Prompted by the statements made by Andrew Lloyd-Webber in the House of Lords, and more recently in the media on the use of Wi-Fi in churches, our earlier post considered the legal framework within which the ecclesiastical courts review the health implications, the courts’ jurisdiction, and the locus standi of those opposing its introduction. We now explore these applications in more detail with particular reference to: the standards of evidence expected by the courts; improper use of the systems installed; and associated commercial considerations.
Whilst Re Bentley Emmanuel Church provides the framework for the consideration of health issues, consistory courts nevertheless take note of evidence provided by those on both sides of the argument that is relevant to the particular circumstances of the case. However, it is important that this evidence is in a form that is acceptable to the court and is capable of scrutiny. This was highlighted in Re St Peter and St Paul’s Church, Chingford,  Fam 67 where the court noted 
“[The Respondent] applied for permission to introduce a large number of extracts from documents and various articles from journals and newspapers.This Court pointed out that newspaper cuttings are not acceptable by themselves as evidence in an ecclesiastical court, nor are extracts from publications which are unsupported by oral evidence. Save in respect of two official public documents, his application was refused.”
A summary of the courts’ evidential requirements is given in Chancellor’s conclusions to Re All Saints Postwick.
“The consistory court, like any other court, can only come to conclusions on evidence and proof. The views of others, however genuinely held, which do not take the matter under consideration beyond the bounds of the realm of anxious possibility only, can never be substituted for evidence and proof which is positive in nature and capable of evaluation.
In this case the views and reports produced by the Objectors from many different sources were not available for cross examination or evaluation … The Court concluded that it preferred that of the live evidence of experts in their field, whose testimony the Court was able to examine and evaluate, and went on to accept.”
In Re All Saints Sharrington  Norwich Cons Ct, Ruth Arlow Ch., the objections focused on the health risks to a specific person: here the evidential value of a letter from the consultant neurologist was “very limited”, principally because it was so heavily edited  and “at no point in either of the medical reports is any diagnosis provided or any medical opinion expressed which evidences any link between the complainant’s symptoms and the type and strength of electromagnetic radiation produced by WiFi masts.”
In neither case did the court suggest that symptoms referred to as “electromagnetic sensitivity” were not experienced by some individuals, (and in particular by one of the complainants in Re All Saints Sharrington); and in Re All Saints Postwick, in an effort to be even-handed in approach, the Court attempted to test the points raised by the Objectors by way of questioning of the “live” witnesses which the Petitioner had called in the Hearing.
Leaving aside the inadequate presentation of data, the problem for organizations such as ElectroSensitivity UK lies in the ability to identify a causal link between exposure to electromagnetic radiation from installations such as those proposed and the symptoms experienced. Furthermore, conditions such as electro-sensitivity which have been labelled as “idiopathic environmental intolerances”, (IEI) , are likely to be more problematic than accepted medical conditions
The courts’ considerations of the use of Wi-Fi has mirrored the development of mobile phone networks. Early generation 2G phones were limited to voice-only telephone calls and to the sending/receiving of text messages: consequently cases such as Re St Peter Shipley (15 August 1997: unreported) and In re All Saints Harborough Magna  1 WLR 1235 focused on the acceptability of the secular use of the church, and on striking a balance between the public benefit which mobile phones can provide and the risk of improper or unlawful communications being transmitted.
By contrast, the faster transfer of data transfer by 3G  networks enables the user to access a far wider range of services, many of them internet-based: downloading music, photographs, and games; access to social networks such as Twitter and Facebook; streaming of music and videos; use of apps and maps; the streaming of music and videos; and the uploading and sharing of photos and videos. As a consequence, the exposure of children to potentially unsuitable material has become a greater concern.
Early cases involving 3G facilities included: In Re St Margaret’s Hawes  1WLR 2568 and In re St Barnabas Heaton (20 September 2004, unreported): in the former, the chancellor took the view that the “responsibility for the transmission of the signal or message is that of the person or body transmitting it and the receiver not that of the telecommunications provider”; in the latter, whilst the provider was also party to a contract with Playboy which gave access to the magazine and other “top shelf” material (via 3G mobile phones), this was viewed as one of the many services available rather than one that was specifically promoted.
