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Boycott Calls Against Israel
Scottish Parliament Urged to Endorse BDS


07.04.2020

Editorial Note

 

Dr. Eurig Scandrett, a senior lecturer in Sociology in the Psychology, Sociology and Education Division at Queen Margaret University in Scotland, filed a petition on behalf of the Scottish Palestine Solidarity Campaign - petition number PE01803 on the Right to Boycott, Divestment, and Sanctions (BDS). It calls on the Scottish Parliament to urge the Scottish Government to support the right of public bodies and institutions in Scotland to debate, endorse, and implement BDS.  

 
The petition process in Scotland allows citizens to get their concerns on the Parliament's agenda if it has the power to act. Once a petition is submitted, before it can be published, it is reviewed against the required criteria, and any suggested changes are discussed with the petitioner. Then the petitions can be scheduled for consideration by the Committee. It takes several months before consideration. 

The petition stated that Scottish public institutions, governed by the Scottish Government, are entitled to have a different stand from the UK Government, including on international relations.  Scandrett explains that the "petition does not ask the Scottish Parliament or Scottish Government to support BDS, but rather to protect the right of public bodies to take their own decisions."  


However, in December 2019, the Queen gave a speech stating that the UK Government will "stop public institutions from imposing their own approach or views about international relations, through preventing boycotts, divestment or sanctions campaigns against foreign countries and those who trade with them." Nevertheless, Scandrett believes that Scotland should defy the Queen's request. He rejects the Queen's concern that “such boycotts have legitimized antisemitism.”  He attested that "It is important to note that BDS does not legitimize antisemitism." He even later repeated this claim, that "Antisemitism has no place in such a campaign, and the campaign for BDS is clearly distinct from, and opposed to, antisemitism." 

Scotland has seen several attacks against Israel and Jews. As a result, in January 2017, the Government of Scotland commissioned Lord Bracadale, a retired judge, to investigate and author a consultation report to review hate crime legislation in Scotland.  The consultation paper cited, among others, two examples of Jewish people being targeted because of their perceived association with the state of Israel.  In the first case, during a concert performed by the Jerusalem String Quartet at Edinburgh's Queen Hall in August 2008, members of the Scottish Palestine Solidarity Campaign (SPSC) interrupted and shouted slogans “they are Israeli army musicians”; “end genocide in Gaza”; and “boycott Israel.”   Lord Bracadale stated, “The evidence did not permit the inference that their comments were made because they presumed the musicians to be Israeli or Jewish.”
 

A second case took place in March 2011 in the student halls of residence at St Andrew's University and reached the Scottish courts. Chanan Roziel Reitblat brought charges against two students, Samuel Colchester and Paul Donnachie The complainer was a Jewish Lithuanian-born based at Yeshiva University in New York City who spent a semester at St Andrew's. He was not a citizen of Israel and has never visited. In his room above his bed, he had pinned an Israeli flag. After a night out, the two accused were very drunk, entered his room, both of them placed their hands inside their trousers and then rubbed their hands onto the Israeli flag while making offensive comments, “Israel is a terrorist state, the flag is a terrorist symbol, and you are a terrorist. Israel has no history here.” The accused were members of the SPSC, and during the court hearing, a protest by SPSC members was held outside, calling the charges "absurd." Lord Bracadale noted that there was no connection between the complainer and actions by the State of Israel, and thus the “hostility was manifestly directed towards him because of his perceived nationality or religion.” 

 

Worth noting that these attacks were orchestrated by SPSC.

 

Scandrett is a longtime pro-Palestinian activist. In a 2012 report about an official visit of Friends of the Earth to the Palestinian Territories. Scandrett, the vice-chair of Friends of the Earth Scotland, said: “The theft of resources and the pollution of land and water are designed to serve only the interests of the apartheid state of Israel. This is nothing short of an environmental nakba.”  

 

In Autumn 2015, he revealed personal motivation: "My other current passion is Palestine solidarity, promoting the boycott of Israel and supporting good friends involved with the nonviolent anti-colonial struggle. Susan and I had a great holiday in Palestine in June: it’s good when solidarity can include enjoying the place, relaxing with friends, seeing new sights and enjoying the Mediterranean sun."

