Cupar Sheriff convicts anti-racist of “racism”; Appeal underway.
Sheriff Charles MacNair: "Saying that a state is terrorist says that everyone within the state is terrorist."
In what justified shouts of "scandal" from the public gallery, Sheriff Charles MacNair found Paul Donnachie guilty of racially aggravated conduct today. Even the Daily Mail was shocked.
Sign the open letter of support and read previous reports here. SPSC statement here
The case centred on testimony from Paul's former friend, Jewish fellow student, Chanan Reitblat. Reitblat told the court that both Paul and his co-accused, Sam, had soiled his Israeli flag, following up with comments that "This flag is a terrorist symbol; Israel is a terrorist state; you are a terrorist". No other witness corroborated this statement by Reitblat.
Reitblatt stated in court his firm opposition to international law, his belief that there was no Israeli occupation of any part of Palestine, and his political commitment to Zionist Jews' right to control the entirety of Israel and Palestine, as well as parts of Syria and Egypt.
It's worth stressing - No other witness corroborated Reitblat's assertions; see notes below.
When asked by Procurator Fiscal Brian Robertson "do you see yourself as affiliated to Israel?", Reitblat replied, "Of course. Israel is a Jewish state... You cannot separate Israel from Jewishness... Israel is a state I feel affiliated to by religion."
Explaining that although he had never been to Israel, he believed "Israel is a land for Jews... The Jewish people have a right to self-determination. That is part of my religious belief."
The prosecution led 8 witnesses, only one of whom, Reitblat's room-mate Matt, provided any information pertinent to the racially aggravated conduct charge. He was the only person present in the room other than Reitblat, Paul and Sam.
Matt testified that what happened was boisterous but good natured; nothing that was said or done was malicious, and that nothing was directed or targeted at Reitblat as an individual. This testimony stands directly against Reitblat's assertion that they both said, "you are a terrorist".
Matt said that Reitblat was irritated by the incident but said that his level of annoyance seems to have increased over time. Reitblat had told him that he was annoyed that Sam had peed in his sink, and that Paul had soiled his flag. Reitblat denied in court that he had discussed this with Matt.
Reitblat also told the warden at the student halls of residence that Sam had done nothing. She said so when interviewed by police, and again in court on Monday.
Later, in his summing up, the solicitor for Paul's co-accussed, Sam Colchester, explained that Reitblat's evidence had been "unreliable and incredible". He went through a range of clear inconsistencies between what Reitblat had said in previous statements and what he now says. This went unchallenged. The sheriff declared a "NOT PROVEN" verdict in relation to Sam.
After the prosecution case had been made, Paul's lawyer argued that there was no case to answer; that the evidence led did not constitute a crime. He argued that soiling the Israeli flag, which Paul has openly admitted all along, was not a crime, and that there was no corroboration of Reitblat's accusation that they had said, "you are a terrorist", which was the only accusation pertinent to the racially aggravated conduct charge.
The sheriff seemed to ignore these arguments completely, stating that "his conduct had been directed toward the complainer purely because of his membership of a racial group".
The sheriff argued that it had been alleged by the complainer, Chanan Reitblat, that Paul had said, "This flag is a terrorist symbol; Israel is a terrorist state; you are a terrorist". He went on, "even if we assume that he didn't call him a terrorist, the other comments were directed at him because he is Jewish and has a link to Israel."
So the sheriff decided that there was a case to answer, so the defence case would have to be made.
Giving testimony, Paul explained that the defacing of flags was a time-honoured method of showing disaffection to the state, and explained that he had never called Reitbalt a terrorist, but that he had said Israel was a terrorist state.
"I'm not contending that my action toward the flag was commendable or dignified, but it was a political expression."
The sheriff made a very confused attempt to clarify what Paul meant when he referred to a state, and tried to conflate criticism of a state with criticism of the people within it. Paul made a clear distinction. He told the sheriff that "the citizens of a country cannot be held responsible for the actions of a state".
Sheriff MacNair explained that,"The state of
The sheriff then refused to allow Paul's lawyer to call the three expert witnesses to appear. Liz Elkind and Sarah Glynn, both leading members of of Scottish Jews for a Just Peace, and SPSC chair Mick Napier were going discuss the dangers of conflating Judaism with Zionism and Israel, the history of Zionist attempts to do so, and the concepts of Israel and Israeli nationality. The sheriff considered this irrelevant because there was nothing they could teach him that common sense wouldn't provide.
