His solicitor sought to challenge whether the charges were set out properly, and made a "plea to the relevancy."
Evidently the procurator fiscal (the prosecutor) was surprised by this and said he was not ready for such a debate. However Sheriff Lothian said that the idea that prosecutors were not ready to defend the setting out of charges that they had drawn up themselves was "absurd" and the hearing went ahead anyway.
Simon appeared on three charges: (1) that he had displayed offensive material, an American flag, with the words "fuck bush" and a swastika, inciting racial hatred; (2) that he had worn a balaclava, shouted, sworn and committed a breach of the peace which was racially aggravated; and (3) that he had resisted or assaulted or obstructed two plain clothes police officers when they arrested him. Today's legal debate concerned the first two charges.
The sheriff accepted the arguments put forward by Simon's solicitor, arguing that the first charge was "focused" on written material rather than behaviour (the relevant statute allows a prosecution for offensive behaviour or written material). The reference to an "American flag" was deleted as being irrelevant. This means that the prosecutor at trial will have to try and establish that the words were themselves were offensive, and that the words and swatika alone could stir up racial hatred.
The sheriff also held that the racial aggravation in the second charge should be deleted, as it referred to "nothing more, nothing less" than the first charge. This makes the breach of the peace charge less serious.
In passing Sheriff Lothian echoed comments made earlier by Mark Thomas at a solidarity demonstration outside St. Leonards police station when he questioned whether there was an American race as such, and was that not something they were proud of?
In all the result is as favourable as could have been hoped, and rather unexpected from a sheriff who has a reputation for being harsh.
Simon Shaw next appears in court for a preparatory hearing (intermediate diet) on 5 January 2004 at Edinburgh Sheriff Court, Chambers Street, and for trial (where the evidence will be heard) on 19 January 2004.