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In September 2020, protestor Sean Clerkin was arrested after displaying a banner at Edinburgh Airport reading “England Get Out of Scotland”. He was charged with a racially aggravated breach of the peace and displaying a banner without permission on Edinburgh Airport property. The banner had previously been displayed by him in other locations during 2020, including at the England-Scotland border at Berwick and outside Glasgow Central Station, all reportedly in protest at the border not being closed given the rise of Covid-19 cases. He denied it was an expression of any anti-English feeling.

Clerkin has confirmed to the media his intention to plead not guilty when the case calls at Edinburgh Sheriff Court next month. He has stated that his rights to free speech and to protest are protected under the European Convention on Human Rights (Articles 10 (freedom of expression) and 11 (freedom of assembly and association) respectively).

His assertion is, in part, correct. Articles 10 and 11 of the ECHR provide positive rights for an individual, but they are qualified. A state can interfere with those rights if necessary for a variety of reasons, including to protect the rights and freedoms of others, and for the prevention of disorder or crime.

Therefore there is a balancing act involving protecting the rights and freedoms of individuals who are protesting as well as the rights and freedoms of those who may feel targeted, alarmed or disturbed by those protests.

Breach of the peace is a pretty wide-ranging term for a number of actions which “could cause alarm to ordinary people and threaten serious disturbance”, and be described as “conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable people”. This comes from Smith v Donnelly, a leading breach of the peace case from 2001 which also involved the actions of a protestor.

A human rights argument was also made when that case was appealed. The accused’s argument was that the crime of breach of the peace itself was so vague as to be a breach of Article 7 of the European Convention on Human Rights – no punishment without law; in other words a crime and its penalty must be clearly defined in order that an individual knows whether their conduct would be considered a crime or not. In Smith v Donnelly, as with Clerkin’s case, the accused (Smith) had engaged in the same conduct on previous occasions and had not been arrested.

Smith’s appeal was refused, and the High Court confirmed that no “comprehensive definition [of breach of the peace] which would cover all possible circumstances” would be possible, given the number of different ways in which it could be committed. It did, however, clarify that where there is no evidence of actual alarm having been caused, the conduct must be “flagrant”; i.e. the conduct must be of a level that any reasonable person would be alarmed by it.

Context is key in breach of the peace cases and it is hardly a secret that there are anti-English attitudes in Scotland, particularly in recent years as the country continues to endure the consequences of a Tory government in Westminster. The distinction between English people generally and the Westminster government is often lost. The independence debate rages on and it is unfortunate that it has, in some circles, been reduced to a binary split between “yes” and “no” camps, when the reality is much more nuanced. Existing anti-English sentiment has unfortunately found a place to breed where arguments remain so polarised. However whether Clerkin is someone who shares such a sentiment is not relevant in deciding whether the banner displayed by him at the border and at cross-border travel points would cause a reasonable person to be alarmed or disturbed by it.

In Clerkin’s case it will be interesting to see how a court deals with his decision to display the banner at those locations, and therefore potentially at people making the journey, rather than to direct his arguments solely at those with the power to temporarily halt travel across the border in an effort to slow the spread of Covid-19, which he states was his motivation.

Of course the outcome of the upcoming case can only be guessed at, but if the arguments to be made in Clerkin’s defence are indeed in relation to Articles 10 and 11 of the ECHR it is hard to see how they will be successful in the current climate.

Blog by Shona Cocksedge, Solicitor



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