Co-written with Anne-Marie Forker, and published in Criminal Law & Justice Weekly, Vol 175, 18 June 2011, p 373
The relationship between religion and the law seems now to be a permanent feature of public life in the United Kingdom – to the point where it reminds one of the children’s story about the magic pudding which, no matter how often it is eaten, always reforms in order to be eaten again.
One recent serving of the pudding concerns the right to practice religion in prison, which was the subject of R (Bashir) v Independent Adjudicator  EWHC 1108 (Admin).
The claimant was required to provide a urine sample for testing for the use of controlled drugs in accordance with the policy in relation to mandatory drug testing contained in Prison Service Order 3601. The basis for the test was a suspicion that he had taken controlled substances. He was offered water before providing the sample, but refused on the ground that he was a devout Muslim who was fasting prior to a court hearing, as part of his religious preparation for the event. As a result of refusing water he was unable to provide a sufficient sample. He was charged with failing to obey a lawful rule contrary to r 51(22) of the Prison Rules 1999. He was convicted by a prison adjudicator and a penalty of 14 days’ additional detention was imposed. The adjudicator held that the claimant was not fasting as part of either Ramadan or any other religious festival, and therefore requiring him to provide a sample had been “appropriate”. The claimant applied by way of judicial review to quash the adjudicator’s decision, contending that it breached his right to practice his religion under art 9 of the European Convention on Human Rights.
The High Court
Judge Pelling found that the adjudicator’s approach to art 9 had been wrong; the correct approach required three questions: (i) whether the claimant’s rights under art 9 were engaged; (ii) if so, whether there had been an interference with those rights; and (iii) if so, whether the interference was one that was both prescribed by law or necessary in the interests of public order, health or morals, and proportionate to the end pursued.
There was no real dispute both that art 9 was engaged and that there had been an interference with those rights. Accordingly question (iii) formed the nub of the substantive challenge. Moreover, since the drug testing was prescribed by law and at least one of the other aspects of art 9, the only aspect of (iii) that was in issue was whether it was proportionate to the end pursued.
Judge Pelling concluded that there had been no evidence before the adjudicator to suggest that it was proportionate to require all Muslim prisoners engaged in personal fasting to break that fast as and when required for the purposes of providing a sample regardless of the circumstances. The decision therefore had to be quashed.
We have no dispute with the judge’s approach to art 9. Rather, our difference is with the conclusion that the drug policy could potentially be a disproportionate interference with the claimant’s rights. While the state is obliged to allow religious beliefs and practices, it is not obliged to make exceptions to the general law based on someone's religious beliefs – provided, of course, that the general law is not aimed at discriminating against or suppressing particular religions.
If it could have made no difference either to the state or to any private individual (including other prisoners), then we would have no objection to the state accommodating religious practices for prisoners. But making exceptions to the disciplinary regime – of which drug testing is at the core – is as unworkable as it is unfair. If one has an exception due to a fast, then why not some other activity? And, to ensure non-discrimination, non-religious beliefs of any particular prisoner would also have to be accommodated.
Religious exemptions are found elsewhere in the criminal law, such as s 139 of the Criminal Justice Act 1988 and ss 3 and 4 of the Offensive Weapons Act 1996, which allow Sikhs to carry the Kirpan on religious grounds. Is permitting this not increasing the likelihood of harm to others, something the criminal law aims to reduce? We are not suggesting for a moment that Sikhs are more likely than other groups to use knives in a criminal fashion, but rather that increasing the quantity of knives being carried by any section of society in the general public increases the risk of harm to others. Practicing religion should be subject to the same standards as non-religious activities (see also p 124 ante).
Contrary to the tabloid view that equality is somehow harmful to religion, we believe that excluding religion from public life is actually the best protection for religion, because it ensures all religions are treated equally.