Famine Song is racist, not free speech, judges rule

The Justiciary Appeal Court in Edinburgh ruled the song was in a different league from Flower of Scotland or God Save the Queen, and that Rangers supporter William Walls, who sang it, was rightly convicted of a racially-aggravated breach of the peace.

Walls, 20, of Glasgow, had been arrested at a Kilmarnock-Rangers game in November last year, after stewards employed by the Ibrox club became concerned at the effect his behaviour might have on other supporters.

He was shouting "Fenian b*****ds" and "f*** the Pope", and repeatedly sang a line from the Famine Song, "the famine's over, why don't you go home". The song is banned by Rangers.

A sheriff ruled Walls had committed a racially and religiously-aggravated breach of the peace, and put him on probation for 18 months and banned him from football matches for two years.

At the Justiciary Appeal Court, Donald Findlay, QC, for Walls, argued that the Famine Song was not racist, particularly the refrain sung by the accused. He said it was an expression of political opinion, permitted by the right to freedom of speech enshrined in the European Convention on Human Rights.

Mr Findlay submitted that the refrain was no more racist than some of the lines of Flower of Scotland, which bid King Edward to return to England to think again, or God Save the Queen, which refer to crushing rebellious Scots.

He said the reference to "Fenians" was also political, and was about the Fenian Brotherhood, a political society set up in America in the 1850s to bring about the independence of Ireland.

Mr Findlay contended that, if the references were seen in their proper context, Walls's conduct could not amount to a breach of the peace. An exchange of abuse between supporters was part and parcel of going to a football game, he said.

Giving the court's judgment, Lord Carloway said: "The court has no doubt that (Walls's] conduct did amount to a breach of the peace, even in the context of a football match. Presence inside a football stadium does not give a spectator a free hand to behave as he pleases. There are limits and the appellant's conduct went well beyond those limits."

Lord Carloway, sitting with Alastair Dunlop, QC, and Brian Lockhart, said the court did not accept that Walls had been referring to the American brotherhood. It was within judicial knowledge that the term "Fenian" was used by a certain section of the population to describe a person of Irish ancestry or a person of the Roman Catholic faith, whether of Irish ancestry or not.

On the Famine Song, about the Irish potato famine of the 1840s, he said: "The song calls upon persons of Irish descent, who are living in Scotland, to go back to the land of their ancestors, namely Ireland.

"They (lyrics] are racist in calling upon people native to Scotland to leave the country because of their racial origins. This is a sentiment which many persons will find offensive."