Religion and beliefs
1. Overview
This chapter concerns how a court or tribunal should take account of any religious or other beliefs, although in many circumstances such beliefs or religious practices will not be relevant to the case. As is emphasised throughout the chapter, there are many different religions and belief-led practices, and judges will need to be aware of this to ensure that individual preferences are accommodated where appropriate. Matters are dealt with using the following sections:
Impact of religion and beliefs in courts and tribunals
Christian
Muslim
Hindu
Buddhist
Sikh
JewishReligious discrimination/hate crime
Islamophobia
Anti-Semitism
2. Introduction
The 2022 Scottish census had 13 different religions and beliefs as options. A sizeable percentage (51.1%, up from 36.7% in 2011) of respondents said they had no religion. Thereafter 20.4% identified Church of Scotland as their religion. Roman Catholic (13.3%) and other Christian religions (5.1%) were the next largest groups, followed by 2.2% who were Muslim, with Hindu (0.55%), Buddhists (0.28%) and Sikhs (0.2%) being the next three largest groups. A small number, around 6000 (0.11%) people in Scotland identified as Jewish, with 0.23% of people coming from other (unspecified) religions with smaller numbers than this. Even on this cursory examination it is clear that there is a rich diversity of faiths and beliefs in Scotland. All of these different beliefs and religions should be respected by the court or tribunal. Judicial office holders should aim to ensure that the observance of religious practices is not impeded by the court.
3. Nuances of religious practice
It is important that judicial office holders do not make assumptions about a person because of their religion. For example, some followers of a particular faith may observe some customs not followed by others. A person’s level of adherence or commitment to their religion may alter during different times in their life. An individual may not consider themselves as particularly religious, yet may celebrate a major event in accordance with a particular religion. For example, the 51.12% who say they have no religion may still wish to celebrate Christmas: some people are culturally religious but non-practising.
4. Legal context
The Equality Act 2010, section 10, prohibits discrimination in relation to “religion“ (which includes lack of religion), or belief, meaning any religious or philosophical belief (which includes a lack of belief).
The meaning of “religion“ and “belief“ is broad; consistent with Article 9 of the European Convention on Human Rights (which guarantees freedom of thought, conscience, and religion). There may be many philosophical beliefs that are covered by the Act, including atheism[1] and, for example, humanism[2] or ethical veganism.[3]
In McClung v Doosan Babock ET 2022 the Employment Tribunal, sitting in Glasgow, had to decide if being a supporter of Rangers Football Club was a philosophical belief. In deciding that it was not, the tribunal judge looked at five criteria found in previous cases and in the Equality and Human Rights Commission Code of Practice on Employment (paragraphs 2.55 to 2.59) and determined that they were not all met.
These same five criteria (known as “the Grainger criteria“ had been considered in Casamitjana (see footnote 3) and are;
Is the belief genuinely held?
Is this a belief, not an opinion or viewpoint?
Does this concern a weighty and substantial aspect of human life and behaviour?
Does the potential belief attain a certain level of cogency, seriousness, cohesion and importance?
Is the belief worthy of respect in a democratic society and compatible with human dignity and not in conflict with the fundamental rights of others?
Recent thinking on such matters is illustrated in the Employment Appeal Tribunal case of Maya Forstater v CGD Europe and others EAT 2021. It concerned the appellant’s belief that sex is biologically immutable and that it is fundamentally important rather than “gender, gender identity or gender expression“. Maya Forstater would not accept in any circumstances that a trans woman is a woman or that a trans man is a man: those were her beliefs on the matter. The EAT examined previous authorities and analysed the law, before concluding that the appellant’s views did fall within the scope of section 10, and were therefore a philosophical belief:
“Religion or perceived religious affiliation”[4] is a protected characteristic in terms of the Hate Crime and Public Order (Scotland) Act 2021. Broadly speaking, the Act provides that an offence can be aggravated by prejudice based on the victim’s membership of a group defined by reference to a listed characteristic (age, disability, race (and related characteristics), religion, sexual orientation, transgender identity and variations in sex characteristics). It creates offences of stirring up hatred against a group of persons based on the group being defined by reference to the listed characteristics.“
5. Impact of religion and beliefs in courts and tribunals
Judges should take care to identify any changes that need to be made to accommodate a religious requirement or someone holding particular philosophical beliefs. For example, a break may be required due to a need to pray at a particular time of day or a need to ensure a date is not assigned on a date significant to a participant’s religion. It should be remembered that Christian events such as Easter and Christmas lead to public holidays, but that this is not so for other faiths; as a result, the court or tribunal may need to ensure that dates important to another faith are avoided in a particular case. In addition, it should be remembered that some faiths observe their Sabbath on, for example, a Friday from sunset, and scheduling court business for such times may need to be avoided. Adjustments may be needed to accommodate fasting, which may have an impact on a person’s ability to attend court at particular times and on their ability to concentrate in court.
