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.