The story about a Christian Street preacher, Mr Dale Mcalpine, who was arrested fro saying "Homosexuality is a sin" is a worrying reflection of the current obsession by Police and officialdom with the murky concept of "Hate crime".
The actual facts of the arrest of Dale Mcalpine were recorded on video and make worrying watching
The uniformed official grinning vacantly in the background is apparently the PCSO (Police Community Support Officer) who had actually called the Police to report Mcalpine preacher for "Homophobia". The first words of the Police when they arrive is
"Hello sir. What have you been saying, homophobic wise ?"
which hardly constitutes any form of articulate meaningful question and the conversation then gets worse
"McAlpine: I spoke to your officer earlier and he was upset that I was saying homosexuality was a sin – which is what the Bible says. And I affirm that’s what I say because that’s in the Bible. And there’s no law, there’s no law…
Police: Well there is.
McAlpine: No there isn’t.
Police: There is. Unfortunately, mate, it’s a breach of Section 5 of the Public Order Act"
following which Dale Mcalpine was arrested taken to a Police station, made to give his DNA and Fingerprints and eventually charged only to have that charge unceremoniously dropped by the Crown Prosecution Service once the facts of the case were examined by lawyers and Police officers who were capable of using more than one Brain Cell at a time.
If the arresting Police officer had been correct and it was a breach of s5 of the Public Order Act for someone to say that "Homosexuality is a Sin" that would raise some interesting questions; since when did it become the role of the law to decide what is or is not "a sin" and when did it become illegal to say that any form of behaviour was "a sin". If someone says that adultery is a sin can a serial womaniser demand their arrest, can a fat lazy slob demand the arrest of anyone who says that gluttony and sloth are 2 of the seven deadly sins ?
The real question is of course "Were the 3 Police Officers and 2 PCSO's involved in this situation all idiots or is there a problem with the wording of the law itself" ?
Section 5 which is the law that the arresting Police Officer referred to is one of the most common offences used in the Criminal Courts and most Police Officers and Criminal Lawyers can recite it from memory, What it actually says is.
"Public Order Act 1986, s. 5 Harassment, alarm and distress
(1) A person is guilty of an offence if 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,
within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
(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 other person is also inside that or another dwelling.
(3) It is a defence for the accused to prove–
(a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or
(b) 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
(c) that his conduct was reasonable.
(4) (arrest provisions now irrelevant)
(5) (arrest provisions now irrelevant)
(6) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
S6(4)Mental element: miscellaneous)
A person is guilty of an offence under section 5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly"
So the arrest of Dale McAlpine depended on the Police deciding that he had used "threatening, abusive or insulting words" when he said that "homosexuality was a sin". There is no legal definition of "threatening, abusive or insulting" because the Courts take the view that words are to be interpreted using their normal and natural meaning. On that basis the words "homosexuality was a sin" were clearly not "threatening" and they were not "abusive" but they could, I suppose, be regarded as "insulting" so the question I pose is "should it be an offence to use words that are insulting ?"
The concept of "insult" is after all very subjective and almost anyone can feel insulted by something. If somebody was to say "Geoffrey Robinson is a much better lawyer than Neil Addison" I might well feel insulted but should I therefore be able to demand that persons arrest, similarly when Nick Clegg denounced David Cameron for having joined up with "nutters" in the European Parliament should he have been arrested ?
To ask the question is itself to state the answer, insults should not of themselves be even considered as criminal. Looking back on the large number of s5 cases I have either prosecuted or defended over the years I cannot think of any "normal" public order situation which could not be covered by the words "threatening and abusive". Most cases under s5 involve people (often drunk) yelling aggressively and making frequent use of the "F" word and that is the sort of situation that s5 and indeed the entire Public Order Act was supposed to deal with, it was never supposed to deal with the situation where individuals, whether street preachers or otherwise, were expressing their personal opinions.
In the case of the Mohamed Cartoons those who objected to them said they were "insulting" and certainly the flexible, and highly subjective, nature of "insult" was one of my main reasons for opposing the proposed religious hatred law which, as originally proposed by the Labour Government, would have criminalised "threatening, abusive or insulting" words.