 

The Scottish Parliament has expanded the democratic rights of its citizens. However, by doing so, it risks providing a platform for specious, unsupported charges against Israel and the Jews by the BDS campaign.  Hopefully, the Parliament would take note of this problem. 

 




 

 
PE01803: Right to Boycott, Divestment and Sanctions (BDS)

Petitioner: Dr Eurig Scandrett on behalf of Scottish Palestine Solidarity Campaign
 
Status: Open

Closing Date for Online Petition: 23 April 2020

 

Calling on the Scottish Parliament to urge the Scottish Government to support the right of public bodies and institutions in Scotland to debate, (and where democratically supported) to endorse and implement Boycott, Divestment and Sanctions (BDS) against foreign countries and those who trade with them.

 

Do you agree the responsibility for governance of public bodies in Scotland should remain with the Scottish Government and the Scottish Parliament?
 
Should the UK Government be able to “stop public institutions from imposing their own approach or views about international relations”?
 
Comments (11)

There is a very strong pressure from Israeli interests to suppress fight back from Palestinians against israeli government presecution and Scottish Government must resist it
Gordon Wilson
10:20 on 22 Mar 2020

The case for action against Israeli government treatment of Palestinians is clear from evidence from Edinburgh Action for Palestine. It is as important as action agaisnt apartheid south africa was
Gordon Wilson
10:17 on 22 Mar 2020

I believe that governance in Scotland should be the prerogative of the Scottish Government. This issue is about Human Rights. Our right to say that the breaking of international agreements is wrong and should not be defended for economic or political reasons. The attempt to accuse objectors to the apartheid policies of the Israeli state of antisemitism is part of that states policy to legitimise itself and needs to be challenged.
Anthony Buxton.
11:45 on 21 Mar 2020

This is ridiculous. There should be no place in Scotland for racism. This veiled attempt to justify and legalize BDS is not acceptable
Elena Nicol
19:50 on 20 Mar 2020

To support the granting of freedom to any people should always be a right afforded to all humanity. To be able to protest against Apartheid states should be a human right for all.
Tim Michael Donnelly
18:32 on 19 Mar 2020

BDS is a hate movement that does nothing to contribute to a peaceful solution. BDS is linked to and supported by terrorist organisations. It should be illegal for public bodies and institutions to endorse BDS.
Teresa Trainor
20:24 on 18 Mar 2020

Does no one in Scotland have anything better to do than foster hate against Israel? On devices using Israeli technology, when Israel will soon be marketing a coronavirus vaccine?
Rachell Fried
13:23 on 18 Mar 2020

BDS is an anti Semite organization that adopted strategic tactics of the Nazis. They spread hate and lies and do not look for any resolution or peace, they are looking to destroy the only Jewish state that exist, a state so smal it takes 67 hours drive frim north to East and 25 minutes frim East to west. Please do not let hate win. Stop BDS and outlaw their activity. Even Germany de laid them as anti Semite organization.
Matana Ramati
11:36 on 18 Mar 2020

The German Parliament declared BDS anti-Semitic.
Ron Temud
7:55 on 18 Mar 2020

The clause, "and those who trade with them" is to enable people to have an excuse to discriminate against Jews and people who believe in Israel's right to exist - a right that is an incontrovertible part of international law because Israel is a UN member state. Asserting such a spurious "right" is tantamount to giving legal cover to anti-Semites. Therefore, only an anti-Semite will support such a malicious and hostile clause. If you want to boycott Israeli products, do so. But to boycott those who do not join you in that? It's illegitimate.
Steven Grossman
5:38 on 18 Mar 2020



Background Info
 

Currently, Scottish public institutions are able to take different views from the UK Government on international relations and are governed by the Scottish Government which itself is able to take a different view on international relations from the UK Government.

The December 2019 Queen’s Speech stated that the UK Government will "stop public institutions from imposing their own approach or views about international relations, through preventing boycotts, divestment or sanctions campaigns against foreign countries and those who trade with them". (Background briefing notes page 133).

If the UK Government attempts to impose this stoppage on Scottish public institutions it would involve an erosion of the devolved powers of the Scottish Government. The Scottish Government has confirmed that it is “unable to fully assess the effect of the proposed measure on public institutions in Scotland”. It is a concern that the Scottish Government is unable to assess the effect of a measure over which it has devolved authority.

