Law and religion round-up – 6th March

UK COVID-19 Inquiry: new website

On 1 March, the Government launched the  UK COVID-19 Inquiry website as the portal for the independent public inquiry into the UK’s preparedness for and response to the pandemic.

Church of England guidance on COVID-19 restrictions

As we noted in our last round-up, the Church of England COVID-19 Guidance page indicated that “it [would] remain as a point of reference for the time being, and [the Church is] in the process of updating documentation including our advice on church buildings, risk assessment and cleaning church buildings to reflect the current situation.” This remains the position, although there is currently no reference/pop-up to this guidance on the Church’s home page. Last year, guidance on Lent and Holy Week and Easter was posted on 19 January 2021, four weeks before Ash Wednesday.

There is therefore no change in the Church’s guidance documents issued on 25 January 2022, including COVID-19 Opening and managing church buildings, v,2.4. Similarly, advice from the Roman Catholic Church and other organizations such as the RSCM and CCCBR is unchanged from January 2022.

Church in Wales guidance on COVID-19 restrictions

On 23 February 2022, the Bench of Bishops approved Ashing Guidance, alert Level Zero, and on 2 March 2022, a new suite of updated guidance notes was issued to reflect the latest Regulations for COVID-19. The update notes that in Wales it remains a legal requirement to prepare a written risk assessment to control the risk of COVID transmission and the guidance seeks to help local church councils consider what would be appropriate in their circumstances. In addition to face coverings no longer being required (except in retail, transport or health settings), the QR codes on the COVID-19 app for England and Wales are no longer operational as a means of recording attendance.

In addition, the Bench of Bishops has signalled that, subject to local risk assessment, the common cup might be restored from Easter Day, stressing that there is no requirement to do so and that communion in one kind remains valid. Links to these new documents are included in our March update of COVID-19 guidance and legislation.

On 4 March, the Welsh Government published Together for a Safer Future: Wales’ Long-term Covid-19 Transition from Pandemic to Endemic, setting out a gradual transition away from emergency measures. This is summarized in our post here.

Cremation (England and Wales) (Amendment) Regulations 2022

The Cremation (England and Wales) Regulations 2008 set out the conditions that must be met before the body of a deceased person may be cremated. The Cremation (England and Wales) (Amendment) Regulations 2022, which come into force on 25 March, amend those Regulations by making permanent the changes introduced on 26 March 2020 by s 19 Coronavirus Act 2020 and which removed the need for a confirmatory medical certificate. This change was made to allow cremations to take place without the need for additional medical practitioner oversight so as to reduce the burden on healthcare professions and free them to support the response to the pandemic. It was also intended to reduce the likelihood of delays to families who were making cremation arrangements.

When the Coronavirus Act 2020 reaches its sunset date of 24 March 2022, without these amending Regulations, the earlier Regulations would revert to their pre-26 March 2020 form and a confirmatory medical certificate would be required from that date. The role of the medical examiner, as provided for under ss 19 and 20 Coroners and Justice Act 2009, is expected to be extended in 2022, thus rendering the confirmatory medical certificate unnecessary. To avoid possible confusion in the funeral sector in the intervening months, the need for a confirmatory medical certificate will not be reintroduced.

Failure to grant get and coercive or controlling behaviour

In Moher v Moher [2019] EWCA Civ 1482, the divorcing husband was ordered to pay the wife maintenance pending suit until decree absolute and thereafter annual payments of £22,000 until the later of “the grant of a get” or “the payment in full of the lump sum together with any interest accrued thereon” [15]. He argued – unsuccessfully – that the fact that the payments were compulsory would invalidate any get granted under Jewish law.

Subsequently, Mrs Moher brought a private prosecution against him in Southwark Crown Court  for coercive and controlling behaviour, alleging that her ex-husband had

“used or threatened her with violence causing her to fear for her own personal safety on two or more occasions; exercised unreasonable financial control, including by obstructing any financial settlements ordered”.

He had initially pleaded not guilty, but changed his plea to guilty and admitted to five years of “controlling or coercive behaviour” between January 2016 and January 2021. HHJ Beddoe granted him bail before sentencing on 1 April but told him that an immediate custodial sentence was a potential outcome.