In one sense the real problem thrown up by the McAlpine case as with the numerous similar incidents of Police over-reaction to complaints of Homophobia, Islamaphobia, racism etc etc is the abysmally low standard of training of Police officers regarding the nebulous concept of "hate crime"; their lack of training about their duty to defend the legal right of free expression and a simple lack of old fashioned common sense.
Improving Police training in this area is therefore a priority however that improved training might benefit from a simple change in the law namely the removal of "insulting" from all offences in the Public Order Act 1986. If the new government is looking for a way of dealing with situations such as those of Dale McAlpine which tend to bring the Police into disrepute then removing "insulting" from the POA is my suggestion and for those who might want to oppose the suggestion I pose the question "what possible situation can you conceive of where a prosecution would be justified for the use of words which are 'insulting' but which are neither 'abusive' nor 'threatening'
PS I this Blog I have used words that could well be considered "insulting" by the PCSO and Police officers involved in the arrest of Dale McAlpine. Will I be arrested next ? I hope not but with the modern Police force one can never be sure.
Monday, 24 May 2010
Saturday, 1 May 2010
'Islam will dominate the world' - Not a Hate Crime
An interesting story in the Daily Mail today
http://www.dailymail.co.uk/news/article-1270021/British-Muslim-daubs-war-memorial-Islamic-slogans--CPS-says-NOT-racially-motivated.html
Here a Muslim Graffiti artist (Tohseef Shah) daubed a War Memorial with such gems as 'Islam will dominate the world - Osama is on his way' and 'Kill Gordon Brown' but was not charged with the Religiously Aggravated Form of Criminal Damage contrary to s30 Crime and Disorder Act 1998 but was only charged with "ordinary" Criminal Damage
The difference is more than merely the name of the offence. Ordinary Criminal Damage where the cost of the damage is less than £5000 (as in this case) carries a maximum penalty of 3 months imprisonment whilst "racially or religiously aggravated criminal damage" carries a maximum penalty of up to 14 years imprisonment so the decision by the CPS not to charge the religiously aggravated form of the offence was extremely significant for the Defendant and, in effect, tied the hand of the Court in how they dealt with Shah.
According to the Newspaper report the reason why the CPS decided not to charge Religiously Aggravated Criminal Damage was because
"The CPS said Shah's offence could not be charged as a hate crime because the law requires that damage must target a particular religious or racial group. It said: 'While it was appreciated that what was sprayed on the memorial may have been perceived by some to be part of a racial or religious incident, no racial or religious group can be shown to have been targeted.'"
Now if that truly was the view of the CPS then the CPS clearly did not bother to read and think about the law before making their decision and they certainly had not read my book where I deal in detail with the definition of "Religiously Aggravated" as defined in s28 of the Crime and Disorder Act 1998 (my emphasis)
28. - (1) An offence is racially or religiously aggravated for the purposes of sections 29 to 32 below if-
(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.
(2) In subsection (1)(a) above-
"membership", in relation to a racial or religious group, includes association with members of that group;
"presumed" means presumed by the offender.
(3) It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above whether or not the offender's hostility is also based, to any extent, on- any other factor not mentioned in that paragraph
(4) In this section "racial group" means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.
(5) In this section "religious group" means a group of persons defined by reference to religious belief or lack of religious belief."
Now the Graffiti in question may not specify which religious group it is aimed at but the words "Islam will dominate the world" is clearly showing hostility towards everyone who is NOT a Muslim ie everyone who LACKS Islamic belief. Therefore Shah could, and in my view should, have been charged with religiously aggravated Criminal Damage relying on the "lack of religious belief" definition in s28(5). That is the specific reason why that wording is used in s28(5) in order to be able to deal with people who hate anyone who is not a member of their religion or their particular subgroup of a religion
At the very least the CPS should have charged both offences and run a trial
Lucky Mr Shah
http://www.dailymail.co.uk/news/article-1270021/British-Muslim-daubs-war-memorial-Islamic-slogans--CPS-says-NOT-racially-motivated.html
Here a Muslim Graffiti artist (Tohseef Shah) daubed a War Memorial with such gems as 'Islam will dominate the world - Osama is on his way' and 'Kill Gordon Brown' but was not charged with the Religiously Aggravated Form of Criminal Damage contrary to s30 Crime and Disorder Act 1998 but was only charged with "ordinary" Criminal Damage
The difference is more than merely the name of the offence. Ordinary Criminal Damage where the cost of the damage is less than £5000 (as in this case) carries a maximum penalty of 3 months imprisonment whilst "racially or religiously aggravated criminal damage" carries a maximum penalty of up to 14 years imprisonment so the decision by the CPS not to charge the religiously aggravated form of the offence was extremely significant for the Defendant and, in effect, tied the hand of the Court in how they dealt with Shah.
