Monday, 11 April 2011

Burning the Koran

It seems that there is an epidemic of Koran burnings around at present and in Wales a charge has just been dropped against Sion Owens who is alleged to have burnt a Koran in his garage. This of course follows the more widely publicised burning of a copy of the Koran in Florida by "pastor" Terry Jones.

It is clear that Terry Jones will not be prosecuted in the US because of the protection offered by the 1st Amendment so what about the legal position in Britain ?

According to the news reports the wording of the charge against Owens was that he was in possession of
"a record of visual images or sounds showing you burning a copy of the Koran whilst saying 'I am burning the Holy Koran and I hope that you Muslims are watching."

None of the news reports have specified what particular offence Owens is alleged to have committed other than some press reports referring to s 29 of the Public Order Act 1986 which cannot be correct since s29 is simply an interpretation section. I suspect it is a charge of Incitement to Religious Hatred which was introduced by the Racial and Religious Hatred Act 2006 which added a new set of sections to the Public Order Act ss 29A to 29N. The charge was probably contrary to either s29E or s29G

s29A Meaning of “religious hatred”
In this Part “religious hatred” means hatred against a group of persons defined by reference to religious belief or lack of religious belief.

It is important to note that there is nothing in the Act which prevents hatred of a religion, ie Islam, as opposed to hatred of a group of religious believers ie Muslims

29E Distributing, showing or playing a recording
(1) A person who distributes, or shows or plays, a recording of visual images or sounds which are threatening is guilty of an offence if he intends thereby to stir up religious hatred.
(2) In this Part “recording” means any record from which visual images or sounds may, by any means, be reproduced; and references to the distribution, showing or playing of a recording are to its distribution, showing or playing to the public or a section of the public.
(3) This section does not apply to the showing or playing of a recording solely for the purpose of enabling the recording to be included in a programme service.

s29G Possession of inflammatory material
(1) A person who has in his possession written material which is threatening, or a recording of visual images or sounds which are threatening, with a view to—
(a) in the case of written material, its being displayed, published, distributed, or included in a programme service whether by himself or another, or
(b) in the case of a recording, its being distributed, shown, played, or included in a programme service, whether by himself or another,
is guilty of an offence if he intends religious hatred to be stirred up thereby.
(2) For this purpose regard shall be had to such display, publication, distribution, showing, playing, or inclusion in a programme service as he has, or it may be reasonably be inferred that he has, in view.

There is also a specific free speech defence built into the Act

s29J Protection of freedom of expression
Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

The question is whether the burning of a Koran is itself "threatening" and I frankly doubt that it is ON ITS OWN. In certain circumstances the burning of any book (Koran, Bible, Satanic Verses) could be deemed to be threatening but usually because of some other factor present alongside the burning. For example a large mob surrounding a Mosque and burning a Koran in full view of the congregation could indeed be seen as threatening but if it is simply done in someones own backyard I do not see how that could qualify as threatening. Offensive yes, insulting yes but, and it is a big but, that is not the same as being threatening and unless it is threatening the case does not get off the ground. In addition burning of a Koran can easily be described as an
"expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents"

In some of the newspaper reports about the Owens case there have been suggestions that the CPS dropped the case because the consent of the Attorney General had not been obtained. Certainly a prosecution for Incitement to Religious Hatred requires the consent of the Attorney General but this does not prevent a suspect being charged and remanded in custody whilst the consent of the AG is formally sought; see R v Whale and Lockton [1991] Crim LR 692. If the charge against Owens was dropped by the CPS it was not because the AG had not been involved before the decision was made to charge him.

Moving beyond the Incitement to Religious Hatred offences there is the possibility of a prosecution under the Religiously Aggravated provisions of s4A or s5 of the Public Order Act

An offence is Religiously Aggravated when
"(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim's membership (or presumed membership) of a racial or religious group; or
(b) the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.
"Religious Group" means "a group of persons defined by reference to religious belief or lack of religious belief."

To commit an offence under s4A or 5 an offender needs to use "threatening, abusive or insulting words or behaviour" and I can see that the burning of a Koran falls under the "insulting" provision. However for s4A there must be an "intent" to cause "harassment, alarm or distress" so once again context is crucial; burning a Koran in front of a group of Muslims would certainly show an intent to cause distress but a private burning I think not. As for s5 whilst intent is not necessary the
"threatening, abusive or insulting words or behaviour, or disorderly behaviour" must be used "within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby" which once again presupposes a public event with Muslims present.

So on balance I cannot see that any offence could have been committed by Mr Owens or any similar Koran burner in Britain because the simple fact of burning the Koran is not in itself a crime.

