Muslims, crime and the Common Law
Introduction There is no reason why, logically or in principle, Muslims should be accommodated or given recognition under Criminal Law. If we take the content of the Criminal Law as given, and representing serious or ‘core’ public wrongs such as murder, rape, theft and burglary, Muslims should be held to account the same way as anybody else. To hold otherwise, to carve out exceptions and to particularise on the basis of culture or belief – to do Muslims ‘a favour’ – would undermine basic ties of civic responsibility and respect for the Rule of Law. The problem is that we take this content for granted. Putting to one side the notion that ‘crime’ may be historically and politically contingent,1 the traditional liberal view is that we are all equally responsible, rational moral agents. In modern democratic political theory, Criminal Law, carrying with it the sanction of punishment, has moral force only on the assumption that its norms have been communicated to all and made the subject of popular participation and discussion. As Anthony Duff describes (Duff 2007: 191-93), the designation of a certain social behaviour as a crime represents a ‘moral communication’ between fellow citizens; yet many groups and people suffer systematic disadvantage and exclusion from participation in this discourse of citizenship, so upon what basis can they be held morally to account and the Criminal Law deemed ‘just’? As we have suggested in Chapters 1 and 2, while Muslims in our four jurisdictions have integrated in varieties of ways in all aspects of society, they also suffer systematic exclusion, discrimination and marginalisation; increasingly so since the launches of the ‘war(s) on terror’, the emergence of Dāʽish and the continuing rise of ‘Islamophobia’. They have become a community under siege, or at least perceive to be so.2 Recent trends of ‘overcriminalization’ (Husak
2008; Lacey 2012) and ‘law and order populism’3 have made Muslims potential targets of the Criminal Law and victims of ever-increasing police powers like never before. The point and method of seeking ‘accommodation’ in this context, or going beyond accommodation, we suggest, is not to ‘excuse’ Muslims or seek ‘unilateral favour’ for infractions of the Criminal Law. In some situations, as we highlight later in the chapter, it may be necessary to impose exemplary sanctions to express our (by ‘our’ we include Muslim) collective indignation and denunciation of that conduct. Nor is the point of accommodation to exempt Muslims from procedures that the rest of the population are required to follow. Rather, the objective of our focus is to emphasise the relevance of religious identity as we develop ‘more nuanced legal procedures’ (Duff 2007: 193) that respond to cultural and religious diversity as well as to the particular social circumstances in which individuals, in our case Muslims, are situated. This chapter explores the Criminal Law in the context of this security environment and asks to what extent, and in what ways, courts and legislatures have recognised Muslim identity and cultures. It also examines the potential and limitations of cultural evidence and whether there is a place for the ‘culture defence’. Recognising that procedural aspects of the law of crimes and doctrine are interconnected elements of the same machinery of criminal justice (Brown et al. 2015: 17), we examine both procedure (in which we include evidence) and the substantive law. We look first at civil or what may be broadly termed as ‘participation rights’ in the criminal justice context, both pre-trial and at court. In the second half of the chapter we examine the substantive law, focusing on so-called ‘honour-related violence’ (HRV), religious rituals, parental responsibility and ‘Sharīʽah’ vigilantes.