Category: Ecclesiastical

Wickhambrook 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 repair. The only person against whom the liability may be enforced is the person who, in that obscure phrase, ‘would, but for the provisions of this Act, have been liable to be admonished to repair the chancel by the appropriate ecclesiastical court in a cause of office promoted against him in that court on the date when the notice was served.’

Judges:

Lord Hanworth MR

Citations:

[1935] 2 KB 417

Statutes:

Chancel Repairs Act 1932

Jurisdiction:

England and Wales

Cited by:

Questioned – 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 . .
Lists of cited by and citing cases may be incomplete.

Land, Ecclesiastical

Updated: 12 April 2022; Ref: scu.184040

Williamson v Archbishop of Canterbury and Others: ChD 25 Nov 1994

Church of England has the power to pay properly ordained women priests. Measures providing for ordination were valid – within Parliament’s power.

Citations:

Times 25-Nov-1994, Independent 14-Dec-1994

Jurisdiction:

England and Wales

Citing:

Appealed to – Williamson v Archbishop of Canterbury Archbishop of York Church Commissioners CA 5-Sep-1996
Parties sought to challenge the decision to allow ordination of women by the church.
Held: The merits of a religious controversy are a matter on which the court is not entitled to hold any opinion. The measures had been made under the . .

Cited by:

Appeal from – Williamson v Archbishop of Canterbury Archbishop of York Church Commissioners CA 5-Sep-1996
Parties sought to challenge the decision to allow ordination of women by the church.
Held: The merits of a religious controversy are a matter on which the court is not entitled to hold any opinion. The measures had been made under the . .
Lists of cited by and citing cases may be incomplete.

Ecclesiastical

Updated: 10 April 2022; Ref: scu.90534

Regina v European Community, Ecclesiastical Comittee of the Houses of Parliament, Ex Parte the Church Society: QBD 28 Oct 1993

The Church of England has full and effectively sole jurisdiction over own affairs. ‘Any matter concerning the Church of England’ can be read to include any matter at all. The court dismissed an application for leave to move for judicial review in which it was contended that a Measure was not authorised by section 3(6) of the 1919 Act.

Judges:

McCowan LJ and Tuckey J

Citations:

Times 04-Nov-1993, Independent 04-Nov-1993

Statutes:

Church of England Act 1919, The Church of England Assembly (Powers) Act 1919

Ecclesiastical, Constitutional

Updated: 09 April 2022; Ref: scu.86644

In Re Tonbridge School Chapel: ConC 23 Feb 1993

A freehold consecrated chapel could be leased out by the owners. There is nothing at common law to prevent such an act. The owners of the school chapel, being a charity and having first obtained the consent of the charity commissioners, the only possible objection lay from the chapel having been consecrated and therefore subject to the jurisdiction of the consistory court. Being a private chapel, however it was not consecrated for public worship, and was not governed by the Act.

Citations:

Times 23-Feb-1993

Statutes:

Pastoral Measure 1983 56(2)

Ecclesiastical, Charity

Updated: 08 April 2022; Ref: scu.82252

In Re St Mary the Virgin, Hurley: ConC 26 Jan 2001

When the court considered an application for exhumation of the body for its reburial abroad, the court could make allowance for the need for comity between nations. The deceased was a national hero in Brazil, and the local parish did not oppose the faculty request. The same principles applied whether the interment was in a churchyard or within the Church. The need for comity in this circumstance was persuasive to establish a good and proper reason for the ground of the faculty. The body would be reinterred in consecrated ground.

Citations:

Times 26-Jan-2001

Citing:

Applied – In 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. . .
Lists of cited by and citing cases may be incomplete.

Ecclesiastical

Updated: 08 April 2022; Ref: scu.82201

Gatherer v Gomez: PC 22 Jul 1992

(Barbados) The 1911 Act provided for the appointment of clergy, but did not envisage compulsory retirement. Clergy are public offcers within the 1947 Act, which did provide for retirement at the age of 60, but the Anglican Church in Barbados was disestablished in 1969, and the 1947 Act no longer applied. New regul;ations were made providing (inter alia) again for retirement, but these were not published in the Official Gazette as was required by the Interpretation Act.
Held: No obligation to retire was created because the regulations had not been properly published.

Citations:

Gazette 22-Jul-1992, [1992] CLY 1812, [1992] 1 WLR 727

Statutes:

Anglican Church Act 1911

Ecclesiastical, Commonwealth

Updated: 08 April 2022; Ref: scu.80767

Regina v Archbishops of Canterbury and York Ex Parte Williamson: CA 1 Mar 1994

The Priests (Ordination of Women) Measure 1993 is not ultra vires after royal assent. However, civil courts have consistently declined to go into the judicial no-man’s land of religious doctrine and practice.

Citations:

Times 09-Mar-1994

Statutes:

Priests (Ordination of Women) Measure 1993

Jurisdiction:

England and Wales

Ecclesiastical

Updated: 08 April 2022; Ref: scu.80422

Pemberton v Inwood: CA 22 Mar 2018

The appellant canon had entered into a same sex couple marriage, and the respondent, his bishop, had revoked his ‘permission to officiate’ licence. The canon now appealed from rejection of his claim for discrimination.

