Tag: Ecclesiastical

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

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

Citations:

[1778] UKHL 2 – Paton – 447

Links:

Bailii

Jurisdiction:

Scotland

Ecclesiastical

Updated: 08 September 2022; Ref: scu.562021

In Re Durrington Cemetery: ConC 5 Jul 2000

A Jewish man had married a Christian. She requested his burial in a Christian cemetery. After she later emigrated, his relatives applied for his exhumation, and reburial in a Jewish cemetery. The delay was excused because it had been out of deference to the widow’s wishes, and the two faiths were similar enough for the re-interment to be allowed a faculty, even though the new burial would not be in consecrated ground.

Citations:

Times 05-Jul-2000, Gazette 13-Jul-2000

Jurisdiction:

England and Wales

Ecclesiastical

Updated: 28 July 2022; Ref: scu.81855

Fraser and Another v Canterbury Diocesan Board of Finance: ChD 22 Feb 2000

Where land had been acquired under the Act on trusts related specifically to the provision of education in accordance with a specified religion, the abandonment by the school of that purpose meant that the land reverted immediately to the original donor. It was clear that the trust established was not merely for educational purposes where the religious element was incidental. That element was the purpose of the gift.

Citations:

Times 22-Feb-2000

Statutes:

School Sites Act 1841

Jurisdiction:

England and Wales

Cited by:

Appeal from – Fraser and Another v Canterbury Diocesan Board Of Finance (No 1) CA 24-Nov-2000
A grant of land was made under the 1841 Act in 1872 (after the 1870 Act) and the school had in 1874 been transferred to a school board under section 23 of the 1870 Act. The school closed permanently in 1992. The issue was whether reverter had . .
Cited – Fraser and Another v Canterbury Diocesan Board of Finance and others HL 27-Oct-2005
Land had been acquired by a deed under the 1841 Act, but had in 1995 ceased to be used as a school ‘for the education of children and adults of the labouring manufacturing and other poorer classes . . And for no other purpose ‘. Under the Act, the . .
Lists of cited by and citing cases may be incomplete.

Land, Ecclesiastical, Education

Updated: 25 July 2022; Ref: scu.80664

Scottish Insurance Commissioners v Church of Scotland: SCS 18 Oct 1913

An assistant minister in the United Free Church said that he was an employee of the church.
Held: He was not. Lord Kinnear said that the status of an assistant minister ‘is not that of a person who undertakes work defined by contract but of a 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.’

Judges:

Lord Kinnear

Citations:

[1913] ScotCS CSIH – 3, (1914) SC 16

Links:

Bailii

Cited by:

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

Scotland, Employment, Ecclesiastical

Updated: 21 July 2022; Ref: scu.279310

In re Hutton Churchyard, Somerset: Carc 12 Nov 2008

The local authority sought to intervene in proceedings in respect of a churchyard where the memorial had been laid flat.
Held: Since the local authority took over responsibility for maintenance once stones were laid flat, it had standing to appear in proceedings on the issue.

Judges:

Miss Sheila Cameron QC, Dean of the Arches, Judge Richard Walker, Commissary General and Ms Sheila Rodgers, Chancellor

Citations:

Times 24-Dec-2008

Jurisdiction:

England and Wales

Ecclesiastical

Updated: 10 July 2022; Ref: scu.316675

Shergill and Others v Khaira and Others: ChD 3 Mar 2017

The court considered the identification of one of the ancient Sikh gurus in order to ascertain the rights of current gurdwaras

Judges:

Purle QC HHJ

Citations:

[2017] EWHC 883 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – 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. . .
See Also – Shergill v Khaira and Others CA 2-Oct-2012
. .
At SC – Shergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
See Also – Khaira and Others v Shergill and Others ChD 23-Mar-2016
. .

Cited by:

See Also – Khaira and Others v Shergill and Others CA 27-Oct-2017
‘This appeal raises technical but important issues on the entitlement of a party who is awarded the costs of an interlocutory appeal to an immediate assessment of those costs. Two issues of general application arise. First, is the party entitled to . .
Lists of cited by and citing cases may be incomplete.