I believe it is clear that this measure is aimed at the campaign for BDS against Israel, although could also apply to other forms of BDS, whether or not this is intended in the Queen’s Speech, including against companies that profit from fossil fuel exploitation at the expense of measures to combat climate change, or against sectoral specific boycotts, for example by universities against regimes which persecute academics.

BDS against Israel, is a legitimate nonviolent campaign called by Palestinian civil society in 2005 to put international pressure on the Israeli State to abide by international law. Israel’s breaches of international law are well docum'ented.

BDS against Israel calls for international supporters of international law and Palestinian human rights, to boycott, divest from and apply sanctions to the State of Israel and institutions linked to it; Israeli companies and international companies which have significant investments in Israel. The purpose of the campaign is to put international pressure on the Israeli State to abide by international law and UN Resolutions in three ways: 1, to end the illegal occupation (including the settlements and separation wall) of the West Bank (including East Jerusalem), Gaza and the Golan Heights; 2, to end laws within Israel which discriminate against the Palestinian population; and 3, to recognise the right of return of Palestinian refugees. The BDS campaign explicitly references the South African campaign of boycott, divestment and sanctions, which contributed to the end of Apartheid in 1994.

In relation to the construction of the Israeli wall as part of the occupation of the West Bank (in its Advisory Opinion of 9 July 2004), the International Court of Justice “is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end.”

Since the call for BDS in 2005 it has been taken up by a wide range of international civil society and public institutions, including within Scotland. Israel has reacted by making support for BDS illegal within Israel and by its citizens. Israel’s allies and supporters have attempted to stop BDS across the world, through various means including legislation. Groups and organisations in Scotland are entitled to campaign against BDS, just as Palestine solidarity groups are entitled to campaign in support of BDS. If Scotland were to adopt the measures in the Queen’s Speech, it would be restricting the right to engage in legitimate political protest to lobby public bodies to take decisions on whether or not to support BDS, and by so doing would be supporting Israel’s efforts to silence its critics.

The petition does not ask the Scottish Parliament or Scottish Government to support BDS, but rather to protect the right of public bodies to take their own decisions.

The Queen’s speech notes that “There are concerns that such boycotts have legitimised antisemitism”. It is important to note that BDS does not legitimise antisemitism. It is aimed at the violations of international law, UN resolutions and human rights by the Israeli state against the Palestinian people. The call explicitly references the South African boycott which was also against violations of international law and human rights by the South African Apartheid regime. Lord Bracadale, in his final report of the Independent review of Hate Crime legislation in Scotland emphasised that “The right to engage in legitimate political protest is fundamental in a democratic society”, and that this includes political campaigning against the Israeli state, including calling for a boycott. Antisemitism has no place in such a campaign, and the campaign for BDS is clearly distinct from, and opposed to, antisemitism.

Public bodies have a legal responsibility to act within the law. In circumstances where the UK government is negligent in its responsibilities under international law (for example in rendering aid or assistance in maintaining the illegal situation which BDS is aiming to challenge), is it not appropriate for public bodies to apply due diligence in respect to their own legal responsibilities, which may include taking a different approach to purchasing, procurement and investment decisions from those of the UK Government?

I ask that public bodies in Scotland, from the Scottish Government down, are not dictated to by the UK Government’s support for Israel but are entitled to make their own decisions in relation to this international campaign for human rights.



Previous Action 
I emailed the Scottish Government and received a response from the Directorate for External Affairs.

==============================================


New Scottish Greens policy meets the demands of the Palestinian people
Eurig Scandrett 
25 March 2016 

Eurig Scandrett is a list candidate for the Scottish Greens in the South of Scotland and helped develop the party’s new policy for Palestinian solidarity.

One hundred years after the British Government promised self-determination to the Arab peoples (1), the Scottish Green Party passed a policy motion in support of self-determination in Palestine. In the opinion of Wael Shawish of the Association of Palestinian Communities in Scotland, the SGP policy is the first of any political party in Europe to include all the demands of the Palestinian people.

