NK v France: ECHR 19 Dec 2013

7974/11 – Chamber Judgment, [2013] ECHR 1321
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal SummaryNK v France (LS) ECHR 19-Dec-2013
ECHR Article 3
Expulsion
Risk of ill-treatment in Pakistan owing to applicant’s conversion to Ahmadism: deportation would constitute a violation
Facts – The applicant, who was from a Sunni . .

Lists of cited by and citing cases may be incomplete.

Ecclesiastical, Immigration

Updated: 28 November 2021; Ref: scu.519537

Hodkin and Another, Regina (on The Application of) v Registrar-General of Births, Deaths and Marriages: SC 11 Dec 2013

The appellants sought to be married in their regular church in London. The minister would be pleased to perform the ceremony, but church to which they belonged was part of the Church of Scientology, and had been refused registration under the 1855 Act.
Held: That a religion did not involve beliefs in a god should not be a bar to registration of its places of worship under the Act.
Toulson L said: ‘Unless there is some compelling contextual reason for holding otherwise, religion should not be confined to religions which recognise a supreme deity. First and foremost, to do so would be a form of religious discrimination unacceptable in today’s society. It would exclude Buddhism, along with other faiths such as Jainism, Taoism, Theosophy and part of Hinduism. The evidence in the present case shows that, among others, Jains, Theosophists and Buddhists have registered places of worship in England. Lord Denning in Segerdal [1970] 2 QB 697, 707 acknowledged that Buddhist temples were ‘properly described as places of meeting for religious worship’ but he referred to them as ‘exceptional cases’ without offering any further explanation. The need to make an exception for Buddhism (which has also been applied to Jainism and Theosophy), and the absence of a satisfactory explanation for it, are powerful indications that there is something unsound in the supposed general rule. ‘
. . And ‘ For the purposes of PWRA, I would describe religion in summary as a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science. ‘

Lord Neuberger, President, Lord Clarke, Lord Wilson, Lord Reed, Lord Toulson
[2013] UKSC 77, [2013] WLR(D) 492, [2014] PTSR 1, [2014] 1 AC 610, [2014] 1 All ER 737, [2014] 2 WLR 23, [2014] 1 FCR 577, UKSC 2013/0030
Bailii, WLRD, Bailii Summary, SC Summary, SC
Places of Worship Registration Act 1855, Charities Act 2011 3(2)(a)
England and Wales
Citing:
CitedDavis v Beason, Sheriff 3-Feb-1890
United States Supreme Court. The defendant claimed that the First Amendment insulated from civil punishment certain practices inspired or motivated by religious beliefs.
Held: The assetion failed: ‘It was never intended or supposed that the . .
CitedAdelaide Company of Jehovah’s Witnesses Inc v The Commonwealth 1943
Latham CJ said: ‘It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world.’ . .
CitedUnited States v Seeger 8-Mar-1965
United States Supreme Court – The respondent claimed conscientius objection to serving in the armed forces. . .
Appeal fromHodkin and Another, Regina (on The Application of) v Registrar General of Births, Deaths and Marriages Admn 19-Dec-2012
The claimants, both scientologists, wanted to be married as the London Church Chapel. The respondent had declined to register it as a place of worship under the 1855 Act.
Held: The claim failed. Scientology is a religion. Counsel for the . .
CitedRegina v Registrar General, Ex parte Segerdal QBD 1969
The Church of Scientology challenged the refusal of the Registrar General to register its chapel at East Grinstead as a place of meeting for religious worship.
Held: The challenge failed. . .
OverruledRegina v Registrar General, Ex parte Segerdal CA 1970
The Church of Scientology chapel at East Grinstead, Sussex was not a ‘place of meeting for religious worship’ within the meaning of section 2 of the 1855 Act since that would require reverence to a deity. The Church of Scientology’s services did not . .
CitedWelsh v United States 15-Jun-1970
United States Supreme Court – The appellant had refused to submit to joining the Armed Forces because he was ‘by reason of religious training and belief . . conscientiously opposed to participation in war in any form.’ . .
CitedMalnak v Yogi 2-Feb-1979
United States Court of Appeals – Third Circuit. The court considered whether the programme of teaching transcendental meditation and its associated Science of Creative Intelligence was a religious activity and so was not to be allowed to be taught . .
CitedIn re South Place Ethical Society 1980
The court considered the meaning and nature of religious belief, and whether a trust for this purpose could be charitable.
Held: Dillon J referred to Russell LJ as having taken the view that the court could hold that there are purposes ‘so . .
CitedChurch of the New Faith v Commissioner of Pay-Roll Tax 1983
(Victoria) Under the Victoria Pay-roll Tax Act 1971, there was an exemption from tax payable under the Act for wages paid by a religious institution. The question considered by the High Court was ‘whether the beliefs, practices and observances which . .

Lists of cited by and citing cases may be incomplete.

Administrative, Family, Ecclesiastical

Updated: 26 November 2021; Ref: scu.518899

Brownlow Lord Brownlow v James Devie, Clerk: PC 2 Jul 1782

Under what circumstances a new trial of an issue, directed to try a vicar’s right to tithes, ought to be refused, especially where the greatest and most material part of the evidence is in writing, of which the court directing the issue was a proper judge, and where there is no reason to suppose that any further light can be thrown upon it by another reference to a jury.

[1782] EngR 89, (1782) 7 Bro PC 83, (1782) 3 ER 55
Commonlii
Commonwealth

Ecclesiastical, Litigation Practice

Updated: 22 November 2021; Ref: scu.372437

Pichon And Sajous v France: ECHR 2 Oct 2001

Three women had been refused the supply of contraceptives prescribed for hem by their doctors by the claimant pharmacists, who were later found to have infringed their duties of supply. The claimants had argued that they had the right to apply their ehical or relgious principles, but the court found that the contraceptives were not abortifacients allowing any such exemption.
Held: The compliants were inadmissible: ‘as long as the sale of contraceptives is legal and occurs on medical prescription nowhere other than in a pharmacy, the applicants cannot give precedence to their religious beliefs and impose them on others as justification for their refusal to sell such products, since they can manifest those beliefs in many ways outside the professional sphere.’

49853/99 – Admissibility Decision, [2001] ECHR 898
Bailii
European Convention on Human Rights 9
Human Rights

Human Rights, Health Professions, Ecclesiastical

Updated: 20 November 2021; Ref: scu.515301

Public Trustee v Duchy of Lancaster: CA 1927

The court was asked whether the conveyance of a farm out of which a tithe rentcharge issued carried with it, by reason of Section 63, the rentcharge itself.
Held: The farm and the tithe rentcharge were two separate hereditaments and express words would be necessary to pass the rentcharge. The intention of the 1836 Act was to keep the tithe rentcharge hereditament separate from the land out of which it issued.
Bankes LJ referred to Chapman v Gatcombe and said: ‘ general words such as those used in that case, ‘together with all the estate, right, title, interest . . of him W. Gatcombe therein or thereto or to any part or parcel thereof’, are insufficient to pass tithe rentcharge. And as the object of Section 63 of the Conveyancing Act 1881 was merely to do away with a necessity of using those general words and to treat every conveyance as if it contained them, that section does not carry the matter any further. It only enacts that the conveyance shall pass every interest etc. which the conveying party may have in ‘the property conveyed’ and for the reasons above given tithe rentcharge is not such an interest.’
Scrutton LJ said that a tithe was not regarded as an interest in the land in respect of which it was payable, ans: ‘. . It was called in the language of lawyers of that day [1836] a ‘collateral hereditament’ which was held by a different title from that of the land itself.’ He referred to Chapman v Gatcombe and said: ‘That being so Section 63 of the Conveyancing Act 1881 does not assist the Appellant. It merely renders it unnecessary any longer to include in a conveyance the long string of general words, ‘all the estate, right, title, interest,’ etc., that used to be known by the name of the ‘all estate clause’, and, in the absence of a contrary intention appearing, treats the conveyance as containing them. The result is that the conveyance of the lands of Chapel House Farm to the Duchy of Lancaster did not carry with it the rectorial tithe rentcharge, as that rentcharge was not an ‘interest in’ the land out of which it issued but something collateral to and independent of it.’ He noted that the relevant conveyance had there begun with a conveyance of physical land and continued:- ‘So far it is plain that the conveyance would not include tithe rentcharge. But it is said this tithe rentcharge is an ‘interest in the land’, and that by virtue of Section 63 of the Conveyancing Act 1881, the conveyance is to be read as if these words were written in it. Now it is quite clear that before 1836 a conveyance of physical land with any number of general words added, such as ‘all the estate, right, property, interest, claim and demand’ in the land conveyed would not pass tithe, for the reason that tithe was a hereditament independent of and separate from the land on which it was charged and was not an interest in it or appertaining to it.’

Bankes LJ, Scrutton LJ
[1927] 1 KB 516
Law of Property Act 1925 63, Tithe Commutation Act 1836, Conveancing Act 1881 63
England and Wales
Citing:
Still Good LawChapman v Gatcombe 1836
One separate hereditament cannot be appurtenant to another. . .

Cited by:
CitedHarbour Estates Limited v HSBC Bank Plc ChD 15-Jul-2004
The lease contained a break clause. The parties disputed whether the benefit of the clause was personal to the orginal lessee, or whether it touched and concerned the land, and therefore the benefit of it passed with the land.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Land, Ecclesiastical

Updated: 16 November 2021; Ref: scu.263189

In re All Saints, Hough on the Hill: ConC 28 Nov 2001

Consideration of Effects of Proposed Works

The faculty petitioners sought permission to erect floodlighting on the church.
Held: the petitioners must show that they had considered the effects of their proposal on local bats. The chancellor, when giving his decision, had to consider in order whether the proposed works were reasonable, then their effect on the character of the church as a building of special architectural and historical interest and on other community interests. Last, he should consider the proportionality of the proposal, looking at the losses against the benefits accruing.

Peter Collier QC
Gazette 01-Feb-2002, Times 01-Feb-2002
England and Wales

Ecclesiastical, Environment

Updated: 11 November 2021; Ref: scu.167522

Gallagher (Valuation Officer) v Church of Jesus Christ of Latter-Day Saints: HL 30 Jul 2008

The House considered whether certain properties of the Church were subject to non-domestic rating. Various buildings were on the land, and the officer denied that some fell within the exemptions, and in particular whether the Temple itself was a public place of religious worship, since it was not open to the public, or even to all church members.
Held: The church’s appeal failed. Though the law had altered since the Henning case, the relevant words had not, and that decision stood. The sacredness of the building and of the functions that are performed there are decisive and the Temple could not be described as a church hall. Only one of the buildings satisfied the requirements for exemption. As a matter of law, a place of ‘public religious worship’ must be one that is open to the general public.
Lord Scott said: ‘the grant of rating relief to premises for religious services that are open to the public and the withholding of that relief from premises for religious services which take place behind closed doors through which only a select few may pass is well justifiable and within the margin of appreciation available to individual signatory states. First, states may justifiably take the view that the practice of religion is beneficial both to the individuals who practise it as well as to the community of whom the individuals form part, and that, therefore, relief from rating for premises where religious worship takes place is in the public interest. But, second, states may also recognise that, although religion may be beneficial both to individuals and to the community, it is capable also of being divisive and, sometimes, of becoming dangerously so. No one who lives in a country such as ours, with a community of diverse ethnic and racial origins and of diverse cultures and religions, can be unaware of this. Religion can bind communities together; but it can also emphasise their differences. In these circumstances secrecy in religious practices provides the soil in which suspicions and unfounded prejudices can take root and grow; openness in religious practices, on the other hand, can dispel suspicions and contradict prejudices.’

Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Carswell, Lord Mance
[2008] UKHL 56, Times 07-Aug-2008, [2008] 1 WLR 1852, [2008] 4 All ER 640, [2008] NPC 92, [2008] HRLR 46, [2008] RA 317, [2008] 2 P and CR DG25
Bailii, HL
Local Government Finance Act 1988 Sch5 p11, Toleration Act 1688, Roman Catholic Relief Act 1791, Places of Religious Worship Act 1812, Poor Rate Exemption Act 1833
England and Wales
Citing:
CitedCole v Police Constable 443A 1937
A ‘place of public religious worship’ required only ‘congregational worship’, that is to say, the assembly of a congregation whose association is solely for the purpose of joining in worship and not because they have private links such as being . .
CitedChurch of Jesus Christ of Latter-Day Saints v Henning (Valuation Officer) HL 1964
The House was asked whether the Mormon Temple at Godstone was exempt from rates as a ‘place of public religious worship’.
Held: The words could not apply to places used for religious worship from which the public was excluded.
Lord Pearce . .
CitedGilmour v Coats HL 1949
Prayers Alone did not make Convent Charitable
A trust to apply the income of a fund for all or any of the purposes of a community of Roman Catholic Carmelite nuns living in seclusion and spending their lives in prayer, contemplation and penance, was not charitable because it could not be shown . .
CitedBarras v Aberdeen Steam Trawling and Fishing Co HL 17-Mar-1933
The court looked at the inference that a statute’s draughtsman could be assumed when using a phrase to rely on a known interpretation of that phrase.
Viscount Buckmaster said: ‘It has long been a well established principle to be applied in the . .
CitedRegina v Chard HL 1983
The defendant appealed his conviction which had been obtained but based upon the evidence of a ‘super-grass’. His appeal failed, but the witness then withdrew his evidence. The matter was referred back to the court under the section, which then . .
CitedChurch of Jesus Christ of Latter-Day Saints v Henning (Valuation Officer) CA 1962
The court was asked whether a Mormon Temple was a public place of worship. Lord Denning MR rejected an argument that the Temple was merely a church hall: ‘The short answer is that this temple is not a church hall, chapel hall nor a similar building. . .
CitedThlimmenos v Greece ECHR 6-Apr-2000
(Grand Chamber) The application of a rule that a felon could not become a chartered accountant infringed the rights under article 14, taken in conjunction with article 9, of a pacifist convicted of the felony of refusing to perform military service. . .
CitedSecretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
CitedDH v Czech Repiublic ECHR 7-Feb-2006
The claimants, 18 Roma children complained, saying that they had automatically been placed in schools for children with special needs by virtue of their racial origin. . .
CitedLondon Corporation v Cusack-Smith HL 1955
The House considered a purchase notice under section 19(1), Town and Country Planning Act 1947, which turned on the second limb of the definition of ‘owner’ because the land in question was not let at a rack rent. Lord Reid considered a chain of . .
Appeal fromGallagher v Church of Jesus Christ of Latter-Day Saints CA 24-Nov-2006
. .
CitedBroxtowe Borough Council v Birch CA 1983
A sect of Christians, the Exclusive Brethren set up one building with a notice declaring that the word of god would be preached on Sundays. This was interpreted as that it was open for public worship and exempt from rating. A second building was . .
CitedW and JB Eastwood Ltd v Herrod (VO) HL 1971
The House was asked whether buildings used for producing broiler chickens were agricultural buildings. They would be exempt had it been possible to say that they were used ‘solely’ in connection with the agricultural operations on the land together . .
CitedTrustees of West London Methodist Mission v Holborn Borough Council 1958
. .

Cited by:
CitedThe Church of Jesus Christ of Latter-Day Saints v United Kingdom ECHR 4-Mar-2014
latterdayECHR0314
The claimant said that it had been wrongfully deprived of relief from business rates for its two temples. It asserted that it was a religion, and that the treatment was discriminatory. The government said that the refusal was on the basis alone that . .

Lists of cited by and citing cases may be incomplete.

Rating, Human Rights, Ecclesiastical

Leading Case

Updated: 11 November 2021; Ref: scu.271275

National Secular Society and Another, Regina (on The Application of) v Bideford Town Council: Admn 10 Feb 2012

The claimant challenged the placing of a prayer on the agenda of the respondent’s meetings.
Held: The claim succeeded. The placing of such elements on the Agenda was outside the powers given to the Council, and the action was ultra vires: ‘S111 is the statutory expression of the powers implied by common law for corporations. Even if an act could fall into a category outside s111 but for which no statutory authority was required at all, saying prayers would not be one of them: it can be controversial, the importance attached by the Council to saying prayers as part of the meeting means that it cannot be treated as a trivial matter.’
and ‘There is a contradiction at the heart of the Council’s position. It has made the prayers part of the formal business of the Council, yet it says that Councillors, summoned to its meetings, are not obliged to be present for this incident to the transaction of business nor to participate in it. I do not think that what falls within the scope of s111, as an incident to the transaction of the business of the meeting, can then be regarded as such that attendance for it is unnecessary or optional, in distinction from all other business.’
and ‘I do not think that the 1972 Act, dealing with the organisation, management and decision-making of local Councils, should be interpreted as permitting the religious views of one group of Councillors, however sincere or large in number, to exclude or, even to a modest extent, to impose burdens on or even to mark out those who do not share their views and do not wish to participate in their expression of them. They are all equally elected Councillors.’
Ouseley J said: ‘The issue is solely about whether prayers can be said as a part of the formal business transacted by the Council at a meeting to which all Councillors are summoned. It is quite wrong for the Defendant to suggest that the Claimants would be introducing a bar on acts of worship before the meeting, thus hindering the exercise by Councillors who wished to pray of their right to do so.’

