The High Court has upheld a Sheriff’s ruling that an attack on a Jewish student because he had an Israeli flag on his wall was “racially motivated”, and could not be justified by his political beliefs.

Last September, Paul Donnachie, who was a student at St Andrews University, was convicted by Sheriff Charles Macnair for “acting in a racially aggravated manner that caused distress or alarm” to a Jewish fellow-student.  He was sentenced to 150 hours community service and ordered to pay £300 compensation, and was also expelled from the university.  His co-accused, Samuel Colchester, was acquitted but was also sent down. Their victim, Chanan Reitblat, who was in St Andrews on an exchange programme from Yeshiva University in New York, was asleep in bed when his attacker jumped on him, called him a “terrorist”, wiped his hand on his genitals and then onto the Israeli flag that had been a present from his brother, and urinated around the room causing what was described in court as “collateral damage” to Chanan’s toothbrush.

The Sheriff said he was satisfied that the attack had caused “distress or alarm” and was “motivated by malice and ill-will”.  The issue was neither antisemitism nor the Israel-Palestine conflict; because it was motivated by Chanan’s identification with Israel, it was a “racist attack”, as defined in law.

Donnachie appealed, and his case was heard by a High Court bench presided over by Scotland’s second most senior judge, the Lord Justice Clerk.  At the hearing in Edinburgh on 4th April, John Scott QC on behalf of Donnachie made a number of important concessions.  He said that what had taken place in Chanan’s room “went beyond the bounds of legitimate protest”, and conceded that, although Donnachie denied calling Chanan a “terrorist”, he “agreed with the sheriff’s right to make that finding”. He added that Donnachie’s purported written apology to the complainant the next morning “was certainly clumsy”, and “did not help matters”.

Consequently he said he would not be pursuing these points on appeal, but only what he referred to as one “narrow point of law” relating to whether the Sheriff should have permitted the defence at the original trial to have called three witnesses about the relationship between Judaism and Israel.  In reply to an intervention by the Lord Justice Clerk, he conceded that this would probably have made no difference to the verdict. “It is accepted the relevance of the evidence is not altogether apparent,” but “this Appeal is in essence on the appearance of justice not being done rather than on justice actually not being done.”

The Principal Advocate Depute, Alex Prentice QC, responded that the Sheriff had properly sought to ascertain how the evidence of the proposed witnesses would add to the matters under consideration, but the defence had been unable to articulate any notion of what they would to attest to. He said that every criterion laid down by the legislation to convict had been met.

The court reserved judgement, and on 1st May dismissed the appeal, agreeing with the Sheriff’s ruling that “the views of the proposed witnesses on the political situation in Israel could have no bearing on the question”.  The concluded that “there was therefore no substantive miscarriage of justice; nor was there an appearance of injustice”.

"We note and welcome the decision of the court." said the Lord Advocate, Frank Mulholland QC. "COPFS has a zero-tolerance approach to prosecutions of crimes motivated by bigotry and intolerance of any kind. There is no place in modern Scotland for such behaviour and we will do all in our power to ensure that offenders are brought to justice."

Welcoming the verdict, Nicola Livingston, chair of the Scottish University Jewish Chaplaincy Board said, “This is a landmark judgement.  The Jewish student community will welcome the definitive ruling that abusing a Jewish student for his identification with Israel, is criminal and racist in nature.  Interest in Israel’s legitimate welfare is an integral part of the Jewish identity of the mainstream Jewish community and has been for generations, and we therefore welcome the court’s decision to uphold the rights of Jewish students to express their identification with Israel, if they wish, without harassment, intimidation, or racialist attack.”