In fact, much of this was already SGP policy, accumulated over years of conference motions: support for international law, human rights and demilitarisation; against the Jewish National Fund; and for the tactics of Boycott, Divestment and Sanctions against Israel. What the current policy does is make political sense of this, to frame the policy in terms of a struggle by a colonised people against a colonial power.

This moves us away from a slavish commitment to a ‘two state solution’ and the myth that the Israeli-Palestinian conflict is made up of equivalent national movements competing for the same piece of land. It acknowledges the unequal power between a colonial and colonised people, and the corrupting relationship between settler and indigenous populations. It recognises that whilst Israel has historically provided a safe place for Jews fleeing murderous anti-Semitism, the future must be based on equality and respect for human rights for all. It argues for a process of nonviolent decolonisation, to create the conditions for an egalitarian and democratic future for Palestine based on equal rights. Whether that should be one state, two states or more, should ultimately be the decision of the Palestinian population, irrespective of religious or ethnic origin, including those whose families were expelled in 1948 as well as current citizens of Israel.

First it should be clarified what ‘nonviolent decolonisation’ means. Nonviolence, with its roots in the thought of M.K. Gandhi and Martin Luther King, is not simply the absence of violence, but rather a confrontation with the causes of violence which disrupts the cycle of violence. The opposite of nonviolence is not violent actions, but rather inaction in the face of structural violence. Decolonisation is a process of removing all aspects of the colonial relationship between a colonising and colonised people, including political and military domination, but also economic, social, cultural and psychological relations. Its aim is not the expulsion of the colonial settlers but rather the abolition of a colonial settler status.

Zionism has always been a colonial project. The first Zionist congress in 1897 advocated the “colonisation of Palestine by Jewish agricultural and industrial workers” at a time when political Zionism attracted the support of only a small number of Jewish Europeans and Christian evangelicals, whilst the Jewish minority in Palestine lived more-or-less peacefully with their Muslim and Christian Palestinian neighbours. In Europe, the ‘Jewish Colonisation Association’ was formed in 1891 and the ‘Palestine Jewish Colonisation Association’ in 1924. In support of its objectives, the Zionist movement allied itself with the major colonial power of the time, Britain. This alliance was cemented in the Balfour declaration of 1917 which was incorporated into the British Mandate under the League of Nations, from 1922-48.

The Balfour declaration, it is worth remembering, stated that the British government viewed “with favour the establishment in Palestine of a national home for the Jewish people … it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine or the rights and political status enjoyed by Jews in any other country”. This declaration was fiercely opposed as anti-Semitic by the only Jewish member of the British cabinet, Edwin Montagu. At the time it was issued, Britain had no jurisdiction over the territory, although the British army under General Allenby, allied with Hussein’s Arab militias, was advancing towards Palestine. Under the British Mandate, European Zionist migration to Palestine increased which led to increased conflict between the Jewish immigrants and the Palestinians, including the indigenous Jewish Arabs. It wasn’t until 1947 that the United Nations, which had succeeded the League of Nations, proposed partitioning Palestine into two states. The Zionists tactically accepted this partition and then engaged their British-trained militias to enlarge the Jewish part and evict 80% of the Palestinian residents.

Understanding the colonial nature of Zionism in Palestine demonstrates that this is not a uniquely Jewish phenomenon. It is ironic that both Zionists and anti-Semites promote the idea that Israel is exceptionally Jewish, whereas in fact the Zionists in Palestine have been doing what most colonial powers have done, not least Britain. The promotion of Israel as the ‘only democracy in the Middle East’ on the front line against ‘terrorism’ resonates with colonial ideas of ‘the White Man’s burden’ and ‘civilising mission’. These are all ideological tactics used by many colonial powers and echo British justification of violent repression in colonial India and East Africa.

Many scholars argue that Israel is best understood as ‘settler colonialism’ involving the replacement of the indigenous population with settlers, and therefore historically closer to the European settlement of the Americas or Britain in Australia (see for example Lorenzo Veracini’s Israel and Settler Society). This explains many features of Israel and Palestine, including the expulsion of Palestinians in the 1948 Nakba, the settlements in the West Bank, the eviction of Bedouin in the ‘unrecognised villages’ in the Negev, the house demolitions in annexed East Jerusalem, land confiscation in Area C, the physical containment of Nazareth, the siege of Gaza and the construction of the separation wall.

