Select Committee on Religious Offences in England and Wales Written Evidence

Submission from JUSTICE

  JUSTICE is an independent all party law reform and human rights organisation which aims to improve British justice through law reform and policy work, publications and training. It is the British section of the International Commission of Jurists. We welcome the Select Committee on Religious Offences consideration of these issues and we are writing to respond to the call for evidence.

 (A)   Should existing religious offences (notably blasphemy) be amended or abolished?

  1.  JUSTICE believes that the common law offence of blasphemy should be abolished. This offence only applies to the Christian religion, JUSTICE considers that this inequality cannot be justified.

  2.  The last conviction for blasphemy that resulted in a prison sentence was in 1921. Since then there have been two private prosecutions, the 1976 private prosecution of Gay News by Mary Whitehouse and the Salman Rushdie affair. In 1985 the Law Commission proposed that it should be abolished and in 1989 the Home Office undertook that there would be no more state prosecutions for blasphemy. Consequently, JUSTICE considers that there can no longer be justification for retaining this offence on the statute book.


  1.  JUSTICE considers that the crime of incitement to racial hatred should be extended to cover religious hatred. This would act as an important measure to protect vulnerable minority communities and a marker of societal disapproval of such behaviour. The existing provisions on incitement to racial hatred cover some minority religious communities, such as the Sikhs or Jews, but not others such as the Muslims or Buddhists. This is inequitable and unjustifiable.

  2.  "Incitement to Religious Hatred" should be defined as hatred against a group of persons defined by reference to their religion or belief. This would ensure consistency with Article 9 of the European Convention on Human Rights (ECHR) which has been defined to encompass a very wide range of religions and beliefs including the right not to believe.

  3.  There is a delicate balance to be met in any legislation relating to crimes of incitement to religious hatred between protection of the rights to freedom of expression under Article 10 of the ECHR and the prohibition of abuse of rights under Article 17 of the ECHR. Crimes of hatred motivated by a person's religion or belief can amount to breaches of the victim's rights to protection from inhuman and degrading treatment under Article 3 of the ECHR and they may also infringe the right to respect for private and family life under Article 8 ECHR and in some cases the right to manifest religion or belief as protected by Article 9 ECHR. In order to achieve this balance we support the retention of the Attorney General's fiat for any such prosecutions as a way of retaining a balance between the right of freedom of religion and belief and ensuring the continued protection of freedom of expression and legitimate democratic debate. It should prevent unmeritorious claims reaching the court and he will be subject to article 10 as well as article 9 in the operation of his duties.

  4.  Courts are also subject to the Human Rights Act 1998. Accordingly if there were an unjustified interference with the right to freedom of expression under Article 10 they too, like the Attorney-General, would be required to prevent the prosecution. Therefore if the press and media organisations were concerned that the creation of a new offence might be an interference with their freedoms, they can be reassured that they will have the benefit of a double protection against any improper interference. In practice only the most irresponsible and actively aggressive incitement to religious hatred which was likely to cause severe interference with competing article 9 rights would be prosecuted.

  5.  There have been very few prosecutions for incitement to racial hatred—61 between 1998 and 2001, the vast majority of applications to the Attorney General are granted, there have only been six refusals since 1988. Apparently no racial breakdown of these prosecutions is available. This provision has not had any adverse effect on press freedom, even though it protects Jews and Sikhs whose racial identity is also a religious identity.

  6.  JUSTICE would suggest a number of safeguards if such legislation is implemented, for example:

    —  the legislation should include a note of guidance setting out the criteria for the Attorney General's use of his discretion;

    —  the Attorney General's discretion should be subject to scrutiny by Parliament via an annual report to be presented to the Home Affairs Select Committee. This report should include racial/religious breakdown of the figures together with reasons for proceeding/not proceeding with a prosecution.

  A review of the way that the provisions on incitement to racial hatred have been used would be opportune. The Criminal Justice Act 1991, section 95(1) already makes provision for the Secretary of State to publish annually such material,

      "as he considers expedient for the purpose of . . . facilitating the performance by such persons of their duty to avoid discrimination against any persons on the ground of race or sex or any other improper ground."

  JUSTICE suggests either amending this section by adding the word "religion" to race and sex, or adding a more specific duty to break down the statistics by racial and religious group.

August 2002

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