Judges:

Gloster VP CA, Underhill, Asplin LJJ

Citations:

[2018] EWCA Civ 564, [2018] WLR(D) 179

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Employment, Discrimination, Ecclesiastical

Updated: 07 April 2022; Ref: scu.608353

In re Hither Green Cemetery: 2019

Judges:

Petchey Ch

Citations:

[2019] Fam 17

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Ecclesiastical

Updated: 05 April 2022; Ref: scu.655678

In 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.

Citations:

Times 22-Oct-1998, [1999] Fam 142

Jurisdiction:

England and Wales

Cited by:

Applied – In Re St Mary the Virgin, Hurley ConC 26-Jan-2001
When the court considered an application for exhumation of the body for its reburial abroad, the court could make allowance for the need for comity between nations. The deceased was a national hero in Brazil, and the local parish did not oppose the . .
Not Followed – 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 . .
Lists of cited by and citing cases may be incomplete.

Ecclesiastical

Updated: 03 April 2022; Ref: scu.81808

Charles Mercer, Esq, of Letbindy v Rev Mr Williamson: HL 17 Mar 1786

Manse – Building or Repairing. – Held, where the presbytery had ordered an old manse to be pulled down, and a new one built, that they were not precluded from doing so, though the old manse might be repaired at a less expense than the cost of a new one; and also held, that they were not limited by the act 1663 to the sum of andpound;1000 Scots, (andpound;83. 6 s. 8 d.) but entitled to go beyond it, whatever the expense of building might be.

Citations:

[1786] UKHL 3 – Paton – 43

Links:

Bailii

Jurisdiction:

Scotland

Ecclesiastical

Updated: 23 March 2022; Ref: scu.581010

Rev Mr Mitchell, Minister of The United Parishes of Tingwall, Whitness, and Co v Officers of State: HL 22 Jun 1789

Augmentation of Stipend – Jurisdiction. – Held, that the Court of Session, granting once an augmentation to a minister of the parish, is not precluded, as Commissioners of Teinds, from afterwards granting a second augmentation,-this being within the jurisdiction and powers of modification conferred on the Court.

Citations:

[1789] UKHL 3 – Paton – 140

Links:

Bailii

Jurisdiction:

Scotland

Ecclesiastical

Updated: 23 March 2022; Ref: scu.581000

Brook v Kelly: HL 3 Aug 1893

By the code of statutes of a cathedral church in connection with the Episcopal Church of Scotland it was provided that the clergy of the church were to be appointed by the bishop, and were to consist of a provost and three or more canons residentiary, who were to hold their offices ad vitam aut culpam. The code also appointed a board of management, and provided that with them ‘will rest the due provision . . for the fitting support of the provost and canons of the cathedral.’
An action brought by one of the canons, who had been appointed by the bishop, but whose appointment had never been ratified by the board of management, against the board for pounds 150 per annum, or such other sum as might be proved to be available for his fitting support, held ( aff. the decision of the Second Division) to be irrelevant.

Judges:

Lord Chancellor (Herschell), and Lords Watson and Macnaghten

Citations:

[1893] UKHL 967, 30 SLR 967

Links:

Bailii

Jurisdiction:

Scotland

Ecclesiastical

Updated: 09 February 2022; Ref: scu.633307

Re O (A minor) (Medical Treatment): FD 12 Apr 1993

The local authority applied for a care order in relation to the child, on the ground that there was an urgent and continuing need for medical treatment which included blood transfusions. The court considered the legal effect of a parent’s belief (as Jehovah’s Witesses) that medical treatment by blood transfusion is forbidden by the Bible and is sinful, even if it is the only means of saving life.
Held: Wardship was refused. Johhnson J rejected the ‘specific issue’ route on the ground that the trial of an ‘issue’ arguably required the preliminary step of giving directions, and that in an emergency, an issue could not be determined on an ex parte basis.
Johnson J said: ‘Counsel submitted that it was wholly inappropriate for the court to make even an interim care order where the child’s parents were caring, committed and capable and only this one issue arose for decision, albeit one of the gravest significance. Reflecting on the statutory provisions, and in particular section 33 (of the Children Act 1989), I accept that joint submission.’

Johnson J
Ind Summary 12-Apr-1993, [1993] 2 FLR 149
Children Act 1989 33
England and Wales
Cited by:
Cited – Regina 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. . .
Cited – LA v SB and Others CA 12-Jul-2010
The local authority had applied for a care order under the court’s inherent wardship jurisdiction in connection with a family where three children suffered a potentially life threatening disease, Rasmussens’s encephalitis. The parents were said to . .
Cited – In Re T (A Minor) (Wardship: Medical Treatment) CA 24-Oct-1996
A baby boy who was 18 months old, suffered from a life-threatening liver defect. His parents were health-care professionals experienced in the care of sick children. The unanimous medical view was that as soon as donor liver became available the . .
Cited – Camden London Borough Council v R (A Minor) (Blood Transfusion); in Re R (A Minor)(Blood Transfusion) FD 8-Jun-1993
Child A’s doctors considered that she would need treatment over the following two years and that this could involve the need for blood transfusions at any time. The parents were Jehovah’s Witnesses and refused consent.
Held: The order allowing . .