Major religious festivals happen throughout the year for different religions. For more detail of the practices of different religions and how they might impinge on court practice, use the links below to access the relevant religion in the Glossary of Religions from the England and Wales Bench Book (Appendix D). In greatly abridged terms, detailing the six largest religions in Scotland only, these are as follows:
Christian
Good Friday: changes each year, eg 29 March 2024, 18 April 2025.
Easter Sunday: changes each year and is two days after the above.
Christmas Day: 25 December each year.
Sunday may be viewed as a “day of rest“, although for members of the “Seventh Day Adventists” Church, Saturday is their holy day.
Muslim
Ramadan month begins on a different day each year eg 10 March 2024, 28 February 2025.
Eid-ul-Fitr: changes each year, eg 9 April 2024, 30 March 2025.
Eid-ul-Adha: changes each year, eg 16 June 2024, 6 June 2025.
Ashura: changes each year, eg 16 July 2024, 5 July 2025.
Fasting during the month of Ramadan is common, meaning no eating or drinking between sunrise and sunset. This can impact on energy and concentration and may affect the ability to attend court. Funerals should take place within 24 hours of death. Purification rituals may require to be followed before taking an oath. Religious head coverings may be worn. See religious dress section.
Hindu
Krishna Janmashtami: changes each year eg 26 August 2024, 15 August 2025.
Diwali: changes each year eg 1 November 2024, 20 October 2025.
Arranged marriages with the exchange of “gifts“ are common.
Buddhist
Wesak (Buddha Day): changes each year, eg 23 May 2024, 12 May 2025.
Sikh
Vaisakhi/Baisakhi: Sikh New Year is celebrated on 13 or 14 April each year.
Bandi Chor Divas: changes each year, eg 1 November 2024, 20 October 2025.
Guru Nanak Dev: changes each year, eg 15 November 2024, 5 November 2025.
Guru Gobind Singh: changes each year, eg 17 January 2024, 6 January and 27 December 2025.
There are a number of holy days, some lasting three days. A Sikh turban should not be removed for court. A Sikh kirpan (sword) is permitted in court: see religious dress section.
Jewish
Yom Kippur: changes each year, eg 11 and 12 October 2024, 1 and 2 October 2025.
Rosh Hashanah: changes each year, eg 2 to 4 October 2024, 22 to 24 September 2025.
Passover: changes each year, eg 22 to 24 April and 28 to 30 April 2024, and 12 to 14 and 18 to 20 April 2025.
Orthodox Jewish men may wear a head covering (kippah/yarmulke). Sabbath commences one hour before sunset on Friday until sunset on Saturday, which may inhibit the ability to attend court on Friday afternoon during winter. It should be noted that use of public transport and driving may need to be avoided during this time. No work (or court attendance) would be countenanced by most Jewish people on Yom Kippur or Rosh Hashanah. Funerals usually take place within 24 hours of death, but it is also common for Jewish mourners to “sit Shivah“ for seven days following burial, the first three days being particularly intense.
Generally, differing religious beliefs may also result in specific attitudes to marriage, which attitudes may differ from those familiar to a particular judge. For example, some couples may have had a religious marriage that has not been recognised or registered in terms of Scots law, but nevertheless regard themselves as husband and wife. Some religions may not recognise anything less than marriage as a committed relationship and may not, for example, use the word “partner“ to refer to a person in a committed relationship.
