Hate Speech, Indecency / Obscenity
Pussy Riot v. Russia
Closed Contracts Expression
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The Scottish High Court of the Judiciary refused to create a new appellate structure through which a petitioner could appeal a case up to the Supreme Court of the United Kingdom. The case involved a petitioner, Mr. Mark Meechan, who sought to appeal a decision —in which he was criminally convicted for posting a video on YouTube of a dog that was trained to perform a Nazi salute and to respond to other commands such as “gas the Jews”— issued by the Sheriff Appeal Court (SAC) but did not meet the criteria for leave to appeal. Mr. Meechan argued for the application of the nobile officium to create an appeal route to the High Court, bypassing the established appellate structure. The High Court concluded that there was no lacuna (gap) in the legislative scheme and that the petitioner had an appropriate and effective remedy available through the stated case procedure. The Court clarified that the petitioner’s appeal was unsuccessful because it did not meet the test of agreeability set out by the Sheriff Appeal Court. The Court emphasized that the absence of an appeal route in a summary case, when leave to appeal to the SAC has been refused, is a deliberate choice rather than a legislative deficiency. This legal decision pertains to the availability and limitations of the nobile officium (general power of superintendence) of the High Court of Justiciary. This decision concluded that the nobile officium can only be invoked in extraordinary or unforeseen circumstances where no other legal remedy is available. It cannot be used as a means to create an alternative appeal route when an appeal is already provided for by law. The decision emphasized that the legislative scheme for appeals must be respected and followed.
Scottish YouTuber Mark Meechan operates a video channel on YouTube using the alias “Count Dankula”. In 2016, Mr. Meechan trained his girlfriend’s dog to react to certain commands and other activities. Consequently, in April 2016, Mr. Meechan posted a 2.5 minute-long video titled “M8 Yer Dugs A Nazi,” in which he trained his girlfriend’s pug dog to perform a Nazi salute whenever he said “Sieg Heil” and to respond to statements such as “gas the Jews” by appearing to become distressed. The video started with Mr. Meechan explaining how his girlfriend thought that her dog was very cute and adorable, so he thought that he would turn the dog into the least cute thing he could think of, namely a Nazi.
The Airdrie Sheriff Court analyzed Meechan’s YouTube video under section 127 of the 2003 Communications Act and the dicta in DDP v Collins  1 WLR 2223, finding that a reasonable person would consider the message of the video to be grossly offensive. The Sheriff Court stipulated that the “video would be likely to be regarded as grossly offensive and menacing to Jewish people, or at least recognized the risk that it would be taken as such.” (para. 10) Meechan was subsequently convicted of behavior deemed “grossly offensive” under the 2003 Act, and fined £800.
Mr. Meechan objected to the Sheriff Court’s analysis of his YouTube video, noting that it was made simply to annoy his girlfriend and to produce a comedic effect. The Sheriff’s Office, however, found that the “primary purpose of making the video was not to annoy: it was to make a highly offensive video for sharing on his YouTube channel for consumption by viewers.” (para. 20)
In addition to arguments that the YouTube video fell outside of “grossly offensive” behavior under the 2003 Act, Mr. Meechan also made reference to the right to freedom of expression, as enshrined in Articles 7 and 10 of the European Convention on Human Rights. These arguments were made by Mr. Meechan in the Sheriff Appeal Court petition. Specifically, Mr. Meechan questioned whether:
Arguing that his conviction under the 2003 Act would infringe upon his Articles 7 and 10 ECHR rights, Mr. Meechan made reference to M’bala M’bala v France, and Vereinigung Bildender Künstler v Austria  ECtHR 7 (180). Mr. Meechan drew on these cases to argue that his YouTube video could be understood as having been made for comedic effect and not to be “grossly offensive”. Furthermore, Mr. Meechan argued that according to SW v United Kingdom (1995) 21 EHRR 36 there could be no derogation by the court from the guarantees enshrined in Article 7. Even if such derogations were permitted, Handyside v United Kingdom (1976) 1 EHRR 737 had demonstrated that outlawing communications that were grossly offensive were unlikely to be seen as “necessary in a democratic society”.
The Sheriff Appeal Court refused Mr. Meechan’s leave to appeal, underlying the unarguability of ECHR rights pleadings. The Sheriff Appeal Court stipulated that both Articles 7 and 10 rights were dealt with in DPP v Collins  1 WLR 2223 by Lord Bingham at para 14 of his speech. As such, Mr. Meechan could not argue that the primary purpose of his YouTube video was comedic under Articles 7 and 10 ECHR when the Sheriff had already made a factual determination that the purpose of Mr. Meechan’s actions was to make a highly offensive video for sharing on his YouTube channel. Similarly on the question of incompatibility and interference, the House of Lords’ Collins decision accepted that “grossly offensive” has a long lineage that has never before given rise to any stateable challenge. Subsequently, Mr. Meechan appealed his conviction to the High Court, arguing that the video was a form of satire and that his freedom of expression had been unlawfully restricted. He contended that the video was intended to mock his girlfriend and the far-right, rather than to spread hatred. The leave to appeal to the Sheriff Appeal Court was refused, with each of the elements raised in the stated case being classified as “wholly misconceived”.
