The purpose of this essay is to discuss whether religion should ever impact criminal law. The question of if it is desirable for religion to impact criminal law is endemic. Advocates of a strict application of the separation between church and state may eschew any notion of this being desirable. However, it is submitted that religion impacts criminal law and vice versa. To deny this would be erroneous.
In a religious plurality, the law has a fastidious task of treating religious groups equally – the State must not give a preferential treatment to one particular religion. But how feasible is this? If one accepts that religion should ever impact criminal law, which religion or religions should have an impact?
There have been calls for a Parliamentary inquiry into scale of Sharia law in the UK after the Law Society was ‘accused’ of promoting Islamic law. Although the particular areas of Sharia law currently being reviewed relate to private law (wills), imagine if the Sharia penal code were incorporated into English law? Wouldn’t other religions want to be accommodated in such an arrangement?
The idea of equality before the law is redolent of the Rule of Law doctrine. Dicey predicated:
“No man is above the law; every man and woman, whatever be his or her rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”.
While generally used to refer to government according to the law, it is submitted that this principle is germane to religious establishments.
In Wilkinson , the owner of a bed and breakfast had discriminated against a gay couple because of their sexual orientation under the Equality Act (Sexual Orientation) Regulations 2007 by refusing them accommodation. The limitation imposed on the freedom to manifest her religious beliefs under Article 9 was justified, as it was prescribed by law, and necessary for the protection of the rights and freedoms of others. While not a criminal case, it is contended that the Law be generally applicable. If a law prohibits a certain action, religious justifications should not necessarily circumvent it.
This contention may be buttressed using Andrews . The appellant, a Rastafarian appealed against his conviction – he had imported cannabis, contrary to the Customs and Excise Management Act 1979. He contended that the use of cannabis was part of his religious right and consequently s.170 (2) of the Act was incompatible with his Article 9 rights.
It was held that there was no incompatibility between s.170 (2) and his Article 9 rights, applying the principle of Taylor . Even if there had been interference with Article 9 (1), it would have been justified under Article 9 (2) for the protection of public health.
It is submitted that religion should impact on criminal law. The extent to which it should impact on criminal law is a separate issue.
Edge discusses some of the reasons why law is important to religion. He states “law may be seen as...