According to the Newspaper report the reason why the CPS decided not to charge Religiously Aggravated Criminal Damage was because
"The CPS said Shah's offence could not be charged as a hate crime because the law requires that damage must target a particular religious or racial group. It said: 'While it was appreciated that what was sprayed on the memorial may have been perceived by some to be part of a racial or religious incident, no racial or religious group can be shown to have been targeted.'"
Now if that truly was the view of the CPS then the CPS clearly did not bother to read and think about the law before making their decision and they certainly had not read my book where I deal in detail with the definition of "Religiously Aggravated" as defined in s28 of the Crime and Disorder Act 1998 (my emphasis)
28. - (1) An offence is racially or religiously aggravated for the purposes of sections 29 to 32 below if-
(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.
(2) In subsection (1)(a) above-
"membership", in relation to a racial or religious group, includes association with members of that group;
"presumed" means presumed by the offender.
(3) It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above whether or not the offender's hostility is also based, to any extent, on- any other factor not mentioned in that paragraph
(4) In this section "racial group" means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.
(5) In this section "religious group" means a group of persons defined by reference to religious belief or lack of religious belief."
Now the Graffiti in question may not specify which religious group it is aimed at but the words "Islam will dominate the world" is clearly showing hostility towards everyone who is NOT a Muslim ie everyone who LACKS Islamic belief. Therefore Shah could, and in my view should, have been charged with religiously aggravated Criminal Damage relying on the "lack of religious belief" definition in s28(5). That is the specific reason why that wording is used in s28(5) in order to be able to deal with people who hate anyone who is not a member of their religion or their particular subgroup of a religion
At the very least the CPS should have charged both offences and run a trial
Lucky Mr Shah
Friday, 30 April 2010
What is Religious Discrimination ?
I am going away for a few days and so cannot properly comment on the case of McFarlane v Relate BAILII: [2010] EWCA Civ B1 which has dealt with some quite fundamental questions relating to the nature of Religious Discrimination under the Employment Equality (Religion and Belief) Regulations 2003.
I was not surprised that the suggestion by Lord Carey that religious cases involving Christians should be dealt with by specialist Judges got nowhere but I also felt he did have a point that Courts seem to be applying double standards in how they deal with issues of alleged discrimination involving Christians and discrimination involving members of other religions. In addition they seem to be ignoring the basic principles of proportionality and balance which are (or should be )fundamental to the principles of anti-discrimination legislation.
The decision in the McFarlane case was based very largely on the earlier Court of Appeal decision in Ladelle v London Borough of Islington [2009] EWCA Civ 1357. Both the Court of Appeal and the Employment Appeal Tribunal had rejected the the decision of the original Employment Tribunal which had decided that Miss Ladelle had been discriminated against but I do feel that the original Tribunal had understood the issue better than the EAT or Court of Appeal when it said
"This is a case where there is a direct conflict between the legislative protection afforded to religion and belief and the legislative protection afforded to sexual orientation .... One set of rights cannot overrule the other set of rights"
That common sense and balanced view is clearly not the view of the Court of Appeal and Lawyers dealing with religious discrimination cases are going to have to reconsider their tactics accordingly
I was not surprised that the suggestion by Lord Carey that religious cases involving Christians should be dealt with by specialist Judges got nowhere but I also felt he did have a point that Courts seem to be applying double standards in how they deal with issues of alleged discrimination involving Christians and discrimination involving members of other religions. In addition they seem to be ignoring the basic principles of proportionality and balance which are (or should be )fundamental to the principles of anti-discrimination legislation.