6. Oaths, affirmations and declarations
The Oaths Act 1978 permits witnesses the choice of swearing an oath or of affirming. It may need to be explained to a witness that the difference is that an oath is a religious promise to tell the truth, sometimes while touching a holy book, while an affirmation is a non-religious solemn promise to tell the truth. Both have the same legal effect. Whilst the practice in Scotland is that the oath is generally taken without the use of a holy book, that does not prevent a witness from requesting such a book to take the oath. It should be noted that religious books may not be available, for example, in some hearing centres.[5]
If a particular religious book is not available, an apology should be extended. The individual should then be given the option of swearing without the book or of affirming. Section 5(2) of the Oaths Act 1978 enables the court, where it is not reasonably practicable without inconvenience or delay to administer the oath in accordance with an individual’s religious belief, to administer the affirmation. It is expected that this provision would only be relied upon in the most exceptional circumstances, in the face of an individual who would rather swear a religious oath, where all other options had been considered and ruled impracticable.
Putting a witness on oath or administering an affirmation is not uniform practice in all tribunals, but the judge or legal member may choose to administer this in some tribunals.
Some religions, for example those of the Muslim faith, may wish to have a religious book present before they take an oath on it. There are particular requirements for the handling of some religious texts and great care should be taken to ensure these are respected. Details of these can be found at Appendix D of the England and Wales Bench Book.
There should be no assumption that an individual who is otherwise religious, yet chose to affirm rather than take the oath, is doing so as they don’t intend to tell the truth.[6] Similarly, there should be no assumption that a witness will swear an oath, rather than affirm. The question: “Do you wish to swear or to affirm to tell the truth?“ makes it clear that both are of equal validity. Judges should ensure that bar officers or other court staff speaking to witnesses or jurors offer both options.
Some witnesses may wish to observe a particular practice when they take the oath. For example, a Hindu or Sikh witness may wish to remove their shoes. Witnesses of Jewish, Muslim, Rastafarian or Sikh faith may wish to cover their head when taking the oath. Such religious head coverings are permissible in court and court staff should not ask that religious head coverings be removed. Such practices should be accommodated insofar as possible, to enable a witness to consider themselves conscience-bound to tell the truth.
The oath should be administered by asking the witness to raise their right hand and repeat the words of the oath after the judicial office holder. If the witness affirms there is no need to have them raise their hand. Normally the judicial office holder and witness would stand to take the oath or to affirm, but this is often not appropriate if the judge or witness is appearing on a TV screen, as standing up takes their face “off camera“. The words of the oaths for different religions are contained in Appendix A – forms of oath.
7. Religious dress
Some religions prescribe particular clothing for their adherents. For example, Buddhist monks require to wear robes, usually yellow; Orthodox Jewish men will wear the kippah, a thin, rounded skullcap. Neither of these examples is likely to require adjustment in a court or tribunal setting. One main example of religious dress that is likely to require an exercise of judicial discretion is the Muslim veil (see below). Another is the Sikh kirpan: a dagger with a curved single edged blade, prescribed as part of Sikh religious uniform. An agreement has been reached between the Sikh community and SCTS which enables the kirpan to be brought into court.[7] It should be noted that there may be exceptional circumstances where this will not be possible and judges should carefully consider such circumstances, should they be thought to arise.
8. Wearing the veil
There are three kinds of head covering sometimes worn by Muslim women. Their purpose is to cover the face and upper body from males outside of their own household. These headscarves are seen as a sign of modesty and a symbol of religious faith by those who wear them. The hijab is a headscarf that usually covers the head and neck but leaves the face clear. The niqab is a veil for the face that usually covers the mouth and nose but leaves the area around the eyes clear. The burka is a one-piece veil that covers the whole body and face, often just leaving a mesh screen to see through. It is these last two veils that may require consideration in the court or tribunal setting.
It is obvious that this is a sensitive issue, and judges should avoid engaging in any debate on religious doctrine, for example, as to whether the veil is mandatory. Religion is a protected characteristic in terms of the Equality Act, but the right to religion is not absolute.
The issue may arise where it is considered that a fair trial requires the removal of the veil. Ideally, in either a civil, criminal or tribunal context this is an issue that should be flagged up by parties at a hearing prior to evidence being led.
