There have been various media reports that the Law Commission of England & Wales has decided that offensive comments made in private will not be classed as hate crimes under its proposals to reform the law. The Law Commission had originally proposed that the crime of stirring up division over race, religion or sexual orientation should extend to private dwellings. Under the current exemption, stirring up hatred is exempt if it takes place in a home and cannot be seen or heard outside that or another dwelling.
According to the reports, Lord Justice Green, the Commission’s Chairman, has acknowledged critics’ concerns that the original plan to ditch the hate crime exemption for private dwellings could lead to people being prosecuted for comments made in the home “for the mere giving of offence”. In a letter (unpublished) to Lord Pearson of Rannoch and Lord Vinson, who had criticised the change, Green LJ said that it was no longer the Commission’s intention:
“The criminal team is looking at alternative ways in which the law might be reformed in order to ensure that these laws, which criminalise only the most serious forms of incitement, are compatible with both the right to freedom of expression and respect for one’s home and private and family life.”
However, he stressed that the Commission is proposing no change to the test for what will be caught by the offence of stirring up hatred.
The Solemnization of Matrimony: past, present and future
The Ecclesiastical Law Society will meet virtually on 20 March 2021 from 10 am to 4 pm for its Annual Conference on the issues surrounding the solemnization of marriage in England and Wales. Topics will include the covenantal and contractual nature of marriage from a historical perspective; the legalities of marrying in accordance with the rites of the Church of England today, whether by banns or licence; and the proposals for reform emerging from the Law Commission’s ongoing review of marriage law in its Weddings Project. There will also be an exploration of the pastoral opportunities arising from Anglican weddings. Free to Members; £5 for non-members.
Speakers: Professor Rebecca Probert, on the history of marriage law reform and how we ended up where we are, Professor Nick Hopkins on the Law Commission’s proposals for reform, Professor Russell Sandberg on shortcomings with the current law on marriage, and Dr Sandra Miillar, Head of Life Events for the Church of England, on the pastoral aspects of weddings. Flyer here.
St Valentine and COVID-19
For those unaware of the impact of COVID-19 legislation on relationships, there is an informative thread reader of Adam Wagner’s tweets on dating and single people, which he admits “has been quite a ride”. He concludes: “sex indoors with someone not from your household or linked household has been illegal for more than half of the period since 26 March 2020 to today. Dating has been illegal on and off”. However, “the people of Leicester have been unable to have sex indoors with someone not from their household/linked household for entire period from 23 March to now [7 February 2021] – 10 months”, and for Manchester, there was only one month of when it was possible to meet indoors.
On Friday, it was announced that The Revd Dr Will Adam is to become Deputy Secretary General of the Anglican Communion. Our congratulations to Will on his new appointment though, sadly, a consequence is that he is relinquishing the editorship of the Ecclesiastical Law Journal.
Church of England House of Bishops
On 9 February, the Church of England posted House of Bishops Meeting, 9th February 2021. Err, that’s it, or as David Lamming commented on Thinking Anglicans, “Another anodyne press release that, while containing a little more detail than the briefest of communiqués that used to be issued a couple of years ago, consists of little more than headlines with no detail”.
Closure of churches in Scotland
We reported here and here that a group of church leaders in Scotland, supported by the Christian Legal Centre, had sent a pre-action letter to the Scottish Government calling for the reopening of places of worship during the current lockdown. The letter, which contends inter alia that the closure is disproportionate and in breach of Article 9 ECHR, asked for a response by 21 January.
Lawyers representing the church leaders lodged the legal claim for judicial review on 28 January 2021, arguing that the regulations are in violation of the European Convention on Human Rights (Articles 9 and 11) and the Scottish Constitution. As part of the legal case, the church leaders are seeking declarator that the closure of churches in Scotland is unlawful, that church closure regulations must be reversed, and that a person may lawfully leave their home to attend a place of worship without fear of prosecution. In the claim, the church leaders, “hold that public corporate worship, involving the physical gathering together of Christians … are fundamental and indispensable aspects of their religion,” and argue that “in the absence of the gathered people of God, there is effectively no ‘church’.”