The decision in the McFarlane case was based very largely on the earlier Court of Appeal decision in Ladelle v London Borough of Islington [2009] EWCA Civ 1357. Both the Court of Appeal and the Employment Appeal Tribunal had rejected the the decision of the original Employment Tribunal which had decided that Miss Ladelle had been discriminated against but I do feel that the original Tribunal had understood the issue better than the EAT or Court of Appeal when it said
"This is a case where there is a direct conflict between the legislative protection afforded to religion and belief and the legislative protection afforded to sexual orientation .... One set of rights cannot overrule the other set of rights"
That common sense and balanced view is clearly not the view of the Court of Appeal and Lawyers dealing with religious discrimination cases are going to have to reconsider their tactics accordingly
Wednesday, 28 April 2010
What Have the Polar Bears Ever Done for Us - Part 2
Back in December in the case of Grainger Plc v Nicholson BAILII: [2009] UKEAT 0219_09_0311 the Employment Appeals Tribunal decided that belief in Man Made Climate Change could classify as a "philosophical belief" for the purpose of the Employment Equality (Religion or Belief) Regulations 2003
At the time I blogged that I was looking forward to reading the judgment once the case went before an Employment Tribunal because I thought Mr Nicholson would have difficulty winning his case on the facts.
Anyway I have now been deprived of that pleasure since Mr Nicholson has apparently settled his case before the Tribunal case was heard. According to the BBC the company decided it was cheaper to settle rather than spend their money on a ten day Tribunal case. Sad really because I think they would have won
At the time I blogged that I was looking forward to reading the judgment once the case went before an Employment Tribunal because I thought Mr Nicholson would have difficulty winning his case on the facts.
Anyway I have now been deprived of that pleasure since Mr Nicholson has apparently settled his case before the Tribunal case was heard. According to the BBC the company decided it was cheaper to settle rather than spend their money on a ten day Tribunal case. Sad really because I think they would have won
Tuesday, 13 April 2010
Italian Crucifix Case - Judgement now in
In the case of Lautsi v Italy the European Court of Human Rights ordered the Italian Government to remove Crucifixes from all State Schools.
I have already Blogged on this case on the 5th November 2009 and 7th November 2009 but the full judgement was not available in English at the time. The Judgment is now available from the ECHR and can be downloaded HERE
Having read the full judgment I stand by what I said earlier based on the summary provided by the ECHR however for those commentators who have always maintained that Crucifixes are in Italian Schools only because of Mussolini (Boo Hiss) I do recommend that they read para 16 of the Judgment
'The obligation to display crucifixes in classrooms pre-dates the unification of Italy. Article 140 of the Kingdom of Piedmont-Sardinia's Royal Decree no. 4336 of 15 September 1860 required “each school without fail [to] be equipped ... with a crucifix”'
The Italian Government is currently appealing the Judgment to the full Court and is likely to be supported by several other European governments
I have already Blogged on this case on the 5th November 2009 and 7th November 2009 but the full judgement was not available in English at the time. The Judgment is now available from the ECHR and can be downloaded HERE
Having read the full judgment I stand by what I said earlier based on the summary provided by the ECHR however for those commentators who have always maintained that Crucifixes are in Italian Schools only because of Mussolini (Boo Hiss) I do recommend that they read para 16 of the Judgment
'The obligation to display crucifixes in classrooms pre-dates the unification of Italy. Article 140 of the Kingdom of Piedmont-Sardinia's Royal Decree no. 4336 of 15 September 1860 required “each school without fail [to] be equipped ... with a crucifix”'
The Italian Government is currently appealing the Judgment to the full Court and is likely to be supported by several other European governments
Friday, 9 April 2010
Put the pope in the dock ?
