Religion and the criminal law: disregarding the faith

Published in Criminal Law & Justice Weekly, Vol 175, 26 February 2011, p 124

Without question, religion and the law constitutes one of the most contentious issues in public debate in the present day. Criminal law is no exception, as illustrated by two high profile cases from 2010.

The first was that of Shamso Miah, who punched a member of the public over an argument as to their respective places in a bank queue. The victim suffered a fractured jaw, and Miah subsequently pleaded guilty to assault occasioning actual bodily harm. Miss Cherie Booth QC, sitting as a part-time judge, imposed a sentence of two years’ imprisonment, but proceeded to suspend the sentence on the basis that “[y]ou are a religious man and you know this is not acceptable behaviour.”

Miss Booth’s remarks were widely criticised at the time, and rightly so. They are illogical for a start: the fact that Miah knew his behaviour was wrong evidently did not stop him doing it. If anything, it should have been an aggravating factor, since it demonstrates he was able to assume full responsibility for his actions.

Moreover, belief in the concept of right and wrong is not the preserve of the religious. While the subject does not lend itself to brief summary, it can be observed that many great wrongs have been, and continue to be, committed in the name of religion. It is also true that many have been committed in the name of secular ideologies. The point is that making judgements about the relative merits of secular versus religious ideology or ethics is a philosophical minefield. It is no business of the courts, certainly not in straightforward criminal cases.

In any event, trying to adopt a religious exemption or mitigation for criminal conduct would be unworkable in a multi-faith (and perhaps predominately secular) society such as the United Kingdom. There are too many differing standards amongst too many faiths, never mind trying to define the concept of a religion to begin with.

It is true as a matter of historical observation that the common law and its values have a shared history with Christian ethics, and that the United Kingdom retains an established church. But the days of the common law being actively developed by religion have long passed, and the courts regularly reiterate (correctly) that they are a secular institution.

Judges should not, therefore, make any assumption about the character of defendants based on their apparent religious beliefs, and in the particular case Miah’s should have been of no mitigation or aggravation. The relevant factors were the same as any other defendant: prior convictions or absence thereof, and positive evidence of good or bad conduct.

Of course, good conduct may be motivated by religious belief, but that is neither here nor there. It is the conduct itself, not the informing belief, which constitutes the mitigating factor.

By the same reasoning, the religious beliefs of the victim are equally irrelevant, as should have been recognised in another highly publicised case, namely the attempted murder by Roshanara Choudhry of Stephen Timms MP.

According to the sentencing remarks, Choudhry had been indoctrinated into Islamic extremism, and stabbed Timms out of "revenge" for his having supported the Iraq War. The judge went on to contrast Choudhry's values unfavourably with Timms’ strong Christian values, and when describing the latter lauded the historical relationship between Christianity and the common law.

It was right to observe that Timms was an innocent victim and that Choudhry was acting out of wholly inexcusable motives. Yet the purpose of the sentencing exercise was only to ascertain two things: first, whether the victim contributed towards the offence, and secondly, what other aggravating or mitigating factors applied to the defendant. Having established that Timms did nothing to provoke the attack, his other characteristics should have fallen away. The law does not evaluate the worthiness of criminal victims: an attempted murder is just as objectionable whether the victim is a selfish non-contributor to society or a genial philanthropist.

As to Choudhry, her beliefs were correctly judged to have been of no exculpatory or mitigating value whatsoever. They were, however, a factor in determining future risk – if she had carried out the attack in pursuance of her ideology and had no remorse or regret, then she was presumably likely to do it again.

Occasionally it is suggested that the presence of many faiths in the United Kingdom should be reflected in public institutions and processes. On the contrary, a separation of church and state is the only way that all beliefs (including non-beliefs) can be treated the same. This poses no threat to the survival of religion – quite the opposite. It ensures that no particular faith gains the favour of the state. And in the context of the criminal law it ensures that everyone is protected – and prosecuted – equally.