The Church of Scotland and the Scottish Episcopal Church have both stated that they do not support the proposed action. Lord Braid has now granted permission for a substantive hearing, which will take place remotely on 11 and 12 March 2021.
- Church of England: PCC Accountability Guide.
- Ecclesiastical Law Society: First impressions from a new Provincial Registrar, Northern Province Lecture delivered online in January 2021 by Louise Connacher, Principal Registrar of the Province of York.
- Mark Hill, Canopy Forum: Nigel Biggar, What’s Wrong With Rights?: spoiler: quite a lot if you’re Nigel Biggar, not very much if you’re Mark Hill (or us, for that matter).
- Matthew Stallard, The Conversation: Proposed law would give minister the power to block councils from removing disputed statues: more on “contested heritage”.
And finally… Ceci n’est pas un chat
The Texas lawyer, Rod Ponton, became an internet sensation after accidentally appearing as a cat in a virtual court proceeding; footage of the incident on Tuesday showed Ponton struggling to remove the filter, while Judge Roy Ferguson attempted to extricate him from the situation. Legal bloggers would have been quick to spot the warning “Recording of this hearing or live stream is prohibited. Violation may construe contempt of court and result in a fine of up to $500 and a jail term of up to 180 days”, but relieved to see Judge Ferguson’s comment:
“Media outlets, you may use the video. It was recorded during a virtual hearing in the 394th DC of TX, and released for educational purposes. It is crucial that this not be used to mock the lawyers, but instead to exemplify the legal community’s dedication to the cause of justice.
However, there have been situations in the past when it has been beneficial to appear as a cat, and in the Venetian Republic, the wearing of the gnaga exploited a loophole in the law whereby no masked person could be arrested, since wearing a mask meant becoming a mask, turning the person into someone who was playing a role – Fatta la legge, trovato l’inganno!
(But in any event, The 394th DC of TX hath no jurisdiction in this Realme of England.)
The Texan ‘cat’ lawyer video and contempt of court.
The 394th DC of TX may have “no jurisdiction in this Realme of England”, but the Divisional Court has recently flexed its muscles and sent out a warning to those who might be tempted to record or broadcast a livestream from an English Court. On 3 February 2021 the court (Andrews LJ and Warby J), in a strongly worded judgment, fined the BBC £28,000 for contempt of court in making an unauthorised recording of the hearing of a judicial review case in the planning court and including a six-second clip as a background picture to its report of the case in a regional TV news bulletin: R (Finch) v Surrey Court Council (Re BBC)  EWHC 170 (QB).
The court considered that “but for the early acceptance of liability and the apology a fine in the order of £40,000 – £45,000 would have been merited” and “discount[ed] it by approximately 1/3 for those matters.”
The judgment is useful in setting out the various statutory prohibitions on the photographing or recording of court proceedings, starting with section 41 of the Criminal Justice Act 1925, and the provisions included in the Coronavirus Act 2020 to allow livestreaming of remote hearings during the current pandemic.
Those Coronavirus Act provisions do not cover ecclesiastical courts, and in Re St Andrew’s Heddington  3 WLR 286 Judge Ellison Ch, sitting in the Salisbury Consistory Court, held that ‘court’ in section 41 (defined as “any court of justice”) included a church “when being used for the purposes of the holding of a consistory court which is not a private church tribunal but one of the courts of the realm.” (p. 290A). If Ellison Ch’s judgment is correct, it would apply to the Arches Court of Canterbury when sitting in St Mary-le-Bow Church in London, so that (in the absence of special provisions similar to those in the 2020 Act for secular courts), livestreaming of proceedings in that court may be problematic.
The United Reformed Church has also joined the SEC and the CofS in opposing the Scottish case.
Hate speech: Re this issue and the Hate Crime and Public Order Bill, currently before the Scottish Parliament, Adrian Hilton (aka Archbishop Cranmer) has published an article about it this morning on his blog. In the article, he sets out the text of “a joint letter from concerned groups and individuals” sent to MSPs. The signatories include Ruth Smeeth (chief executive of Index on Censorship), Peter Tatchell and Simon Calvert (deputy director of The Christian Institute).