Now I'm not a QC (a "senior" lawyer for my non British audience) but I am a lawyer and I do recognise a rubbish legal argument when I see one which was certainly the case in a recent article in The Guardian Newspaper by Geoffrey Robertson QC called "Put the Pope in the Dock"
The Article suggested that the status of the Vatican State "as a state" was bogus and could be challenged in the UK Courts and the European Court of Human Rights and in addition that Pope Benedict could be tried by the International Criminal Court for "Crimes against humanity" involving the Sex abuse scandal by some Catholic Priests
It's difficult to know where to start in the legal inaccuracies in Geoffrey Robinsons article but the following comment certainly takes the legal biscuit.
" the Vatican was created by fascist Italy in 1929 when Mussolini endowed this tiny enclave – 0.17 of a square mile containing 900 Catholic bureaucrats – with "sovereignty in the international field ... in conformity with its traditions and the exigencies of its mission in the world". The notion that statehood can be created by another country's unilateral declaration is risible: Iran could make Qom a state overnight, or the UK could launch Canterbury on to the international stage."
Well with all due respect to Geoffrey Robinson Sovereignty and Statehood is a matter of fact in International law and whether it is created unilaterally or multilaterally is irrelevant, all that matters is whether independent statehood is recognised by other independent states. Whether Geoffrey Robinson likes it or not the independence of the Vatican State and of the Holy See is recognised diplomatically by a majority of countries including the UK, the USA, all the member countries of the European Union and members of the Council of Europe. The Holy See Issues passports which are recognised internationally and during the Second World War the Italian Government recognised the Neutrality of the Vatican and did not interfere with the Holy Sees' contact with Governments with which Italy was at war. Similarly when Germany occupied Rome after the fall of Mussolini it did not occupy the Vatican and neither did the Allies when they entered Rome.
The legal status of the Vatican as an independent state may be regarded by some as ridiculous and it can be described as anomalous but it is nevertheless a legal fact and it is frankly fatuous for a lawyer to suggest otherwise, but the article goes further
"This claim [that the Vatican is a State] could be challenged successfully in the UK and in the European Court of Human Rights"
Now I realise that many Human Rights lawyers grant to the European Court of Human Rights a degree of infallibility that even the most Papist minded Catholic would consider excessive but the European Court of Human Rights can only act within the limits of its own jurisdiction and it has absolutely no power to determine whether the Vatican is or is not a state it only has jurisdiction to determine whether the European Convention on Human Rights has or has not been breached by the member states of the Council of Europe.
Nowhere in the Convention is there any suggestion that the Court has jurisdiction to decide on whether or not a state exists and to propose that the ECHR should make such a determination is to suggest that a Court should act illegally by exceeding its own powers and its own lawful jurisdiction. Similarly the UK Courts have made it clear on more than one occasion that it is up to the UK Government to decide whether or not a State is granted Diplomatic recognition. Since the UK Government recognises the statehood of the Holy See and the Vatican that is the end of the matter so far as the UK Courts are concerned.
Finally Geoffrey Robinson suggests that the Pope personally could be brought before the International Criminal Court for unspecified Crimes. The ICC came into being on 1 July 2002 when the "Rome Statute" was brought into force and it can only prosecute crimes committed on or after that date so any allegations prior to that date are irrelevant so far as the ICC is concerned. In addition the ICC has jurisdiction over the crimes of "genocide", "crimes against humanity", "war crimes", and "the crime of aggression" and I am assuming that not even Geoffrey Robinson is accusing the Pope of Genocide, War Crimes or International Aggression. To the best of my knowledge the Swiss Guard have not launched an invasion of any country recently so that leaves us with the possibility of a prosecution for "Crimes Against Humanity"
Article 7 of the Rome Statute defines "Crimes against Humanity" as follows (my emphasis)
"For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack"
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
Even the worst facts, or exaggerations, regarding sex abuse by Catholic Priests would find it difficult to define it as a "widespread or systematic attack directed against any civilian population," and to attempt to try to bring such acts within the definition of "crimes against humanity" demeans the entire concept of such crimes
Normally I wouldn't comment on an article or Blog written by another person because, at the end of the day, we are all entitled to our own opinion but when a Lawyer writes an article or Blog and invokes the law then people are entitled to assume that they are quoting the law accurately not just engaging in personal prejudice and polemic masquerading as legal fact.
