Criminal damage to the Colston statue: AG’s reference

On 28 September 2022, the Court of Appeal (Criminal Division) handed down judgment in Attorney General’s Reference No. 1 of 2022 [2022] EWCA Crim 1259 on three questions of law which arose in the trial in Bristol Crown Court of four defendant protestors for allegations of criminal damage to a statue of the English merchant Edward Colston on 7 June 2020. They addressed one of the defences pleaded: that a conviction for damage to the statue would have been a disproportionate interference with the defendants’ Convention rights under Articles 9, 10 and 11 ECHR.

The Appeal Court judgment does not affect the outcome in the Colston case, although defendants in similar cases in the future will not be able to rely on the Convention rights of freedom of thought, expression and assembly. Liberty welcomed the ruling that some protest-related cases will be able to rely on human rights defences but argued that the ruling is significant and will discourage people from continuing to stand up for causes they believe in; further, Liberty suggested that rights to protest had already been severely weakened by the Police, Crime, Sentencing and Courts Act 2022 and would be damaged further if the Public Order Bill, currently at the Report stage in the Commons, was passed.

Praying with patients?

Dr Richard Scott is a longstanding campaigner for what he regards as his right to bring his religious views into his practice of medicine and has had several disputes with the medical authorities over the years. The Kent Messenger reports that, In the latest round, he faced disciplinary measures after he was told that he would be barred from the NHS Practitioners List for offering to pray with some of his patients. NHS England had taken up a case against him even though the General Medical Council had twice ruled that he had not breached its guidelines.

The NHS tribunal hearing was subsequently called off after an agreement was reached under which Dr Scott would take part in a one-day training course costing £500 relating to “professional boundaries”. His appeal was withdrawn without an admission of liability.

Achievement of “net zero”?

In Re Christ Church Dore [2022] ECC She 2, the Area Dean and Churchwardens of Christ Church Dore sought permission for extensive works of reordering – the planning for which took place over approximately 20 years. However, Singleton Ch indicated that she proposed to limit her consideration so far as possible to the proposals as they were in the recent iteration in May 2021. With regard to the proposal for heating, she observed at page 13 [emphasis added]:

“The Petitioner’s proposals include a new underfloor heating system and their present plan is that there a new more efficient gas boiler be installed. The Faculty Jurisdiction Amendment Rules of 2022 are now in force and although technically they may not apply to this longstanding matter* it is appropriate for the Petitioners to review their proposals in this regard and have regard for the Net Zero guidance now in force and consider fully the alternatives to the use of fossil fuel for this church’s heating and lighting I urge them to do so in consultation with the DAC.” 

[*The requirement to have due regard to net zero guidance was introduced through the Faculty Jurisdiction (Amendment) Rules 2022, which came into force on 1 July 2022.]

The judgment in Re St Mary the Virgin Welling [2022] ECC Swk 3 was circulated on 1 October 2022, and as such is not included in the September round-up of cases, although a summary has been added to the relevant Index. In brief, the original gas boiler of the 1950s unlisted church had failed, been condemned as unsafe and removed. According to the 2035 target within the policies of the Diocese of Southwark, churches should replace old gas heating systems with ‘green’ alternatives. However, in the present case the Chancellor decided that it would be unreasonable not to allow the present proposal and therefore granted a faculty. 

Scottish Episcopal Church: clergy discipline  

On 29 September 2022, the Episcopal Synod of the Scottish Episcopal Church met to consider the appeal by the Rt Revd Anne Dyer against her suspension as Bishop of Aberdeen & Orkney following the lodging of formal complaints of misconduct. The suspension had been set aside in August after notice of appeal was received and pending the outcome of the appeal to the Synod. The Episcopal Synod refused the appeal by a majority of three to two; consequently, her suspension resumed with immediate effect until further notice, while the next stage of the process takes place. The suspension does not constitute disciplinary action and does not imply any assumption that misconduct has been committed.

The Rt Revd Dr John Armes, Bishop of Edinburgh, will serve as Acting Bishop of the Diocese of Aberdeen & Orkney during this suspension, and the Rt Revd Andrew Swift, Bishop of Brechin, will serve as Acting Convener of the Institute Council. Both will continue to fulfil their existing duties in their own dioceses.

The complaints which have been received are being considered in the first instance by the Preliminary Proceedings Committee in accordance with Canon 54 of the Scottish Episcopal Church Code of Canons.

Holy Trinity Church, Wingate

On 8 September 2022, Grahame Morris (Easington, Lab) asked the Second Church Estates Commissioner, Andrew Selous, “What progress the Church has made on the review of lessons learned at Holy Trinity Church, Wingate”. There had evidently been a mix-up in identifying the burial place of Thomas Bell, and Selous replied that it had been “a deeply troubling time for the Bell family”.

Morris said that Thomas Bell’s coffin had been located and his late wife Hilda had been buried with him after “a heartbreaking eight-week delay”:

“Appallingly, however, for 17 years the family … unknowingly attended the wrong grave, and in the process of locating Mr Bell’s coffin several other errors were identified. Does the hon. Member agree that we need to improve burial records, with digital copies, introduce a new process for marking plots after burial, and draw up rules for the orderly organization of plots in churchyards?”

Unsurprisingly, Selous agreed:

“The hon. Gentleman is absolutely right: record-keeping is incredibly important. The Parochial Registers and Records Measure 1978 clearly states that records should be kept in fireproof places and the hon. Gentleman’s point about digital copies was also well made. The lessons learned inquiry will focus on best practice for all parishes.”

Quick links

• Jamie Aspell, EJIL: Talk!: Ireland’s Birth Information and Tracing Act: Reconciling the right to identity.
• Brahams Dutt Badrick French LLP, Lexology: Countdown to a bonfire of employment rights?: a look at what might happen to retained EU employment law in light of the Government’s recent statement – especially the Working Time Regulations 1998, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) and the Agency Workers Regulations 2010.
• Simona Florescu, Strasbourg Observers: Walking on a tightrope: some reflections on the ECtHR’s role in assessing the best interests of the child in parental disputes over the child’s religious upbringing.
• Russell Sandberg, Ancilla Iuris: A Sociological Perspective on the Internal Laws of Religions.