Ouseley J
[2012] EWHC 175 (Admin)
Bailii
Equality Act 2006, European Convention on Human Rights 9, Local Government Act 1972 111
England and Wales
Citing:
CitedRegina v Richmond Upon Thames London Borough Council, ex parte McCarthy and Stone (Developments) Ltd HL 14-Nov-1991
A Local Authority was not able to impose charge for inquiries as to speculative developments and similar proposals, or for consultations, and pre-planning advice. There was no statutory authority for such a charge, and it was therefore unlawful and . .
CitedHazell v Hammersmith and Fulham London Borough Council HL 1991
Swap deals outwith Council powers
The authority entered into interest rate swap deals to protect itself against adverse money market movements. They began to lose substantial amounts when interest rates rose, and the district auditor sought a declaration that the contracts were . .
CitedWatkins-Singh, Regina (on the Application of) v The Governing Body of Aberdare Girls’ High School and Another Admn 29-Jul-2008
Miss Singh challenged her school’s policy which operated to prevent her wearing while at school a steel bangle, a Kara. She said this was part of her religion as a Sikh.
Held: Earlier comparable applications had been made under human rights . .
CitedEweida v British Airways Plc CA 12-Feb-2010
The court was asked whether, by adopting a staff dress code which forbade the wearing of visible neck adornment and so prevented the appellant, a Christian, from wearing with her uniform a small, visible cross, British Airways (BA) indirectly . .
CitedJohns and Another, Regina (on The Application of) v Derby City Council and Another Admn 28-Feb-2011
The claimants had acted as foster carers for several years, but challenged a potential decision to discontinue that when, as committed Christians, they refused to sign to agree to treat without differentiation any child brought to them who might be . .
CitedMcFarlane v Relate Avon Ltd CA 29-Apr-2010
The employee renewed his application for leave to appeal against refusal of his discrimination claim on the grounds of religious belief. He worked as a relationship sex therapist, and had signed up to the employer’s equal opportunities policy, but . .
CitedBuscarini And Others v San Marino ECHR 18-Feb-1999
(Grand Chamber) Elected MPs complained that they were not allowed to take their seats unless they swore an oath in religious form.
Held: This requirement was not compatible with article 9. ‘That freedom [Article 9 freedom of thought] entails, . .
CitedCarson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
CitedBegum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
CitedSecretary of State for Defence v Elias CA 10-Oct-2006
The claimant said that a scheme drawn by the defendant for compensating British civilians interned by the Japanese during the second world war was indirectly discriminatory on racial grounds by requiring a national origin link with the UK. She had . .
CitedLautsi v Italy ECHR 18-Mar-2011
(Grand Chamber) The applicants complained that the presence in all state schoolrooms of a crucifix on the wall infringed the principle of secularism. The routine presence in state school classrooms of a crucifix, which was not used for worship, . .
CitedLadele v London Borough of Islington CA 15-Dec-2009
The appellant was employed as a registrar. She refused to preside at same sex partnership ceremonies, saying that they conflicted with her Christian beliefs.
Held: The council’s decision had clearly disadvantaged the claimant, and the question . .

Lists of cited by and citing cases may be incomplete.

Local Government, Human Rights, Ecclesiastical

Updated: 11 November 2021; Ref: scu.451362

Julius v Lord Bishop of Oxford and Another: HL 23 Mar 1880

A statute enacted that with regard to certain charges against any Clerk in Holy Orders it ‘shall be lawful’ for the Bishop of the diocese ‘on the application of any party complaining thereof’ to issue a commission for enquiry.
Held: The words ‘it shall be lawful’ merely conferred a power, not a duty.
Lord Cairns said: ‘But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person on whom the power is reposed, to exercise that power when called upon to do so.’ and the cases decided ‘that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised.’
Lord Penzance said that the true question was whether regard being had to the person enabled, to the subject matter, to the general objects of the statute and to the person or class of persons for whose benefit the power was intended to be conferred, the words do or do not create a duty.
Lord Selborne said that the question was whether it could be shown from any particular words in the Act or from the general scope and objects of the statute that there was a duty.
Lord Blackburn said: ‘though giving a power is prima facie merely enabling the donee to act, and so may not inaccurately be said to be equivalent to saying he may act, yet if the object of giving the power is to enable the donee to effectuate a right, then it is the duty of the donee of the power to exercise the power when those who have the right call upon him so to do. And this is equally the case where the power is given by the word ‘may’, if the object be clear.’

Lord Selborne, Lord Penzance
[1880] UKHL 1, (1880) 5 AC 214, [1874-80] All ER 43, 42 LT 546, 49 LJQB 577
Bailii
England and Wales
Cited by:
CitedPadfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
CitedDay v Haine and Another ChD 19-Oct-2007
The liquidator sought directions from the court after former employees of the company submitted proofs of debt in respect of protective awards made for the company’s failure to consult on their redundancy before going into liquidation.
Held: . .
CitedHaine v Secretary of State for Business Enterprise and Regulatory Reform and Another; Day v Haine CA 11-Jun-2008
Former employees had obtained a protective award against the company for failing to consult on the impending redundancies and submitted proofs of debt to the liquidator who sought guidance from the court. The judge had held that since the Act . .
CitedRM v The Scottish Ministers SC 28-Nov-2012
The pursuer was held in a secure mental hospital. When moved to a highersecurity section, he challenged the move. He lost but then was unable to make an apeal as allowed iunder the 2003 Act because the Scottish Parliament had not created the . .
CitedOgundimu (Article 8 – New Rules) Nigeria UTIAC 8-Feb-2013
UTIAC 1 The expectation is that it will be an exceptional case in which permission to appeal to the Upper Tribunal should be granted where the lodging of the application for permission is more than 28 days out of . .
CitedMF (Article 8 – New Rules) Nigeria UTIAC 31-Oct-2012
UTIAC Prior to the new immigration rules (HC 194) introduced on 9 July 2012, cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against . .

Lists of cited by and citing cases may be incomplete.

Administrative, Ecclesiastical

Leading Case

Updated: 11 November 2021; Ref: scu.263823

NK v France (LS): ECHR 19 Dec 2013

ECHR Article 3
Expulsion
Risk of ill-treatment in Pakistan owing to applicant’s conversion to Ahmadism: deportation would constitute a violation
Facts – The applicant, who was from a Sunni Muslim family in Pakistan, converted to the Ahmadiyya religion. In 2009 he arrived in France where his asylum application was rejected.
Law – Article 3: Concerning the general situation in Pakistan, the risk of inhuman or degrading treatment for members of the Ahmadi movement was well documented, both in the international reports consulted and in the country guidance of the UK Upper Tribunal. The authorities did not generally protect them and even frequently participated in their persecution, in particular on the basis of anti-blasphemy legislation. However, the Upper Tribunal’s guidance specifically emphasised the risks incurred by the Ahmadis who preached their religion in public and engaged in proselytising, unlike those who practised their faith in private and were not bothered by the authorities. In the light of the latter, for the Article 3 protection to be engaged, the fact of belonging to the Ahmadi movement did not suffice. The applicant had to show that he openly practised this religion and that he was a proselytiser, or was at least perceived as such by the Pakistani authorities.
The applicant had presented a detailed account, supported by numerous documents. However, that material had been dismissed by the authorities with brief reasoning. Moreover, the Government had not adduced any evidence that manifestly cast doubt on the authenticity of the documents produced. Accordingly, there was no reason to doubt the applicant’s credibility. He could not be expected to substantiate further the veracity of his account or the authenticity of the evidence that he had adduced. As to the question whether he ran a risk of sustaining ill-treatment in the event of his return to Pakistan, the applicant had produced documents showing that he was perceived by the Pakistani authorities not as a mere follower of the Ahmadi movement but as a proselytiser and he therefore had a marked profile capable of drawing hostile attention on the part of the authorities should he return. Consequently, as the Government had failed to call seriously into question the reality of the applicant’s fears and given his profile and the situation of Ahmadis in Pakistan, the applicant’s return to his country of origin would expose him to a risk of ill-treatment in breach of Article 3 of the Convention.
Conclusion: removal would constitute a violation (unanimously).
Article 41: no claim made in respect of damage.

7974/11 – Legal Summary, [2013] ECHR 1321 – LS
Bailii
European Convention on Human Rights 3
Human Rights
Cited by:
Legal SummaryNK v France ECHR 19-Dec-2013
. .

Lists of cited by and citing cases may be incomplete.

Immigration, Ecclesiastical

Updated: 11 November 2021; Ref: scu.539938

The Church of Jesus Christ of Latter-Day Saints v United Kingdom: ECHR 4 Mar 2014

latterdayECHR0314

The claimant said that it had been wrongfully deprived of relief from business rates for its two temples. It asserted that it was a religion, and that the treatment was discriminatory. The government said that the refusal was on the basis alone that the temples were not open to the public, and similar differentiations for example applied to the Church of England.
Held: Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those provisions. The claim failed: ‘insofar as any difference of treatment between religious groups in comparable situations can be said to have been established in relation to tax exemption of places of worship, such difference of treatment had a reasonable and objective justification. In particular, the contested measure pursued a legitimate aim in the public interest and there was a reasonable relationship of proportionality between that aim and the means used to achieve it. The domestic authorities cannot be considered as having exceeded the margin of appreciation available to them in this context, even having due regard to the duties incumbent on the State by virtue of Article 9 of the Convention in relation to its exercise of its regulatory powers in the sphere of religious freedom. ‘

Ineta Ziemele, P
7552/09 – Chamber Judgment, [2014] ECHR 227
Bailii
European Convention on Human Rights 9 14
Citing:
CitedEweida And Others v The United Kingdom ECHR 15-Jan-2013
Eweida_ukECHR2013
The named claimant had been employed by British Airways. She was a committed Christian and wished to wear a small crucifix on a chain around her neck. This breached the then dress code and she was dismissed. Her appeals had failed. Other claimants . .
CitedGallagher (Valuation Officer) v Church of Jesus Christ of Latter-Day Saints HL 30-Jul-2008
The House considered whether certain properties of the Church were subject to non-domestic rating. Various buildings were on the land, and the officer denied that some fell within the exemptions, and in particular whether the Temple itself was a . .
CitedChurch of Jesus Christ of Latter-Day Saints v Henning (Valuation Officer) HL 1964
The House was asked whether the Mormon Temple at Godstone was exempt from rates as a ‘place of public religious worship’.
Held: The words could not apply to places used for religious worship from which the public was excluded.
Lord Pearce . .
CitedNational Union of Belgian Police v Belgium ECHR 27-Oct-1975
Hudoc No violation of Art. 11; No violation of Art. 14+11
The Belgian Government failed to consult a municipal police union about legislation affecting public sector employment rights. The union’s direct . .
CitedThlimmenos v Greece ECHR 6-Apr-2000
(Grand Chamber) The application of a rule that a felon could not become a chartered accountant infringed the rights under article 14, taken in conjunction with article 9, of a pacifist convicted of the felony of refusing to perform military service. . .
CitedSchmidt And Dahlstrom v Sweden ECHR 6-Feb-1976
ECHR No violation of Art. 11; No violation of Art. 14+11 . .
CitedHasan and Chaush v Bulgaria ECHR 26-Oct-2000
The Grand Chamber considered executive interference in the appointment of the Chief Mufti of the Bulgarian Muslims: ‘Where the organisation of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 of the . .
CitedMetropolitan Church Of Bessarabia And Others v Moldova ECHR 13-Dec-2001
‘in principle, the right to freedom of religion as understood in the Convention rules out any appreciation by the state of the legitimacy of religious beliefs or of the manner in which these are expressed’ . .
CitedDH v Czech Republic ECHR 13-Nov-2007
(Grand Chamber) The applicants complained that their children had been moved to special schools which did not reflect their needs from ordinary schools without them being consulted.
Held: The Court noted that, at the relevant time, the . .
CitedReligionsgemeinschaft der Zeugen Jehovas And Others v Austria ECHR 31-Jul-2008
The State has a duty to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom and in its relations with different religions, denominations and beliefs. . .
CitedBurden and Burden v The United Kingdom ECHR 12-Dec-2006
Sisters,Together always not Discriminated Against
(Grand Chamber) The claimants were sisters who had lived together all their lives and owned property jointly. They complained that the Inheritance Tax regime treated them worse than it would a married couple, and was discriminatory.
Held: . .
CitedRunkee And White v The United Kingdom ECHR 10-May-2007
The claimant said that the rules which denied him a widow’s pension were sex discrimination.
Held: The normally strict test for justification of sex discrimination in the enjoyment of the Convention rights gives way to the ‘manifestly without . .
CitedSavez Crkava (Rijec Zivota) And Others v Croatia ECHR 9-Dec-2010
. .
CitedCarson and Others v The United Kingdom ECHR 4-Nov-2008
(Grand Chamber) Pensioners who had moved abroad complained that they had been excluded from the index-linked uprating of pensions given to pensioners living in England.
Held: This was not an infringement of their human rights. Differences in . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Ecclesiastical, Rating

Updated: 11 November 2021; Ref: scu.521979

Percy v Church of Scotland Board of National Mission: HL 15 Dec 2005

The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an employment. However the jurisdiction in sex discrimination cases was wider, extending to those who ‘contract personally to execute any work or labour.’
Held: Her claim should proceed. The central test was the intention to create legal relations. ‘Without more, the nature of the mutual obligations, their breadth and looseness, and the circumstances in which they were undertaken, point away from a legally-binding relationship.’ but ‘The offer and acceptance of a church post for a specific period, with specific provision for the appointee’s duties and remuneration and travelling expenses and holidays and accommodation, ‘ pointed to a contract.
In matters purely spiritual, the Church is to have exclusive jurisdiction, but ‘A sex discrimination claim would not be regarded as a spiritual matter even though it is based on the way the church authorities are alleged to have exercised their disciplinary jurisdiction. The reason why a sex discrimination claim would not be so regarded is that the foundation of the claim is a contract which, viewed objectively, the parties intended should create a legally-binding relationship. The rights and obligations created by such a contract are, of their nature, not spiritual matters. They are matters of a civil nature as envisaged by section 3. In respect of such matters the jurisdiction of the civil courts remains untouched. ‘
‘It is a fundamental rule of sex discrimination law that it is not possible to contract out of it.’
‘It is a fundamental rule of sex discrimination law that it is not possible to contract out of it. ‘
Lady Hale refered to Perceval-Price and said: ‘I have quoted those words . . because they illustrate how the essential distinction is, as Harvey says, between the employed and the self-employed. The fact that the worker has very considerable freedom and independence in how she performs the duties of her office does not take her outside the definition. Judges are servants of the law, in the sense that the law governs all that they do and decide, just as clergy are servants of God, in the sense that God’s word, as interpreted in the doctrine of their faith, governs all that they practise, preach and teach. This does not mean that they cannot be ‘workers’ or in the ’employment’ of those who decide how their ministry should be put to the service of the Church.’