The Article suggested that the status of the Vatican State "as a state" was bogus and could be challenged in the UK Courts and the European Court of Human Rights and in addition that Pope Benedict could be tried by the International Criminal Court for "Crimes against humanity" involving the Sex abuse scandal by some Catholic Priests
It's difficult to know where to start in the legal inaccuracies in Geoffrey Robinsons article but the following comment certainly takes the legal biscuit.
" the Vatican was created by fascist Italy in 1929 when Mussolini endowed this tiny enclave – 0.17 of a square mile containing 900 Catholic bureaucrats – with "sovereignty in the international field ... in conformity with its traditions and the exigencies of its mission in the world". The notion that statehood can be created by another country's unilateral declaration is risible: Iran could make Qom a state overnight, or the UK could launch Canterbury on to the international stage."
Well with all due respect to Geoffrey Robinson Sovereignty and Statehood is a matter of fact in International law and whether it is created unilaterally or multilaterally is irrelevant, all that matters is whether independent statehood is recognised by other independent states. Whether Geoffrey Robinson likes it or not the independence of the Vatican State and of the Holy See is recognised diplomatically by a majority of countries including the UK, the USA, all the member countries of the European Union and members of the Council of Europe. The Holy See Issues passports which are recognised internationally and during the Second World War the Italian Government recognised the Neutrality of the Vatican and did not interfere with the Holy Sees' contact with Governments with which Italy was at war. Similarly when Germany occupied Rome after the fall of Mussolini it did not occupy the Vatican and neither did the Allies when they entered Rome.
The legal status of the Vatican as an independent state may be regarded by some as ridiculous and it can be described as anomalous but it is nevertheless a legal fact and it is frankly fatuous for a lawyer to suggest otherwise, but the article goes further
"This claim [that the Vatican is a State] could be challenged successfully in the UK and in the European Court of Human Rights"
Now I realise that many Human Rights lawyers grant to the European Court of Human Rights a degree of infallibility that even the most Papist minded Catholic would consider excessive but the European Court of Human Rights can only act within the limits of its own jurisdiction and it has absolutely no power to determine whether the Vatican is or is not a state it only has jurisdiction to determine whether the European Convention on Human Rights has or has not been breached by the member states of the Council of Europe.
Nowhere in the Convention is there any suggestion that the Court has jurisdiction to decide on whether or not a state exists and to propose that the ECHR should make such a determination is to suggest that a Court should act illegally by exceeding its own powers and its own lawful jurisdiction. Similarly the UK Courts have made it clear on more than one occasion that it is up to the UK Government to decide whether or not a State is granted Diplomatic recognition. Since the UK Government recognises the statehood of the Holy See and the Vatican that is the end of the matter so far as the UK Courts are concerned.
Finally Geoffrey Robinson suggests that the Pope personally could be brought before the International Criminal Court for unspecified Crimes. The ICC came into being on 1 July 2002 when the "Rome Statute" was brought into force and it can only prosecute crimes committed on or after that date so any allegations prior to that date are irrelevant so far as the ICC is concerned. In addition the ICC has jurisdiction over the crimes of "genocide", "crimes against humanity", "war crimes", and "the crime of aggression" and I am assuming that not even Geoffrey Robinson is accusing the Pope of Genocide, War Crimes or International Aggression. To the best of my knowledge the Swiss Guard have not launched an invasion of any country recently so that leaves us with the possibility of a prosecution for "Crimes Against Humanity"
Article 7 of the Rome Statute defines "Crimes against Humanity" as follows (my emphasis)
"For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack"
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
Even the worst facts, or exaggerations, regarding sex abuse by Catholic Priests would find it difficult to define it as a "widespread or systematic attack directed against any civilian population," and to attempt to try to bring such acts within the definition of "crimes against humanity" demeans the entire concept of such crimes
Normally I wouldn't comment on an article or Blog written by another person because, at the end of the day, we are all entitled to our own opinion but when a Lawyer writes an article or Blog and invokes the law then people are entitled to assume that they are quoting the law accurately not just engaging in personal prejudice and polemic masquerading as legal fact.
Wednesday, 7 April 2010
NHS Crucifix Worrying for Sikhs and Muslims ?