Ecclesiastical

Updated: 14 June 2022; Ref: scu.581966

Attorney-General v Dean and Chapter of Ripon Cathedral: ChD 1945

Uthwatt J said: ‘The law is one, but jurisdiction as to its enforcement is divided between the ecclesiastical courts and the temporal courts’

Judges:

Uthwatt J

Citations:

[1945] 1 Ch 239

Jurisdiction:

England and Wales

Cited by:

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

Ecclesiastical

Updated: 20 May 2022; Ref: scu.622607

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 purchasing land which had been part of the rectorship, and whether or not he was a lay or spiritual rector. Such an imposition may well not be capable of being set aside under the new Act when it comes into force. The law relating to chancel repairs did not involve a deprivation of possessions. The liability to repair the chancel is one of the incidents of ownership of land allotted under the inclosure award in lieu of tithe or other rectorial property. It is an unusual incident not amounting to a charge on the land, not limited to the value of the land and in imposing a personal liability on the owner of the land, but it cannot be distinguished from the liability which would attach to the owner of land which is purchased subject to a mortgage, restrictive covenant or other incumbrance created by a predecessor in title.

Judges:

Ferris J

Citations:

Gazette 28-Apr-2000, Times 30-Mar-2000

Statutes:

Chancel Repairs Act 1932 5, Human Rights Act 1998 5

Jurisdiction:

England and Wales

Citing:

Cited – Attorney-General v Dean and Chapter of Ripon Cathedral ChD 1945
Uthwatt J said: ‘The law is one, but jurisdiction as to its enforcement is divided between the ecclesiastical courts and the temporal courts’ . .

Cited by:

Appeal from – 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 . .
At first instance – 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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Land, Ecclesiastical

Updated: 19 May 2022; Ref: scu.84588

Case XIX. 26 H 8, 23 By The Judges of Both Benches 14 H 8, 3 Stat De Glocester, Cap 11 Resceit, Averment Hob 35: 1220

A quare impedit is brought against the patron and incumbent to present to a rectory, of which the incumbent has made a lease for years to B. by deed ; in this case the patron of the incumbent confesses the action: the lessee for years is not relievable ; although he comes before judgment and shews his lease, and shews the title of his lessor, and the fraud and collusion : for a parson incumbent may, when he will, resign his rectory, and avoid his lease; and the absence of a parson for the space of 80 days in a year shall avoid the said lease ; also if he will suffer a judgment and recovery of it against him, such recovery shall avoid the said lease. The statute of Glocester is to be understood of leases made by such lessors as could not defeat sruch leases by their own acts.

Citations:

[1220] EngR 356, (1220-1623) Jenk 200, (1220) 145 ER 135 (A)

Links:

Commonlii

Ecclesiastical, Landlord and Tenant

Updated: 18 May 2022; Ref: scu.461268

In re West Norwood Cemetry: ConC 24 Feb 2005

Sylvia and Dennis Swaden had been buried in the same plot. The second child, Paul, had made it clear that he did not want Dennis to be buried in the plot, but his five siblings arranged it anyway, probably by forging Paul’s signature. Paul was the registered owner of the plot. The burial authority sought a faculty for exhumation.
Held: About a quarter of the bill for the grant of burial rights had been paid for by other family members, including Dennis who had also acted to his detriment by not insisting on his name appearing on the grant of rights. A constructive trust was therefore established, and Paul had no right to refuse his consent. A similar result could be achieved by applying the law of proprietary estoppel.

Judges:

Charles George QC

Citations:

Times 20-Apr-2005

Jurisdiction:

England and Wales

Ecclesiastical

Updated: 17 May 2022; Ref: scu.225896

Martin v Mackonochie: Carc 1866

Whether beliefs of the Bishop of Holborn were ‘Romish’.

Citations:

(1866) LR2 A and E 116

Cited by:

Appeal from – Martin v Mackonochie PC 1882
The Board sat with ecclesastical assessors to examine whether the religious beliefs of the Bishop of Holborn were Romish. . .
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.

Ecclesiastical

Updated: 16 May 2022; Ref: scu.223028

In re Saint Gregory’s, Tredington: Carc 1972

The court formulated guidelines when considering the disposal of chattels by a church. The court should consider i) any strong liturgical, historical or architectural connection with the church ii) that any flouting of the donor’s wishes might deter other donors.