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond
[2005] UKHL 73, Times 16-Dec-2005, [2006] 2 WLR 353, [2006] ICR 134, [2006] IRLR 195, [2006] 2 AC 28, 2006 SLT 11, [2006] 4 All ER 1354
Bailii, House of Lords
Sex Discrimination Act 1975 82(1), Church of Scotland Act 1921, Equal Treatment Directive (Council Directive 76/207/EEC
Scotland
Citing:
CitedRe National Insurance Act 1911: Re Employment of Church of England Curates 1912
A curate in the Church of England was not employed under a ‘contract of service’ within Part I(a): ‘The position of a curate is the position of a person who holds an ecclesiastical office, and not the position of a person whose rights and duties are . .
CitedScottish Insurance Commissioners v Church of Scotland SCS 1914
Assistants to ministers, (not associate ministers), of the Church of Scotland are not employed by the Church under contracts of employment. The ‘control’ test was to be used in identifying a contract of employment. An assistant to a minister was not . .
CitedPresident of the Methodist Conference v Parfitt CA 1-Oct-1983
The claimant sought to assert that he as a minister of the Methodist Church who had been received into full connection had a contract of employment with the church. Having that contract, he said hat he had been unfairly dismissed.
Held: A . .
CitedDavies v Presbyterian Church of Wales HL 1986
A minister of the Presbyterian Church of Wales who had been inducted pastor of a united pastorate in Wales claimed unfair dismissal.
Held: If the existence or otherwise of the relationship of employer and employee is dependent solely upon the . .
CitedPresident of the Methodist Conference v Parfitt CA 1-Oct-1983
The claimant sought to assert that he as a minister of the Methodist Church who had been received into full connection had a contract of employment with the church. Having that contract, he said hat he had been unfairly dismissed.
Held: A . .
Appeal fromHelen Percy v An Order and Judgment of the Employment Appeal Tribunal Dated 22 March 1999 SCS 20-Mar-2001
Mrs Percy was a minister in the church. She appealed rejection of her claim for unfair dismissal and sex discrimination.
Held: the court considered whether Ms Percy was employed by the Board of National Mission in terms of a ‘contract . .
CitedMcMillan v Guest HL 1942
The House considered whether the taxpayer held a public office.
Held: Lord Wright: The word ‘office’ as applied in an employment law context is of indefinite content. Lord Atkin said: ‘Without adopting the sentence as a complete definition one . .
Cited102 Social Club and Institute Ltd v Bickerton 1977
Philips J set out the consequences of the 1971 Act: ‘Before 1971 there was perhaps a tendency to find in contracts of employment elements of a public character which would enable the court to extend to the employee the protection flowing from ‘the . .
CitedBarthope v Exeter Diocesan Board of Finance EAT 1979
A stipendiary lay reader claimed for unfair dismissal. The respondent denied there was any contract of service.
Held: The Tribunal rejected a submission that the claimant was an office holder and, as such, that it followed he was not employed . .
CitedMiles v Wakefield Metropolitan District Council HL 1987
The claimant was a superintendent registrar of Births Deaths and Marriages. His union instructed him not to conduct weddings on Saturdays. He had been told that if he failed to perform his full range of duties on a Saturday (including marriages), he . .
CitedReverend Doctor A B Coker v Diocese of Southwark; Bishop of Southwark and Diocesan Board of Finance CA 11-Jul-1997
A Church of England Assistant Curate is not an employee, but rather a holder of an ecclesiastical office. There is a presumption that ministers of religion were office-holders who did not serve under a contract of employment. Accordingly he is not . .
CitedJohnson v Ryan and others EAT 29-Nov-1999
A rent officer claimed unfair dismissal. The respondent said that being appointed under a statutory authority she was not an employee entitled to protection.
Held: The defence failed: ‘The question that the [employment] tribunal should have . .
CitedLogan v Presbytery of Dumbarton (Scotland) OHCS 23-May-1995
Civil courts have no power to review acts of Church of Scotland in the exercise of its disciplinary powers in spriitual matters. . .
CitedHastie v McMurtrie 1889
The pursuer had been appointed a foreign missionary of the Church of Scotland in India.
Held: He had not been appointed to an office in the church but had an ordinary contract of service which was terminable by notice in the usual way. . .
CitedDepartment of the Environment v Fox 1980
A rent officer, although holding a statutory office and not in employment, came within section 85(2)(b) because she performed services on behalf of the Crown for the purposes of a statutory body, namely a rent assessment committee. . .
CitedDale v Inland Revenue Commissioners HL 1954
Payments to trustees, which a testator had directed should be paid from a charitable trust for their work as trustees, were held to be earned income. The Revenue had contended that they were investment income because it was repugnant to the nature . .
CitedDeborah Lawrie-Blum v Land Baden-Wuerttemberg ECJ 3-Jul-1986
The Equal Treatment Directive is concerned with ‘workers’ which is a term of art in Community law: ‘That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and . .
CitedMarleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
CitedForbes v Eden 1865
A clergyman complained of a change in the doctrinal standards of the church.
Held: Since the matter concerned an eccliastical issue and not that he had been deprived of his status as a minister, the court could not intervene. Lord . .
CitedMcMillan v Free Church of Scotland 1861
A clergyman complained of the loss of his benefice.
Held: A patrimonial interest was involved and that the court would protect it. While the court might not have the power to restore the pursuer to the ministry, it did not follow that he was . .
CitedStewart v Kennedy HL 10-Mar-1890
As a general rule of Scottish law, extrinsic evidence of the parties’ intention as to whether or not they intended to be bound by obligations which they have entered into in writing is inadmissible. There may however be exceptional cases.
For . .
MentionedForbes v Eden HL 1867
Decision affirmed . .
CitedSkerret v Oliver 1896
The pursuer had been suspended from his office as a licentiate of the United Presbyterian Church for having met and walked privately with a young female member of the congregation.
Held: Lord McLaren said that the governing bodies of voluntary . .
CitedMirror Group Newspapers v Gunning CA 1985
The claimant sought to have transferred to her, her father’s agency for the wholesale distribution of Sunday newspapers. The claimant alleging sex discrimination after being refused. The company said that she was not an employee within the 1975 Act. . .
CitedLegal Services Commission v Yvonne Patterson CA 11-Nov-2003
The claimant worked as a sole practitioner solicitor. The firm failed the first part of its franchise assessment. She sought to allege race discrimination. The EAT rejected the complaint on the basis that she was not an employee.
Held: The . .
CitedMingeley v Pennock and Another (T/A Amber Cars) CA 9-Feb-2004
The claimant taxi driver sought to assert race discrimination. The respondent argued that he had not been an employee, but an independent contractor. The Claimant owned his own vehicle and paid the respondents minicab operators pounds 75 per week . .
CitedAlabaster v Barclays Bank Plc and Another CA 3-May-2005
The claimant sought increased maternity pay. Before beginning her maternity leave she had been awarded a pay increase, but it was not backdated so as to affect the period upon which the calculation of her average pay was based. The court made a . .
CitedM H Marshall v Southampton And South West Hampshire Area Health Authority (Teaching) ECJ 26-Feb-1986
ECJ The court considered the measure of compensation in a successful claim for sex discrimination arising from the health authority’s provision of an earlier compulsory retirement age for women compared with that . .
CitedFletcher, Parkes, Wilkinson v NHS Pensions Agency/Student Grants Unit the Secretary of State for Health EAT 3-Jun-2005
EAT An appeal from the dismissal of their sex discrimination claim by trainee midwives in the NHS, from whom the facility of a bursary was withdrawn during authorised absence from their training for a specified . .
CitedAllonby v Accrington and Rossendale College for Education and Employment ECJ 13-Jan-2004
ECJ Principle of equal pay for men and women – Direct effect – Meaning of worker – Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by . .
CitedCoote v Granada Hospitality Ltd ECJ 22-Sep-1998
coote_granadaECJ1998
The employer had refused to provide a reference after the claimant had left the company after making a sex discrimination claim. She said this was victimisation.
Held: The state has a duty to protect workers against retaliation after . .
CitedWippel v Peek and Cloppenburg GmbH and Co. KG ECJ 12-Oct-2004
ECJ Opinion – Directive 97/81/EC – Directive 76/207/EEC – Social policy – Equal treatment as between part-time and full-time workers – Equal treatment as between male and female workers – Working hours and . .
CitedKalanke v Freie Hansestadt Bremen ECJ 17-Oct-1995
An automatic preference of women ceteris paribus was discriminatory and unlawful. Any derogation from article 2.4 must be interpreted strictly. . .
CitedHugh-Jones v St John’s College, Cambridge 1979
An office holder can agree to execute work or labour without becoming an employee. . .
CitedWebb v EMO Air Cargo (UK) Ltd (No 1) HL 3-Mar-1993
Questions on pregnancy dismissals included unavailability at required time. The correct comparison under the Act of 1975 was between the pregnant woman and: ‘a hypothetical man who would also be unavailable at the critical time. The relevant . .
CitedTrussed Steel Concrete Ltd v Green 1946
A company director required to work full time for the company in return for a salary may be an employee: ‘… the question I have to consider is . . whether a managing director serving under a contract such as that by which Mr Green is bound is a . .
AppliedPerceval-Price, and others v Department of Economic Development etc CANI 12-Apr-2000
A full-time a full-time chairman of industrial tribunals, a full time chairman of social security appeal tribunals, and a social security commissioner are workers within the meaning of the European legislation, even though, by domestic legislation . .
CitedMalloch v Aberdeen Corporation HL 1971
A common law action for wrongful dismissal can at most yield compensation measured by reference to the salary that should have been paid during the contractual period of notice. Lord Reid said: ‘At common law a master is not bound to hear his . .
CitedRidge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .
CitedGreat Western Railway Co v Bater 1920
At common law, and office is ‘a subsisting, permanent, substantive position, which had an existence independently of the person who filled it, and which went on and was filled in succession by successive holders.’ . .

Cited by:
CitedO’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
CitedMoore v The President of The Methodist Conference EAT 15-Mar-2011
EAT JURISDICTIONAL POINTS – Worker, employee or neither
Claimant, a Methodist minister, brought proceedings for unfair dismissal – Tribunal held that it was bound by President of Methodist Church Conference . .
CitedJivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
CitedThe New Testament Church of God v Reverend Stewart CA 19-Oct-2007
The appellant appealed a finding that the respondent had been its employee, saying he was a minister of religion.
Held: The judge had been entitled to find an intention to create legal relations, and therefore that the claimant was an . .
CitedSingh v The Members of The Management Committe of The Bristol Sikh Temple and Others EAT 14-Feb-2012
EAT WORKING TIME REGULATIONS – Worker
NATIONAL MINIMUM WAGE ACT – Worker
The issue was whether the Priest at a Sikh Temple was a ‘worker’ within section 54(3)(b) of the National Minimum Wage Act 1998. . .
CitedO’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
AppliedMethodist Conference v Preston SC 15-May-2013
Minister was not an employee
The claimant asserted unfair dismissal. The Conference said that as an ordained minister she was not an employee, and was outwith the jurisdiction of such a claim.
Held: The Conference’s appeal succeeded (Baroness Hale dissenting). The essence . .
CitedKhaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .
CitedSharpe v The Bishop of Worcester CA 30-Apr-2015
Reverend Sharpe applied for the post of Rector of Teme Valley South. The right to present (or nominate) a member of the clergy to this living was vested in Mr and Mrs Miles but a person could not be nominated without the Bishop’s approval, which was . .
CitedPimlico Plumbers Ltd and Another v Smith SC 13-Jun-2018
The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment, Ecclesiastical

Leading Case

Updated: 10 November 2021; Ref: scu.236382

Kokkinakis v Greece: ECHR 25 May 1993

The defendant was convicted for proselytism contrary to Greek law. He claimed a breach of Article 9.
Held: To say that Jehovah’s Witness were proselytising criminally was excessive. Punishment for proselytising was unlawful in the circumstances of this case: ‘Bearing witness in words and deeds is bound up with the existence of religious convictions’ and ‘As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to ‘manifest [one’s] religion’. Bearing witness in words and deeds is bound up with the existence of religious convictions . . The fundamental nature of the rights guaranteed in Article 9 para 1 . is also reflected in the wording of the paragraph providing for limitations on them. Unlike the second paragraphs of Articles 8, 10 and 11 . . which cover all the rights mentioned in the first paragraphs of those Articles, that of Article 9 refers only to ‘freedom to manifest one’s religion or belief’. In so doing, it recognises that in democratic societies, in which several religions co-exist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.’ There should be no punishment without th eterms of the crime being set down.

Independent 16-Jun-1993, Times 11-Jun-1993, 14307/88, [1993] 17 EHRR 397, [1993] ECHR 20
Worldlii, Bailii
European Convention on Human Rights 9
Human Rights
Cited by:
CitedBegum, Regina (on the Application of) v Denbigh High School Admn 15-Jun-2004
A schoolgirl complained that she had been excluded from school for wearing a form of attire which accorded with her Muslim beliefs.
Held: The school had made great efforts to establish what forms of wear were acceptable within the moslem . .
CitedRegina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
CitedSB, Regina (on the Application of) v Denbigh High School CA 2-Mar-2005
The applicant, a Muslim girl sought to be allowed to wear the gilbab to school. The school policy which had been approved by Muslim clerics prohibited this, saying the shalwar kameeze and headscarf were sufficient. The school said she was making a . .
CitedRegina v Z (Attorney General for Northern Ireland’s Reference) HL 19-May-2005
The defendants appealed their convictions for being members of proscribed organisations. They were members of the ‘Real IRA’, but only the IRA was actually proscribed.
Held: The appeals failed. In construing an Act of Parliament it may be of . .
CitedCopsey v WWB Devon Clays Ltd CA 25-Jul-2005
The claimant said that his employer had failed to respect his right to express his beliefs by obliging him, though a Christian, to work on Sundays.
Held: The appeal failed. ‘The Commission’s position on Article 9, as I understand it, is that, . .
CitedRegina v Rimmington; Regina v Goldstein HL 21-Jul-2005
Common Law – Public Nuisance – Extent
The House considered the elements of the common law offence of public nuisance. One defendant faced accusations of having sent racially offensive materials to individuals. The second was accused of sending an envelope including salt to a friend as a . .
CitedConnolly v Director of Public Prosecutions Admn 15-Feb-2007
The defendant appealed against her conviction under the Act for having sent indecent or grossly offensive material through the post in the form of pictures of an aborted foetus sent to pharmacists. She denied that they were offensive, or that she . .
CitedThe New Testament Church of God v Reverend Stewart CA 19-Oct-2007
The appellant appealed a finding that the respondent had been its employee, saying he was a minister of religion.
Held: The judge had been entitled to find an intention to create legal relations, and therefore that the claimant was an . .
CitedMcFarlane v Relate Avon Ltd EAT 30-Nov-2009
EAT RELIGION OR BELIEF DISCRIMINATION
UNFAIR DISMISSAL – Reason for dismissal
Christian counsellor dismissed by Relate for failing to give an unequivocal commitment to counsel same-sex couples.
CitedBull and Bull v Hall and Preddy CA 10-Feb-2012
The appellants owned a guesthouse. They appealed from being found in breach of the Regulations. They had declined to honour a booking by the respondents of a room upon learning that they were a homosexual couple. The appellants had said that they . .
CitedSingh v The Members of The Management Committe of The Bristol Sikh Temple and Others EAT 14-Feb-2012
EAT WORKING TIME REGULATIONS – Worker
NATIONAL MINIMUM WAGE ACT – Worker
The issue was whether the Priest at a Sikh Temple was a ‘worker’ within section 54(3)(b) of the National Minimum Wage Act 1998. . .
CitedRT (Zimbabwe) and Others v Secretary of State for The Home Department SC 25-Jul-2012
The claimants said it would be wrong to return them to Zimbabwe where they would be able to evade persecution only by pretending to a loyalty to, and enthusiasm for the current regime.
Held: The Secretary of State’s appeals failed. The HJ . .
CitedEweida And Others v The United Kingdom ECHR 15-Jan-2013
Eweida_ukECHR2013
The named claimant had been employed by British Airways. She was a committed Christian and wished to wear a small crucifix on a chain around her neck. This breached the then dress code and she was dismissed. Her appeals had failed. Other claimants . .
CitedHammond v Director of Public Prosecutions Admn 13-Jan-2004
The defendant, who had since died, had been convicted of a public order offence in that standing in a street he had displayed a range of placards opposing homosexuality. He appealed saying that the finding was an unwarranted infringement of his . .
CitedOtto-Preminger-Institut v Austria ECHR 20-Sep-1994
Balance of Religious Tolerance and Freedom
The Institut operated a cinema. It announced a showing of a film ‘Das Liebenconzil’. Proceedings were brought against it, on complaint by the Roman Catholic Church, in which it was accused of ‘disparaging religious doctrine’. The film was seized . .
CitedLee v Ashers Baking Company Ltd and Others SC 10-Oct-2018
The court considered whether a power of appeal to the existed.
Held: A power did exist under FETO, and the CANI having mistakenly excluded a power to appeal the Supreme Court could nevertheless hear it. Both appeals were allowed. . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Human Rights, Ecclesiastical

Leading Case

Updated: 10 November 2021; Ref: scu.165254

Methodist Conference v Preston: SC 15 May 2013

Minister was not an employee

The claimant asserted unfair dismissal. The Conference said that as an ordained minister she was not an employee, and was outwith the jurisdiction of such a claim.
Held: The Conference’s appeal succeeded (Baroness Hale dissenting). The essence of the arrangement between the Conference and a minister lay in the constitution of the Conference, and not in a contract. The relationship was established at and derived from the act of ordination, and was lifelong.
The question of whether a minister of religion serves under a contract of employment can no longer be answered simply by classifying the minister’s occupation by type: office or employment, spiritual or secular. Nor, in the generality of cases, can it be answered by reference to any presumption against the contractual character of the service of ministers of religion generally.
Three points were decisive: ‘ First, the manner in which a minister is engaged is incapable of being analysed in terms of contractual formation . . Secondly, the stipend and the manse are due to the minister by virtue only of his or her admission into full connexion and ordination . . Third, the relationship between the minister and the Church is not terminable except by the decision of the Conference or its Stationing Committee or a disciplinary committee. There is no unilateral right to resign, even on notice.’
Baroness Hale, dissenting said: ‘the relationship between a minister of religion and her Church, which is a temporal one, is not to be confused with the relationship between a minister of religion and her God, which is a spiritual one. As Ms Rose QC on behalf of the Methodist Church properly accepts, there is nothing intrinsic to religious ministry which is inconsistent with there being a contract between the minister and the Church.’

