Law and religion round-up – 12th February

Short form judgments, bats, child abduction and polygamy… 

Short form judgments

The Master of the Rolls has asked his colleagues in the Court of Appeal to issue shorter judgments where there are no issues of law or principle or of wider general significance and where all the relevant facts are set out in the judgment of the court below and are not disputed in the appeal. A Judicial Office spokesman said that in such cases:

“it may be possible to avoid reciting all the facts, the course of the proceedings and the judgments below, and proceed, after a brief introduction, to a statement of the decision on the principal arguments on the appeal and the outcome of the appeal.”

In a judgment posted on BAILII on 7 February, BS (Congo) v Secretary of State for the Home Department [2017] EWCA Civ 53, Rafferty LJ began as follows:

“1. This is a short form judgment which, with the encouragement of Sir Terence Etherton MR, judges of the Court of Appeal may in future use for appellate decisions in appropriate cases. This appeal raises no issue of law, precedent or other matters of general significance and the relevant facts and documentary material are set out in the judgment under appeal and are not in dispute.

2. The facts are set out in the judgment of the First Tier Tribunal (“FTT”), as is the legal framework.

3. I would dismiss the appeal.”

Her judgment was just over 1,100 words long: McFarlane and Hamblen LJJ simply concurred.

Employment tribunal decisions

HM Courts & Tribunals Service has at long last begun to post Employment Tribunal decisions on its website. As well as new decisions, some 2016 judgments have already been uploaded and, according to Rachel Lewis at Farrer & Co, more are to follow.

Bats in churches and tyres on playgrounds

We noted the Heritage Lottery Fund’s announcement of 5-year grant for a project on bats in churches. In response, Howard Friedman at Religion Clause contrasted the UK approach with that of the US Courts in Trinity Lutheran Church of Columbia, Inc v Pauley US No 15-577. The church applied for funding from Missouri’s Scrap Tire Grant Program so that it could provide a safer playground surface for children who attend its daycare and for neighbourhood children who use the playground after hours; the State of Missouri denied Trinity’s application solely because it was a church and the US Eighth Circuit Court of Appeals upheld that denial. An appeal is scheduled before SCOTUS and Professor Friedman suggests that the HLF grant is “an interesting comparative law example”.

[David comments: whereas the Habitats Directive seeks to protect the habitats of bats and other fauna, one objective of Missouri’s Scrap Tire Grant Program is to deprive mosquitoes, snakes and other vermin of theirs (i.e. inside discarded tyres). In addition to their limited application for surfaces of playground and sports facilities, waste tyres provide an on-going source of an alternative to fossil fuels for cement kilns].

National Secular Society on church & state

On Boxing Day, the National Secular Society published a report, Rethinking religion and belief in public life: a manifesto for change. Almost inevitably, we missed it; but we finally got to note it here. Since the post has now had over 400 page views, we were evidently not alone.

Further papers in the Public Spirit series on CORAB

Child abduction and polygamy in North America

In R v Blackmore 2017 BCSC 192, the Supreme Court of British Columbia has found estranged husband and wife Brandon Blackmore and Gail Blackmore, the natural parents of MMB, guilty of removing her from Canada at the age of thirteen and transporting her to the United States to facilitate her marriage to one Warren Steed Jeffs, the then Prophet and President of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), contrary to s 273.3 of the Criminal Code, RSC 1985, c C-46. The couple were linked to the polygamous FLDS community of Bountiful, BC. The Blackmores will be sentenced April 13.

Pearlman J found that Brandon Blackmore had “acted on the prophet’s direction” [137] by bringing the girl across the border and he was satisfied that Blackmore would have foreseen “that MMB would be married to and have sexual contact with Warren Jeffs in short order, and well before she attained her 14th birthday” [142]. He also found that Gail Blackmore was a party to removing the girl from Canada, even though it was Brandon Blackmore who had received detailed instructions from Jeffs to bring the girl to the FLDS community on the Arizona-Utah border. A third defendant, James Oler, was acquitted.

Jeffs is currently serving a life sentence in Texas. [With thanks to Religion Clause.]

… and while we’re in the US

Max Steinbeis suggests in his weekly Verfassungsblog e-mail [you can sign up for it on the home page] that Trump’s nominee for the SCOTUS vacancy, Neil M Gorsuch of the 10th Circuit Court of Appeals, may not be quite the staunch conservative that everyone supposes:

“One of his opinions unearthed in the confirmation process, where he dissented from the finding of his colleagues that the shackling and arrest of a 13-year-old kid for repeatedly burping in school was legal, seems to suggest that he is amenable to reason.”

Primus announces his retirement

The Primus of the Scottish Episcopal Church, the Most Revd David Chillingworth, is to retire in July after nine years. His departure will take place one month after the next SEC Synod votes on whether to perform same-sex marriages.

Re: Day – penalty

On August 2016 Bishop’s Disciplinary Tribunal for the Diocese of Europe handed down its decision in the matter of a complaint under the Clergy Discipline Measure 2003: Complainant, The Ven Jonathan Wilford Lloyd; Respondent, The Revd Professor James Meredith Day, reviewed here.

The penalty handed down on 24 November has now been published. The Tribunal determined that Prohibition for Life is appropriate as it found “no realistic prospect of rehabilitating Professor Day back into ministry because his conduct was so grave. [It] also finds that the lack of remorse or repentance contributes towards [its] decision that only Prohibition for Life is appropriate” [8].

Quick links

  • Church of England: Week in Westminster 6th-10th February: This week in the House of Lords, bishops spoke on the Government’s Digital Economy Bill and voted on amendments to the Government’s Health Service Medical Supplies (Costs) Bill. Bishops spoke in debates on heritage, Syria and self-harm by young people, and asked questions about the new Housing White Paper, religious literacy of asylum caseworkers, mental health in the workplace, and on residential care staff. In the House of Commons, the Second Church Estates Commissioner answered written questions on pay, employment and security arrangements for the Church Commissioners and National Church Institutions at Church House.
  • Doug Gay, Chalmers Lectures 2017:

– Lecture One – Walls Without Church (Glory Without Power): impossible to encapsulate in a sentence, but raises the nagging thought, “It may be that Presbyterianism asked too much and gave too little”.

– Lecture Two – Call and Response: looks at possible institutional reforms for the Church of Scotland, particularly in relation to ministry and finances.

  • Ecclesiastical Law Society: Gospel & Law, Candlemas edition: includes a summary of Philip Petchey’s ELS London Lecture on the Church of England’s stewardship of its silver plate.
  • Corina Heri, Strasbourg ObserversThe Unbreakable Vow: Marital Captivity in Strasbourg: analysis of a (pretty lousy) ECtHR judgment, Babiarz v Poland [2017] ECHR 13, on the applicant’s inability to obtain a divorce from his wife without her consent, as a result of which he could not marry the mother of his child: we noted it briefly here [scroll down].
  • Joshua Rozenberg, Law Society GazetteRuling Supreme: “Our highest court has shown its magisterial mettle, but open questions remain on withdrawal from the EU” – Rozenberg is always worth reading.

And finally … some important health & safety advice

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