Lists of cited by and citing cases may be incomplete.

Children, Health, Ecclesiastical

Updated: 26 January 2022; Ref: scu.223026

Rev Dr Johnstone, Minister, North Leith, and Gladstone, Treasurer, and Strong, Their Lessee v Chalmers, and Watson, Cooper: HL 6 Apr 1781

Teind Fish – Duty – Parole – Usage.- The minister of the parish of North Leith, by virtue of grants, has a right to exact a duty on all fish brought into the ports of Leith and Newhaven. Action being raised to enforce this right, held by the Court of Session, (1.) That the minister had no right to the tithe of fish brought into Leith and Newhaven, which were meant to be again exported, and, (2.) Nor to the tithe of fish which had paid teind where they were caught. In the House of Lords, affirmed as to the first point, but reversed as to the second; upon the ground, that a practice of so exacting teind on all fish brought into Leith and Newhaven, without distinction, was established by the proof led in explanation of the extent of the right.

[1781] UKHL 2 – Paton – 559, (1781) 2 Paton 559
Bailii
Scotland

Ecclesiastical, Taxes – Other

Updated: 13 January 2022; Ref: scu.562111

John Wilkie of Foulden, Esq v Samuel Simpson of Nunlands, and The Rev Mr John Buchanan, Minister of The Parish of Foulden: HL 14 Mar 1770

Grass Glebe.-
In the selection of any individual lands, out of which to design a grass glebe to the minister-(1.) Held, that kirk lands, though for sometime turned into culture as arable land, were to be designed in preference to other kirk lands in pasture at a greater distance from the manse. Also, (2.) Held, that the minister had a right to insist on such designation, though the proprietor of the arable land had agreed, in a division of a common within the parish, to give the minister the right of pasture, for one horse and two cows, in lieu of grass glebe, and the minister had enjoyed this right on the part of the common allocated to that heritor, for time immemorial.

[1770] UKHL 2 – Paton – 222
Bailii
Scotland

Ecclesiastical

Updated: 13 January 2022; Ref: scu.561673

Rev Hepburn v Charles, Earl of Portmore: HL 12 Mar 1770

Right of Patronage.-
On a vacancy occurring in the parish of Aberlady, the Crown and Lord Portmore respectively claimed the right to present. Lord Portmore founded his claim upon a disposition granted by the titular Bishop of Dunkeld, in 1589, (to whose see Aberlady was attached, as one of his mensal benefices.) which contained conveyance of the right of patronage: Held, that though such alienations were prohibited at that time by the act 1585, and the church benefices annexed to the Crown in 1587, and though no possession followed, by exercising the right to present on this title, yet Lord Portmore had best right to the patronage in question, which could not be lost by non utendo; and which had been ratified in Parliament in 1669.

[1770] UKHL 2 – Paton – 218
Bailii
Scotland

Ecclesiastical

Updated: 13 January 2022; Ref: scu.561674

Walker, Bailie of Edinburgh, Stuart, Hogg, Gibson, and Others v Drummond, Lord Provost, and Others, Magistrates and Councillors of Edinburgh: HL 13 Mar 1764

Patronage of the City Churches. – The rights of presentation to the parish churches of the city of Edinburgh belong to the Lord Provost, Magistrates, and Town Council, as patrons thereof; and the Presbytery of Edinburgh, by their several Kirk Sessions, has no voice in the election or presentation to any vacancies in the parish churches within the city.

[1764] UKHL 6 – Paton – 761, (1764) 6 Paton 761
Bailii
Scotland

Ecclesiastical

Updated: 11 January 2022; Ref: scu.560633

George Wishart, Dd, and All The Other Ministers of The Gospel In Edinburgh v The Magistrates of Edinburgh: HL 17 Feb 1766

Jurisdiction of Court of Teinds – Stipend.- Held the Court of Teinds has no jurisdiction to augment the stipend of ministers out of any other funds than the tithes of the parish, where the minister serves the cure, and, therefore, that they had no jurisdiction to augment the stipends of the ministers within the city of Edinburgh,

[1766] UKHL 2 – Paton – 118, (1766) 2 Paton 118
Bailii

Scotland, Ecclesiastical

Updated: 11 January 2022; Ref: scu.560635

Regina v Provincial Court of Church In Wales ex parte Reverend Williams: Admn 23 Oct 1998

No judicial review was available of the decision of a court of the disestablished Church in Wales removing a minister for misconduct.

Latham J
[1998] EWHC Admin 998
England and Wales
Cited by:
Cited – Khaira 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. . .

Lists of cited by and citing cases may be incomplete.

