A Scottish sheriff has thrown out a case against five Scottish Palestinian Solidarity Campaign protesters who disrupted a concert by an Israeli classical ensemble.

Five people, Michael Napier, Neil Forbes, Sophia McLeod, Kevin Conner and Vanessa Fuertes, had been arrested after disrupting a performance by the Jerusalem Quartet during the Edinburgh Festival in August, 2008.

They shouted: “These are Israeli army musicians. Genocide in Gaza. End the siege of Gaza. End genocide in Gaza.”

They were charged originally with breach of the peace and all pleaded not guilty. Six months later the prosecution abandoned that case and instead charged the five with a racially aggravated conduct.

The case was unusual because the demonstrators could be heard on a BBC recording of the concert.

At a hearing at Edinburgh Sheriff Court last week, Graham Fraser, the Procurator Fiscal, argued for the prosecution that the comments about Israel and Israelis represented harassment of the musicians based on their membership of an ethnic group or nationality.

He said that, in referring to Israeli musicians, Mr Napier was directing comments at people , not the state , and that in associating this with the comments “genocide” and “siege of Gaza”, malice and a clear intent to cause alarm or distress were demonstrated.

But Mr Napier’s counsel, Andrew Mason, said that it was criticism of a state rather than an individual and that, as a single incident, it could not be termed a course of conduct.

Sheriff Scott said: “It seemed to me that the procurator fiscal’s attempts to squeeze malice and ill-will out of the agreed facts were rather strained.”

The sheriff ruled that the prosecution should not be continued, saying that if people on a public march were not allowed to name the state against which they were demonstrating, it would render their right to political expression worthless.

Sheriff Scott brought laughter when he said: “Presumably their placards would have to read, ‘Genocide in an unspecified part of the Middle East’ or ‘Boycott an unspecified part of the Middle East.’”

The prosecution was granted leave to seek an appeal against the judgement.

Outside the court, in the presence of the five defendants and some 15 supporters, human rights lawyer Aemer Anwar, defending, said: “We welcome today's judgement which impacts on civil liberties in Scotland.

In a democracy prosecutions must be proportionate. Freedom of expression and the right to protest of course carry responsibilities but a dangerous precedent would be set.”

SPSC Chairman Mick Napier said : “It is a constant, never ending attempt by those who support the state of Israel to name those who support the Palestinians as antisemites. It never ends. Well it ended in court today and we will not be intimidated by this smear in the future.”