There is however a real question about the overreaction of the Police in this case which rather parallels their overreaction in arresting a street preacher last year over his comments on homosexuality. Why was it necessary to arrest Mr Owens at night and why was it necessary to hold him in custody. He had not after all been accused of a crime of violence so why was he not bailed to go to Court as would happen in most "normal" cases. The Police really do need reminding of the fact that people do have a right to express opinions that ACPO disagree with

There is also the question of Police, CPS and Home Office inconsistency in the way in which they deal with the destruction of a Koran as opposed to insults to symbols of other religions. Last year a Bible was defaced in Scotland as part of an "Arts" exhibition but no official action was taken nor was there any official criticism. in 2008 a Statue of Christ with an erect penis was displayed in an Art Gallery in Gateshead and a private prosecution was stopped by the CPS on the grounds, inter alia, of freedom of expression. If the Police and CPS are inconsistent and unfair in their application of the law that is more harmful to community relations than anything done by an individual as a personal protest.

Finally can I just make it clear that I don't support or defend the burning of the Koran or the Bible or indeed any other book it is an unpleasant and pointless thing to do but that doesn't mean it is or should be illegal. Also I know that the 'in people' spell it Q'ran not Koran in order to show how with it they are but I prefer to stick to the traditional English spelling. I also write Boadicea rather than Boudica, it is my choice which after all is what freedom should be all about.


Colin Elves said...

I note that Sec 4a states:

Intentional harassment, alarm or distress.

(1)A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—

(a)uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b)displays any writing, sign or other visible representation which is threatening, abusive or insulting,
thereby causing that or another person harassment, alarm or distress.

(2)An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling.

(3)It is a defence for the accused to prove—

(a)that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or

(b)that his conduct was reasonable.

In which case, (I think, I'm not a lawyer and I'm aware that law doesn't always follow the rules of normal discourse) distributing it on the internet is would be a contravention of part 3a above, namely that he clearly intended for the 'offensive' act to be seen by people outside his dwelling, in fact, by stating "I hope you muslims are watching", he indicates he was intending for it to be seen by people that would find it offensive.

In other words, I think there is some room for interpretation there, is there not?

On the other hand - and, again, I'm not sure where things stand on this - since he produced a 'film' (ergo, ersatz artistic product), he might have recourse to argue that his arrest was in contravention of his rights under Article 10 of the European convention of Human Rights (Freedom of expression)
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

I suppose the obvious corollary would be a film made by a feminist visual artist who burnt the Koran in protest at the treatment/status of women within the muslim community. This could have exactly the same form but, I assume, would not be liable to prosecution...

It'd be interesting to know your thoughts on that.


Alex Benziger G said...

Mr. Colin Elves,
The cinema, Da Vincy Code,produced by Don Brown against Lord Jesus Christ with all profane languages in 2006. Everybody said that it is a freedom of speach & thought and it cannot be punishable. But anyone said anything against Islam, immediately, it may be condemned by every quarters. So the Western world is against christianity.

Colin Elves said...


The Da Vinci Code, was a crime against all forms of gentle culture: literature, art and Christianity included - I came away from that book worrying that its stupidity and painfully awful prose may have physically damaged my mind, may have left me with an increased risk of developing a brain tumour. To then unleash it upon the illiterate in an equally awful movie was no less than a crime against humanity.

But I don't really see what business it would have been of the government's to prevent its dissemination in ay of its horrific forms, so long as some people were tragic enough to pay good money for it (or foolish enough to steal a copy).

And it's a bit silly to say the West is 'against' Christianity, just because some people condemn acts that Muslims find offensive. It's not like defending Muslims and defending Christians are mutually exclusive activities. In fact, rising to the defence of a minority group strikes me as a rather 'Christian' thing to do.

Not only that but clearly a lot of people in the West condemned the Da Vinci Code and for theological reasons too, not just for its awfulness - many more people than those who condemned the burning of the Koran - and doing so didn't suddenly make them 'against' Islam.

Despite what some rather excitable people (both 'Christians' and 'Muslims') feel there is no 'them against us' going on - just certain groups of people trying to stir up trouble for their own political ends while everyone else is just going about their business trying to get along.

Anyway, my comment was about the limits of state censorship. Which shouldn't have been applied in either case, especially the Koran burning since no-one got physically harmed (apart from those poor souls who developed brain tumours after 'experiencing' the Da Vinci code).

And about me trying to understand the limits of British law.

Neil Addison said...

Dear Colin

I take your points re s4A. I had considered whether their might be an argument re being in a dwelling and the recipient in another dwelling but I didn't know enough facts to comment on that possibility and in any event I think the Courts would be reluctant to extend that defence to cover Internet contact.

s4A(3)(a) is a Defence not an Offence ie someone is not guilty of s4A merely because they intended their message to be seen by someone outside it works the other way that they might not be guilty because they prove that they did not intend it to be seen.

I also agree that his arrest could well have been a breach of Article 10 indeed in my view it was