Ecclesiastical, Judicial Review

Updated: 07 January 2022; Ref: scu.139119

Kilsyth, Paterson of Bannockburn, Murray of Touchadam and others Heritors of The Parish of St Ninians In The Shire of Stirling: HL 13 Jun 1713

Reasons sufficient to reduce a decree of erection of a new parish. – The reasons of reduction ought to have been advised before ordering a new proof and perambulation.

[1713] UKHL Robertson – 65, (1713) Robertson 65
Bailii
Scotland

Ecclesiastical

Updated: 04 January 2022; Ref: scu.553466

Innes, Provost, Mackenzie, Falconer, and Charles, Baillies of The Burgh of Elgin, and Sexton v The Ministers of The Church of Elgin, Her Majesty’ Advocate, John Dundas: HL 3 Jul 1713

The Magistrates of Elgin, being pannelled and convicted under the acts 1695, c. 22., and 1711, c 7. of an intrusion into the Parish Church, and a fine imposed upon them, the Judgment is reverted.

[1713] UKHL Robertson – 69, (1713) Robertson 69
Bailii
Scotland

Ecclesiastical

Updated: 04 January 2022; Ref: scu.553467

James Greenshields, Clerk v The Lord Provost and Magistrates of The City of Edinburgh: HL 1 Mar 1711

An appeal competent, though objection made that it implicated the sentence of a presbytery.
Proceedings against an episcopal minister, before the Toleration Act, 10 Ann. c. 7. who had been imprisoned for exercising his function, reversed on appeal.

[1711] UKHL Robertson – 12, (1711) Robertson 12
Bailii
Scotland

Ecclesiastical

Updated: 28 December 2021; Ref: scu.553453

Scottish 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 subject to the control and direction of any particular master. An assistant holds an ecclesiastical office and performs his duties subject to the laws of the church. In any event there was difficulty in identifying exactly who was the assistant’s employer. Lord Johnstone said that employment must be under a contract of service. A contract of service assumes an employer and a servant. It assumes the power of appointment and dismissal in the employer, the right of control over the servant in the employer, and the duty of service to the employer in the servant. There was no one who occupied that position. The contract in which the assistant was engaged was more a contract for services than a contract of service.
Lord Kinnear: ‘I think that the position of an assistant minister in these Churches is not that of a person who undertakes work defined by contract but of a person who holds an ecclesiastical office, and who performs the duties of that office subject to the laws of the Church to which he belongs and not subject to the control and direction of any particular master.’ He contrasted this position with that of lay missionaries: ‘The probationers who are appointed to the position of assistant ministers are students of divinity who have obtained a licence to preach from the presbytery . . Now, we are told in this case what the terms of the licence are. The licence bears that the presbytery licences the person named to preach the Gospel of Christ and to exercise his gifts as a probationer for the holy ministry. When a person so licensed is appointed to be assistant to a minister, I think that his authority to perform the duties that belong to that office does not arise from any contract between himself and the minister, or himself and the kirk-session or anybody else, but arises from the licence given to him by the presbytery to exercise his gifts. He is, therefore, in my opinion a person who is no sense performing duties fixed and defined by a contract of service.’
Lord Mackenzie: An assistant minister was:- ‘really the case of one who is discharging the duties of an office, and whatever authority is exercised over him is in virtue of an ecclesiastical jurisdiction, and is not in virtue of rights which arise out of a contract of service.’

Lord Kinnear, Lord Johnstone, Lord Mackenzie
1914 SC 16
Scotland
Cited by:
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Employment, Ecclesiastical