At present I only have the Newspaper reports about the case of Shirley Chaplin.
Daily Mail
The Guardian
The Telegraph
The Independent
She is a Nurse in the NHS nurse in Exeter who has lost a claim for religious discrimination when she was told to remove a Crucifix which she has worn for 30 years. The reason apparently was fears about "Health and Safety" even though she has never had any problem in 30 years however Health and Safety, Human Rights and Data Protection are the 3 standard excuses all public bodies hide behind thse days in order to excuse stupid decisions.
There are a number of points which I find worrying in the case but the main one is the reported comment that the judgement includes the comment that
"there is no mandatory requirement of the Christian faith that a Christian should wear a crucifix"
This is of course correct but it is also irrelevant because if a member of one religion is permitted to wear "religious jewellery" then it is surely discriminatory to apply different rules to the "religious jewellery" of another religion on the basis of a difference in theology. In addition in the case of Sakira Singh the High Court accepted that religious jewellery (in that case a Kara) did not need to be "mandatory" it merely needed to be an important symbol of faith which surely applies to the cross.
What worries me about this case and the similar case of Nadia Eweida is that in both cases a perception is given that the wearing of the Cross by Christians should be treated less favourably than the wearing of the Sikh Kara or the Muslim Hijab. That is I feel unfair on Sikhs and Muslims who want to preserve their right to wear their own symbols but who do not want to prevent Christians wearing their own symbols. I have not come across a single Sikh who would consider that Sikhs should be permitted to wear the Kara in a situation where a Christian is not allowed to wear the cross and I worry that cases like this harm inter community relations and are in fact unfair on Sikhs and Muslims by making it look as if they are being given (and are seeking) unfair privileges.
I would like to see Sikh and Muslim organisations condemn this Tribunal decision and possibly come in as intervenors in the Appeal. This case, and cases like it, are fuelling feelings of discrimination and unfair treatment amongst Christians and those who may not be religious but who regard Christianity as their "cultural" religion. Such feelings are dangerous and can be used by extremists to ensure that Sikhs and Muslims are criticised for a decision which is not their fault and does not reflect their own views
Daily Mail
The Guardian
The Telegraph
The Independent
She is a Nurse in the NHS nurse in Exeter who has lost a claim for religious discrimination when she was told to remove a Crucifix which she has worn for 30 years. The reason apparently was fears about "Health and Safety" even though she has never had any problem in 30 years however Health and Safety, Human Rights and Data Protection are the 3 standard excuses all public bodies hide behind thse days in order to excuse stupid decisions.
There are a number of points which I find worrying in the case but the main one is the reported comment that the judgement includes the comment that
"there is no mandatory requirement of the Christian faith that a Christian should wear a crucifix"
This is of course correct but it is also irrelevant because if a member of one religion is permitted to wear "religious jewellery" then it is surely discriminatory to apply different rules to the "religious jewellery" of another religion on the basis of a difference in theology. In addition in the case of Sakira Singh the High Court accepted that religious jewellery (in that case a Kara) did not need to be "mandatory" it merely needed to be an important symbol of faith which surely applies to the cross.
What worries me about this case and the similar case of Nadia Eweida is that in both cases a perception is given that the wearing of the Cross by Christians should be treated less favourably than the wearing of the Sikh Kara or the Muslim Hijab. That is I feel unfair on Sikhs and Muslims who want to preserve their right to wear their own symbols but who do not want to prevent Christians wearing their own symbols. I have not come across a single Sikh who would consider that Sikhs should be permitted to wear the Kara in a situation where a Christian is not allowed to wear the cross and I worry that cases like this harm inter community relations and are in fact unfair on Sikhs and Muslims by making it look as if they are being given (and are seeking) unfair privileges.
I would like to see Sikh and Muslim organisations condemn this Tribunal decision and possibly come in as intervenors in the Appeal. This case, and cases like it, are fuelling feelings of discrimination and unfair treatment amongst Christians and those who may not be religious but who regard Christianity as their "cultural" religion. Such feelings are dangerous and can be used by extremists to ensure that Sikhs and Muslims are criticised for a decision which is not their fault and does not reflect their own views
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