Lord Hope, Deputy President, Lady Hale, Lord Wilson, Lord Sumption, Lord Carnwath
[2013] UKSC 29, UKSC 2012/0015, [2013] IRLR 646, [2013] ICR 833, [2013] WLR(D) 179, [2013] 2 WLR 1350, [2013] 2 AC 163, [2013] 4 All ER 477, [2013] IRLR 646
Bailii, SC Summary, SC, WLRD, Bailii Summary
Employment Rights Act 1996 230
England and Wales
Citing:
CitedPresident of the Methodist Conference v Parfitt CA 1-Oct-1983
The claimant sought to assert that he as a minister of the Methodist Church who had been received into full connection had a contract of employment with the church. Having that contract, he said hat he had been unfairly dismissed.
Held: A . .
Leave to appeal at EATMoore v The President of The Methodist Conference EAT 24-Nov-2010
EAT Jurisdictional Points : Worker, Employee or Neither – The claimant asserted the right not to be unfairly dismissed. She had been an ordained minister in Full Connection of the Methodist church.
Held: . .
At EATMoore v The President of The Methodist Conference EAT 15-Mar-2011
EAT JURISDICTIONAL POINTS – Worker, employee or neither
Claimant, a Methodist minister, brought proceedings for unfair dismissal – Tribunal held that it was bound by President of Methodist Church Conference . .
CitedRe National Insurance Act 1911: Re Employment of Church of England Curates 1912
A curate in the Church of England was not employed under a ‘contract of service’ within Part I(a): ‘The position of a curate is the position of a person who holds an ecclesiastical office, and not the position of a person whose rights and duties are . .
CitedScottish Insurance Commissioners v Church of Scotland SCS 18-Oct-1913
An assistant minister in the United Free Church said that he was an employee of the church.
Held: He was not. Lord Kinnear said that the status of an assistant minister ‘is not that of a person who undertakes work defined by contract but of a . .
CitedReverend Doctor A B Coker v Diocese of Southwark; Bishop of Southwark and Diocesan Board of Finance CA 11-Jul-1997
A Church of England Assistant Curate is not an employee, but rather a holder of an ecclesiastical office. There is a presumption that ministers of religion were office-holders who did not serve under a contract of employment. Accordingly he is not . .
Appeal fromThe President of The Methodist Conference v Preston CA 20-Dec-2011
The claimant had been an ordained minister in the church. She sought to claim unfair dismissal. The Conference replied that she was not an employee entitled to make such a claim.
Held: The claimant was an employee. . .
AppliedPercy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
CitedDavies v Presbyterian Church of Wales HL 1986
A minister of the Presbyterian Church of Wales who had been inducted pastor of a united pastorate in Wales claimed unfair dismissal.
Held: If the existence or otherwise of the relationship of employer and employee is dependent solely upon the . .

Cited by:
CitedSharpe v The Bishop of Worcester CA 30-Apr-2015
Reverend Sharpe applied for the post of Rector of Teme Valley South. The right to present (or nominate) a member of the clergy to this living was vested in Mr and Mrs Miles but a person could not be nominated without the Bishop’s approval, which was . .

Lists of cited by and citing cases may be incomplete.

Employment, Ecclesiastical

Leading Case

Updated: 09 November 2021; Ref: scu.509244

Capel v Child: 1832

A bishop issued a requisition under statute, requiring the Vicar of W to nominate a Curate with a stipend, on the ground that it appeared to the bishop, of his own knowledge, that the ecclesiastical duties of the vicarage and parish church of W were inadequately performed, by reason of the vicar’s negligence. The vicar appointed no curate and did not appeal to the Archbishop. The bishop after 3 months licensed the reverend B as Curate of W, with a stipend. The vicar refused to allow B to officiate; upon which the bishop issued a mandate, or summons, to show cause why the vicar should not pay the stipend due, and ultimately proceeded to sequestration.
Held:
The requisition upon which the whole of the proceedings were founded was in the nature of a judgment, and void as the party had had no opportunity of being heard
Such a requisition ought to state particular instances of negligence, or show how the incumbent was negligent.
Lord Lyndhurst CB said of the statute: ‘Here is a new jurisdiction given – a new authority given: a power is given to the bishop to pronounce a judgment; and, according to every principle of law and equity, such judgment could not be pronounced, or, if pronounced, could not for a moment be sustained, unless the party in the first instance had the opportunity of being heard in his defence, which in this case he had not; and not only no charge is made against him which he had an opportunity of meeting, but he has not been summoned that he might meet any charge.’
Baron Bayley said: ‘ Upon the general principles of law, it would have been essential, if the bishop had proceeded by way of affidavit, to have given the opposite party an opportunity of being heard. When the bishop proceeds on his own knowledge, I am of opinion also that it cannot possibly, and within the meaning of this Act, appear to the satisfaction of the bishop, and of his own knowledge, unless he gives the party an opportunity of being heard, in answer to that which the bishop states on his own knowledge to be the foundation on which he proceeds . . It would be quite sufficient if the bishop were to call the party before him, and to state to him the grounds on which he thought the duties were inadequately per- formed, by reason of his negligence; and he should have asked whether he had or had not any grounds on which he could answer that charge; but, is it not a common principle in every case which has in itself the character of a judicial proceeding, that the party against whom the judgment is to operate should have an opportunity of being heard? ‘

Lord Lyndhurst CB, Baron Bayley
[1832] EngR 40, (1832) 2 Cr and J 558, (1832) 149 ER 235
Commonlii
England and Wales
Cited by:
CitedFisher v Jackson ChD 7-Mar-1891
The deed of trust establishing an endowed school provided that the master of the school should he appointed by the vicars of three specified parishes, and power was given to the three vicars to remove the master for certain specified causes. The . .
CitedRidge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.

Ecclesiastical, Natural Justice

Leading Case

Updated: 09 November 2021; Ref: scu.318988

Krupko And Others v Russia: ECHR 26 Jun 2014

krupko_russiaECHR1406

ECHR Article 9-1
Manifest religion or belief
Disruption of a Jehovah’s Witnesses religious meeting by armed riot police: violation
Article 5
Article 5-1
Deprivation of liberty
Lawful arrest or detention
Detention of participants at religious ceremony of Jehovah’s Witnesses: violation
Facts – The applicants are Jehovah’s Witnesses belonging to various congregations in Moscow. On 12 April 2006 some 400 people, including the four applicants, were about to celebrate the most solemn and significant religious meeting of the year for Jehovah’s Witnesses when the police arrived in large numbers and cordoned off the university building that had been rented for the occasion. Fourteen members of the congregation, including the applicants, were segregated from the rest of the group and taken to minibuses under police escort before being driven to a local police station where they remained for about three hours, until after midnight.
The four applicants brought proceedings before the national courts to complain in particular about the disruption of the service and their detention. In a final judgment of March 2007, the courts held that the police had lawfully stopped the service as it had been held on unsuitable premises under domestic law and that the three hours spent by the applicants at the police station could not be considered as detention.
Law – Article 5: It was established that there was an element of coercion which, notwithstanding the short duration of the detention, was indicative of a deprivation of liberty within the meaning of Article 5 – 1. The applicants had produced their identity documents at the request of the police officers, answered the officers’ questions and obeyed their orders. They were not formally suspected of, or charged with, any offence and no criminal or administrative proceedings were instituted against them. The station officer had acknowledged in the domestic proceedings that no elements of an administrative offence had been established. It followed that the applicants’ arrest could not have been effected ‘for the purpose of bringing [them] before the competent legal authority on reasonable suspicion of having committed an offence’ within the meaning of Article 5 – 1 (c). Hence, the deprivation of liberty to which the applicants were subjected did not have any legitimate purpose under Article 5 – 1 and was arbitrary.
Conclusion: violation (unanimously).
Article 9: The early termination of the service ordered by the police had constituted an interference with the applicants’ right to freedom of religion. It was unnecessary to rule on the question whether that interference was ‘prescribed by law’ because, in any event, it was not ‘necessary in a democratic society’. The Court had consistently held that, even in cases where the authorities had not been properly notified of a public event but where the participants did not represent a danger to public order, dispersal of a peaceful assembly by the police could not be regarded as having been ‘necessary in a democratic society’*. This finding applied a fortiori in the circumstances of the present case where the assembly in question was not a tumultuous outdoors event but a solemn religious ceremony in an assembly hall which had not been shown to create any disturbance or danger to public order. The intervention of armed riot police in substantial numbers with the aim of disrupting the ceremony, even if the authorities genuinely believed that lack of advance notice rendered it illegal, followed by the applicants’ arrest and three-hour detention, was disproportionate to the aim of protecting public order.
Conclusion: violation (unanimously).
Article 41: EUR 30,000 jointly in respect of non-pecuniary damage.
* See, for example, Kasparov and Others v. Russia, 21613/07, 3 October 2013, Information Note 167.

26587/07 – Legal Summary, [2014] ECHR 802
Bailii
European Convention on Human Rights

Human Rights, Ecclesiastical

Updated: 09 November 2021; Ref: scu.535173

Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another: HL 26 Jun 2003

Parish Councils are Hybrid Public Authorities

The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention right.
Held: The parish council’s appeal was allowed. Parochial church councils, established by the 1956 Measure, are hybrid public authorities, but are not ‘core’ authorities. When exercising their powers under the 1932 Act they are not acting as public bodies, and the 1998 Act does not bite.
Chancel repair liability was a liability of the land like any other. It was part of the land itself, and was not something imposed by the Parish Council.
Lord Nicholls described the purpose of the 1998 Human Rights Act: ‘The purpose is that those bodies for whose acts the state is answerable before the European Court of Human Rights shall in future be subject to a domestic law obligation not to act incompatibly with Convention rights. If they act in breach of this legal obligation victims may henceforth obtain redress from the courts of this country. In future victims should not need to travel to Strasbourg.’

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Scott of Foscote, Lord Rodger of Earlsferry
[2003] UKHL 37, Gazette 04-Sep-2003, [2003] 3 WLR, [2004] 1 AC 546, [2003] 3 All ER 1213, [2003] UKHRR 919, [2003] HRLR 28, [2003] NPC 80, [2003] 27 EGCS 137
House of Lords, Bailii
Human Rights Act 1998 6, Parochial Church Councils (Powers) Measure 1956, Chancel Repairs Act 1932
England and Wales
Citing:
CitedThe Home Office v Wainwright and Wainwright CA 20-Dec-2001
The claimants were awarded damages, following the way they were searched on seeking to enter prison on a visit. The Home Office appealed. They were asked to sign a consent form, but only after the search was nearly complete. They were told the . .
Appeal from (Disapproved)Wallbank and Wallbank v Parochial Church Council of Aston Cantlow and Wilmcote With Billesley, Warwickshire CA 17-May-2001
The defendant owned land subject to an inclosure award of 1743, in exchange for other land which had made the owner a lay rector. The land was subject to the burden of a duty to maintain the chancel of the parish church. The defendants had been . .
QuestionedWickhambrook Parochial Church Council v Croxford CA 1935
The statutory powers given by the Act are not exercisable against the public generally or any class or group of persons which forms part of it. The purpose of the Act was to abolish proceedings in ecclesiastical courts for enforcing the liability to . .
CitedChivers and Sons Ltd v Air Ministry 1955
The liability of the lay impropriator to pay the cost of repairing the chancel has been part of ecclesiastical law for many centuries. It rests on the maxim, which has long been recognised, that he who has the profits of the benefice should bear the . .
CitedRegina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
CitedRegina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
CitedRegina v Benjafield, Regina v Leal, Regina v Rezvi, Regina v Milford HL 24-Jan-2002
Statutory provisions which reversed the burden of proof in cases involving drug smuggling and other repeat offenders, allowing confiscation orders to be made were not necessarily in contravention of the article 6 right. However the question of . .
CitedYoung, James and Webster v The United Kingdom ECHR 13-Aug-1981
Employees claimed religious objections to being obliged to members of a Trades Union.
Held: It is the obligation of states which have ratified the Convention to secure to everyone within their jurisdiction the rights and freedoms which it . .
CitedRothenthurm Commune v Switzerland ECHR 14-Dec-1988
Local government organisations such as the applicant commune exercising public functions are ‘governmental organisations’ as opposed to ‘non-governmental organisations’ within the meaning of article 25 of the Convention, with the result that the . .
CitedAyuntamiento de Mula v Spain ECHR 1-Feb-2001
Under the settled case law of the Convention institutions local government organisations are public law bodies which perform official duties assigned to them by the Constitution and by substantive law and are therefore quite clearly governmental . .
CitedThe Holy Monasteries v Greece ECHR 9-Dec-1994
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (ratione personae); Preliminary objection rejected (non-exhaustion); No violation of P1-1; Violation of Art. 6-1; No violation of Art. . .
CitedFoster and others v British Gas plc ECJ 12-Jul-1990
The defendants (BGC) were nationalised suppliers of gas. BGC was by statute a body with a legal persona operating under the supervision of the authorities. Its members were appointed by the Secretary of State, who also determined their remuneration. . .
CitedGilbert v Corporation of Trinity House 1886
The court first gave birth to the concept of an ’emanation of the state’ . .
CitedMarshall v Graham 1907
Parents were prosecuted for failing to send their children to school on Ascension Day. They argued that Ascension Day was a day ‘exclusively set aside for religious observance’ by the Church of England.
Held: A Church which is established is . .
CitedRegina v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann 1992
A local rabbi sought judicial review of the declaration of the Chief Rabbi, following an investigation into allegations of adultery with members of his congregation, that he was religiously and morally unfit to occupy his position.
Held: Simon . .
CitedRepresentative Body of the Church in Wales v Tithe Redemption Commission HL 1944
The issue, arising from the disestablishment of the Welsh Church, was whether tithe rent charges temporally vested in the Welsh Commissioners pending their transfer to the University of Wales while temporarily vested, subjected the Welsh . .
CitedBishop of Ely v Gibbons 1833
Responsibility for the repair of the parish church was, absent some special custom to the contrary shared between the rector and the parishioners. . .
CitedWalwyn v Awberry 1677
A lay rector brought an action for trespass because the local Bishop had sequestered his tithes on account of his failure to obey an admonition to repair the chancel of the parish church. The issue was whether sequestration was an available remedy. . .
CitedGeneral Assembly of Free Church of Scotland v Overtoun HL 1904
Craigdallie stated settled law: ‘My Lords, I disclaim altogether any right in this or any other civil court of this realm to discuss the truth or reasonableness of any of the doctrines of this or any other religious association, or to say whether . .
CitedIn re Barnes Simpson v Barnes 1930
The Church is ‘an organised operative institution’ or as ‘the quasi corporate institution which carries on the work’ of the Church of England. . .
CitedHautanemi v Sweden ECHR 1996
The applicants were members of a parish of the Church of Sweden who complained of a violation of article 9 of the Convention because the Assembly of the Church of Sweden had prohibited the use of the liturgy of the Finnish Evangelical-Lutheran . .
At first instanceParochial Church Council of Aston Cantlow and Wilmcote With Billesby, Warwickshire and Another ChD 7-Feb-2000
A lay rector could be liable for the physical upkeep of the chancel of the church by virtue of the Act, and such liability was not removed by the new Human Rights Act. Such liability could exist whether or not he had notice of the liability when . .

