Retention or reformulation in modern
language
62. That the ECJA is not obsolete may be seen
from the statistics which show its use in 60 prosecutions between
1997 and 2002, proportionately greater than the number of prosecutions
(although not of convictions) under Part III of the Public Order
Act 1986. While its jurisdiction is limited to the Magistrates'
Court and the maximum penalty is 2 months' imprisonment or a £200
fine, it nevertheless seems, as a means of dealing with offensive
but superficially trivial actions, to retain some utility, while
depending, perhaps, upon the erudition of the prosecutor. Furthermore,
it is allied to the Places of Worship Registration Act 1855, and
can therefore be invoked by non-Christian places of worship that
have been properly registered. The Director of Public Prosecutions
said[65]
that a redrafted s.2 would probably be a (albeit infrequently
used) valuable offence, but also said[66]
that in 32 years practice he had never seen a case brought in
his presence.
63. The relatively small number of prosecutions
may be at least in part because of a lack of awareness that the
Act can be invoked by all faiths, its archaic language and its
unfamiliarity to prosecutors, as well as the ability to invoke
other legislation instead. There remains however the possibility
of some incident which, while causing serious offence to the congregation
or the adherents of a faith, does not constitute one of the modern
criminal offences, but is still currently susceptible to prosecution
under the 1860 Act. This incident might take the form of some
sacrilegious action taking place at a time when nobody was present
to be insulted and in the course of which no actual damage was
caused, but the impact of which affronted an entire religious
community. Examples of such an affront would be the deposit, at
a time when custodians and worshippers were absent, of pork in
a mosque or synagogue, a dead cow in a Hindu temple, or excrement
on a communion wafer in a Christian church.
64. Section 2 of the Act encompasses riotous,
violent or indecent behaviour (in its meaning of improper or irreverent),
during the celebration of divine service or at any other time.
This problem will not beset some faiths and, plainly, has no relevance
to those who believe in no faith at all. As for those it does
affect, it has been drawn to our attention by National Churchwatch[67]
that places of worship, except for those belonging to the Church
of England, are not public places during any service. So a person
entering such a place does so on a deemed licence; this can be
withdrawn and somebody in authority can call the police. There
are some churches and cathedrals which have prepared leaflets
printing the text of s. 2 of the ECJA. This attempts to dissuade
those who eat or smoke in the church; and others who come in improperly
dressed. It could deal with youths skateboarding around the church
or tourists who refuse to abide by church rules. Whether a similar
leaflet quoting s. 4A of the Public Order Act[68]
would be equally useful has not yet been put to the test.
65. The replacement of the ECJA in a modern form,
perhaps as one ingredient in a new Bill, would demonstrate that
Parliament does indeed care about religious beliefs and recognises
that worshippers open their doors to all-comers in order that
they may participate in, or at least observe, these religious
ceremonies. It would recognise, most importantly, that religious
ceremonies are hallowed, the source of spiritual sustenance and
emblems of community coherence. The buildings, artefacts and surroundings
are imbued with a similar significance. These are aspects of the
freedom of thought, conscience and religion which, in their own
right, deserve protection by law against desecration and mindless,
or mindful, abuse. If Parliament is to turn its mind to religious
hatred, it must not fail at the same time to think about a corresponding
measure to include offences dealt with under the 1860 Act, and
thereby demonstrate its recognition of and support for
the sincere and profound religious convictions of many people
of many faiths.
66. On the narrow point about creating an offence
of those sacrilegious actions which do not fall within the scope
of other modern offences, there is little room for argument that
any such restrictions would be permitted under Articles 9 or 10
of the European Convention on Human Rights.
67. Such an updated offence would not be difficult
to devise and would fill any perceived gaps in the law should
prosecutors see fit to pursue some offensive conduct. The Committee's
researches are not the right source for drafting a new law, but
one possible model could come from the Fijian Penal Code. This
was closely based on Lord Macaulay's Indian Penal Code. In Chapter
XVI of the Fijian Code ("Offences against religion")
there are four misdemeanour offences: damaging, destroying or
defiling a place of worship (s.145); disturbing a religious assembly
(s.146); trespass to burial places (s.147); and writing or uttering
words with intent to wound religious feelings (s.148). As with
the Indian Code, the offences in Fiji are not limited to protection
of the Christian religion. For example, s.145 reads (in full):
"Any person who destroys, damages or defiles any place of
worship or any object which is held sacred by any class of persons
with the intention of thereby insulting the religion of any class
of persons or with the knowledge that any class of persons is
likely to consider such destruction, damage or defilement as an
insult to their religion, is guilty of a misdemeanour".
68. It would be possible to build upon the first
three, at least, of the Fijian formulations. But whatever the
precise form, it would be the opportunity to reinforce the sense
of importance accorded to revered ceremonies and objects, and
to restate Parliament's firm view that it supports matters of
faith. It would also emphasise the ratification of Article 9 of
the European Convention and Article 18 of the International Covenant
on Civil and Political Rights (ICCPR), and would reflect the Church
of England's report in 1988, drawn up by the committee chaired
by the then Bishop of London, which spoke of the need to protect
all faiths. Legislation on these lines would have to be accompanied
by an identification process which may well not accord exactly
with either the Registration of Places of Worship 1855 Act's or
the Charity Commissioners' demarcation lines. There could in consequence
be litigation to establish the principles and boundaries, but
this ought to be ephemeral: Lord Denning's judgement in Segerdal
has now lasted for over 30 years.
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