This helps us to understand some of what is happening in Palestine today. It is true that Israeli popular opinion, both religious and secular, is moving to the Right. Any colonial ideology feeds on itself and becomes increasingly paranoid. As Ali Abunimah, the editor of the Electronic Intifada points out, this was also the case in the years before the end of Apartheid in South Africa, as whites feared a bloodbath if the black population were enfranchised. It didn’t happen and in the democratic, multi-racial South Africa that emerged, it was suddenly hard to find defenders of Apartheid.

It also helps to explain the violence. Israel is a highly militarised society in which most young people do military service, often in the occupied territories. Colonial violence against and violation of Palestinians is constant and systemic, and sometimes extreme. Most anti-colonial resistance is peaceful or involves petty violence such as throwing stones, but it can also be violent and seemingly random. Colonial violence includes collective punishments, imprisonment without trial, torture, extra-judicial killing, mass bombing of civilians, actions that are ‘normalised’ as security and designed to terrorise and expel communities. Anti-colonial violence can include stabbings, random murders, suicide bombs, home-made rockets. Both kinds of violence can generate terror, but arbitrarily branding some armed resistance groups, such as Hamas’s al-Qassam brigades, as ‘terrorists’ is unhelpful and plays into the colonial narrative.

The way out of this violence is not to demonise particular groups, but rather to support the nonviolent anti-colonial struggles of Palestinians. The Popular Resistance Committees that have sprung up in Palestinian villages and towns along the separation wall and in occupied ‘Area C’ are confronting the Israeli army through the tactics of nonviolence: demonstrations, non-compliance, land occupations, defying the Israeli ban on building houses and infrastructure and planting trees. They are often supported by the radical anti-colonial Israeli left, some of whom identify themselves as Palestinian. Here is where hope for a decolonised, democratic future lies, one where Hebrew-speaking Jewish (Israeli-)Palestinians can live as a minority amongst the indigenous population, not as settlers and colonisers but as equal citizens with a shared commitment to justice.

At SGP’s conference in October, Wael Shawish told a fringe meeting that the Palestinians need the support of the international community in their anti-colonial struggle, which is why the SGP policy is so important. In the ten years since Palestinian society called on the world’s citizens for Boycott, Divestment and Sanctions against Israel, the movement has gathered strength. The policy of the Scottish Green Party is part of that growing movement (2).

I am grateful to the editors for the opportunity to see criticisms of this article and to incorporate my responses into the final version. As a result, this has led to a somewhat longer and more detailed article than originally proposed, but hopeful one which more fully justifies the argument.

1. Letter from Sir Henry McMahon, British High Commissioner in Egypt, to Sherif Hussein bin Ali of Mecca, October 24, 1915. In exchange for Arab support for the allies against the Ottomon Turks, “Great Britain is prepared to recognize and support the independence of the Arabs in all the regions within the limits demanded by the Sherif of Mecca”.

2. Useful sources of information of what to boycott and how to disinvest can be found on Boycott Israel Today and the BDS movement’s own website.