Church of Scotland

The Queen has approved the appointment of the Rt hon Lord  Hodge as HM’s Lord High Commissioner to the General Assembly of the Church of Scotland in 2022. As most of our readers will be aware, Patrick Hodge is Deputy President of the Supreme Court.

Exploring Non-legally Binding Wedding Ceremonies: project report launch

On Wednesday 16 March, 16:30–17:45, there is to be an online seminar to launch the project report of the research study funded by the Nuffield Foundation into non-legally binding weddings in England and Wales. The principal researchers are Dr Rajnaara Akhtar (Warwick University) and Prof Rebecca Probert (Exeter University). The event will be chaired by Prof Gillian Douglas (KCL) and the panellists responding to the research findings will be Prof Shazia Choudhry (Oxford University), Dr Stephanie Pywell (The Open University) and Prof Russell Sandberg (Cardiff University). You can register to take part here.

Loss of nationality for joining “Islamic State”

In Johansen v Denmark [2022] ECHR (application no. 27801/19) the applicant had dual Danish and Tunisian nationality. His Danish nationality was removed following his conviction in 2017 for terrorism offences, in particular for having gone to Syria to join the “Islamic State”. The authorities also ordered his deportation from Denmark with a permanent ban on his return.

The European Court of Human Rights unanimously declared inadmissible his claim that the decision had been in breach of his rights under Article 8 ECHR (respect for private and family life). The decisions had been made after a thorough, diligent and swift assessment of his case, bearing in mind the gravity of Mr Johansen’s offences, his arguments and personal circumstances, the Court’s case-law and Denmark’s international obligations. It was legitimate for states parties to take a firm stand against terrorism, which in itself constituted a grave threat to human rights, and the national authorities had given “very serious reasons” to justify their decision. The relevant order could not be said to have been disproportionate to the legitimate aim of protecting the public from the threat of terrorism.

Hijabs in the French courts

Straying somewhat out of our area, on Thursday we posted a brief note on the recent judgment by the French Cour de Cassation upholding a ban on advocates wearing “any decoration or sign ostensibly manifesting a religious, philosophical, community or political affiliation or opinion”. Which looks rather strange from this side of the Channel, but presumably it’s all part of French laïcité – or at least ostensibly so. We beg leave to doubt, however, that how an advocate chooses to dress can be seriously regarded as an element in what the Court described as part of the guarantee of the right to a fair trial. And we cannot help wondering if the apparent French obsession with hijabs might have something to do with the fact that France has the largest Muslim minority in Europe.

Quick links

And finally…

Some Scots law basics from PeatWorrier@PeatWorrier, who identified “A colourful case from the Sheriff Appeal Court on the application of the old principle “Actus reus non facit reum nisi mens sit rea.” In short “you may be drunk, naked, covered in grass and in the wrong house – but has the Crown proven you were reckless?” See KWM against Procurator Fiscal, Edinburgh [2022] SAC (Crim) 2.

1 thought on “Law and religion round-up – 6th March

  1. The ‘colourful’ case from the Sheriff Appeal Court in Scotland, noted above, brings to mind the 50-year-old case in England, R v Collins [1972] EWCA Crim 1, [1972] 3 WLR 243, described by Edmund Davies LJ, in giving the judgment of the court allowing the appellant’s appeal against conviction for the offence of burglary with intent to commit rape, as “about as extraordinary a case as my brethren and I have ever heard either on the bench or while at the bar”, adding “Were [the facts] put into a novel or portrayed on the stage, they would be regarded as being so improbable as to be unworthy of serious consideration and as verging at times on farce.” [But, then, as we all know, truth is often stranger than fiction.]
    The case turned on the narrow point as to what, on the facts, constituted ‘entry as a trespasser, a point that the court said was “as narrow maybe as the window sill which is crucial to this case.” The issue was whether the defendant, who was naked and in an excited state, had crossed to the inside sill of the bedroom window (and thus was in the room as a trespasser) or was still on the outside sill, before being effectively invited in by the young woman sleeping in the room who, on seeing the appellant, jumped to the conclusion that her boyfriend was paying her “an ardent nocturnal visit”!

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