Citations:

[1972] Fam 236

Jurisdiction:

England and Wales

Cited by:

Leading Case applied – In re church of the Blessed Virgin Mary, Batcombe ConC 4-Jan-2005
The church had many years earlier been given a painting which had hung in the chuirch. It was discovered that it was potentially highly valuable. It was agreed that the cost of security arrangements for it to continue to hang in the chirch were . .
Cited – In re St John the Baptist, Stainton by Langworth ConC 13-Apr-2006
The vicar and churchwardens sought a faculty to allow the sale of silverware from the church.
Held: In making such a decision, the court had to consider all the circumstances including the need to balance the long term interests of providing a . .
Lists of cited by and citing cases may be incomplete.

Ecclesiastical

Updated: 16 May 2022; Ref: scu.221426

Prosser, Clerk, v Goringe: 4 May 1811

An arbitrator to whom the question of the right of two rectors to the tithe of certain lands was referred, had power to devise ail means to prevent future litigation between the parties, and to settle all matters in difference between them, and to determine what he should think fit to be done by either of the parties, touching the
matters in dispute. Held, that he did not exceed his power by awarding undivided moieties of the tithes to the two rectors.

Citations:

[1811] EngR 261, (1811) 3 Taunt 426, (1811) 128 ER 169 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Ecclesiastical, Arbitration

Updated: 15 May 2022; Ref: scu.339345

Newcome v Mathew: 3 May 1832

A new mill erectad on the site of an ancient mill is exempt from tithes : but if it is built partly on the site of the ancient mill, and partly on a new site, it is not exempt. In a suit for tithes betwean a vicar and the occupier of a mill an old map of the parish, belonging to the lord of the manor, was not admiitted as evidence for the Defendant.

Citations:

[1832] EngR 565, (1832) 5 Sim 243, (1832) 58 ER 328

Links:

Commonlii

Jurisdiction:

England and Wales

Ecclesiastical, Rating

Updated: 15 May 2022; Ref: scu.319512

Money v Money: 28 Nov 1853

Arches Court of Canterbury -In a matrimonial suit, the husband retained one counsel only, and the wife’s proctor, conceiving she could not claim the privilege of two, also retained one only, but for the hearing was induced to retain a second The costs thereof being allowed upon taxation, the proctor for the husband objected to the Registrar’s report.
Held that the ordinary. practice of the Court was to have two counsel on each side; that a wife was primai facie therefore entitled thereto, arid that the special circumstances of the present case dld not afford sufficiient ground for exception.

Citations:

[1853] EngR 1040, (1853) 1 Sp Ecc and Ad 117, (1853) 164 ER 68

Links:

Commonlii

Jurisdiction:

England and Wales

Ecclesiastical, Costs

Updated: 15 May 2022; Ref: scu.295026

In Re St Barnabas’ Church Dulwich: ConC 14 Dec 1993

(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 for the parish’s pastoral needs; the architectural or historical importance if it was a listed building; the building’s contribution to the locality; any costs of preservation; and where as here the church had been almost totally destroyed, the practicability of rebuilding the church to its original condition. A faculty was granted.

Judges:

K M E Gray QC

Citations:

Times 20-Jan-1994, [1994] Fam 124, [1994] 2 WLR 54

Statutes:

Care of Churches and Ecclesiastical Jurisdiction Measure 1991 1 17

Cited by:

Cited – In re St Luke the Evangelist’s Church, Maidstone CArc 7-Oct-1994
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 . .
Lists of cited by and citing cases may be incomplete.

Ecclesiastical

Updated: 15 May 2022; Ref: scu.82196

Regina v Ramsay and Foote: 1883

Lord Coleridge CJ directed a jury on a trial for blasphemous libel: ‘the mere denial of the truth of the Christian religion or of the Scriptures is not enough per se to constitute a writing a blasphemous libel . . But indecent and offensive attacks on Christianity or the Scriptures, or sacred persons or objects, calculated to outrage the feelings of the general body of the community, do constitute the offence of blasphemy.’ However, even the fundamentals of religion could be attacked ‘if the decencies of controversy are observed’.
. . And: ‘The law visits not the honest errors, but the malice of mankind. wilful intention to pervert, insult, and mislead others, by means of licentious and contumelious abuse applied to sacred subjects, or by wilful misrepresentations or artful sophistry, calculated to mislead the ignorant and unwary, is the criterion and test of guilt. A malicious and mischievous intention, or what is equivalent to such an intention, in law, as well as moral, – a state of apathy and indifference to the interests of society, – is the broad boundary between right and wrong.’

