suggest he was supporting Celtic rather than Hibs, found objectionable about the Hibs, or maybe even the Celtic, support will remain a mystery, but the court has no difficulty in holding that a one year banning order was a very modest penalty.”

The fourth question of appeal was therefore answered in the negative.