An in-depth consideration of “content issues” was made by the Court of Arches in the appeal Re St Peter and St Paul’s Church, Chingford. When the case was before the Chelmsford consistory court, three issues were raised in objection to the installation of mobile phone antennae: safety (i.e. health considerations); the content of the transmitted material; and some aesthetic considerations. The chancellor stated  that it was “no part of the work or the mission of the Church to facilitate the transmission of pornography whether from the internet or privately created”, whether lawful or unlawful (i.e. contrary to the Telecommunications Act 1984 as amended). He therefore dismissed the petition, and refused permission to appeal.
However, the Court of Arches gave conditional permission to appeal on “the transmitted material issue” only, provided that an amicus should be appointed to assist the Court. Furthermore, it allowed the Appellants to recall a witness with expertise on the safety issues. In this new evidence this witness reviewed the development of mobile phone networks  and the filtering techniques used by providers: the blocking of commercial content identified as unsuitable for the under-18s by the Independent Mobile Classification Body ; the use of “web crawlers” by operators to identify suspect sites and the default application of a filter so that content classified as unsuitable for customers under 18 is automatically blocked  identification of sites containing potentially illegal material by the Internet Watch Foundation which informs internet service providers and mobile phone operators so that the sites can be blocked immediately .
In allowing the appeal, the Court stated that the chancellor failed properly to evaluate such evidence as was before him and did not attempt to conduct any balancing of the arguments for and against the grant of a faculty. One of the difficulties confronting him was lack of evidence on the issue of the transmitted material [53, 54]: “[h]is judgment was … based to a large extent on his personal experience of abuse cases in the secular courts …”.
Furthermore, at first instance the chancellor did not differentiate between the impact of Wi-Fi communications on children and that on adults, but the Court believed it necessary to do so [55 to 57]:
“[t]he major consideration is the risk to children from using a mobile phone to access pornography on the internet”… “As this Court pointed out in Re Emmanuel Church, Bentley ‘Whilst the concern of parents to protect their children is natural we cannot overlook the fact that it is not possible to eradicate every element of risk before introducing some new feature into modern life.’
The mobile phone operators have introduced filtering techniques for those under 18 and there is continuous monitoring of websites by the Internet Watch Foundation so that sites with potentially illegal material can be blocked … We regard these steps as a reasonable and welcome public response to countering the risk to children. Parents and teachers also have their part to play in educating the young about some of the unpleasant and potentially dangerous features of the internet”
With regard to adults,
“the risk is that some adults benefiting from the improved transmission in the Chingford area may somewhere use a mobile phone to access pornography which is not classed as unlawful by the criminal law … To bar something which will be of benefit to the public generally because there is a risk that some will be able privately to access material, which many Christians and others deplore, is to take an unbalanced approach. A more balanced view in relation to pornography would be for Christians to work in conjunction with others at improving standards of sexual morality in society generally.”
An overview of the matters to be addressed in licence agreements was provided in Re All Saints, Harborough Magna  Coventry Cons Ct, Gage Ch, in which the Chancellor listed eight matters which ought to be considered in relation to an installation sanctioned by the Parochial Church Council by way of licence granted by the Incumbent. However, negotiations with service providers are sometimes conducted by the Diocesan Board of Finance (DBF); and whilst the agreements reached may be good value in relation to the diocese as whole, individual parishes may be disadvantaged. In Re St Mary, Cable Street & Ors London Cons Ct, Seed Ch.  14 Ecc LJ 464-465, the Chancellor expressed serious concerns at such arrangements and stressed that each PCC is an individual charity with a duty to comply with the requirements of ecclesiastical and charity law. The church buildings were not the property of the DBF, which had no locus in these cases.
The issue of “value for money” was explored further in Re St Paul, Woldingham Southwark Cons Ct, Petchey Ch  15 Ecc LJ 119-120 and Re St Paul, Woldingham (No 2) Southwark Cons Ct, Petchey Ch,  15 Ecc LJ 245-24 in which the nature (but not the detail ) of the contract was addressed. The proposed licence agreement was for a period of 20 years with an annual fee of £5,000 which reflected the fee payable on the open market. In granting the faculty, the chancellor expressed his concern regarding the basis upon which the size of the licence fee was reached – a fixed standard fee dependent upon the size of the conurbation within which the church was located, with no scope for adjustment to take account of the value of the particular site. However, the consitions included five-yearly upward-only reviews at which such issues might be used to renegotiate the licence fee, and as such what was proposed was not considered unreasonable.