Judges:

Lord Coleridge CJ

Citations:

(1883) 15 Cox CC 231

Jurisdiction:

England and Wales

Cited by:

Cited – Whitehouse v Lemon; Whitehouse v Gay News Ltd CA 1979
The defendants, editors and publisher respectively of ‘Gay News’ had been accused of blasphemous libel. The magazine had a poem entitled ‘The love that dare not Speak its Name’. it is not a necessary part of the offence that there should be an . .
Cited – Green, Regina (on the Application of) v The City of Westminster Magistrates’ Court, Thoday, Thompson Admn 5-Dec-2007
The claimant appealed from the refusal by the magistrate to issue summonses for the prosecution for blashemous libel of the Director General of the BBC and the producers of a show entitled ‘Jerry Springer – The Opera.’
Held: The gist of the . .
Lists of cited by and citing cases may be incomplete.

Crime, Ecclesiastical

Updated: 14 May 2022; Ref: scu.261810

In re Holy Trinity, Bosham: ConC 10 Dec 2003

A faculty was sought for the exhumation of a body in the graveyard, so that modern scientific tests could establish whether it was indeed the body of King Harold.
Held: Such a faculty must be granted only if a clear benefit could be established. A Christian burial was final, with a presumption against exhumation, which included any disturbance of the remains. Special circumstances were required to displace the presumption, to the degree of great historic national or other interest, amounting to a compelling reason. In this case there remained a strong possibility that the exhumation would not prove the truth either way. The presumption against disturbance was not displaced.

Citations:

Times 12-Dec-2003

Jurisdiction:

England and Wales

Ecclesiastical

Updated: 12 May 2022; Ref: scu.189891

Taylor’s Case: 1676

(Year?) An iriformatiori exhibited against him in the Crown Offce, for uttering of dlvers blasphemous expressions, horrible to hear, (viz.) that Jesus Christ was a bastard, a whoremaster, religion was a cheat ; and that he neither feared God, the devil, or man.
Beirig upon his trial, he acknowleclged the speaking of the words, except the word bastard ; and for the rest, he pretended to mean them in another sense than they ordinarily bear, (viz.) whoremaster, i.e. that Christ was master of the whore of Babylon, and such kind of evasions for the rest. But all the words being proved by several witnesses, he was found guilty.
And Hale said, that such kind of wicked blasphemous words were not only an offence to God and religion, but a crime against the laws, State and Government, and therefore punishable in this Court. For to say, religion is a cheat, is to dissolve all those obligations whereby the civil societies are preserved, arid that Christianity is parcel of the laws of England ; and therefore to reproach the Christian religion is to speak in subversion of the law.
Wherefore they gave judgment upon him, (viz.) to stand iri the pillory in three several places, and to pay one thousand marks fine, and to find sureties for his good behaviour during life.
An attack on Christian beliefs would undermine and endanger society: ‘For to say that religion is a cheat is to dissolve all those obligations whereby the civil societies are preserved and that Christianity is a parcel of the laws of England and therefore to reproach Christianity is to speak in subversion of the law.’ and ‘Contumelious reproaches of God and of the religion established are punishable here…. the Christian religion is part of the law itself’.

Judges:

Sir Matthew Hale

Citations:

(1676) 3 Keb 607, [1726] EngR 773, (1726) 1 Vent 293, (1726) 86 ER 189 (C)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Green, Regina (on the Application of) v The City of Westminster Magistrates’ Court, Thoday, Thompson Admn 5-Dec-2007
The claimant appealed from the refusal by the magistrate to issue summonses for the prosecution for blashemous libel of the Director General of the BBC and the producers of a show entitled ‘Jerry Springer – The Opera.’
Held: The gist of the . .
Cited – Corway v Independent Newspapers (Ireland) Limited 30-Jul-1999
(Supreme Court of Ireland) . .
Approved – Dominus Rex v Woolston 1732
The defendant having publish’d several discourses on the miracles of Christ, in which he maintain’d that the same are not to be taken in a literal sense, but that the whole relation of the life and miracles of our Lord Christ in the New Testament, . .
Lists of cited by and citing cases may be incomplete.