Updated: 18 December 2021; Ref: scu.236415

Biblical Centre of The Chuvash Republic v Russia: ECHR 12 Jun 2014

ECHR Article 9-1
Freedom of religion
Dissolution of religious community without relevant and sufficient reasons: violation
Facts – The applicant was a Pentecostal mission that registered as a religious organisation in November 1991. In 1996 it founded a Biblical college and Sunday school. However, it was dissolved with immediate effect in October 2007 by order of the Supreme Court on the grounds that it had conducted educational activities without authorisation and in breach of sanitary and hygiene rules.
Law – Article 9 of the Convention interpreted in the light of Article 11: The applicant’s dissolution amounted to an interference with its rights to freedom of religion under Article 9 of the Convention interpreted in the light of the right to freedom of association enshrined in Article 11. The dissolution was ordered in accordance with the law and pursued the legitimate aims of protecting health and the rights of others by putting an end to unlicensed education in inadequate sanitary conditions.
The applicant had founded the Biblical college and the Sunday school in 1996 and had run them for more than eleven years without interruption. A federal court had stated in 2002 that Sunday school fell outside the scope of the Education Act and did not require a licence. In these circumstances, the novel interpretation of the Act with regard to the mandatory licensing of Sunday schools adopted by the courts in the present case was not sufficiently foreseeable to enable the applicant to anticipate its application and adjust its conduct accordingly. Indeed, some nine months after giving judgment upholding the applicant’s dissolution, the Supreme Court had reversed its stance on the licensing of Sunday schools, holding that teaching religion to children in such schools did not amount to education and that alleged breaches of the sanitary rules could not justify dissolving a religious organisation.
It had not, therefore, been convincingly established that the applicant had received advance notice that its activities were in breach of the law. The Supreme Court had ordered its dissolution just one day after finding it liable for a breach of the sanitary rules., despite the fact that there was nothing to indicate that any of defects were irremediable or constituted a clear and imminent danger to life and limb and without offering it a choice between rectifying the breaches or discontinuing the activities related to the instruction of its followers.
Nor did the Court accept that the dissolution of the applicant, a registered religious organisation, was necessary because the Sunday school or Biblical college were not registered as separate legal entities. The domestic courts had not indicated what other, less intrusive, means of achieving the declared aim of the protection of the rights of students had been considered and why they had been deemed insufficient. Accordingly, the domestic authorities had not shown that the dissolution, which undermined the very substance of the applicant’s rights to freedom of religion and association, was the only option for the fulfilment of the aims they pursued.
Regarding the nature and severity of the sanction, as a result of the Russian courts’ decisions, the applicant had ceased to exist as a registered religious organisation and its members were divested of the right to manifest their religion in community with others and to engage in the activities indispensable to their religious practice.
As the Court noted in Jehovah’s Witnesses of Moscow v. Russia, by virtue of section 14 of the Religions Act the only sanction which Russian courts could use against religious organisations found to have breached the law is forced dissolution. The Act provided no possibility of issuing a warning or imposing a fine. The sanction of dissolution could be applied indiscriminately without regard to the gravity of the breach in question, a practice which the Constitutional Court had found to be incompatible with the constitutional meaning of the relevant provisions as long ago as 2003. In ordering the applicant’s dissolution, the Russian courts did not heed the case-law of the Constitutional Court or the relevant Convention standards and they to assess the impact of dissolution on the fundamental rights of Pentecostal believers. In sum, the applicant’s dissolution had not been necessary in a democratic society.
Conclusion: violation (unanimously).
Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.

33203/08 – Chamber Judgment, [2014] ECHR 606, 33203/08 – Legal Summary, [2014] ECHR 806
Bailii, Bailii
European Convention on Human Rights 9-1
Human Rights

Human Rights, Ecclesiastical, Education

Updated: 17 December 2021; Ref: scu.535170

NK v France: ECHR 19 Dec 2013

7974/11 – Chamber Judgment, [2013] ECHR 1321
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal Summary – 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 . .

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:
Cited – Davis 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 . .
Cited – Adelaide 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.’ . .
Cited – United States v Seeger 8-Mar-1965
United States Supreme Court – The respondent claimed conscientius objection to serving in the armed forces. . .
Appeal from – Hodkin 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 . .
Cited – Regina 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. . .
Overruled – Regina 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 . .
Cited – Welsh 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.’ . .
Cited – Malnak 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 . .
Cited – In 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 . .
Cited – Church 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 Law – Chapman v Gatcombe 1836
One separate hereditament cannot be appurtenant to another. . .

Cited by:
Cited – Harbour 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:
Cited – Cole 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 . .
Cited – Church 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 . .
Cited – Gilmour 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 – Barras 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 . .
Cited – Regina 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 . .
Cited – Church 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. . .
Cited – Thlimmenos 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. . .
Cited – Secretary 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 . .
Cited – DH 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. . .
Cited – London 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 from – Gallagher v Church of Jesus Christ of Latter-Day Saints CA 24-Nov-2006
. .
Cited – Broxtowe 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 . .
Cited – W 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 . .
Cited – Trustees of West London Methodist Mission v Holborn Borough Council 1958
. .

Cited by:
Cited – 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 . .

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:
Cited – Regina 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 . .
Cited – Hazell 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 . .
Cited – Watkins-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 . .
Cited – Eweida 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 . .
Cited – Johns 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 . .
Cited – McFarlane 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 . .
Cited – Buscarini 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, . .
Cited – Carson, 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 . .
Cited – Begum (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 . .
Cited – Secretary 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 . .
Cited – Lautsi 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, . .
Cited – Ladele 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:
Cited – Padfield 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 . .
Cited – Day 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: . .
Cited – Haine 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 . .
Cited – RM 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 . .
Cited – Ogundimu (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 . .
Cited – MF (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 Summary – NK 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:
Cited – Eweida 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 . .
Cited – 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 . .
Cited – Church 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 . .
Cited – National 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 . .
Cited – Thlimmenos 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. . .
Cited – Schmidt And Dahlstrom v Sweden ECHR 6-Feb-1976
ECHR No violation of Art. 11; No violation of Art. 14+11 . .
Cited – Hasan 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 . .
Cited – Metropolitan 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’ . .
Cited – DH 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 . .
Cited – 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. . .
Cited – Burden 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: . .
Cited – Runkee 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 . .
Cited – Savez Crkava (Rijec Zivota) And Others v Croatia ECHR 9-Dec-2010
. .
Cited – Carson 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