Statutory provisions vs. quasi-law
In Re St Peter and St Paul’s Church, Chingford, the Court required inter alia the following condition to be added to the licence agreement :
“the operator shall at all times comply with the UK Code of Practice for the self-regulation of new forms of content on mobiles (19 January 2004), as amended from time to time, and shall in particular apply a filter by default on internet content identified to the operator as unsuitable for customers under-18.”
Although it was submitted that compliance with the UK Code of Practice was covered by the words ‘regulatory standard’ in the proposed agreement, the court held that this phrase could be interpreted to mean standards set out in regulations rather than in a Code of Practice agreed to voluntarily by the Operators. The court’s addition, above, makes compliance with the Code of Practice and subsequent revisions a condition of the contract, thereby enhancing the effectiveness of what otherwise would have been merely a quasi-law declaration by the system providers.
Unlike many issues addressed by the consistory courts, the discrete positioning of telecommunications equipment within a church or externally, has raised relatively few aesthetic considerations and has not been a major concern of judgements in this area: Re St Peter and St Paul’s Church, Chingford (Glass Reinforced Plastic louvres); Re: Rusthall, St. Mark’s Biggin Hill and St. Mary’s Shortlands  Rochester Const Ct, Goodman Ch. (proposed structure ~2m long, 10cm diameter, “painted in any colour”); Re St Peter, Shipley  Bradford Const Ct, Savill Ch. (three-panel antennae, link transmission dish and small equipment cabin); Re St Mark, Marske-in-Cleveland  York Const Ct, Coningsby Ch, (flagpole-shaped aerial, a microwave dish and a street level cabinet).
If the installation of communication equipment were merely an aesthetic consideration, it could arguably be dealt with under the Archdeacon’s jurisdiction since Schedule II to the Faculty Jurisdiction Rules 2013 covers minor structural alterations not involving demolition or partial demolition: the Schedule also includes the installation of a lightning conductor; and the introduction of a free-standing flagpole, both of which have analogous aesthetic impacts.
Within the public square, however, the issue is likely to remain contentious for some time yet: although the Court of Arches delivered important judgements on health effects and the transmission of unsuitable material in 2006 and 2007 respectively, the Church’s approach to these two issues may need to change as a consequence of advances in medical knowledge and technological developments relating to communication. With regard to the former, however, relatively low levels of electromagnetic radiation are associated with transmission (in comparison to their reception by mobile phones &c), and by its use of criteria based on international performance standards, the Court of Arches has distanced its decisions from specific medical effects of emr.
With regard to the “content issue”, the Court of Arches’ judgement was based on the premise that a “technical fix” would provide an adequate level of protection. Whilst technological developments are likely to result in improvements in the level of protection available, there will also be continued attempts by some users to circumvent these protections. As with “electromagnetic sensitivity”, a flaw in the objectors’ arguments is their focus on the proposed church installation as the sole source of unsuitable material/health effects, which is not necessarily the case.
Two issues raised in these emr cases which are not knowledge- or technology-dependent are: the standards of evidence required by a court; and the PCC’s fiduciary duties under charity law. The former has an important read-across to several areas, such as wind farms and fracking, where the selective use of evidence and scientific findings is not unknown. On the latter, the fact that is was the Chancellor, and not the DFC or PCCs involved, who raised the issue of charity law in Re St Mary, Cable Street & Ors confirms our suspicion that PCCs are generally unaware of these duties in this area. Frank comments there is at least a tenable argument that for the PCC of a hard-up parish church to turn down the offer of rental for a phone-mast, (provided that the aesthetics are OK and the consistory court is prepared to grant the necessary faculty), is hardly fulfilling their fiduciary duty as trustees.
 More than two-thirds of the text of the report (itself only 27 lines long) had been blanked out and much of the remaining eight lines or so was in incomplete sentences. It was therefore extremely difficult for the court to achieve any sense of what the Consultant Neurologist was saying.  Although the term “IEI” is not referred to in the judgement, it is one used by one of the expert witnesses.  Third generation of mobile phone technology, here.  Proof of users being over 18 is required before such blocks can be released.  Although the Chancellor was provided with material “of particular commercial sensitivity”, he chose not to view such material “on the basis that his judgement and the reasons for it should be transparent.”