Cited by:
CitedHampshire County Council v Beer (T/A Hammer Trout Farm); Regina (Beer) v Hampshire Farmers’ Market Ltd CA 21-Jul-2003
The applicant had been refused a licence to operate within the farmer’s market. It sought judicial review of the rejection, but the respondent argued that it was a private company not susceptible to review.
Held: The decisions of the Farmers . .
CitedAli v The Head Teacher and Governors of Lord Grey School CA 29-Mar-2004
The student had been unlawfully excluded from school. The school had not complied with the procedural requirements imposed by the Act.
Held: Though the 1996 Act placed the responsibilty for exclusion upon the local authority, the head and . .
CitedRegina v Mushtaq HL 21-Apr-2005
The defendant was convicted of fraud charges. He sought to have excluded statements made in interview on the basis that they had been obtained by oppressive behaviour by the police. His wife was very seriously ill in hospital and he had made the . .
CitedHooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .
CitedAl-Jedda, Regina (on the Application of) v Secretary of State for Defence Admn 12-Aug-2005
The claimant was born an Iraqi, but had been granted British Nationality. He was later detained in Iraq suspected of membership of a terrorist group. No charges were brought, and he complained that his article 5 rights were infringed. The defendant . .
CitedRegina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
CitedMullins, Regina (on the Application of) v The Jockey Club Admn 17-Oct-2005
The claimant’s horse had been found after a race to have morphine in his system. It was not thought that the claimant was at fault, but the horse was disqualifed. He sought judicial review of the decision.
Held: The decision was a disciplinary . .
CitedKay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
CitedBegum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
CitedAl-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
CitedCameron and others v Network Rail Infrastructure Ltd QBD 18-May-2006
The claimant sought damages from the defendant after the death of her father in the Potters Bar rail crash. The defendant applied for summary judgment saying that English law did not recognise a claim by a family member of a deceased save through . .
CitedNational Grid Gas Plc, Regina (on the Application of) v The Environment Agency Admn 17-May-2006
The claimant sought a judicial review of the decision to hold them responsible for necessary works of remediation. They were statutory successors to British Gas Corporation.
Held: The legislation clearly attempted to hold the contaminator . .
CitedJohnson and others v London Borough of Havering and others CA 30-Jan-2007
The claimants were residents of old people’s homes run by the council and maintained under s21 of the 1948 Act. They objected to the transfer of the homes into the private sector saying that it would infringe their rights to family life, and that . .
See AlsoParochial Church Council of the Parish Aston Cantlow and Wilmcote with Billesley Warwickshire v Wallbank ChD 5-Feb-2007
The defendants, had been found liable as owners of land which made them lay rectors of the local parish church, were called upon to contribute to the costs of repair of the church. They argued that the duty extended only to keeping it wind and . .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
CitedYarl’s Wood Immigration Ltd and Others v Bedfordshire Police Authority CA 23-Oct-2009
The claimant sought to recover the costs of damage to their centre following a riot, saying that under the 1886 Act, they were liable. It appealed against a ruling that they were unable to claim as a public authority, saying that the 1886 Act was . .
CitedVirgin Media Ltd, Regina (on The Application of) v Zinga CACD 24-Jan-2014
Zinga had been convicted of conspiracy to defraud in a private prosecution brought by Virgin Media. After dismissal of the appeal against conviction, Virgin pursued confiscation proceedings. Zinga appealed against refusal of its argument that it was . .
CitedScott v LGBT Foundation Ltd QBD 3-Mar-2020
Disclosure of risk of self harm made no claim
The claimant complained that the respondent support group had disclosed to his doctor that fact that they had assessed him as being at significant risk of suicide or other substantial self-harm, and that it was at that time unable to provide Mr . .
CitedHuman Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .

Lists of cited by and citing cases may be incomplete.

Land, Human Rights, Ecclesiastical, Local Government

Leading Case

Updated: 02 November 2021; Ref: scu.183876

Alfred Nelson Laughton v The Hon And Right Reverend The Lord Bishop of Sodor And Man: PC 15 Nov 1872

LaughtonSodor1872

(Isle of Man) The Bishop of Sodor and Man, in a charge to his Clergy in Convocation, commented on a speech made by a Barrister in his character of an Advocate instructed to oppose a Bill before the House of Keys, promoted by the Government, vesting additionai Ecclesiastical patronage in the Bishop, in which he impugned the conduct of the Bishop, and attributed to him motives and conduct unworthy of his character and position.
Held: The charge of a Bishop to his Clergy in Convocation is, in the ordinary sense of the term, a privileged communication; on the well-known principle that a communication made bona fide upon any subject matter in which the party has an interest, or in reference to which he has, or honestly believes he has, a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains criminatory matter which, without that privilege, would be defamatory and actionable, provided that, the occasion on which the communication is made rebuts the prima facie inference of malice, in fact, arising from a statement prejudicial to the character of the Plaintiff, and the onus is upon him to prove that there was actuaI malice, that the Defendant was actuated by motives of personal spite or ill-will, independent of the occasion on which the communication was made.
The Privy Council said: ‘To submit the language of privileged communications to a strict scrutiny, and to hold all excess beyond the absolute exigency of the occasion to be evidence of malice, would in effect greatly limit, if not altogether defeat, the protection which the law throws over privileged communications.’

[1872] EngR 35, (1872) 9 Moo PC NS 318, (1872) 17 ER 534
Commonlii
Citing:
ApprovedSpill v Maule CEC 1869
Complaint was made about the defamatory contents of a letter written on an occasion of privilege. It was said that the privilege was defeated by malice.
Held: The court could look to the surrounding circumstances to assess whether the language . .

Cited by:
CitedCurran v Scottish Daily Record and Sunday Mail Ltd SCS 20-Dec-2011
The pursuer a Scottish Socialist Party Member and Scottish Parliament member had been involved as a witness (though not called) in defamation proceedings. She issued a press notice critical of one of the parties. The defender published stories based . .

Lists of cited by and citing cases may be incomplete.

Defamation, Ecclesiastical

Leading Case

Updated: 02 November 2021; Ref: scu.280125

In re Welford Road Cemetry, Leicester: ConC 23 Jan 2006

The council sought a confirmatory faculty after having laid flat headstones in the cemetry fearing that they were a health and safety risk.
Held: A confirmatory faculty in respect of past actions was refused. A conditional faculty was granted for the future. The council was obliged to restore the gravestones where their actions did not comply with the conditions. There had been considerable developments since the Keynsham case.

James Behrens
Times 15-Feb-2006
Citing:
CitedIn re Keynsham Cemetery ConC 18-Sep-2002
The local burial authority sought to carry out tests on the safety of gravestones.
Held: Tests which were not likely to cause physical damage did not need a faculty, but tests which might require anything more than minor work, by for example . .

Lists of cited by and citing cases may be incomplete.

Ecclesiastical

Leading Case

Updated: 02 November 2021; Ref: scu.240086

In re Saint Nicholas’s, Sevenoaks: Carc 30 Sep 2004

The petitioners sought a faculty to exhume a body so that a minimal bone extraction could take place so that in turn the DNA could be examined, and the result used to confirm or deny the family’s belief in its Russian and royal ancestery.
Held: The reason was insufficient to justify the exhumation. There was no direct evidence of the family connection, and the faculty was sought to support curiosity only. A genuine scientific enquiry might be a good reason, but there was no such element in this case.

Sheila Cameron QC
Times 29-Oct-2004
England and Wales

Ecclesiastical

Leading Case

Updated: 01 November 2021; Ref: scu.220038

In re Lambeth Cemetery: ConC 28 Jul 2020

Resolution of Conflicts in Court decisions.

The petitioner sought the exhumation of his still born son so that he could be buried alongside his wife who had died several years later.
Held: There had been conflicting decisions as to what amounted to a good and proper reason for an exhumation. The faculty was granted. Five factors worked to make the case a proper exception. It was appropriate to apply the common law principle of stare decisis within the Ecclesiastical jurisdiction and the latest decision of the relevant courts, having considered the earlier ones was to be followed.

Petchey Ch
[2020] WLR(D) 448
WLRD
Ecclesiastical Jurisdiction and Care of Churches Measure 2018
England and Wales
Citing:
CitedMinister of Pensions v Higham KBD 15-Apr-1948
The court considered the application of the doctrine of stare decisis when faced with conflicting earlier decisions.
Held: Denning J said that the ‘general rule’ is that: ‘where there are conflicting decisions of courts of co-ordinate . .
CitedColchester Estates (Cardiff) v Carlton Industries plc ChD 30-Mar-1984
If a decision of a court has been reached after full consideration of an earlier decision which went the other way, it should not be open to review on a third occasion when the same point arose for decision.
Nourse J said: ‘There must come a . .
Not FollowedIn Re Christ Church, Alsager CC 22-Oct-1998
Examination of proper reasons for exhumation and re-interment were subject to what would be acceptable among right thinking members of the church at large. Delay would reduce chances of successful application. Mistake only sometimes a good reason. . .
CitedIn re Hither Green Cemetery 2019
. .
CitedPatel v Secretary of State for The Home Department Admn 30-Jul-2014
The claimant’ sought substantial general, aggravated and exemplary damages for false imprisonment and damages under articles 5, 8 and 14 of the Human Rights Act, ‘for her unlawful detention, for the malicious and deliberate bullying and . .

Lists of cited by and citing cases may be incomplete.

Ecclesiastical

Updated: 02 November 2021; Ref: scu.655677

Dahlab v Switzerland: ECHR 15 Feb 2001

The applicant teacher had converted to Islam, and began wearing a headscarf. The local teaching authority had declared that she could not do so in school. The applicant complained that she had not been allowed to manifest her religion.
Held: Freedom of thought, conscience and religion, as enshrined by Article 9 of the Convention, represents one of the foundations of a ‘democratic society’ within the meaning of the Convention. In its religious dimension, it is one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. While religious freedom is primarily a matter of individual conscience, it also implies freedom to manifest one’s religion. Bearing witness in words and deeds is bound up with the existence of religious convictions. However: ‘weighing the right of a teacher to manifest her religion against the need to protect pupils by preserving religious harmony, the Court considers that, in the circumstances of the case and having regard, above all, to the tender age of the children for whom the applicant was responsible as a representative of the State, the Geneva authorities did not exceed their margin of appreciation and that the measure they took was therefore not unreasonable.’

42393/98 – Admissibility Decision, [2001] ECHR 899
Bailii
European Convention on Human Rights
Human Rights

Education, Ecclesiastical

Leading Case

Updated: 01 November 2021; Ref: scu.515300

N v N (Jurisdiction: Pre-Nuptial Agreement): FD 12 Jul 1999

A pre-nuptial agreement to abide by the decisions of the Beth Din Rabbinical Court could not be enforced so as to prevent a civil divorce proceeding through to its termination, but where the agreement required the husband first to obtain a Get, and a delay would not prejudice the child, there remained a discretion in the court to delay contact proceedings until the Get had been applied for. Although they were unenforceable as such, ante-nuptial agreements might have evidential weight in subsequent proceedings for divorce.

Wall J
Times 12-Jul-1999, Gazette 11-Aug-1999, [1999] EWHC Fam 838, [1999] 2 FLR 745, [1999] Fam Law 691, [1999] 2 FCR 583
Bailii
England and Wales
Cited by:
CitedRadmacher (Formerly Granatino) v Granatino SC 20-Oct-2010
The parties, from Germany and France married and lived at first in England. They had signed a pre-nuptial agreement in Germany which would have been valid in either country of origin. H now appealed against a judgment which bound him to it, . .

Lists of cited by and citing cases may be incomplete.

Family, Ecclesiastical

Updated: 01 November 2021; Ref: scu.84148

Martinez v Spain: ECHR 12 Jun 2014

martinez_spainECHR1407

Grand Chamber – Article 8-1
Respect for private life
Refusal to renew teacher of Catholic religion and morals’ contract after he publicly revealed his position as a ‘married priest’: no violation
Facts – The applicant is a secularised Catholic priest. In 1984 he applied to the Vatican for dispensation from the obligation of celibacy. The following year he got married and he and his wife have five children. From 1991 onwards he taught Catholic religion and ethics in a State secondary school, under an annual contract which was renewed by the Ministry of Education on the basis of the binding opinion of the bishop of the diocese. In 1996 the applicant took part in a gathering of the ‘Movement for Optional Celibacy’ of priests (MOCEOP). On that occasion the participants expressed their disagreement with the Church’s position on various issues such as abortion, divorce, sexuality and birth control. An article was published in a regional newspaper, illustrated by a picture of the applicant with his family and mentioning his name, together with comments attributed to him. In 1997 the applicant was granted dispensation from celibacy. His teaching contract was not renewed, on the ground that by publicising his situation as ‘married priest’ he had breached his duty to teach ‘without creating a risk of scandal’. The applicant challenged that decision in the domestic courts, but to no avail. The domestic courts took the view that, in so far as the reasoning for the non-renewal decision had been strictly religious, they had to confine themselves to verifying respect for the fundamental rights at stake. In particular, the Constitutional Court, after carefully examining the facts of the case, observed that the State’s duty of neutrality prevented it from ruling on the notion of ‘scandal’ used by the Bishop in refusing to renew the applicant’s contract or on the merits of the principle of the optional celibacy of priests advocated by the applicant. However, it also examined the extent of the interference with the applicant’s rights and found that it was neither disproportionate nor unconstitutional but was justified by the respect due to the lawful exercise of the Catholic Church’s right to freedom of religion in its collective or community dimension, in conjunction with the right of parents to choose their children’s religious education.
In a judgment of 15 May 2012 (see Information Note 152), a Chamber of the Court found, by six votes to one, that there had been no violation of Article 8 of the Convention.
Law – Article 8: An individual’s right to get married and to make that choice known to the public was protected by the Convention. Unlike the Chamber, the Grand Chamber took the view that the question in the present case was not whether the State was bound, in the context of its positive obligations under Article 8, to ensure that the applicant’s right to respect for his private life prevailed over the Catholic Church’s right to refuse to renew his contract. Even though it was not a public authority which had actually taken the non-renewal decision, it sufficed for such an authority to intervene at a later stage for the decision to be regarded as an act of a public authority. The crux of the issue lay in the action of the State authority, which, as the applicant’s employer, and being directly involved in the decision-making process, had enforced the Bishop’s non-renewal decision. Whilst the Court recognised that the State had limited possibilities of action in the present case, it was noteworthy that if the Bishop’s decision had not been enforced by the Ministry of Education, the applicant’s contract would certainly have been renewed. Consequently, the conduct of the public authorities had constituted an interference with the applicant’s right to respect for his private life.
The impugned interference was in accordance with the law and pursued the legitimate aim of protecting the rights and freedoms of others, namely those of the Catholic Church, and in particular its autonomy in respect of the choice of persons accredited to teach religious doctrine.
The Court found it appropriate to take the following factors into account:
(a) The applicant’s status – By signing his successive employment contracts, the applicant had knowingly and voluntarily accepted a heightened duty of loyalty towards the Catholic Church and that had limited the scope of his right to respect for his private and family life to a certain degree. Such contractual limitations were permissible under the Convention where they were freely accepted. Indeed, from the point of view of the Church’s interest in upholding the coherence of its precepts, teaching Catholic religion to adolescents could be considered a crucial function requiring special allegiance. Even if the applicant’s status as married priest was unclear, a duty of loyalty could still be expected of him on the basis that the Bishop had accepted him as a suitable representative to teach Catholic religion.
(b) Publicity given by the applicant to his situation as married priest – In choosing to accept a publication about his family circumstances and his association with what the Bishop considered to be a protest-oriented meeting, the applicant had severed the special bond of trust that was necessary for him to carry out his tasks. Having regard to the importance of religious education teachers for all faith groups, it was hardly surprising that this severance would entail certain consequences. The existence of a discrepancy between the ideas that had to be taught and the teacher’s personal beliefs might raise an issue of credibility if the teacher actively and publicly campaigned against the ideas in question. Thus, in the present case the problem lay in the fact that the applicant could be understood to have been campaigning in favour of his way of life to bring about a change in the Church’s rules, and in his open criticism of those rules.
(c) Publicity given by the applicant to his membership of MOCEOP and the remarks attributed to him – Whilst it had been generally known that the applicant was married and had five children, it was not clear to what extent his membership of an organisation with aims incompatible with official Church doctrine had also been known to the general public before the publication of the impugned article. However, the sole fact that there was no evidence to suggest that the applicant, in his class, had taught anything incompatible with the Catholic Church’s doctrine did not suffice for it to be concluded that he had fulfilled his heightened duty of loyalty. In addition, there was little doubt that the applicant, as a former priest and director of a seminary, was or must have been aware of the substance and significance of that duty. Moreover, the changes brought about by the publicity given to the applicant’s membership of the MOCEOP and by the remarks appearing in the article were all the more important as the applicant had been teaching adolescents, who were not mature enough to make a distinction between information that was part of the Church’s doctrine and that which corresponded to the applicant’s own personal opinion.
(d) State’s responsibility as employer – The fact that the applicant had been employed and remunerated by the State was not such as to affect the extent of the duty of loyalty imposed on him vis-a-vis the Catholic Church or the measures that the latter was entitled to take if that duty were breached.
(e) Severity of the sanction – It was of particular importance that an employee dismissed by an ecclesiastical employer had limited opportunities of finding another job. This was especially true where the employer had a predominant position in a given sector of activity and enjoyed certain derogations from the ordinary law, or where the dismissed employee had specific qualifications that made it difficult, if not impossible, to find a new job elsewhere.
Moreover, as a result of his former responsibilities within the Church, the applicant had been aware of its rules and should therefore have expected that the publicity he had given to his membership of the MOCEOP would not be without consequence for his contract. In addition, in the present case, a less restrictive measure for the applicant would certainly not have had the same effectiveness in terms of preserving the credibility of the Church. It did not therefore appear that the consequences of the decision not to renew his contract had been excessive in the circumstances of the case, having regard in particular to the fact that the applicant had knowingly placed himself in a situation that was completely in opposition to the Church’s precepts.
(f) Review by the domestic courts – The applicant had been able to complain about the non-renewal of his contract at various levels of jurisdiction. The domestic courts had taken into account all the relevant factors and, even though they had emphasised the applicant’s right to freedom of expression, they had weighed up the interests at stake in detail and in depth, within the limits imposed on them by the necessary respect for the autonomy of the Catholic Church. The conclusions thus reached did not appear unreasonable. The fact that the Constitutional Court had carried out a thorough analysis was all the more evident as two dissenting opinions were appended to its judgment, thus showing that the court had examined the issue from various perspectives, whilst refraining from ruling on the substance of the Church’s principles. As to the Church’s autonomy, it did not appear, in the light of the review exercised by the national courts, that it had been improperly invoked in the present case. In other words, the Bishop’s decision not to propose the renewal of the applicant’s contract could not be said to have contained insufficient reasoning, to have been arbitrary, or to have been taken for a purpose that was unrelated to the exercise of the Catholic Church’s autonomy.
Having regard to the State’s margin of appreciation in the present case, the interference with the applicant’s right to respect for his private life was not disproportionate.
Conclusion: no violation (nine votes to eight).

