Monday, July 07, 2008

Moralising Judges.

In connection with my dissertation I've been studying the case of Arrowsmith v. United Kingdom (1) in the European Court of Human Rights. This case is important primarily because of the Court's finding on what constitutes 'manifestation of religion' under Article 9 of the European Convention of Human Rights. What struck me when reading the case was, however, the attitudes of the judges, in particularly the attitude of Lord Justice Lawton in the the UK Court of Appeal.

In this case the applicant, Arrowsmith, had been convicted under sections 1 and 2 of the Disaffection Act of 1934, for encouraging British soldiers, required to serve in Northern Ireland, to desert or refuse service. The applicant had distributed a leaflet to soldiers with information of the options and consequences of going AWOL or getting discharged from the military. The applicant was sentences to 18 month's imprisonment. On a appeal to Court of Appeal, Lawton LJ made this remarkable statement concerning the leaflet in question:

This leaflet is the clearest incitement to mutiny and to desertion. As such, it is a most mischievous document. It is not only mischievous but it is wicked. This court is not concerned in any way with the political background against which this leaflet was distributed. What it is concerned with is the likely effects on young soldiers aged 18, 19 or 20, some of whom may be immature emotionally and of limited political understanding. It is particularly concerned about young soldiers who either come from Ireland or who have family connections with Ireland: there are probably a large number of them in the British Army. These young soldiers are encouraged to desert on learning of a posting to Northern Ireland and to mutiny. If they mutiny, they are liable to be sentenced by court martial to a very long term of imprisonment, and if they desert, they must expect to get a sentence of at least 12 months' detention. For mature women like this defendant to go round military establishments distributing leaflets of this kind amounts to a bad case of seducing soldiers from both their duty and allegiance.(2)

When Lawton LJ states that soldiers aged 18-20 may be "immature emotionally" or of "limited political understanding", he is basically saying that persons aged 18-20 may be incapable of making mature decisions concerning their futures and incapable of making decisions based on conscience. That is why the Arrowsmith's leaflet is not only "mischievous" but also "wicked".

Lawton LJ may very well believe that it is wicked to "seduce" soldiers from their "duty and allegiance", but to argue that the wickedness derives from the immaturity of the soldiers really is a remarkable. If Arrowsmith's leaflet is wicked on this basis, what then can be said of the British government, who, according to Lawton LJ, recruits into the military individuals that are emotionally immature and incapable of understanding the consequences of their actions, and asking of them that they fight wars and put themselves in harms way?

(1) Application No. 7050/1975, 16 May 1976.
(2) R v Arrowsmith [1975] Q.B. 678, per Lawton LJ at 684.


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