Arresting the Pope: a Catholic response

by Carl Gardner on April 19, 2010

I’m interested in the response by the Catholic Union to the recent suggestion that the Pope should be arrested and held legally liable for his alleged failure to tackle the sexual abuse of children. The full pdf file of the press release outlining their response is here.

To say, as they do, that

There is not a single criminal offence under British law which could conceivably be alleged against Pope Benedict

is I think putting their case unnecessarily high. I agree there’s nothing he can realistically be arrested for, but to consider the documentary evidence of what he has done in the past in legal terms, as Richard Dawkins and Christopher Hitchens have asked lawyers to do, and to suggest that international human rights law may be or should be relevant is neither inconceivable nor “risible”, as the Catholic Union also suggests.

I don’t think they help their moral case by implicitly arguing on technical grounds that the Pope, or Cardinal Ratzinger as he was, cannot be legally responsible for the Church’s actions:

The power exercised by Roman Catholic bishops in law relates to their position as employers, school governors, trustees etc under English law. None of these offices are held by the Pope. His influence is exercised through the purely voluntary obedience of Catholics. Without direct legal power no duty in law can be justly implied. Even the appointment of bishops is not always recognised by some countries.

Which amounts to defending him on the basis that “he never gave any orders”. This strikes me as the worst sort of casuistry. It is quite clear that both the Pope and the Prefect of the Congregation for the Doctrine of the Faith make authoritative decisions, determine the culture and practice of the church and set its policies; and of course in the Kiesle case it appears Cardinal Ratzinger personally made the important decision not to defrock.

But they go further:

… responsible commentators ought to weigh carefully the possible consequences of this campaign of vilification against Pope Benedict XVI. An attempt was made on the life of Pope John Paul II by an assassin in 1982. Many public figures face dangers of this sort in today’s world. If a protester is incited to perform a publicity stunt such as a citizen’s arrest of the Pope, then police officers will be put in a difficult position. Faced with having to make a swift decision as to whether a situation is a publicity stunt, a lawful protest or an attempt on the life or limb of the Pope, the consequences of any such decision might be serious and involve innocent bystanders.

which seems completely over the top as a way of trying to deter and silence criticism.

Finally, the Catholic Union brings religious hatred into it,

Incitement to religious hatred is a criminal offence and has public order ramifications. Moreover, religious vilification against the Pope may ultimately result in the same happening to innocent British Catholics

which clearly implies that trenchant criticism of a particular religious person and critical scrutiny of his actions in legal terms amounts, or may amount, to religious hatred.

That simply proves how lucky we are that the Racial and Religious Hatred Act 2006 was watered down before it was passed so that only threatening words intended to stir up religious hatred amount to an offence. Had the legislation been aligned with section 18 of the Public Order Act, as ministers originally wanted, no doubt someone would be asking the Attorney General to prosecute Richard Dawkins already.

{ 5 comments… read them below or add one }

1 ObiterJ April 19, 2010 at 18:40

They begin by saying – “The enforcement of criminal law is a duty of the state and is not the job of private vigilantes pursuing a personal ideological agenda.”

Is it not the case that private individuals may apply for warrants of arrest under the “universal jurisdiction”? Tzipi Livni comes to mind as well as Jack Straw considering limiting this right in some way.

I also find some of their other arguments (e.g. what might happen if there was an attempt on his life) to be irrelevant to the legal points raised by this issue. {If His Holiness visits the U.K. then I have little doubt that H.M. Government would extend to him the security arrangements normal in such cases}.

However, I think that they will be right in their assertion that His Holiness is a “Head of State”. The Holy See is recognised world-wide and enjoys diplomatic relations with the U.N. and with numerous States. As such, he would enjoy the immunities in international law which attach to Heads of State.

[If perchance, the Holy See is not a State stricto sensu then it must be in a situation analogous to Statehood – perhaps something which is “sui generis”. This would still entitle His Holiness to be regarded as its Head and accorded the rights normally granted to Heads of State].

I wonder if the visit will actually go ahead after this? Also, is it becoming safe for certain British politicians to travel abroad?
.-= ObiterJ´s last blog ..No more "Law Lords" or "Law Ladies" =-.

2 Matt W April 20, 2010 at 13:11

Leaving aside the “Head of State” issue, which is perhaps a quagmire, what’s the position on jurisdiction over an offence allegedly committed 25 years ago in another country under these laws?

Love the Twitter ID field :-). When did you install it.

3 Matt W April 20, 2010 at 13:13

PS It looks to me that the Catholic Union (who?) position is a little too runcible and self-righteous, but that the Dawkins and whoever thing is about Act III in a year long publicity stunt.
.-= Matt W´s last blog ..Collingham Gardens Nursery Competition: Good design wrapped up in Architectural Bollocks =-.

4 Alex M April 20, 2010 at 13:30

I find the idea that the Pope could be arrested for crimes against humanity a legal absurdity. There is absolutely no way a crime against humanity has been committed (in the legal sense as per the ICC Statute).

All of this is a misjudged storm in a tea cup concocted by Dawkins et al for some publicity in my opinion.

5 Carl Gardner April 21, 2010 at 15:23

Obiter, you may be right about state immunity – I think that’s interesting, and may be arguable both ways. On Tzipi Livni, there’s only universal jurisdiction here for war crimes under the Geneva Conventions Act 1957 – that’s what was used to get a warrant against her. No one accuses the Pope of them!

Matt, I covered the retrospection point in my last post: the Rome Statute and our own ICC Act only came into force in 2001/2 – anything in the 80s is well before then of course, and can’t be prosecuted here or in the Hague. As for Twitter… I can’t remember when!

Alex: I agree this is about publicity, but I don’t myself think it’s as absurd as all that. I don’t think he can be arrested either, but some of the obstacles are technicalities about retroactivity of law, and state immunity. If you just look at the law on its merits, there’s a respectable argument – I say no more than that – that what he has done may be, or anyway isn’t a million miles away from, a crime against humanity under the Statute. I doubt Robertson and Stephens will come up with anything, but I don’t think it’s absurd to raise the issue at all.

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