56030/07 – Legal Summary, [2014] ECHR 851
Bailii
European Convention on Human Rights 8

Human Rights, Employment, Ecclesiastical

Updated: 31 October 2021; Ref: scu.535506

Calvert v Gardiner and Others: QBD 10 May 2002

The claimant sought damages for nuisance in the form of the loud ringing of church bells. The claim was against the local church and also against the bishop.
Held: The ring of bells might in law amount to a nuisance, but the action against the Bishop was not going to succeed and was struck out. The management of the church bell ringing was specifically within the remit of the local church. The vicar had a degree of security of tenure, and the bishop had no disciplinary rights or other form of control which might make him potentially liable.

Mr Justice Burton
Times 22-Jul-2002

Ecclesiastical, Nuisance

Leading Case

Updated: 31 October 2021; Ref: scu.174420

Hoffmann v Austria (Case No 15/1992/360/434): ECHR 27 Jul 1993

It was a breach of the Convention when parental rights were refused to Jehovah’s Witnesses with regard to the right to refuse to accept a blood transfusion.
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 14+8; Not necessary to examine Art. 8; Not necessary to examine Art. 9; Not necessary to examine P1-2; Costs and expenses award – Convention proceedings
Times 27-Jul-1993, [1993] ECHR 25, 12875/87, (1993) 17 EHRR 293, [1993] ECHR 25
Worldlii, Bailii
European Convention on Human Rights 8 14
Human Rights
Cited by:
CitedRegina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.81425

Rex v North; Ex parte Oakey: CA 1927

Proceedings in the Consistory Court were found to be: ‘without jurisdiction’ and prohibition lay.
Scrutton LJ said: ‘In my view an order that anyone shall pay the cost of restoring work which has been obliterated without a faculty is in the nature of a penalty for an ecclesiastical offence, and one of the most fundamental principles of English law is that if you are going to impose on a person a penalty for an offence, you must first clearly inform him that an application to that effect is going to be made against him, so that he may know what he is charged with and have an opportunity of attending to meet it.’
Lord Justice Atkin observed: ‘I can see no difference in principle between certiorari and prohibition, except that the latter may be invoked at an earlier stage. If the proceedings establish that the body complained of is exceeding its jurisdiction by entertaining matters which would result in its final decision being subject to being brought up and quashed on certiorari, I think that prohibition will lie to restrain it from so exceeding its jurisdiction.’
Lord Justice Atkin, Scrutton LJ
[1927] 1 KB 491
England and Wales
Cited by:
CitedRidge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.653104

Sir Henry Edward Bunbury, Bart v Philip Fuller: 25 Jun 1853

A section of an Act of Parliament imposed a restraint on the jurisdiction of tithe commissioners in the case of lands in respect of which the tithes had already been perpetually commuted or statutorily extinguished. The tithe commissioners had, therefore, no jurisdiction over such lands. In a question of jurisdictional or precedent fact the ultimate arbiters are the courts rather than any public authorities involved. A tithe commissioner could not give himself jurisdiction over land which had previously been discharged from tithe.
Coleridge J said: ‘Now it is a general rule, that no court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit to its jurisdiction depends; and however its decision may be final on all particulars, making up together that subject-matter which, if true, is within its jurisdiction, and, however necessary in many cases it may be for it to make a preliminary inquiry, whether some collateral matter be or be not within the limits, yet upon this preliminary question, its decision must always be open to inquiry in the superior court.’
The learned judge instanced the case of a judge having a jurisdiction limited to a particular hundred before whom a matter was brought as having arisen within it: if the party charged contended that it arose in another hundred, then there would be a collateral matter which was independent of the merits of the claim: ‘on its being presented, the judge must not immediately forbear to proceed, but must inquire into its truth or falsehood, and for the time decide it, and either proceed or not with the principal subject-matter according as he finds on that point; but this decision must be open to question, and if he has improperly either forborne or proceeded on the main matter in consequence of an error, on this the Court of Queen’s Bench will issue its mandamus or prohibition to correct his mistake.’
Coleridge J
[1853] EngR 768, (1853) 9 Exch 111, (1853) 156 ER 47
Commonlii
England and Wales
Cited by:
CitedA, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
CitedAnisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
All Public Law Challenges are For a Nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 September 2021; Ref: scu.294754

Sharpe v The Bishop of Worcester: CA 30 Apr 2015

Reverend Sharpe applied for the post of Rector of Teme Valley South. The right to present (or nominate) a member of the clergy to this living was vested in Mr and Mrs Miles but a person could not be nominated without the Bishop’s approval, which was given. The Bishop conducted a ceremony of ‘installation’ to complete the formalities of the appointment. After that, Reverend Sharpe became responsible for looking after the spiritual needs of parishioners unless the Bishop chose to intervene. Following his appointment, Reverend Sharpe received a set of papers, called ‘the Bishop’s Papers’, assembled into book form with an introduction. The Bishop’s Papers dealt with a large number of matters, including when holidays should be taken and so on. The employment judge, however, held that there was no contract, express or implied, between the parties.
Held: The rector’s appeal failed. The Claimant could not either be an employee with unfair dismissal rights, or a worker under whistleblowing provisions. His freedom as a clergyman to set out for ‘the cure of souls’ following his own conscience was not consistent with the existence of a contract of employment.
Arden, Davis, Lewison LJJ
[2015] EWCA Civ 399, [2015] ICR 1241, [2015] WLR(D) 196, [2015] IRLR 663
Bailii, WLRD
Employment Rights Act 1996 230 43K(1)
England and Wales
Citing:
CitedKirton v Dear 1869
A rector is the holder of a freehold office. . .
CitedSharpe v The Worcester Diocesan Board of Finance Ltd and Another EAT 28-Nov-2013
EAT JURISDICTIONAL POINTS – Worker, employee or neither
This appeal raises the question whether the Claimant, an ordained Minister in the Church of England, was working under a contract of employment, or . .
CitedGreat Western Railway Co v Bater 1920
At common law, and office is ‘a subsisting, permanent, substantive position, which had an existence independently of the person who filled it, and which went on and was filled in succession by successive holders.’ . .
CitedMcMillan v Guest HL 1942
The House considered whether the taxpayer held a public office.
Held: Lord Wright: The word ‘office’ as applied in an employment law context is of indefinite content. Lord Atkin said: ‘Without adopting the sentence as a complete definition one . .
CitedJohnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
CitedMethodist Conference v Preston SC 15-May-2013
Minister was not an employee
The claimant asserted unfair dismissal. The Conference said that as an ordained minister she was not an employee, and was outwith the jurisdiction of such a claim.
Held: The Conference’s appeal succeeded (Baroness Hale dissenting). The essence . .
CitedRe National Insurance Act 1911: Re Employment of Church of England Curates 1912
A curate in the Church of England was not employed under a ‘contract of service’ within Part I(a): ‘The position of a curate is the position of a person who holds an ecclesiastical office, and not the position of a person whose rights and duties are . .
CitedReady Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD 8-Dec-1967
Contracts of service or for services
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .
CitedPresident of the Methodist Conference v Parfitt CA 1-Oct-1983
The claimant sought to assert that he as a minister of the Methodist Church who had been received into full connection had a contract of employment with the church. Having that contract, he said hat he had been unfairly dismissed.
Held: A . .
CitedReverend Doctor A B Coker v Diocese of Southwark; Bishop of Southwark and Diocesan Board of Finance CA 11-Jul-1997
A Church of England Assistant Curate is not an employee, but rather a holder of an ecclesiastical office. There is a presumption that ministers of religion were office-holders who did not serve under a contract of employment. Accordingly he is not . .
CitedPercy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
CitedCroke v Hydro Aluminium Worcester Ltd EAT 4-Apr-2007
EAT Preliminary issues
The EAT concludes that in construing the statutory definition of ‘worker’ for the purposes of the provisions providing protection for protected disclosures under Part IV A of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 August 2021; Ref: scu.546213

Smith v Galbraith: 1843

(1843) 5 D 665
Scotland
Cited by:
CitedThe Free Church of Scotland v The General Assembly of the Free Church of Scotland SCS 24-Mar-2005
Each group claimed to by the true Free Church of Scotland. The dispute had a very long history. One claimed that the other had abandoned a fundamental principle of the faith, the right of ‘continued protest’.
Held: It was necessary to examine . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.223938

Forbes v Eden and Others: SCS 14 Nov 1865

Court of Session Inner House Second Division. Scottish Episcopal Church Case. This is an action at the instance of the Rev. George Hay Forbes, minister of the Scotch Episcopal congregation at Burntisland, against the Right Rev. Robert Eden, D.D., one of the bishops, and primus of the religious denomination known as the Episcopal Church in Scotland, and other clergymen of that Church, as members of a General Synod held in 1862 and 1863. The leading conclusion of the action is for reduction of certain portions of a code of canons of the Episcopal Church in Scotland, enacted in 1863 by the General Synod. There are also conclusions of declarator- first, that it was ultra vires of the General Synod to alter, amend, or abrogate any of the canons contained in a previous code in 1838, or to make new canons, except in conformity with the constitution which was recognised and the practice which was acknowledged at the time of the pursuer’s ordination, and set forth in the code of canons of 1838, which was then subscribed by him. In the second place, there is a conclusion of declarator that the pursuer is entitled to celebrate divine worship and all the other services, and to administer the sacraments and all the other rites of the Church, in conformity with the canons of 1838, and is entitled to the free exercise and enjoyment of all the privileges conferred on him under these canons, or under the deed of institution in his favour. In addition to these conclusions, the summons contains a pecuniary conclusion of pounds 120 against the defenders, conjointly and severally, being a sum paid by the pursuer to his curate, the Rev. Mr Wilkinson, to whom the pursuer says a license was wrongfully refused; and a conclusion for pounds 200 for damages, as solatium on account of said refusal.
The Lord Ordinary (Barcaple) held that the grounds of reduction libelled, and the pursuer’s averments on record, were not relevant to support the conclusions of the action, and assoilzied the defenders. The pursuer reclaimed, and his case was to-day partially opened by Mr D. B. Hope.
[1865] SLR 1 – 21
Bailii
Scotland

Updated: 07 August 2021; Ref: scu.575130

Hope Community Church (Wymondham) v Phelan and Others: ChD 22 May 2020

The Church, a private company limited by guarantee, sought a declaration that it had the right to enfranchise its church premises under the 1920 Act.
Mrs Justice Falk
[2020] EWHC 1240 (Ch)
Bailii
Places of Worship (Enfranchisement) Act 1920 1
England and Wales
Citing:
CitedStradling v Higgins ChD 1932
The Court considered a lease of two buildings used by the Salvation Army, one of which was used for services open to the public, with part of the other being used for education. The lease was originally granted to William Booth but was subsequently . .
CitedVon Ernst and Cie SA v Inland Revenue Commissioners CA 1979
The assets of a corporate charity were held on charitable trusts: ‘We were referred to certain authorities which give support to the view that a company incorporated for exclusively charitable purposes is in the position of a trustee of its funds or . .
CitedLiverpool and District Hospital for Diseases of the Heart v Attorney-General ChD 1981
Charitable Company is Trustee of Assets
The court was asked as to the distribution of surplus assets of a charitable company which was in winding up, and the question whether or not s 257 et seq. Companies Act 1948 applied, including s 265 which made provision for the distribution of . .

Cited by:
CitedLehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .

These lists may be incomplete.
Updated: 14 July 2021; Ref: scu.650962

Ex Parte Winfield: 9 Jun 1835

The Court will grant a rule absolute in the first instance for a mandamus to the archdeacon, to swear in a party as churchwarden, on affidavit of due election, demand and refusal, and of notice to the archdeacon of the application to the Court ; the ground of refusal not appearing by the affidavit in support of the rule.
[1835] EngR 791, (1835) 3 Ad and E 614, (1835) 111 ER 546
Commonlii
England and Wales

Updated: 20 June 2021; Ref: scu.316299

Kingston’s (Duchess) Case: 1776

The judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties coming incidentaly in question in another court for a different purpose. The principle of litigation privilege is restricted to legal advice.
(1776) 1 East PC 468, (1776) 20 ST 336
England and Wales
Cited by:
CitedPenn-Texas Corporation v Murat Anstalt (No 2) CA 1964
The court considered a claim for an issue estoppel arising from a foreign judgment: ‘In my opinion a previous judgment between the same parties is only conclusive on matters which are conclusive and necessary to the decision. It is not conclusive on . .
CitedThree Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .

These lists may be incomplete.
Updated: 21 May 2021; Ref: scu.188235

Walwyn v Awberry: 1677

A lay rector brought an action for trespass because the local Bishop had sequestered his tithes on account of his failure to obey an admonition to repair the chancel of the parish church. The issue was whether sequestration was an available remedy.
Held: It was not. It was agreed by all, that an impropriator is chargeable with the repairs of the chancel; but the charge was not personal but in regard of the profits of the impropriation.
Atkins J
(1677) 2 Mod 254
England and Wales
Cited by:
CitedParochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .