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:
Cited – Begum, 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 . .
Cited – Regina 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. . .
Cited – SB, 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 . .
Cited – Regina 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 . .
Cited – Copsey 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, . .
Cited – Regina 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 . .
Cited – Connolly 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 . .
Cited – The 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 . .
Cited – McFarlane 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.
Cited – Bull 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 . .
Cited – Singh 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. . .
Cited – RT (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 . .
Cited – Eweida 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 . .
Cited – Hammond 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 . .
Cited – Otto-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 . .
Cited – Lee 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

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:
Cited – Fisher 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 . .
Cited – Ridge 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

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:
Cited – The 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 . .
Questioned – Wickhambrook 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 . .
Cited – Chivers 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 . .
Cited – Regina 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 . .
Cited – Regina 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 . .
Cited – Regina 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 . .
Cited – Young, 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 . .
Cited – Rothenthurm 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 . .
Cited – Ayuntamiento 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 . .
Cited – The 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. . .
Cited – Foster 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. . .
Cited – Gilbert v Corporation of Trinity House 1886
The court first gave birth to the concept of an ’emanation of the state’ . .
Cited – Marshall 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 . .
Cited – 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 . .
Cited – Representative 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 . .
Cited – Bishop 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. . .
Cited – 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. . .
Cited – 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 . .
Cited – In 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. . .
Cited – Hautanemi 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 instance – Parochial 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:
Cited – Hampshire 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 . .
Cited – Ali 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 . .
Cited – Regina 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 . .
Cited – Hooper 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 . .
Cited – Al-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 . .
Cited – Regina 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 . .
Cited – Mullins, 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 . .
Cited – Kay 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 . .
Cited – Begum (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 . .
Cited – Al-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 . .
Cited – Cameron 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 . .
Cited – National 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 . .
Cited – Johnson 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 Also – Parochial 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 . .
Cited – Somerville 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; . .
Cited – Yarl’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 . .
Cited – Virgin 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 . .
Cited – Scott 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 . .
Cited – Human 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:
Approved – Spill 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:
Cited – Curran 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:
Cited – In 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:
Cited – Minister 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 . .
Cited – Colchester 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 Followed – In 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. . .
Cited – In re Hither Green Cemetery 2019
. .
Cited – Patel 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

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:
Cited – Radmacher (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:
Cited – Regina 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:
Cited – Ridge 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:
Cited – A, 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 . .
Cited – Anisminic 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:
Cited – Kirton v Dear 1869
A rector is the holder of a freehold office. . .
Cited – Sharpe 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 . .
Cited – Great 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 – McMillan 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 . .
Cited – Johnson 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 . .
Cited – 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 . .
Cited – Re 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 . .
Cited – Ready 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 . .
Cited – President 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 – 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 . .
Cited – 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 . .
Cited – Croke 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:
Cited – The 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:
Cited – Stradling 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 . .
Cited – Von 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 . .
Cited – Liverpool 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:
Cited – Lehtimaki 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

Davies 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 true construction of a written document or documents, the question is one of law, and an appellate tribunal or court is free to reach its own conclusion on the question without any restriction arising from the decision of the tribunal below. The claimant was unable to point to any contract between himself and the church. The book of rules did not contain terms of employment capable of being offered and accepted in the course of a religious ceremony. It is possible for a man to be employed as a servant or as an independent contractor to carry out duties which are exclusively spiritual.
Lord Templeman said: ‘My Lords, it is possible for a man to be employed as a servant or as an independent contractor to carry out duties which are exclusively spiritual. But in the present case the applicant cannot point to any contract between himself and the church. The book of rules does not contain terms of employment capable of being offered and accepted in the course of a religious ceremony. The duties owed by the pastor to the church are not contractual or enforceable. A pastor is called and accepts the call. He does not devote his working life but his whole life to the church and his religion. His duties are defined and his activities are dictated not by contract but by conscience. He is the servant of God. If his manner of serving God is not acceptable to the church, then his pastorate can be brought to an end by the church in accordance with the rules. The law will ensure that a pastor is not deprived of his salaried pastorate save in accordance with the provisions of the book of rules but an industrial tribunal cannot determine whether a reasonable church would sever the link between minister and congregation.’
References: [1986] ICR 280, [1986] 1 WLR 323, [1986] IRLR 194
Judges: Lord Templeman
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Clark v Oxfordshire Health Authority CA 18-Dec-1997
    A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
    Sir . .
    (Gazette 28-May-98, , [1997] EWCA Civ 3035, [1998] IRLR 125, (1998) 41 BMLR 18)
  • Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
    Staff who worked only as and when required, and who then had the right to turn down work offered were not employees and were not therefore entitled to written particulars of employment. The absence of mutuality and the discontinuity of any . .
    (Times 23-Nov-99, Gazette 01-Dec-99, Gazette 17-Dec-99, , , [1999] 4 All ER 897, [1999] UKHL 47, [1999] 1 WLR 2042, [2000] IRLR 43, [1999] ICR 1226)
  • Cited – 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 . .
    (, [2005] UKHL 73, , Times 16-Dec-05, [2006] 2 WLR 353, [2006] ICR 134, [2006] IRLR 195, [2006] 2 AC 28, 2006 SLT 11, [2006] 4 All ER 1354)
  • Cited – The 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 . .
    (, [2007] EWCA Civ 1004, Times 20-Nov-07, [2008] ICR 282, [2008] IRLR 134, [2008] HRLR 2)
  • Cited – Moore 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 . .
    (, [2010] UKEAT 0219 – 10 – 1503, [2011] ICR 819)
  • Cited – Singh 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. . .
    (, [2012] UKEAT 0429 – 11 – 1402)
  • Cited – 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 . .
    (, [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)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194296