The issue was considered by Judge Murphy in the Crown Court in England in 2013 in R v D and it was anticipated that guidance would be issued thereafter. This did not happen, but general principles are clear from the decision of Judge Murphy.[8]
A lecture examining the pertinent issues has been delivered by Lady Hale and would be useful reading for any judge faced with this issue.[9]
Judges should ensure they consider the following matters:
That the identity of a witness or party can be verified by a female member of court staff in private. This may alleviate the need for the removal of the veil in court.
That the decision to order removal of the veil is a highly sensitive one, which should receive anxious scrutiny. Where it is required, other arrangements must be considered in order to minimise the time that the veil is removed for and to minimise the number of male observers. For example, can partial screens be used? Can an order be made prohibiting the creation or publication of any image of the woman with her veil removed? Can the requirement to remove a veil be restricted to the time when evidence is being given?[10]
The reason for removal of the veil, namely that the fact finder or finders involved may wish to look at an individual’s face and demeanour in order to assist them in assessing credibility, should likely be explained to the woman concerned. If removal is not ordered it may nevertheless be appropriate to explain to those present in court that wearing the veil may have an impact on the court’s ability to assess the credibility and reliability of the wearer, particularly where that may be an issue in the case;[11]
It may be appropriate to allow time for the woman to take advice on the removal of the veil.
Even in remote hearings these issues may arise, particularly where the press or public may have access to the images.
9. Dealing sensitively with religious tensions in court
There continue to be long-standing, often bitter, religious tensions in Scotland. Whether between Protestants and Catholics, Jews and Muslims, different sects of the same religion (for example Shia and Sunni) or any other group, judges and tribunals should ensure they are sensitive to these and that they do not inflame them by careless use of language or otherwise.
Terms that may appear innocuous might in fact have different connotations. For example, the phrase “sold down the river“, which might seem inoffensive, may be seen as racist due to its connection with and roots in the transatlantic slave trade. Careful use of language is necessary and keeping up to date with terminology is important.
It is suggested that in any case where there are relevant religious aspects, judges take time and care to consider their use of language. It may be preferable that a short break is taken to prepare, for example, an ex tempore judgment or a sentencing statement, in order to reflect on appropriate language to express their decision.
10. Religious discrimination/hate crime
As with any hate crime, where a crime is aggravated by religious hatred, the court must explain why the sentence is different from what the court would have imposed if the offence was not so aggravated, or the reasons for there being no difference.[12]
It is recognised that any religion or set of beliefs can be a target of unacceptable abuse. The fact that the following sections deal with two religions only is not intended to suggest otherwise.
Islamophobia
There is no single recognised definition of the term in the UK, despite various attempts to agree a definition.[13] The All Party-Parliamentary Group on British Muslims (“APPG“) concluded that the term “Islamophobia” should continue to be used, recommending using the following definition:[14]
“Islamophobia is rooted in racism and is a type of racism that targets expressions of Muslimness or perceived Muslimness.“
75% of Muslims say that Islamophobia is a regular or everyday issue in Scottish society, and most say that women are more likely to encounter it than men.[15]
Judges should be aware of such racism and discrimination. Given these experiences Muslim people may arrive at court uncertain and anxious as to whether they will get a fair hearing. Judicial office holders should be live to the discrimination that may exist so that it is alleviated in the court or tribunal setting
Anti-Semitism
The Jewish community in Scotland is said by the 2022 census to number about 6000. This is thought to be an underestimate, with informal research within the community noting that many Jews do not identify as such on the census, for a variety of reasons. In May 2016, the British government agreed to adopt the “working definition” of antisemitism of the International Holocaust Remembrance Alliance (“IHRA”). This was adopted by the Scottish Government in June 2017 also. The definition is as follows:
“Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.“
Historically it has been reported that there are low levels of anti-Semitic crime in Scotland, but this appears to be on the increase.[16] This may be because of events in Israel and Gaza at the time of writing in early 2024 and/or because of a confusion in terminology: Judaism is a religion and cultural identity that has evolved over millennia, while Zionism is a political ideology centred on the establishment and preservation of a Jewish state in Israel. In addition, the term “Zionism” has come to have very negative connotations and its use should be avoided, if possible.
Again, because of anti-Semitic attitudes Jewish people may arrive at court anxious as to whether they will receive a fair hearing. Judicial office holders should be live to the discrimination that may exist so as to ensure that it is alleviated in the court or tribunal setting.