These lists may be incomplete.
Updated: 21 May 2021; Ref: scu.184049

Barnes v Derby Diocesan Board of Finance and Another: ChD 14 Nov 2002

Permission was sought to sell land within to the parish, and directions sought as to the application of the proceeds of sale.
Held: The land had been transferred to the diocesan board of finance on the merger of two parishes, and was held for parochial or diocesan purposes. This was not special property, and since it was no longer needed, it could be sold, but the proceeds were to be applied within the parish and not for general purposes of the diocese.
Etherton J
Times 22-Nov-2002
Pastoral Measure 1983 31(1)(1)(d)
England and Wales

Updated: 19 May 2021; Ref: scu.178290

Forbes v Eden: 1865

A clergyman complained of a change in the doctrinal standards of the church.
Held: Since the matter concerned an eccliastical issue and not that he had been deprived of his status as a minister, the court could not intervene. Lord Justice-Clerk Inglis said that the possession of a particular status, meaning by that term the capacity to perform certain functions or to hold certain offices, is a thing which the law recognises as a patrimonial interest, and that no one could be deprived of its possession by the unlawful act of another without having a legal remedy.
Lord Justice-Clerk Inglis
(1865) 4 M 143
England and Wales
Cited by:
Appeal fromForbes v Eden HL 1867
Decision affirmed . .
CitedPercy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .

These lists may be incomplete.
Updated: 19 May 2021; Ref: scu.236516

Suryananda, Regina (on the Application of) v The Welsh Ministers: Admn 16 Jul 2007

The claimants, trustees of a Hindu temple, sought judicial review of a decision that a bullock in their temple should be slaughtered having positively reacted to a test for bovine tuberculosis bacterium. They said that the animal posed no threat since it was isolated from other anmals and was sacrosanct to them.
Held: The article 9 human rights of the claimants were engaged, and the proposed action would be a gross interference in those rights. It was therefore for the respondent to justify the action by showing a pressing social need. The decision had been reached without sufficient regard to the claimants’ religious freedoms, and would be quashed. The court noted however that a properly reached decision might be the same.
Hickinbottom J
[2007] EWHC 1736 (Admin)
Bailii
Animal Health Act 1981 32
England and Wales
Citing:
CitedX v Netherlands ECHR 1962
As a legitimate aim, a Government may rely upon ‘the protection of public . . health’, which includes the health of animals as well as of humans. . .
CitedRegina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
CitedDe Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
CitedBegum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
CitedRegina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
CitedRegina v Secretary of State for Health ex parte Eastside Cheese Company (a Firm) and R A Duckett and Co Interested CA 1-Jul-1999
Application for leave to appeal to House of Lords – refused. However ‘on public health issues which require the evaluation of complex scientific evidence, the national court may and should be slow to interfere with a decision which a responsible . .
CitedJewish Liturgical Association Cha’are Shalom Ve Tsedek v France ECHR 27-Jun-2000
The applicants, ultra-orthodox jews, challenged the regulation of ritual slaughter in France, which did not satisfy their exacting religious standards.
Held: The applicants’ right to freedom of expression was not limited by the controls on the . .

These lists may be incomplete.
Updated: 16 May 2021; Ref: scu.258160

The Churchwardens of St Ann’s Westminster: 1792

The Spiritual Court may compel the payment of a tax for the repairs of a church.
Upon a motion for a prohibition to stay a suit against J S for not paying a tax imposed by the churchwardens and other parishioners, for building the church of St.
Ann’s in Westminster ; per Holt Chief Justice, a suit may be in the Spiritual Court for non-payment of a tax assessed for repairs of a church, but not for building a
church.
[1792] EngR 2489, (1792) 1 Ld Raym 512, (1792) 91 ER 1242 (A)
Commonlii
England and Wales

Updated: 14 May 2021; Ref: scu.360701

Craigie v Marshall: 1850

(1850) 12 D 523
Scotland
Cited by:
CitedThe Free Church of Scotland v The General Assembly of the Free Church of Scotland SCS 24-Mar-2005
Each group claimed to by the true Free Church of Scotland. The dispute had a very long history. One claimed that the other had abandoned a fundamental principle of the faith, the right of ‘continued protest’.
Held: It was necessary to examine . .

These lists may be incomplete.
Updated: 10 May 2021; Ref: scu.223939

Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria): 27 Oct 1983

(High Court of Australia) Meaning of religion – scientology church application for tax exemption. The trend is towards a ‘newer, more expansive, reading’ of religion. However ‘Religious conviction is not a solvent of legal obligation.’
High Court of Australia – (Victoria) The Court referred to which ‘ . . seek to explain, in terms of a broader reality, the existence of the universe, the meaning of human life and human destiny.’
Pay-roll Tax (Vict.) – Exemption – Religious or public benevolent institution – Scientology – Religion – Pay-roll Tax Act 1971 (Vict.),s. 10(b).
Mason ACJ, Murphy, Wilson, Brennan and Deane JJ
(1983) 154 CLR 120, [1983] HCA 40
Austlii, Jade
Australia
Cited by:
CitedRegina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
CitedIvey v Genting Casinos (UK) Ltd (T/A Crockfords) SC 25-Oct-2017
The claimant gambler sought payment of his winnings. The casino said that he had operated a system called edge-sorting to achieve the winnings, and that this was a form of cheating so as to excuse their payment. The system exploited tiny variances . .

These lists may be incomplete.
Updated: 09 May 2021; Ref: scu.223025

Couper v Burn: 1859

The court considered a dispute as to the doctrine of the Free Church of Scotland. In doing so it was not restricted to the original documents but could look at doctrinal developments to the date of the action.
(1859) 22 D. 120
Scotland
Citing:
CitedCraigdallie v Aikman PC 14-Jun-2013
A chapel was acquired with the subscriptions of a congregation which seceded from the Church of Scotland in 1737 and subsequently split over whether a magistrate might suppress heresy. Each of the rival groups claimed that the chapel belonged to . .

Cited by:
CitedThe Free Church of Scotland v The General Assembly of the Free Church of Scotland SCS 24-Mar-2005
Each group claimed to by the true Free Church of Scotland. The dispute had a very long history. One claimed that the other had abandoned a fundamental principle of the faith, the right of ‘continued protest’.
Held: It was necessary to examine . .

These lists may be incomplete.
Updated: 08 May 2021; Ref: scu.223940

Regina v the Imam of Bury Park Jame Masjid Luton and others ex parte Suliman Ali: QBD 13 Sep 1991

The court was asked to intervene in an internal dispute as to the role of an Imam in a mosque community.
Held:
Auld
Independent 13-Sep-1991
England and Wales
Cited by:
UpheldRegina v The Imam of Bury Park Mosque, Luton and others ex parte Sualiman Ali CA 12-May-1993
The court had been asked to intervene in an internal dispute as to the role of an Imam in a mosque community.
Held: The request was denied. The case was not one of public law: ‘ the particular function which the Imam was performing affected . .
CitedBlake v Associated Newspapers Ltd QBD 31-Jul-2003
The claimant, a former Anglican priest, sued in defamation. The defendant argued that the claim was non-justiciable since it would require the court to adjudicate on matters of faith and religious doctrine.
Held: The claim could not be heard. . .

These lists may be incomplete.
Updated: 03 May 2021; Ref: scu.650096

Blake v Associated Newspapers Ltd: QBD 31 Jul 2003

The claimant, a former Anglican priest, sued in defamation. The defendant argued that the claim was non-justiciable since it would require the court to adjudicate on matters of faith and religious doctrine.
Held: The claim could not be heard.
Gray J said: ‘It is well established . . that the court will not venture into doctrinal disputes or differences. But there is authority that the courts will not regulate issues as to the procedures adopted by religious bodies or the customs and practices of a particular religious community or questions as to the moral and religious fitness of a person to carry out the spiritual and pastoral duties of his office.’
The issues of the case, ‘cannot be adapted so as to circumvent the insuperable obstacle placed in the way of a fair trial of this action by the fact that the court must abstain from determining questions which lie at the heart of the case’.
Gray J
[2003] EWHC 1960 (QB)
Bailii
England and Wales
Citing:
CitedGeneral Assembly of Free Church of Scotland v Overtoun HL 1904
Craigdallie stated settled law: ‘My Lords, I disclaim altogether any right in this or any other civil court of this realm to discuss the truth or reasonableness of any of the doctrines of this or any other religious association, or to say whether . .
CitedRegina v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann 1992
A local rabbi sought judicial review of the declaration of the Chief Rabbi, following an investigation into allegations of adultery with members of his congregation, that he was religiously and morally unfit to occupy his position.
Held: Simon . .
CitedRegina v The Imam of Bury Park Mosque, Luton and others ex parte Sualiman Ali CA 12-May-1993
The court had been asked to intervene in an internal dispute as to the role of an Imam in a mosque community.
Held: The request was denied. The case was not one of public law: ‘ the particular function which the Imam was performing affected . .
CitedVarsani and others v Jesani, Patel and Her Majesty’s Attorney-General CA 3-Apr-1998
A Hindu religious sect, constituted as a charity, had split into two factions.
Held: The court had jurisdiction to order that the assets of the sect should be divided under the powers in the Act, and held upon separate trusts for the two . .
CitedRegina v the Imam of Bury Park Jame Masjid Luton and others ex parte Suliman Ali QBD 13-Sep-1991
The court was asked to intervene in an internal dispute as to the role of an Imam in a mosque community.
Held: . .
Distinguished on the factsPrebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
CitedManoussakis and Others v Greece ECHR 26-Sep-1996
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 9; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic . .

Cited by:
CitedHH Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group and Another QBD 17-May-2010
The claimant, a Sikh religious leader complained of defamation in a Sikh journal in England. The defendant said the claim was non-justiciable since it required the court to pronouce on a matter of religious doctrine.
Held: The plea of . .
CitedKhaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .

These lists may be incomplete.
Updated: 03 May 2021; Ref: scu.428701

Regina v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann: 1992

A local rabbi sought judicial review of the declaration of the Chief Rabbi, following an investigation into allegations of adultery with members of his congregation, that he was religiously and morally unfit to occupy his position.
Held: Simon Brown J said: ‘Mr Beloff invites my attention to certain passages in the judgments of the Court of Appeal both in Law’s case and in the Datafin Case [1987] Q.B. 815. I need not recite them. Their effect is clear enough. To say of decisions of a given body that they are public law decisions with public law consequences means something more than that they are decisions which may be of great interest or concern to the public or, indeed, which may have consequences for the public. To attract the court’s supervisory jurisdiction there must be not merely a public but potentially a governmental interest in the decision-making power in question. And, indeed, generally speaking the exercise of the power in question involves not merely the voluntary regulations of some important area of public life but also what Mr Beloff calls a ‘twin track system of control.’ In other words, where non-governmental bodies have hitherto been held reviewable, they have generally been operating as an integral part of a regulatory system which, although it is itself non-statutory, is nevertheless supported by statutory powers and penalties clearly indicative of government concern.’
. . And ‘As Mr Beloff points out, the court would never be prepared to rule on questions of Jewish law. Mr Carus, recognising this prospective difficulty, says that in advancing his challenge here, the applicant would be prepared to rely solely upon the common law concept of natural justice. But it would not always be easy to separate out procedural complaints from consideration of substantive principles of Jewish law which may underlie them . . That consideration apart, this court is hardly in a position to regulate what is essentially a religious function – the determination whether someone is morally and religiously fit to carry out the spiritual and pastoral duties of his office. The Court must inevitably be wary of entering so self-evidently sensitive an area, straying across the well-recognised divide between church and state. One cannot, therefore, escape the conclusion that if judicial review lies here, then one way or another this secular court must inevitably be drawn into adjudicating upon matters intimate to a religious community’.
The state has not surrendered or delegated any of its functions or powers to the Church. None of the functions that the Church of England performs would have to be performed in its place by the state if the Church were to abdicate its responsibility. The relationship which the state has with the Church of England is one of recognition, not of the devolution to it of any of the powers or functions of government. ‘the court would never be prepared to rule on questions of Jewish law’ In relation to the determination of whether someone is morally and religiously fit to carry out the spiritual and pastoral duties of his office, the court ‘must inevitably be wary of entering so self-evidently sensitive an area, straying across the well-recognised divide between church and state’
Simon Brown J
[1992] 1 WLR 1036
England and Wales
Cited by:
CitedParochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
CitedRegina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
CitedRegina v The Imam of Bury Park Mosque, Luton and others ex parte Sualiman Ali CA 12-May-1993
The court had been asked to intervene in an internal dispute as to the role of an Imam in a mosque community.
Held: The request was denied. The case was not one of public law: ‘ the particular function which the Imam was performing affected . .
CitedBlake v Associated Newspapers Ltd QBD 31-Jul-2003
The claimant, a former Anglican priest, sued in defamation. The defendant argued that the claim was non-justiciable since it would require the court to adjudicate on matters of faith and religious doctrine.
Held: The claim could not be heard. . .
CitedKhaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .

These lists may be incomplete.
Updated: 03 May 2021; Ref: scu.184046

General Assembly of Free Church of Scotland v Overtoun: HL 1904

Craigdallie stated settled law: ‘My Lords, I disclaim altogether any right in this or any other civil court of this realm to discuss the truth or reasonableness of any of the doctrines of this or any other religious association, or to say whether any of them are or are not based on a just interpretation of the language of scripture, or whether the contradictions or antinomies between different statements of doctrine are or are not real or apparent only, or whether such contradictions do or do not proceed only from an imperfect and finite conception of a perfect and infinite Being, or any similar question. The more humble, but not useless function of the civil court is to determine whether the trusts imposed upon the property by the founders of the trust are being duly observed . . The question in each case is what were the religious tenets and principles which formed the bond of union of the association for whose benefit the trust was created? . .’
Lord Davey
[1904] AC 515
Scotland
Citing:
AppliedCraigdallie v Aikman PC 14-Jun-2013
A chapel was acquired with the subscriptions of a congregation which seceded from the Church of Scotland in 1737 and subsequently split over whether a magistrate might suppress heresy. Each of the rival groups claimed that the chapel belonged to . .

Cited by:
CitedParochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
CitedThe Bahamas District of the Methodist Church in the Caribbean and the Americas and Others v The Hon Vernon J Symonette M P Speaker of the House of Assembly and 7 Others (No 70 of 1998) and Ormond Hilton Poitier and 14 Others v The Methodist Church PC 26-Jul-2000
PC (The Bahamas) The Methodist community had split, eventually leading to a new Act. Others now challenged the constitionality of the Act, and that lands had been transferred in breach of the constitution.
Not followedVarsani and others v Jesani, Patel and Her Majesty’s Attorney-General CA 3-Apr-1998
A Hindu religious sect, constituted as a charity, had split into two factions.
Held: The court had jurisdiction to order that the assets of the sect should be divided under the powers in the Act, and held upon separate trusts for the two . .
CitedBlake v Associated Newspapers Ltd QBD 31-Jul-2003
The claimant, a former Anglican priest, sued in defamation. The defendant argued that the claim was non-justiciable since it would require the court to adjudicate on matters of faith and religious doctrine.
Held: The claim could not be heard. . .
CitedKhaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .

These lists may be incomplete.
Updated: 03 May 2021; Ref: scu.187517

Varsani and others v Jesani, Patel and Her Majesty’s Attorney-General: CA 3 Apr 1998

A Hindu religious sect, constituted as a charity, had split into two factions.
Held: The court had jurisdiction to order that the assets of the sect should be divided under the powers in the Act, and held upon separate trusts for the two factions. The court declined to adjudicate as to which group was correctly following the faith, and therefore applied the cy pres doctrine in dividing the assets. Earlier cases had now been overtaken by the Charities Act, and the question fell to be settled in accordance with section 13. The spirit of the gift to which the court is to have regard is that which prevailed at the time of the gift when the two groups were in harmony. The court will not venture into doctrinal disputes or differences.
Sir Stephen Brown, Lord Justice Morritt, Lord Justice Chadwick
[1998] EWCA Civ 630, [1999] Ch 219, [1998] 3 All ER 273
Bailii
Charities Act 1993 13(1)(e)(iii)
England and Wales
Citing:
Not followedCraigdallie v Aikman PC 14-Jun-2013
A chapel was acquired with the subscriptions of a congregation which seceded from the Church of Scotland in 1737 and subsequently split over whether a magistrate might suppress heresy. Each of the rival groups claimed that the chapel belonged to . .
Not followedAttorney-General v Pearson 1817
No Alteration to Charty’s Objects
A protestant dissenters’ meeting house in Wolverhampton which was declared by a trust deed to be held for ‘the worship and service of God’ was the subject of a dispute between the schismatic congregation. The issue was the nature of the worship . .
Not followedGeneral Assembly of Free Church of Scotland v Overtoun HL 1904
Craigdallie stated settled law: ‘My Lords, I disclaim altogether any right in this or any other civil court of this realm to discuss the truth or reasonableness of any of the doctrines of this or any other religious association, or to say whether . .
CitedRe Camden’s Charity 1881
. .
CitedRe Lepton’s Charity 1972
. .
CitedGilmour v Coats HL 1949
Prayers Alone did not make Convent Charitable
A trust to apply the income of a fund for all or any of the purposes of a community of Roman Catholic Carmelite nuns living in seclusion and spending their lives in prayer, contemplation and penance, was not charitable because it could not be shown . .