Ahsan Ullah, Thi Lien Do v Special Adjudicator, Secretary of State for the Home Department: CA 16 Dec 2002

The appellants challenged refusal of asylum, claiming that their return to countries which did not respect their religion, would infringe their right to freedom of religious expression. It was accepted that the applicants did not have a sufficient well founded fear of persecution in the general sense.
Held: The Convention had come to regulate in part how signatory countries controlled their immigration, but controlled signatory states as to their treatment of those within their jurisdiction only. The right to control immigration might trump the human rights of those whose movement was to be controlled. The claimants sought the right to practise and preach their religions freely. The extension of Convention rights conflicted with the principle of territoriality, and had only been allowed for article 3. The present court was not required to take it further for article 9 where the interference in the exercise of that right fell short of being article 3 ill-treatment.
‘a removal decision to a country that does not respect article 9 rights will not infringe the 1998 Act where the nature of the interference with the right to practise religion that is anticipated in the receiving state falls short of article 3 ill-treatment. It may be that this does not differ greatly, in effect, from holding that interference with the right to practise religion in such circumstances will not result in the engagement of the Convention unless the interference is ‘flagrant’.’
References: Times 18-Dec-2002, Gazette 13-Mar-2003, [2003] 1 WLR 770, [2002] EWCA Civ 1856, [2003] 3 All ER 1174, [2003] UKHRR 302, [2003] Imm AR 304, [2003] ACD 30, [2003] INLR 74, [2003] HRLR 12
Links: Bailii
Judges: Lord Justice Kay, Lord Justice Dyson, Lord Phillips MR
Statutes: European Convention on Human Rights Art 3 Art 9, Human Rights Act 1998
Jurisdiction: England and Wales
This case cites:

  • Cited – Soering v The United Kingdom ECHR 7-Jul-1989 (14038/88, (1989) 11 EHRR 439, , [1989] ECHR 14, , ECLI:CE:ECHR:1989:0707JUD001403888)
    (Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
  • Cited – Abdulaziz etc v The United Kingdom ECHR 28-May-1985 (9214/80, 9473/81, 9474/80, (1985) 7 EHRR 471, , [1985] ECHR 7)
    Three women, all lawfully settled in the UK, had married third-country nationals but, at first, the Secretary of State had refused permission for their husbands to remain with them, or join them, in the UK.
    Held: The refusals of permission had . .
  • Cited – Bensaid v The United Kingdom ECHR 6-Feb-2001 (44599/98, (2001) 33 EHRR 205, (2001) 33 EHRR 10, [2001] ECHR 82, , [2001] INLR 325, 11 BHRC 297)
    The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .

This case is cited by:

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.178442

Regina v The Imam of Bury Park Jame Masjid Luton and others ex parte Suliman Ali: CA 12 May 1993

References: Times 12-May-1993
Ratio:
Jurisdiction: England and Wales
This case cites:

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  • Cited – Blake v Associated Newspapers Ltd QBD (Bailii, [2003] EWHC 1960 (QB))
    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. . .

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Last Update: 28 April 2020
Ref: 650097

In re St Luke the Evangelist’s Church, Maidstone; CArc 7 Oct 1994

References: Times 07-Oct-1994, [1995] 1 All ER 321, [1994] 3 WLR 1165
Coram: Sir John Owen, Dean of Arches, Judge Michael Chancellor, Cameron QC (Chancellor)
Ratio: The vicar and churchwardens appealed a refusal of a faculty to allow them to re-orient the services within the church to face to the south from the east.
Held: The Chancellor’s powers under the 1961 Measure had not been not reduced by the 1991 Measure. The newer measure controlled those bodied with care and conservation of the churches, and there existed a strong presumption against any change which would damage such characteristics, and therefore a requirement for strong evidence to show the need for any such change. A compelling reason might include the pastoral wellbeing of the church. Irreversible changes were to be avoided if possible. The appeal was allowed.
Statutes: Care Of Churches And Ecclesiastical Jurisdiction Measure 1991 1, Ecclesiastical Jurisdiction Measure 1963
This case cites:

  • Cited – In Re St Anne’s Church, Wrenthorpe ConC (Times 12-Oct-93, [1994] 1 WLR 338)
    The disposal of gifts to the church was to be at the discretion of the Conistory Court; The vicar and wardens of the church had title to such property. . .
  • Cited – In Re St Barnabas’ Church Dulwich ConC (Times 20-Jan-94, [1994] Fam 124, [1994] 2 WLR 54)
    (Southwark Consistory Court) The church had been badly damaged by fire, and a faculty was sought for its demolition and closure.
    Held: The measure required such a decision to take account of local worship needs. Under s17, the court must allow . .