Crime, Ecclesiastical

Updated: 10 May 2022; Ref: scu.261809

In re St Mary the Virgin, Woodkirk: 1969

Citations:

[1969] 3 All ER 952, [1969] 1 WLR 1867

Jurisdiction:

England and Wales

Cited by:

Cited – In Re St Peter’s, Bushey Heath Conc 26-Oct-1970
cw Ecclesiastical Law – Faculty – Secular purpose – Use of unconsecrated curtilage of church – Jurisdiction to grant faculty
A faculty was sought for the grant of a right of way easement over unconsecrated . .
Lists of cited by and citing cases may be incomplete.

Ecclesiastical

Updated: 06 May 2022; Ref: scu.183124

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.

Judges:

Lord Parker CJ, Ashworth and Cantley JJ

Citations:

[1970] 1 QB 430

Statutes:

Places of Worship Registration Act 1855 2

Jurisdiction:

England and Wales

Cited by:

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

Family, Administrative, Ecclesiastical

Updated: 04 May 2022; Ref: scu.540526

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 meet that test, and a valid ceremony of marriage could not be conducted there. The question of whether the services performed in the chapel are properly to be regarded as a form of religious worship is inevitably conditioned by whether Scientology is to be regarded as a religion.
Lord Denning asked whether the chapel was a place of meeting for religious worship within the meaning of the Act, saying: ‘We have had much discussion on the meaning of the word ‘religion’ and of the word ‘worship’, taken separately, but I think we should take the combined phrase, ‘place of meeting for religious worship’ as used in the statute of 1855. It connotes to my mind a place of which the principal use is as a place where people come together as a congregation or assembly to do reverence to God. It need not be the God which the Christians worship. It may be another God, or an unknown God, but it must be reverence to a deity. There may be exceptions. For instance, Buddhist temples are properly described as places of meeting for religious worship. But, apart from exceptional cases of that kind, it seems to me the governing idea behind the words ‘place of meeting for religious worship’ is that it should be a place for the worship of God. I am sure that would be the meaning attached by those who framed this legislation of 1855.’
As to how that might apply to the Church of Scientology: ‘Turning to the creed of the Church of Scientology, I must say that it seems to me to be more a philosophy of the existence of man or of life, rather than a religion. Religious worship means reverence or veneration of God or of a Supreme Being. I do not find any such reverence or veneration in the creed of this church . . When I look through the ceremonies and the affidavits, I am left with the feeling that there is nothing in it of reverence for God or a deity, but simply instruction in a philosophy. There may be belief in a spirit of man, but there is no belief in a spirit of God.’
Winn LJ said that he did not feel well qualified to discuss whether Scientology could properly be called a religion, but the evidence did not show to his mind that its adherents observed any form of worship. He explained what he meant by worship: ‘by no ‘worship’, if I am bound to define my terms, I mean to indicate that they do not humble themselves in reverence and recognition of the dominant power and control of any entity or being outside their own body and life.’
Buckley LJ said: ‘Worship I take to be something which must have some at least of the following characteristics: submission to the object worshipped, veneration of that object, praise, thanksgiving, prayer or intercession.’

Judges:

Lord Denning MR, Winn and Buckley LJJ

Citations:

[1970] 2 QB 697

Statutes:

Places of Worship Registration Act 1855 2

Jurisdiction:

England and Wales

Citing:

Appeal from – 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. . .

Cited by:

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

Family, Administrative, Ecclesiastical

Updated: 04 May 2022; Ref: scu.540525

CASE XXII 1 H 7, 27 Sanctuary By All The Judges of England: 1220

Sanctuary at conmion law does not lie for treason ; it lay for other offences. At this day all sanctuaries are abolshed by a statute made 1 Jac. 1, cap. 21. Nee veniam lesso numine casus habet.

Citations:

[1220] EngR 26, (1220-1623) Jenk 166, (1220) 145 ER 108 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Ecclesiastical, Crime

Updated: 04 May 2022; Ref: scu.460938

Sir George Sands’s Case: 1795

Citations:

[1795] EngR 3113, (1795) 3 Salk 22, (1795) 91 ER 668 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Dr Sands’s Case 1738
. .

Cited by:

See Also – Dr Sands’s Case 1795
Certiorari to remove conviction of recusancy denied . .
See Also – Sands’s Case 1803
. .
Lists of cited by and citing cases may be incomplete.