Cited by:
CitedThe Bahamas District of the Methodist Church in the Caribbean and the Americas and Others v The Hon Vernon J Symonette M P Speaker of the House of Assembly and 7 Others (No 70 of 1998) and Ormond Hilton Poitier and 14 Others v The Methodist Church PC 26-Jul-2000
PC (The Bahamas) The Methodist community had split, eventually leading to a new Act. Others now challenged the constitionality of the Act, and that lands had been transferred in breach of the constitution.
CitedBlake v Associated Newspapers Ltd QBD 31-Jul-2003
The claimant, a former Anglican priest, sued in defamation. The defendant argued that the claim was non-justiciable since it would require the court to adjudicate on matters of faith and religious doctrine.
Held: The claim could not be heard. . .
CitedKhaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .

These lists may be incomplete.
Updated: 03 May 2021; Ref: scu.144108

Doe D Evans v Jones: 1830

Although the preacher at an Endowed meeting-house has such an interest in the office and it’s emoluments as will entitle him to a mandamus if disturbed in the use of the pulpit, he has not such a legal interest in the endowment as will entitle him to retain possession against the trustees of such endowment.
(1830) 5 Man and Ry KB 752
England and Wales

Updated: 12 April 2021; Ref: scu.649121

Cooper v Gordon: 1869

The trust deeds of a Congregation of Independents, a chapel, a house and other property were vested in trustees for the use of the congregation, and to permit the Minister for the time being, to occupy the house. The deeds contained no express provision for the appointment or removal or a minister. In 1866 he was invited by a resolution of the church members of the congregation to become co-pastor with the minister. In 1868 a majority of the church members resolved that G be dismissed and the majority of the trustees concurred in this resolution. G claimed to hold his office for life in the absence of immorality or preaching contrary to the tenets of the denomination which was not charged.
Held: He was dismissed and an injunction granted accordingly.
(1869) 33 JP 761, (1869) LR 8 Eq 249, (1869) 38 LJ Ch 489, (1869) 20 LT 732
England and Wales

Updated: 12 April 2021; Ref: scu.649120

Perry v Shipway: 21 Apr 1859

The *minister of a Dissenting chapel, although duly elected, is at law only tenant at will of the trustees, in whom the legal estate is vested, and the majority of trustees in a trust constituted for such a purpose can bind the minority. Therefore, where a Dissenting minister, invited to preach for a year on probation, was, after preaching for some months, excluded from the chapel by the majority of trustees, on account of dissatisfaction as to his conduct, and afterwards, with the assistance of the minority of the trustees, got possession of the chapel and put on new locks, so as to exclude the majority of the trustees : The Court granted an injunction to restrain the minister and minority of the trustees from disturbing the legal right of the majority of the trustees to the possession and management of the chapel.
[1859] EngR 490, (1859) 1 Giff 1, (1859) 65 ER 799
Commonlii
England and Wales

Updated: 12 April 2021; Ref: scu.287842

Regina v The Imam of Bury Park Mosque, Luton and others ex parte Sualiman Ali: CA 12 May 1993

The court had been asked to intervene in an internal dispute as to the role of an Imam in a mosque community.
Held: The request was denied. The case was not one of public law: ‘ the particular function which the Imam was performing affected the applicant’s rights in a way which was peculiar to a limited class of persons, namely, persons who were members of the Bury Park Mosque Community’. However, as to the suggestion that the dispute was in essence one of religious doctrine: ‘The sole source of the power of the Mosque’s constitution, in the eyes of English law, is the consensual submission of the members of the Mosque community to its provisions. Likewise, the decision making authority of the Imam derived from the private law of contract, albeit by way of an order of the Chancery Court, the proceedings before the Chancery Court being based on alleged breaches of the constitution by the defendants to that action, that is to say by the existing executive committee.’
Balcombe, McCowan, Roch LJJ
Times 15-May-1993, Independent 13-Sep-1993, [1993] EWCA Civ 36, [1994] COD 142
Bailii
England and Wales
Citing:
CitedRegina v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann 1992
A local rabbi sought judicial review of the declaration of the Chief Rabbi, following an investigation into allegations of adultery with members of his congregation, that he was religiously and morally unfit to occupy his position.
Held: Simon . .
Appeal fromRegina v The Imam of Bury Park Mosque, Luton and others ex parte Suliman Ali ChD 30-Aug-1951
Application was made for judicial review of a decision as to the governance of a Mosque.
Held: The application was not justiciable, in that the role played by the Imam did not contain an element of public law so as to attract the supervisory . .
CitedLee v Showmens Guild of Great Britain CA 1952
Decisions of inferior tribunals, including arbitrators, were reviewable on the basis of general error of law on record for which certiorari might issue. A decision may be reviewable where there was no evidence supporting particular conclusions.
CitedRegina v Take-over Panel, ex parte Datafin PLC CA 1986
Amenability to judicial review
The issue of amenability to judicial review often requires an examination of the nature of the power under challenge as well as its source: ‘In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction [of . .
UpheldRegina v the Imam of Bury Park Jame Masjid Luton and others ex parte Suliman Ali QBD 13-Sep-1991
The court was asked to intervene in an internal dispute as to the role of an Imam in a mosque community.
Held: . .

Cited by:
CitedBlake v Associated Newspapers Ltd QBD 31-Jul-2003
The claimant, a former Anglican priest, sued in defamation. The defendant argued that the claim was non-justiciable since it would require the court to adjudicate on matters of faith and religious doctrine.
Held: The claim could not be heard. . .
CitedKhaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .

These lists may be incomplete.
Updated: 09 April 2021; Ref: scu.428702

Coker v Diocese of Southwark: ET 16 Mar 1995

An Anglican clergyman is an employee of the church, and so has employment rights.
Independent 16-Mar-1995, Times 04-Apr-1996
England and Wales
Cited by:
Appeal fromDiocese of Southwark and Others v Coker EAT 4-Apr-1996
A curate is not an employee of the Church and cannot claim unfair dismissal. . .
At the Employment TribunalReverend Doctor A B Coker v Diocese of Southwark; Bishop of Southwark and Diocesan Board of Finance CA 11-Jul-1997
A Church of England Assistant Curate is not an employee, but rather a holder of an ecclesiastical office. There is a presumption that ministers of religion were office-holders who did not serve under a contract of employment. Accordingly he is not . .

These lists may be incomplete.
Updated: 08 April 2021; Ref: scu.79267

Reverend Doctor A B Coker v Diocese of Southwark; Bishop of Southwark and Diocesan Board of Finance: CA 11 Jul 1997

A Church of England Assistant Curate is not an employee, but rather a holder of an ecclesiastical office. There is a presumption that ministers of religion were office-holders who did not serve under a contract of employment. Accordingly he is not entitled to claim to have been unfairly dismissed under the legislation. Mummery LJ said: ‘The simple reason, in my view, for the absence of a contract between the church and a minister of religion is the lack of an intention to create a contractual relationship.’ and ‘It is difficult to see why an ordained priest, licensed by his bishop to assist the incumbent in his cure of souls, is under contract with the bishop, by whom he is licensed, or with the incumbent he is assisting, or with anyone else, in the absence of a clear intention to create a contract.’
Whether an assistant curate was an employee protected by employment legislation.
Held: The claim failed.
Mummery LJ
Gazette 23-Jul-1997, [1997] EWCA Civ 2090, [1998] ICR 140
Bailii
Employment Protection (Consolidation) Act 1978
England and Wales
Citing:
Appeal fromDiocese of Southwark and Others v Coker EAT 4-Apr-1996
A curate is not an employee of the Church and cannot claim unfair dismissal. . .
At the Employment TribunalCoker v Diocese of Southwark ET 16-Mar-1995
An Anglican clergyman is an employee of the church, and so has employment rights. . .
CitedPresident of the Methodist Conference v Parfitt CA 1-Oct-1983
The claimant sought to assert that he as a minister of the Methodist Church who had been received into full connection had a contract of employment with the church. Having that contract, he said hat he had been unfairly dismissed.
Held: A . .

Cited by:
CitedPercy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
CitedThe New Testament Church of God v Reverend Stewart CA 19-Oct-2007
The appellant appealed a finding that the respondent had been its employee, saying he was a minister of religion.
Held: The judge had been entitled to find an intention to create legal relations, and therefore that the claimant was an . .
CitedMethodist Conference v Preston SC 15-May-2013
Minister was not an employee
The claimant asserted unfair dismissal. The Conference said that as an ordained minister she was not an employee, and was outwith the jurisdiction of such a claim.
Held: The Conference’s appeal succeeded (Baroness Hale dissenting). The essence . .
CitedSharpe v The Bishop of Worcester CA 30-Apr-2015
Reverend Sharpe applied for the post of Rector of Teme Valley South. The right to present (or nominate) a member of the clergy to this living was vested in Mr and Mrs Miles but a person could not be nominated without the Bishop’s approval, which was . .

These lists may be incomplete.
Updated: 05 April 2021; Ref: scu.142487

Green v Cobden: 22 Apr 1836

Where the incumbent of a benefice cannot be found, service of a monition, by leaving it at the parsonage house, is sufficient, notwithstanding the incumbent does not habitually reside in it.
[1836] EngR 612, (1836) 2 Bing NC 627, (1836) 132 ER 242
Commonlii
England and Wales

Updated: 29 March 2021; Ref: scu.314944

Rev Smith As Moderator of The General Assembly of The Free Church of Scotland and Others v Rev Morrison and Others: SCS 12 Aug 2011

The pursuer sought a declaration as to the ownership of and trusts in land and building forming the Manse at Broadford, Skye, and an order excluding the respondents from the lands.
Lord Osborne, Lord Bonomy, Lord Drummond Young
[2011] ScotCS CSIH – 52
Bailii
Scotland

Updated: 15 March 2021; Ref: scu.442763

Religionsgemeinschaft der Zeugen Jehovas And Others v Austria: ECHR 31 Jul 2008

The State has a duty to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom and in its relations with different religions, denominations and beliefs.
40825/98, [2008] ECHR 762
Bailii
European Convention on Human Rights
Human Rights
Cited by:
CitedThe Church of Jesus Christ of Latter-Day Saints v United Kingdom ECHR 4-Mar-2014
latterdayECHR0314
The claimant said that it had been wrongfully deprived of relief from business rates for its two temples. It asserted that it was a religion, and that the treatment was discriminatory. The government said that the refusal was on the basis alone that . .

These lists may be incomplete.
Updated: 13 March 2021; Ref: scu.272727

St Mary and St Michael Parish Advisory Company Ltd v The Westminster Roman Catholic Diocese Trustee, Her Majesty’s Attorney Genera and others: ChD 6 Apr 2006

Parish members objected to the building within the church grounds of an education centre. They said that the land was to be used for the purposes of the members of the parish only under a trust deed of 1851.
Held: The deed had to be construed in its context at the time. At the time of the deed, there were no parishes for the Roman Catholic Church. This was a missionary area. Even at the time, if all catholics in the area had taken up places, and there were places left, those could be filled by non-catholics. The decision by the trustees had been a valid exercise of the powers given to them.
Mr Justice Lawrence Collins
[2006] EWHC 762 (Ch)
Bailii
England and Wales
Citing:
CitedDundee General Hospital Board of Management v Bell’s Trustees HL 26-Mar-1952
The willl left a gift subject to the sole discretion of the trustees as to the ownership of the Hospital.
Held: A decision taken by trustees based upon a wrong interpretation of a deed could be set aside as avoided. Lord Normand said: ‘It . .
CitedFraser and Another v Canterbury Diocesan Board of Finance and others HL 27-Oct-2005
Land had been acquired by a deed under the 1841 Act, but had in 1995 ceased to be used as a school ‘for the education of children and adults of the labouring manufacturing and other poorer classes . . And for no other purpose ‘. Under the Act, the . .
CitedInvestors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
CitedMogridge v Clapp 1892
The Court considered a provision of the 1882 Act which required a dealing with a tenant for life to be one in good faith said that good faith. Kekewich J said that the words ‘good faith’ were to be equated with the words ‘bona fides’, and: ‘I think . .
CitedSieff v Fox ChD 23-Jun-2005
The advisers to trustees wrongly advised the trustees about the tax consequences of exercising a power of appointment in a certain way. As a result a large unforeseen Capital Gains Tax liability arose. The trustees sought to set aside the . .

These lists may be incomplete.
Updated: 10 March 2021; Ref: scu.241998

Rev Mr Thomas Tait v Mr George Skene Keith, Minister, and Others: HL 30 Mar 1778

Patron – Competing Presentations – Mandant’s Powers – Implied Recal.-
Where a patron, residing in a foreign country, had appointed commissioners, with powers to present to vacant churches, the latter presented a party a day before the patron himself presented another party: Held, the presentation by the commissioners, in virtue of the powers delegated to them, was good, and to be preferred to the patron’s own presentation, and that the right of patronage may be exercised by delegates so appointed.
[1778] UKHL 2 – Paton – 447
Bailii
Scotland

Updated: 08 March 2021; Ref: scu.562021

In re Welford Road Cemetery, Leicester: CArc 14 Oct 2006

The court allowed an appeal against an order of the Consistory Court requiring the burial services manager to re-instate memorial stones which had been laid flat for safety. It would be highly unusual to grant relief to those who had not applied for it.
Miss Sheila Cameron, QC, Dean of the Arches, Mr David Turner, QC, Chancellor, and Mr Mark Hill, Chancellor
Times 02-Nov-2006
Care of Churches and Ecclesiastical Jurisdiction Measure 1991 13(5)
England and Wales

Updated: 06 March 2021; Ref: scu.247627

In re St Peter and St Paul, Chingford: CArc 14 Aug 2007

An appeal was made against a refusal of a faculty for the installation of a mobile phone mast in a church spire on the basis that the mast would be used for the transmission of, inter alia, pornographic materials.
Held: The appeal succeeded. A balance had to be found between the great social advantages of communication, including the duty to children under UN Convention, and the conscience of the parishioners.
Miss Sheila Cameron QC,
Times 08-Oct-2007
England and Wales

Updated: 04 March 2021; Ref: scu.260261

The Reverend Charles Joseph Ridsdale, Clerk v Clifton: PC 12 May 1877

(The Arches Court of Canterbury) Complaint had been made as to the conduct of services by the appellant, including that he had worn the wrong kinds of apparel, and had stood in a position to obscure the ability of the congregation to his breaking of the bread during communion, using the wrong shaped .
[1877] UKPC 18, (1876-77) LR 2 App Cas 574
Bailii

Updated: 26 February 2021; Ref: scu.418719

HH Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group and Another: QBD 17 May 2010

The claimant, a Sikh religious leader complained of defamation in a Sikh journal in England. The defendant said the claim was non-justiciable since it required the court to pronouce on a matter of religious doctrine.
Held: The plea of non-justiciability succeeded, and the claim was stayed. Eady J said: ‘the allegation of ‘impostor’ cannot be divorced from questions of Sikh doctrine and practice. Of course, I recognise that if an allegation were made of someone, who happened to be a religious leader, that he had his hand in the till, or assaulted a follower, this could be determined separately and without reference to religious doctrine or status, but that is far from this case. The issue whether this Claimant is or is not fairly described as an ‘impostor’ cannot be isolated and resolved without reference to Sikh doctrines and traditions.’
Eady J
[2010] EWHC 1294 (QB)
Bailii
England and Wales
Citing:
CitedSulaiman v Juffali FD 9-Nov-2001
A talaq pronounced in England as between parties who were Saudi nationals was not to be recognised in English law as a valid extra judicial overseas divorce, even though it otherwise complied with Sharia law. Section 44(1)(a) provides that no . .
CitedBlake v Associated Newspapers Ltd QBD 31-Jul-2003
The claimant, a former Anglican priest, sued in defamation. The defendant argued that the claim was non-justiciable since it would require the court to adjudicate on matters of faith and religious doctrine.
Held: The claim could not be heard. . .

Cited by:
CitedKhaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .

These lists may be incomplete.
Updated: 25 February 2021; Ref: scu.416606