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Taking due account of religion in sentencing
Published online by Cambridge University Press: 02 January 2018
Abstract
This paper explores the relationship between religion and sentencing. It considers what problems may arise when a judge fails to take proper account of a defendant's religious beliefs at the sentencing stage, or takes improper account. It highlights the need for more guidance to be given to judges in order to ensure greater consistency and fairness in sentencing outcomes.
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- Research Article
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- Copyright © Society of Legal Scholars 2009
References
1 Or in some cases the religion of the victim.
2 The issue of religion is also pertinent to releasing decisions, but the focus of this paper will be on the sentencing decision.
3 See Ashworth, A Sentencing and Criminal Justice (Cambridge: Cambridge University Press, 4th edn, 2005) pp 31–49 CrossRefGoogle Scholar for a detailed analysis of formal and informal sources of sentencing decisions.
4 Criminal Justice Act 1991, s 142.
5 Ibid, s 143.
6 Created under ibid, ss 169–170.
7 Sentencing Guidance Council Overarching Principles: Seriousness (London: Sentencing Guidance Council, 2004).Google Scholar
8 Criminal Justice Act 1991, s 166.
9 Hough, M, Jacobson, J and Millie, A The Decision to Imprison: Sentencing and the Prison Population (London: Prison Reform Trust, 2003).Google Scholar
10 Criminal Justice Act 1991, s 174(2).
11 Ashworth, above n 3, p 151.
12 Roberts, J ‘Aggravating and mitigating factors at sentencing: towards greater consistency of application’ (2008) 4 Crim LR 268 Google Scholarat 275.
13 Jacobson, J and Hough, M Mitigation: The Role of Personal Factors in Sentencing (London: Prison Reform Trust, 2007).Google Scholar This was a follow-up study to Hough et.al, above n 9.
14 Ibid, p vii.
15 Ibid, p ix.
16 Roberts, above n 12, at 269.
17 The first five are identified under the Criminal Justice Act 1991, s 142 and offence seriousness is mentioned under s 143.
18 Sentencing Guidance Council, above n 7, p 6.
19 This is with the notable exception of Ashworth, above n 3.
20 Also included within offence seriousness are cases where the defendant has acted because he/she has been motivated by religious hatred. We do not consider the statutory regime for dealing with religious hate crimes which are conceptually distinct from the religious defendant discussed here. In religious hate crimes, the religion of the victim is crucial to determining the sentence, regardless of the circumstances of the defendant. On religious hate crimes generally, see Edge, PW ‘Extending hate crime to religion’ (2003) Journal of Civil Liberties 5 Google Scholar.
21 [2004] EWCA Crim 1618.
22 Ibid, at [30].
23 [2002] 1 Cr App R (s) 80.
24 Okcuoglu v Turkey (Application No 24246/94) 8 July 1999, ECtHR (GC). See also Polat v Turkey (Application No 23500/94) 8 July 1999, ECtHR (GC); Arslan v Turkey (Application No 23462/94) 8 July 1999, ECtHR; Gerger v Turkey (Application No 24919/94) 8 July 1999, ECtHR (GC); Larissis and Others v Greece (Application Nos 140/1996/759/985–60) 24 February 1998, ECtHR; Kar v Turkey (Application No 58756/00) 3 May 2007, ECtHR (Chamber).
25 Okcuoglu v Turkey, ibid, para 49.
26 It should be noted that not all claims will succeed. For instance, it is unlikely that killing someone would be deemed a ‘manifestation of religion’ under the ECHR case-law.
27 This is a narrower point than the argument concerning the existence of a human right not to be subject to a disproportionate sentence – see further Van Zyl Smit, D and Ashworth, A ‘Disproportionate sentences as human rights violations’ (2004) 67(4) Modern Law Review 541 CrossRefGoogle Scholar.
28 Daudi and Daniels (1982) 4 Cr App R (S) 306 (CA).
29 Okcuoglu v Turkey, above n 24. See also Polat v Turkey, above n 24; Arslan v Turkey, above n 24; Gerger v Turkey, above n 24; Larissis and Others v Greece, above n 24; Kar v Turkey, above n 24.
30 [2001] EWCA Crim 2263, [2002] 1 Cr App R 37 (CA).
31 Andrews v Director of Public Prosecutions [2004] EWCA Crim 947 (CA).
32 In Taylor it was found that the religious context made the sentence too long, whereas in Andrews the Court of Appeal decided that the sentence was appropriate.