Ecclesiastical

Updated: 02 May 2022; Ref: scu.355458

Sands’s Case: 1803

Citations:

[1803] EngR 314, (1803) T Raym 93, (1803) 83 ER 51 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Dr Sands’s Case 1738
. .
See Also – Sir George Sands’s Case 1795
. .
See Also – Dr Sands’s Case 1795
Certiorari to remove conviction of recusancy denied . .
Lists of cited by and citing cases may be incomplete.

Ecclesiastical

Updated: 02 May 2022; Ref: scu.344355

Campbell v Campbell: 22 Apr 1857

Consistory Court of London – Practice–Condonation–Delay –As a general rule, the Court will always accede to an application to examine witnesses viva voce; and where such application is intended for the whole cause, the pleadings must be concluded before any of the witnesses are examined. Condonation, or the renewal of conjugal intercourse, requires strict proof. In matrimonial causes there are few reasons for delay.

Citations:

[1857] EngR 421, (1857) Dea and Sw 285, (1857) 164 ER 578

Links:

Commonlii

Jurisdiction:

England and Wales

Ecclesiastical, Family

Updated: 02 May 2022; Ref: scu.290167

Hawkin’s Case: 1794

If tbere be a special custom in a parish, that the adorning of the inside of the chancel of the church shall be done at the charge of the owners arid occupiers of ancient houses, yet they are not bound by such a custom both to ornament and to repair the chancel ; for the parson is bound to repair of common right, and the custom does not release him: nor can the owners and occupiers of mills or racks be rated towards such ornaments ; for where a temporal inheritance is to be charged by a particular custom the custom must be strictly pursued.

Citations:

[1794] EngR 806, (1794) 5 Mod 389, (1794) 87 ER 723

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Ecclesiastical

Updated: 12 April 2022; Ref: scu.369738

Dr Sands’s Case: 1738

Citations:

[1738] EngR 294, (1688-1710, 1738) Holt KB 131, (1738) 90 ER 971 (C)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

See Also – Sir George Sands’s Case 1795
. .
See Also – Dr Sands’s Case 1795
Certiorari to remove conviction of recusancy denied . .
See Also – Sands’s Case 1803
. .
Lists of cited by and citing cases may be incomplete.

Ecclesiastical

Updated: 12 April 2022; Ref: scu.385687

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

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

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 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

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

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

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

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

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

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

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

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

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

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 . .

(This list may be incomplete)

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.

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.

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 Duchess of Kingston’s Case; 1 Apr 1776

References: [1776] EngR 16, (1776) 1 Leach 146, (1776) 168 ER 175, [1775] EngR 54, (1775) Amb 756, (1775) 27 ER 487, (1776) 2 Smith’s LC, 13th ed 644
Links: Commonlii, Commonlii
On plea, sentence in ecclesiastical Court ex directo in a matter properly cognizable there, is conclusive evidence where the same matter comes into question collaterally in a court of law or equity.
A sentence of jactitation is not conclusive evidence against an indictment of bigamy, for its validity may be impeached, as having been obtained by fraud. A peeress convicted of clergyable felony shall be discharged without burning or imprisonment.
This case is cited by:

  • Cited – Prest -v- Petrodel Resources Ltd and Others SC (Bailii, [2013] UKSC 34, [2013] WLR(D) 237, [2013] 3 FCR 210, [2013] 4 All ER 673, [2013] Fam Law 953, [2013] 2 FLR 732, [2013] BCC 571, [2013] 2 AC 415, [2013] WTLR 1249, [2013] 3 WLR 1, Bailii Summary, UKSC 2013/0004, SC Summary, SC)
    In the course of ancillary relief proceedings in a divorce questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
  • Cited – Virgin Atlantic Airways Ltd -v- Zodiac Seats UK Ltd SC (Bailii, [2013] UKSC 46, [2013] 3 WLR 299, [2014] 1 AC 160, [2013] WLR(D) 265, [2013] RPC 29, [2013] 4 All ER 715, Baili Summary, WLRD, UKSC 2010/0013, SC Summary, SC)
    Virgin Atlantic Airways Ltd sought to recover damages exceeding £49,000,000 for the infringement of a European Patent which did not exist in the form said to have been infringed. The Technical Board of Appeal of the European Patent Office had . .