So the prosecution called 8 witnesses, and Paul's lawyer was only permitted to call Paul...
In his summing up, Paul's solicitor reminded the sheriff that there had been "no corroboration of the accusation that Paul had called Reitblat a terrorist". The sheriff had already explained to the court that Scots law requires corroboration; one witness is not enough.
Paul's lawyer explained that the defacing of the flag was an "act of political expression, as protected by article 10, which included physical acts. He discussed proportionality of the charge: "the Napier [SPSC5] case discussed the stigmatisation attached to the charge".
He said that "an affront to the flag, criticising the state of Israel, is not a criminal act in terms of Section 50A."
The sheriff responded: "Saying that a state is terrorist says that everyone within the state is terrorist. He doesn't distinguish between the state and the people."
The sheriff continued, "Mr Donnachie doesn't distinguish between the government of Israel and the state."
The expert witnesses may have been able to teach the sheriff something after all. Pity it was too late.
The sheriff then took less than 5 minutes to come to a decision.
In relation to Paul, he said that there was "only one issue of fact between them" [the statement, "you are a terrorist"].
"I hold that you said, that's a terrorist flag, Israel is a terrorist state, and you are a terrorist.
"Section 50A requires malice or ill will towards a person based on their membership of an ethnic group; which includes nationality and association with that group.
"It was malice and ill will because of his presumed membership of Israel."
The sheriff found Paul guilty of racially aggravated conduct, and deferred sentence until Sep 13th.
Paul, although shocked at the clear injustice, composed himself before facing the media. According to STV, 'Outside the court, Donnachie said he would appeal. He said: "This is a ridiculous conviction. I'm a member of anti-racism campaigns, and I am devastated that as someone who has fought against racism I have been tarnished in this way."'
It should be highlighted that Paul has been convicted on the uncorroborated evidence of one person. That person is an ultra-zionist, who in court refused to accept that Israel occupies the West Bank.
On top of this, grounds for appeal include (but are not restricted to) the sheriff's refusal to receive the devolution minute at the last diet (legal challenge over the competency of the charge); and his refusal to exercise discretion in allowing the defence to call witnesses this afternoon - witnesses who according to Paul's lawyer were clearly "cogent to the determination of the case."
Within the hour, St Andrews university had expelled Paul and suspended Sam for one year.
According to the Daily Mail:
"The judge had earlier refused defence solicitor Patrick Campbell to allow evidence from academic experts on whether the actions of Donnachie constituted an attack on the Israeli state as opposed to racism.
"Due to be called was Jewish politics lecturer Sarah Glynn who was close to tears as she left court and told Reitblat's family their actions were 'scandalous.'
"She said : 'As a Jews, you should be ashamed. This is devastating.'" [Actually said to Rabbi Wayland, "As a Jewish Rabbi, you should be ashamed." SPSC]
Paul, although shocked at the clear injustice, composed himself before facing the media. According to STV, 'Outside the court, Donnachie said he would appeal. He said: "This is a ridiculous conviction. I'm a member of anti-racism campaigns, and I am devastated that as someone who has fought against racism I have been tarnished in this way."'
He will win!
This account of trial is supplemented by an; an official SPSC statement
NOTES
Scots Law: Morton v HM Advocate 1938 J.C. 50 at 55.
"[B]y the law of Scotland, no person can be convicted of a crime or a statutory offence, except where the Legislature otherwise directs, unless there is evidence of at least two witnesses implicating the person accused with the commission of the crime or offence with which he is charged. This rule has proved an invaluable safeguard in the practice of our criminal Courts against unjust conviction, and it is a rule from which the Courts ought not to sanction any departure."
Scottish Law Commission; December 2010; Discussion Paper on Similar Fact Evidence and the Moorov Doctrine: www.scotlawcom.gov.uk/download_file/view/596/
Law Society of Scotland launches Corroboration Defence
The Scottish Human Rights Commission and the Law Society of Scotland have both come to the defence of corroboration.
President of the Law Society of Scotland, Cameron Ritchie said: "We feel the requirement for corroboration should remain. It is a vital safeguard of Scots law that ensures that people cannot be convicted on the word of just one person.
http://www.mcsporrans.com/Latest-News/entry/law-society-of-scotland-launches-corroboration-defence.html