LDS President’s prosecution discontinued as abuse of process

Last week, Senior District Judge Riddle heard oral argument in the private prosecution of Thomas S Monson, President of the Church of Jesus Christ of Latter-day Saints. Yesterday he gave his ruling: the end of a story on which we first posted on 6 February.

The summons was issued at the request of Tom Phillips, a disaffected former Mormon who contended that asking members of the LDS Church to make financial contributions while promoting theological doctrines which “might be untrue or misleading” could be a breach of the Fraud Act 2006. Counsel for Monson, James Lewis QC and Neil Addison, argued that the statements complained of were matters of faith, not statements of fact, that the court could not legitimately rule on the veracity of religious beliefs and that the private prosecution was vexatious

In Thomas Phillips v Thomas Monson [2014] Westminster Magistrates Ct (20 March 2014) DJ Riddle decided that the summons should be withdrawn.

The issue of a summons is an ex parte proceeding after representations only from the applicant; and DJ Riddle explained that what he was hearing was not an appeal against the decision of DJ Roscoe (who had granted the initial summons) but a new hearing to be decided on the material placed before him. There were several elements to consider:

  • whether the offence was known to law and, if so, whether the essential ingredients of the offence were prima facie present;
  • whether the offence was “out of time”;
  • whether the court had jurisdiction; and
  • whether the informant had the necessary authority to prosecute.

In addition, the court had to consider whether the allegation was  vexatious.

As to the essential ingredients of the offence, DJ Riddle said that it had not been stated explicitly that Mr Monson had made the specific representations complained of. Moreover, even if he had done so,

“… the basis for the complaint that he made them dishonestly (or intending a gain or a loss) [is] too tenuous. It is not sufficient to found a criminal prosecution. I do not accept that the essential elements of the offence are present in the information as presented to me”.

He was satisfied that “the process of the court [was] being manipulated to provide a high-profile forum to attack the religious beliefs of others” and that the private prosecution was an abuse of process. Moreover:

“It is obvious that this proposed prosecution attacks the doctrine and beliefs of the Mormon Church, and is aimed at those beliefs rather than any wrong-doing of Mr Monson personally. The purpose is to use criminal proceedings to expose the false (it is said) facts on which the church is based.

It is inevitable that the prosecution would never reach a jury, even if Mr Monson chooses to attend. To convict, a jury would need to be sure that the religious teachings of the Mormon Church are untrue or misleading. That proposition is at the heart of the case.

No judge in a secular court in England and Wales would allow that issue to be put to a jury. It is non-justiciable”.

Comment

In our original post on the case we pointed out that in Khaira & Ors v Shergill & Ors [2012] EWCA Civ 983 (on which we are awaiting the Supreme Court’s decision on appeal) Mummery LJ had held that

“… the question …  is essentially a matter of professed subjective belief and faith on which secular municipal courts cannot possibly reach a decision, either as a matter of law or fact” [para 72]

and had stated that the courts would

“abstain from adjudicating on the truth, merits or sincerity of differences in religious doctrine or belief and on the correctness or accuracy of religious practice, custom or tradition” [para 19].

That, we understood, was settled law dating back at least as far as Lord Reid’s dictum in Gilmour v Coats [1949] AC 426 that

“No temporal court of law can determine the truth of any religious belief: it is not competent to investigate any such matter and it ought not to attempt to do so”.

The decisions of Magistrates Courts bind no-one: but had DJ Riddle’s ruling gone the other way it would have introduced an unwelcome and unhelpful degree of uncertainty to an area into which – in our view at least – the law is not competent to intrude. Religion, as Mummery LJ pointed out in Kharia, does not inhabit “a ‘civil rights-free zone’” [para 25]: nor should it. But discussions about the truth or falsity of doctrine are surely doomed to failure ab initio, simply because matters of belief and opinion are of their very nature unverifiable.

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