==============================================


Protests against racist group's participation in ‘Earth Summit’
June 20, 2012
 / By Stop the JNF  /  Brazil
The inclusion of a workshop, on 20th June, led by the Jewish National Fund, an organisation which has been implicated in human rights abuses in Israel / Palestine, has led to protests at the UN Conference on Sustainable Development (Earth Summit, Rio+20).
The Jewish National Fund (JNF) exists for the purpose of obtaining Palestinian land for exclusive use by Jews.
The inclusion of a workshop, on 20th June, led by the Jewish National Fund, an organisation which has been implicated in human rights abuses in Israel / Palestine, has led to protests at the UN Conference on Sustainable Development (Earth Summit, Rio+20).
The Jewish National Fund (JNF) exists for the purpose of obtaining Palestinian land for exclusive use by Jews. The organisation has collaborated in the eviction of Palestinians from their homes, the destruction of villages and the denial of return of refugees, frequently planting trees to conceal the remains of the houses which have been destroyed. It has established ‘parks’ and ‘forests’ as a means of making the Palestinian landscape look more European. The JNF played a crucial role in the Nakba (catastrophe) in 1947-49, which made 750,000 Palestinians into refugees who have been denied the right to return. It continues to evict Bedouin villages in the Negev desert where it is growing trees by diverting water from the Israeli occupied West Bank.
At the UN conference, the JNF, along with the Israeli Ministry of Agriculture, is offering a workshop on water conservation and land management in arid regions, as part of the 20 year anniversary of the first ‘Earth Summit’ in Rio de Janeiro in 1992.
Eurig Scandrett from Stop the JNF UK commented:
“this land and water has been stolen from the Palestinian people. The JNF manages Palestinian land in order to drive the Palestinian people off. The water which they are supposedly managing comes from the Jordan River in the West Bank or the underground aquifers which Palestinians are denied access to. This workshop is pure greenwash from the racist JNF”
Sara Kershnar of International Jewish Anti-Zionist Network said:
“it is ironic that the Israeli government is lobbying to exclude the Palestinian Authority from the summit whilst at the same time contributing workshops on how they manage Palestinian land and water which they have stolen.”
END
Notes to editors:
Stop the JNF is an international campaign established by Palestinian Civil Society, Palestine solidarity groups and International Jewish Anti-Zionist Network. The campaign aims to expose and prevent the JNF’s involvement in ethnic cleansing, apartheid and Zionist colonisation in Palestine. www.stopthejnf.org . Information on how the JNF uses environmental claims to mask its participation in human rights abuses is available in ‘Greenwashing Apartheid: The Jewish National Fund’s Environmental Coverup’ at
As a contribution to Rio + 20 United Nations Conference on Sustainable Development, the JNF, in conjunction with the Israeli Department of Agriculture, are advertising a workshop “Water harvesting and afforestation as a means to rehabilitate degraded lands” on Wednesday 20th June at 4.30 – 7.30 pm (20.30 – 22.30 BST). http://www.uncsd2012.org/rio20/index.php?page=view&type=700&nr=70&menu=23
Contacts
Stop the JNF UK Sofiah Macleod + (44) 7931200361 (uk@stopthejnf.org)
Stop the JNF (environment) Eurig Scandrett + (44) 7799311059 (environment@stopthejnf.org)
Stop the JNF USA/Canada Sara Kershnar (info@stopthejnf.org)
Palestinian Grassroots Anti-apartheid Wall Campaign (Stop the Wall), Jamal Juma + (970) 598921821



===============================================



DONNACHIE V PROCURATOR FISCAL CUPAR

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Mackay of Drumadoon

Lord Bonomy

[2012] HCJAC 53

Appeal No: XJ947/11

OPINION OF THE LORD JUSTICE CLERK

in the

APPEAL BY STATED CASE

by

PAUL DONNACHIE

Appellant;

against

PROCURATOR FISCAL, CUPAR

Respondent:

_______

1 May 2012

[1] On 23 August 2011 at Cupar Sheriff Court, the appellant was convicted on complaint of the following charge:

[2] The appellant and the complainer were students. They lived in the same hall of residence. The complainer shared a room with another student. Above his bed he had pinned an Israeli flag given to him by his brother, who was in the Israeli Defence Force. The complainer is Jewish. He is not a citizen of Israel and has never been there; but he has Israeli friends and feels a sense of connection with the State of Israel.

[3] At around 1.30am on the date libelled, when the complainer was asleep, his room-mate returned. He was drunk. Soon after, the appellant and the co-accused knocked on the complainer's door. They were concerned for his room-mate. They too were drunk.

[4] The appellant noticed the Israeli flag and said to the complainer "Israel is a terrorist state, the flag is a terrorist symbol and you are a terrorist." He said that students were not allowed to have flags in their rooms and said "Israel has no history here." The appellant stood close to the flag, put his hands down his trousers and pulled out pubic hair. He wiped this in the middle of the flag.

[5] The complainer screamed at the appellant and the co-accused to get out. The appellant then said repeatedly that the flag was a terrorist symbol. He said that the complainer was a terrorist. He and the co-accused then left the room. Outside the room the appellant talked loudly to other students. He said "It's a nation built on terrorism" and "They are all suicide bombers." The appellant's actions distressed the complainer.