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Last Update: 07-Sep-16
Ref: 89473

Case VIII, 4 Jac 6 Co 61 B, andC Cr Jac 141, 166 Yelv 100 Dr and Stud Dial 2, Cap 36 1 Inst 135B 2 Roll Abr 521: 1220

References: [1220] EngR 508, (1220-1623) Jenk 282, (1220) 145 ER 203
Links: Commonlii
Ratio:For the lapse of churches void by deat, resignation or deprivation, for six months: the months shall be accounted according to the Kalendar, and not twenty-eight days to a month: for the statute of West 2, cap 5, speaks of half a year; and the right of the patron is to be favoured.
Judged and affirmed in error.

Last Update: 18-Jun-16
Ref: 461420

The Rev Mr William Hepburn v Charles, Earl of Portmore: HL 12 Mar 1770

References: [1770] UKHL 2_Paton_218
Links: Bailii
Ratio Right of Patronage.-
On a vacancy occurring in the parish of Aberlady, the Crown and Lord Portmore respectively claimed the right to present. Lord Portmore founded his claim upon a disposition granted by the titular Bishop of Dunkeld, in 1589, (to whose see Aberlady was attached, as one of his mensal benefices.) which contained conveyance of the right of patronage: Held, that though such alienations were prohibited at that time by the act 1585, and the church benefices annexed to the Crown in 1587, and though no possession followed, by exercising the right to present on this title, yet Lord Portmore had best right to the patronage in question, which could not be lost by non utendo; and which had been ratified in Parliament in 1669.

Last Update: 14-Apr-16
Ref: 561674

Tooth v The Dean And Chapter Of Canterbury; 13 May 1829

References: [1829] EngR 460, (1829) 3 Sim 49, (1829) 57 ER 919
Links: Commonlii
The Dean and Chapter of C., being rectors of a parish, leased all the tithes belonging to the rectory. The lessees filed a bill for tithe of hops against the occupiers, to which the vicar was made a party as claiming that tithe. The occupiers then file a cross-bill against the dean and chapter and their lessees, for a discovery and production of documents. Demurrer by the dean and chapter alIowed.

Bonaker, Clerk v Evans; Cexc 3 Dec 1850

References: [1850] EngR 923, (1850) 16 QB 162, (1850) 117 ER 840
Links: Commonlii
Under stat, 1 & 2 Vict. c, 106, a writ of sequestration issued from the Consistory Court of the diocese of W reciting that the bishop had issued a monition, ordering the vicar of the vicarage of C, within the diocese, to reside on his benefice, that the monition was served on the vicar, and he returned that he had since commenced residence in consequence of this monition : that it had been officially reported to the bishop that the vicar had so commenced residence, but had not continued to reside, and had not been present at his vicarage house four months on the whole in the year following the monition ; that the bishop thereupon, by a subsequent order, ordered him to proceed to and reside on the benefice within thirty days ; which order had not been complied with : and the bishop had therefore directed the Court to sequester the profits until the order should have been complied with, or satisfactory reason for non-compliance shewn to the bishop: whereupon the Court sequestered the profits, until, &e. (as before), directing the sequestrator to collect them and out of the same to cause the cure to be duly served, and to account for the residue, &c. The sequestrator having taking the profits accordingly, an action of debt for money had and received was brought against him by the vicar. It appeared at the trial that the sequestration had issued without notice to the vicar to shew cause why it should not issue.
Held: by the Court of Exchequer Chamber, on error and bill of exceptions, that such notice was essential to the right of the sequestrator, although, after a proper preliminary proceeding, the judgment of the bishop is final. And, that a notice warning the vicar, after he had made return to the monition, that, unless he resided, the sequestration would issue, was not such a notice as was requisite. Also, that the sequestration could not be considered as issuing under sect. 56, which authorizes the bishop to sequester quousque without further monition or order, when the clerk, after being ordered to reside, begins to reside, but, before the expiration of twelve months thereafter, wilfully absents himself for one mouth. And that the action of debt was well brought. It is advisable that the sequestration in such a case should recite the delinquency and the bishops adjudication tbereon ; and that the previous monition be preceded by a summons to shew cause why it should not issue.

The Ecclesiastical Commissioners For England v The Vestry of The Parish of St James And St John, Clerkenwell; 25 May 1861

References: [1861] EngR 620, (1861) 3 De G F & J 688, (1861) 45 ER 1045
Links: Commonlii
The exceptions expressed in the 18 & 19 Vict. c. 120, s. 90, and 19 & 20 Vict. c. 112, s. 3 (the Metropolis Local Management Acts), do not exempt the Ecclesiastical Commissioners, acting under the Church Builditig Acts, from the provisions of the first-mentioned Act, and vestries have, under the first-mentioned Act, authority to pull down such portions of churches, as well as of other buildings, as transgress the provisions of that Act.