33 This might also be necessary in cases where there is a prima facie contravention of Art 9 which the court has not be able to justify under Art 9(2), but which it must apply (until Parliament decides whether to get rid of the offence or keep it in spite of the contravention). Furthermore, in cases where a court finds that there is a contravention of ECHR Art 9, the Northern Ireland case of McR [2003] NI 1, where an order of certiorari was made quashing a decision to remand a defendant for trial on the charge of attempted buggery (Kerr J having made a declaration that the offence was incompatible with the Convention) suggests that it may be, therefore, that following identification of incompatibility based on the simple fact of criminal prohibition, a court is then required to impose the minimum sentence permitted by law, which in almost all cases would result in an absolute discharge.
34 For a fuller description of the rationale, see Ashworth, above n 3, p 76.
35 R v Barot [2007] EWCA Crim 1119, CA.
36 Wedenig v Austria (Application No 33448/96), 14 December 1999, ECtHR (Chamber) and A v Switzerland (Application No 10640/83) 9 May 1984, ECmHR.
37 Ulke v Turkey (Application No 39437/98), 24 January 2006, ECtHR (Chamber).
38 This question is an ongoing difficulty because of the structure of the ECHR, which deals with conscription specifically under the anti-slavery guarantee of Art 4, and excludes from that prohibition ‘any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service’: ECHR, Art 4(3)(b). See Grandrath v Germany (Application No 2299/64), 12 December 1966, ECmHR; A v Switzerland, above n 36; IS v Bulgaria (Application No 32438/96), 6 April 2000, ECtHR (Chamber); Bayatyan v Armenia (Application No 23459/03) 12 December 2006, ECtHR (Chamber).
39 Ulke v Turkey, above n 37, para 62.
40 Offences Under Terrorism Act 2000, ss 15–18.
41 Ibid, s 19(1).
42 Ibid, s 19(2).
43 Ibid, s 19(3).
44 Ibid, s 19(8).
45 See more broadly Horner, C ‘Beyond the confines of the confessional: the priest-penitent privilege in a diverse society’ (1997) 45 Drake Law Review 697 Google Scholar; .
46 Cf Rehman and Wood [2005] EWCA Crim 2056, [2006] 1 Cr App R (S) 77, CA.
47 Bayatyan v Armenia, above n 38.
48 Ibid, para 1(2).
49 Jacobson and Hough, above n 13. The study also includes a fourth category which would include factors which require a judge to be more lenient on a particular defendant. This category will not be discussed as no particular issues regarding the relationship between religion and sentencing arise here.
50 This is discussed in the section below.
51 Jacobson and Hough, above n 13.
52 There are a number of problems with this view. It assumes that a religious person is more ‘moral’ than a non-religious person and so therefore should have known better than to commit a crime. It also assumes a strict correlation between a person's religious views and the rules of the criminal law. However, as was seen in the discussion above about offence seriousness, this is not always the case. Finally, it makes the assumption that a religious person is more capable of self-control and is less susceptible to emotions such as anger or provocation or greed or jealousy that might lead to criminal behaviour.
53 Jacobson and Hough, above n 13, p 13.
54 [2003] EWCA Crim 2559.
55 Ibid, at [23].
56 Ashworth, above n 3, p 153.
57 It may also not be consistent with other areas of sentencing practice, eg employment is taken into account yet not all offenders will be employed.
58 Jacobson and Hough, above n 13, p iii.
59 [2003] EWCA Crim 1078.
60 R v Zoltan Tibor Edes (1990–91) 12 Cr App R (S) 658.
61 Murphy, JG ‘Remorse, apology and mercy’ (2007) 4(Spring) Ohio State Journal of Criminal Law 423 Google Scholar.
62 R v Louis Ifeanyi Abanah 2000 WL 33122468.
63 This points to a wider question about the sorts of evidence which will be considered sufficient by a court when hearing a plea in mitigation based on the defendant's religious belief or practice. A defendant does not need to prove their case beyond reasonable doubt, but presumably the court will require something more than a defendant's own statement of belief. Depending on the argument the defendant is making, his/her testimony will need to be backed up by supporting statements from religious leaders or other members of his/her religious community, or by outward signs of a defendant's religious belief. Clearly, this is an important issue which would require further debate and discussion but which is outside the confines of this paper.
64 Above n 54, at [21] and [23].
65 Thlimmenos v Greece (Application No 34369/97) 6 April 2000, ECtHR (GC). See also Thlimmenos v Greece (Application No 34369/97) 12 January 1998, ECmHR; Azinas v Cyprus (Application No 56679/00) 20 June 2002, ECtHR (Chamber); Banfield v UK (Application No 6223/04) 18 October 2005, ECtHR (Chamber).
66 Thlimmenos v Greece, ECtHR (GC), ibid, para 47.