The legislation

The trial

[7] The appellant said in evidence that he had strongly held and sincere views about the Palestinian question. He had an antipathy towards the state of Israel, but not towards Jews. He accepted that his conduct in the complainer's room was unacceptable; but said that it was motivated by his political beliefs. It was not intended to be an attack on the complainer personally, or to be an anti-Semitic attack.

[8] The sheriff asked him to what extent he could distinguish between the state of Israel and the actions of the Israeli government (the state/government issue). The appellant replied that he could make no such distinction. At this point it occurred to the appellant's solicitor that the sheriff regarded this question as being relevant to the charge. The solicitor therefore sought leave to call three people as witnesses on that question. All three were attending the trial. Two of them were members of Scottish Jews for a Just Peace, a political group whose views were to some extent critical of Israel. The third was a member of the Scottish Palestine Solidarity Campaign. The sheriff understood that the proposed witnesses would challenge the factual basis of the complainer's assumed association with the State of Israel. The Crown objected to the leading of these witnesses on the ground that their proposed evidence was irrelevant to the subject matter of the charge.

[9] The sheriff sustained the objection. He considered that the views of the proposed witnesses on the political situation in Israel could have no bearing on the question whether the complainer had an association with Israel of a kind that qualified him as a member of a racial group for the purposes of section 50A(3) (supra). The factual basis of the complainer's beliefs was irrelevant (Note, para [9]). The sheriff's decision on this point is the only remaining issue in this appeal.

The sheriff's report

[10] The sheriff reports that he convicted the appellant on the basis that he had evinced malice and ill will towards the complainer because of his association with Israel and his assumed Israeli nationality (ibid, para [16]). He confirms that the appellant's answer to him on the state/government issue formed no part of his decision (ibid, para [17]).

Submissions for the appellant

[11] The solicitor advocate for the appellant explained that the defence motion at the trial had been prompted by the sheriff's question regarding the state/government issue. It was difficult to see what bearing that question could have had on the issues before the sheriff. However, the question having been asked, it was legitimate for the defence to lead evidence on the issue. The sheriff had misapprehended the nature of the proposed evidence. The defence did not intend to attack the legitimacy of the complainer's association with the State of Israel. The purpose of the proposed evidence was to put the appellant's comment in context. Although the sheriff explained in the stated case that he had given no weight to the appellant's answer to his question, an objective onlooker would have perceived that there was an appearance of unfairness in his raising the issue and then denying the appellant the opportunity to lead evidence about it. The sheriff had said nothing at the trial to suggest that he had disregarded the appellant's answer to his question.

Conclusions

[12] The defence motion arose only because of the sheriff's question. On the face of it, that question had no bearing on the terms of the complaint. Understandably, it raised in the defence solicitor's mind the possibility that the sheriff thought that the issue was material. He would not otherwise have sought to lead evidence on the point.

[13] The sheriff is at pains to emphasis in the stated case that the state/government issue played no part in his decision. The solicitor advocate for the appellant accepted that this was the case, but submitted that the appearance mattered as much as the substance.

[14] In my view, the submission for the appellant is unsound. The sheriff's perhaps incautious question had no relevance to any question of fact or law raised by the complaint. The asking of the question caused no prejudice to the defence. As the sheriff himself recognised, it was irrelevant. In refusing the defence motion, expressly on the ground that the proposed evidence was irrelevant, the sheriff publicly acknowledged that the issue would have no bearing on his decision. There was therefore no substantive miscarriage of justice; nor was there an appearance of injustice.

Disposal

[15] I propose to your Lordships that we should refuse the appeal.

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Mackay of Drumadoon

Lord Bonomy

[2012] HCJAC 53

Appeal No: XJ947/11

OPINION OF LORD MACKAY OF DRUMADOON

in the

APPEAL BY STATED CASE

by

PAUL DONNACHIE

Appellant;

against

PROCURATOR FISCAL, CUPAR

Respondent:

_______

1 May 2012

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Mackay of Drumadoon

Lord Bonomy

[2012] HCJAC 53

Appeal No: XJ947/11

OPINION OF LORD BONOMY

in the

APPEAL BY STATED CASE

by

PAUL DONNACHIE

Appellant;

against

PROCURATOR FISCAL, CUPAR

Respondent:

_______

1 May 2012

[17] I agree that this appeal should be refused for the reasons given by your Lordship in the chair.


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