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Occult Crime and Freedom of Religion

Occult Crime and Freedom of Religion

The European Convention on Human Rights offers protection to our fundamental freedoms, one of which is our right to freedom of conscience, thought and religion (Article 9). This right, however, is not an unqualified one, and Article 9 has 2 limbs:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

This article will explore those situations in which the law can interfere with our rights to freely choose and practise a religion.

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 9 (2) stipulates four circumstances in which our rights under Article 9 (1) can be legitimately restricted;

  1. if it is in the interest of public safety to do so
  2. if it is necessary in order to protect the public
  3. if it is necessary to protect public health or morals; or
  4. if it is necessary to protect the rights and freedoms of others.

This article will explore those situations in which the law can interfere with our rights to freely choose and practise a religion.

Occult crime

The occult can loosely be defined as spiritual practices which involve the supernatural, mystical and esoteric. Occult crimes are those actions which are offences under the law of England and Wales that involve some form of occultism, such as the removal of bones from graves.

In R v Lowey (1982) 4 Cr. App. R (S.) 168, the Court of Appeal heard an appeal against sentence in relation to a man who had removed two skulls from a mausoleum. The appellant had pleaded guilty to two counts of removing parts of a body from a burial place. The bodies in question had been buried there since about 1870. The skulls were so removed for the appellant’s private usage in occult practice. The sentencing judge imposed three years’ imprisonment, but on appeal, the Court of Appeal deemed the sentence slightly excessive, and it was reduced to two years. Despite the reduction in sentence, the Court emphasised that imprisonment was necessary to deter those who engage in occult practices from unlawfully interfering with burial grounds.

The occult can loosely be defined as spiritual practices which involve the supernatural, mystical and esoteric.

The judgment in Lowey does not suggest that it is necessary to deter engagement in occult practices, rather, that it is necessary to deter individuals from interfering with burial grounds. However, given that upon the facts of Lowey there appeared to be no living victim of the appellant’s removal of the skulls, how can the interference with his right to practise his spiritual beliefs be justified? Why is it necessary to deter individuals from interfering with burial grounds? Is it the rights of the dead, or the rights of the public which are to be protected?

The right to religion and the right to expression

Article 9 protects our right to religion and Article 10 protects our right of freedom of expression. Like Article 9 explained above, our rights under Article 10 can be interfered with for the same four reasons listed in Article 9 (2). Infringement of these rights can only be justified if it is necessary and proportionate to do so.

The question as to what precisely amounts to a necessary and proportionate response to an individual’s freedom to religion and right to expression has previously come before the European Court of Human Rights.

Pendragon v UK

(N.B. This case is cited not to suggest that the applicant was engaging in occult crimes, but to illustrate the principle that an individual’s rights to religion and expression can be legitimately and justifiably interfered with in certain circumstances).

The applicant in this case was a practising Druid. In 1995, he wished to hold a Druid ceremony at the ancient site of Stonehenge, as he had done in previous years. Stonehenge has particular significance to the Druid community, given that the site was originally used in the Iron Age for gatherings at the moment of sunrise on the summer solstice. The modern Druids reconstruct these rituals.

The Court rejected his arguments, stipulating that rights of individuals have to be balanced against the rights of the wider community…

In 1983 and 1984, during the summer solstice, disorder broke out at the site. Whilst it was recognised that the Druid participants themselves had attempted to organise lawful and peaceful gatherings at the site, English Heritage decided to close Stonehenge for the summer solstice due to the disruption that had previously been caused. When individuals such as the applicant attempted to enter the site, the police resorted to their powers under the Public Order Act, in an effort to prevent public order disturbances, such as the disorder of the previous years. It would seem that the prevention of disorder was not only to protect the public, but also to protect the site, which is ancient and vulnerable.

The applicant sought to challenge his refusal of entry to the site, and his subsequent arrest, citing that his Article 9 and 10 rights had unlawfully been infringed. The Court rejected his arguments, stipulating that rights of individuals have to be balanced against the rights of the wider community and such interference was justified as pursuing a legitimate aim and being necessary in a democratic society. The Court held that his refusal of entry was necessary in order to protect the public against disorder.

Protecting the rights of the dead or the rights of the public?

Lowey was decided before the introduction of the Human Rights Act 1998, however, the principle remains the same. Our fundamental rights can be legitimately interfered with under certain circumstances. The Court in Lowey said that it was necessary to deter individuals from engaging in practices which interfere with burial grounds, and it would seem that this is on the basis of protecting the public.The judgment in Lowey does not have the effect of protecting the rights of the dead, but moreover, to protect the public against crime, in this case, theft, and public morals, within which respect for the dead is entrenched.

Furthermore, it has previously been noted that a church body, or an association with religious and philosophical objects, is capable of possessing and exercising the rights contained in Article 9 (Church of Scientology v. Sweden (Application No. 7805/77); Omkara Nanda v. Switzerland (Application No. 8118/77)).

The public recognises the need to protect vulnerable pieces of land of symbolic importance. It is also a widely held belief that holy grounds or burial sites should be treated with the utmost respect, and should not be unlawfully interfered with. Given this, it seems legitimate that the rights of an individual to engage in occult practices have to be balanced against the rights of the public to live in a crime-free society, but also in a society where commonly held values, such as respect for the dead, are upheld and protected.

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