Davis v Beason, Sheriff; 3 Feb 1890

References: 133 US 333 (1890), 33 L Ed 637, 10 SCt 299
Links: Worldlii
Coram: Field J
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 amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order, and morals of society.’ The Court adopted a strictly theistic definition of religion.
This case is cited by:

Malnak v Yogi; 2 Feb 1979

Links: Worldlii
Coram: Aldisert, Adams and Hunter, Circuit Judges
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 in state schools.
Held: It was such. Judge Adams, said that religion bore the same meaning in that context as in the free exercise of religion clause of the Constitution, noting that the law had moved towards a broader approach in recognition of the fact that adherence to the traditional definition would deny religious identification to the faiths adhered to by millions of Americans.
Adams J thought that it wa one thing to conclude ‘by analogy’ that a particular group of ideas is religious; it was quite another to explain what indicia are to be looked at in making such an analogy and justifying it. He identified three such indicia.
The first was that the belief system is concerned with the ultimate questions of human existence: the meaning of life and death, mankind’s role in the universe, the proper moral code of right and wrong. The second was that the belief system is comprehensive in the sense that it provides an all-embracing set of beliefs in answer to the ultimate questions. The third was that there were external signs that the belief system was of a group nature which could be analogised to accepted religions. Such signs might include formal services, ceremonial functions, the existence of clergy, structure and organisation, and attempts at propagation. These indicia were not to be thought of as a final test for a religion. Rather, they were features which recognised religions would typically exhibit.
This case is cited by:

Scottish Insurance Commissioners v Church of Scotland; CS 1914

References: 1914 SC 16
Coram: Lord Kinnear, Lord Johnstone, Lord Mackenzie
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.’
This case is cited by:

  • Cited – Percy -v- Church of Scotland Board of National Mission HL (Bailii, [2005] UKHL 73, House of Lords, 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)
    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 . .

Bruker v Marcovitz; 14 Dec 2007

References: 288 DLR (4th) 257, [2007] 3 SCR 607, 2007 SCC 54 (CanLII)
Links: Canlii, Canlii
Coram: McLachlin CJ and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ
Canlii (Supreme Court of Canada) Contracts – Validity – Breach – Agreement with religious aspect – Husband refusing to provide wife with Jewish religious divorce after civil divorce despite agreement to do so – Action in damages against husband for breach of contract – Whether matter justiciable – Whether agreement satisfies all requirements to make it valid and binding under Quebec law – Whether husband can rely on freedom of religion to avoid legal consequences of failing to comply with agreement – Civil Code of Quebec, S.Q. 1991, c. 64, arts. 1373, 1385, 1412, 1413 – Charter of human rights and freedoms, R.S.Q., c. C-12, ss. 3, 9.1.
Human rights – Freedom of conscience and religion – Agreement with religious aspect – Jewish religious divorce or ‘get’ – Husband refusing to provide wife with Jewish religious divorce after civil divorce despite agreement to do so – Action in damages against husband for breach of contract – Whether husband entitled to immunity from damages for his breach of contract by invoking freedom of religion – Charter of human rights and freedoms, R.S.Q., c. C-12, ss. 3, 9.1.
This case is cited by:

  • Cited – Shergill and Others -v- Khaira and Others SC (Bailii, [2014] UKSC 33, [2014] 3 WLR 1, [2014] WLR(D) 263, Bailii Summary, WLRD, UKSC 2012/0234, SC Summary, SC, [2014] PTSR 907, [2014] WTLR 1729, [2014] 3 All ER 243)
    The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .

Welsh v United States; 15 Jun 1970

References: 398 US 333 (1970), [1970] USSC 147, 90 SCt 1792, 26 Led 2d 308
Links: Worldlii
Coram: Black, Douglas, Marshall, Brennan JJ
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.’
This case cites:

  • Cited – United States -v- Seeger (380 US 163 (1965), Wordlii)
    United States Supreme Court – The respondent claimed conscientius objection to serving in the armed forces. . .

This case is cited by:

United States v Seeger; 8 Mar 1965

References: 380 US 163 (1965)
Links: Wordlii
Coram: Clark J
United States Supreme Court – The respondent claimed conscientius objection to serving in the armed forces.
This case is cited by:

  • Cited – Welsh -v- United States (398 US 333 (1970), Worldlii, [1970] USSC 147, 90 SCt 1792, 26 Led 2d 308)
    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 – Hodkin and Another, Regina (on The Application of) -v- Registrar-General of Births, Deaths and Marriages SC (Bailii, [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, WLRD, Bailii Summary, UKSC 2013/0030, SC Summary, SC)
    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 . .