Lord Justice General and Lord Carloway, delivered the opinion of the Appeal Court in the High Court of Justiciary. The Appeal Court had to decide whether the Sheriff Appeal Court’s refusal to allow Mr. Meechan’s appeal —after he was convicted for posting a video on YouTube of a dog that was trained to perform a Nazi salute and to respond to other commands such as “gas the Jews”— restricted his freedom of expression and was an unjust administration of justice. The issue was framed within the Court’s discussion of: (1) the proper framework application of nobile officium and the legislative scheme of appeals, and (2) whether, applying that legal framework, the restriction of Mr. Meechan’s freedom of expression —considering his YouTube video offensive and subsequent refusal to appeal—, amounted to “extraordinary and unforeseen circumstances” that should allow Meechan to be granted an appeal to the Supreme Court of the United Kingdom for the purpose of preventing injustice and to provide a proper administration of justice.
Mr. Meechan argued that there was an error in the legislation which created the Sheriff Appeal Court as the ultimate authority and power to hear final verdicts from the Sheriff Court. Meechan contended that the Sheriff Appeal Court held powers that should have been granted to the United Kingdom Supreme Court. This power, which had previously existed in summary cases, is traditionally granted to seek permission to appeal in compatibility issues from the Scottish High Court of Justiciary to the United Kingdom Supreme Court. Meechan contended that the absence of such a power amounted to a lacuna (gap) in the legislation, and that the doctrine of nobile officium should be used by the High Court of the Judiciary to create an appeal structure to the United Kingdom Supreme Court as the final criminal Court of Appeals in Scotland.
The nobile officium is an extraordinary equitable jurisdiction of the High Court of the Justiciary to provide fair and just relief when the law cannot provide such a solution. Meechan argued that the use of nobile officium was the only equitable relief available and necessary to remedy the injustice of the Sheriff Court of Appeal’s decision and to provide proper administration of justice.
The Crown, in response, argued that the appeal to the United Kingdom Supreme Court already existed within the legislature and this was sufficient for the proper administration of justice, and that there was no injustice necessitating the usage of nobile officium. Specifically, the Crown underlined that an appeal to the United Kingdom Supreme Court was available in circumstances under the applicable section 288AA(1) of the Criminal Procedure (Scotland) Act 1995. Section 288AA(1) of the 1995 Act requires a court of two or more judges of the High Court to find compatibility issues in order for a grant of leave to the United Kingdom Supreme Court. In Mr. Meechan’s case, Meechan did not raise any compatibility issues with the Sheriff Court until the Sheriff Appeal Court pleadings, where the SAC found no compatibility issues in the proceedings. Consequently, the Crown stipulated that there was (1) no lacuna that should be filled using nobile officium, and (2) under the existing legislative framework, Mr. Meechan’s case had no compatibility issues that necessitated an appeal up to the United Kingdom Supreme Court.
Upon studying what was the proper legal framework, Lord Justice General refused Mr. Meechan’s petition as it was incompetent and irrelevant. The Court noted that the nobile officium of the High Court is a general power of superintendence that is available to deal with extraordinary or unforeseen circumstances and where no other remedy is provided by law. Nobile officium can only be employed when there is no appellate structure and not to create a different one, when (as in Meechan’s case) there is one already provided for, but the convicted person simply does not meet the criteria for leave to appeal. The Court Reform (Scotland) Act 2014, the Court noted, allows appeal to the United Kingdom Supreme Court in criminal cases through two pathways: firstly, through a leave of the Sheriff Court of Appeal, or secondly, where there is a lacuna or extraordinary or unforeseen circumstances that would justify the Court reaching a different conclusion.
On the first criteria, Lord Justice General, explained that the Sheriff Appeal Court has a valid and existing appellate structure, whereby leave to appeal is granted on either sift (argument). Both of Mr. Meechan’s Sheriff Appeal Court sifts were validly refused by the Sheriff Appeal Court. The court noted that the purpose of the sifting procedure test of the Sheriff Appeal Court is a wise and efficient use of judicial resources particularly in light of the volume of summary prosecutions. In extraordinary circumstances, however, the second criteria could be employed by the High Court to allow an appeal hearing by the United Kingdom Supreme Court. Lord Justice General observed that Meechan’s case raised no lacuna or extraordinary or unforeseen circumstances that would justify the Court reaching a different conclusion. Hence, the Court concluded that an absolute right to seek leave to appeal to either the High Court or the UK Supreme Court when a summary case has been sifted out of the system by the Sheriff Court of Appeal is neither necessary nor desirable.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
While the Scottish High Court of the Judiciary addressed only procedural questions as to the creation of a new appellate structure up to the UK Supreme Court, this decision has significant implications for an individual’s freedom of expression rights under Article 7 and 10 of the European Convention of Human Rights. The Court upheld a criminal conviction against a defendant who uploaded a video on YouTube deeming it “grossly offensive” based on a factual determination of a lower court without considering arguments raised as to the “comedic” nature of the YouTube video under Articles 7 and 10 ECHR. Furthermore, the Court stipulated that a conduct determined to be “grossly offensive” did not give rise to a question of incompatibility with an individual’s freedom of expression rights under Articles 7 and 10 ECHR based on an established House of Lords precedent.
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