Our picks for the most significant UK religion cases over the past year.

Attorney General’s Reference No. 1 of 2022 [2022] EWCA Crim 1259: A jury at Bristol Crown Court acquitted four protestors on charges of criminal damage after they had toppled a statue of slave-trader Edward Colston into Bristol Harbour. The Attorney sought the opinion of the Court of Appeal (Criminal Division) on three questions of law that arose in the course of their trial about the extent to which the European Convention on Human Rights sanctioned the use of violence against property during a protest, thereby rendering lawful the causing of damage to property which would otherwise be a crime. The defence had been that it was lawful to damage the statue because it was a proportionate exercise of the right to protest, and the prosecution had been a disproportionate interference with the defendants’ rights under Articles 10 and 11 ECHR.

The Court of Appeal concluded that the defendants’ conduct fell outside the protection of the Convention. The statue had not been damaged during a peaceful protest: its toppling had been violent, and the damage to the statue had been significant. The proportionality of the conviction could not arise. The debate about the fate of the statue had to be resolved through appropriate legal channels, irrespective of a view that those channels were thought to have been slow or inefficient, and not by what might be described as a form of self-help. Articles 9, 10 and 11 ECHR were not engaged and the question of proportionality did not arise. Prosecution and conviction for causing significant damage to property, even if inflicted in a way which was “peaceful”, could not be disproportionate under the ECHR.  Note here.

Billy Graham Evangelistic Association v Scottish Event Campus Ltd [2022] SC GLW 33: In July 2019, the Billy Graham Evangelistic Association booked the SSE Hydro Arena and Box Office for an event in 2020 headed by Franklin Graham. After SEC Ltd had become aware of opposition to the event in the mainstream press and social media, largely on the basis of Franklin Graham’s expressed views on sexuality, it cancelled the booking.

The BGEA sued in Glasgow Sheriff Court and won: SEC Ltd had discriminated against the BGEA on the basis of a protected characteristic for the purposes of the Equality Act 2010. Note here.

Lee v United Kingdom [2022] ECHR Application no. 18860/19: The Supreme Court had upheld the refusal of Ashers Baking, on religious/moral grounds, to supply a cake to Mr Lee decorated with a colour picture of the Sesame Street characters Bert and Ernie with the caption, “Support Gay Marriage”, and he challenged that decision at Strasbourg, on the grounds that it violated his Convention rights under Articles 8, 9, 10 and 14. The ECtHR declared inadmissible his application for review of that decision because he had not raised the matter before the UK courts and had therefore failed to exhaust domestic remedies:

“In choosing not to rely on his Convention rights, the applicant deprived the domestic courts of the opportunity to consider both the applicability of Article 14 to his case and the substantive merits of the Convention complaints on which he now relies. Instead, he now invites the Court to usurp the role of the domestic courts by addressing these issues itself”.

Mackereth v Department for Work and Pensions & Anor [2022] EAT 99: A doctor who had been recruited as a Health and Disabilities Assessor on behalf of the DWP refused as a matter of conscience to refer to clients using the pronoun of their choice – which was what the DWP required him to do. Before the EAT he claimed direct discrimination and harassment. The EAT dismissed his appeal: the ET had been wrong to find that his belief in Genesis 1:27 and his lack of belief that it was possible for a person to change his or her sex/gender did not amount to a protected characteristic for the purpose of ss 4 and 10 of the Equality Act 2010, but it had not been wrong in finding that the measures adopted by the respondents were necessary and proportionate to meet a legitimate focus on the needs of potentially vulnerable service users and on the risks to those individuals. Note here.

Mr E McClung v Doosan Babcock Ltd and others [2022] UKET 4110538/2019: Should support for a football club (in this case Rangers FC) be regarded as a “philosophical belief” protected by the Equality Act 2010 for the purposes of employment law? ­– in a word, “no”. Note here.

Ms M Forstater v CGD Europe & Ors [2022] UKET 2200909/2019: In the long-running saga of Ms Forstater’s dismissal from her Visiting Fellowship with CGD Europe, a subsidiary of a US global poverty think-tank, because of her critical views on transgender issues as expressed on her personal Twitter account, the Tribunal upheld complaints of direct discrimination because of belief in respect of the decisions not to offer Ms Forstater an employment contract and not to renew her visiting fellowship, and the complaint of victimisation against the CGD Europe and the Center for Global Development in respect of the removal of her profile from their website was also upheld. Her other complaints were dismissed. Note here.

Miss P Wierowska v HC-One Oval Ltd [2022] UKET 1403077/2021: Miss Wierowska was dismissed from her job as a care worker and claimed that one of the reasons for her dismissal was that, as a practising Roman Catholic, she had refused the COVID vaccine on religious grounds because it involved the use of foetal blood, it might interfere with DNA in the nucleus of cells, and it had unknown long-term repercussions. The Tribunal concluded that her views about the vaccine were intimately connected with her religious faith and that there was a sufficiently close and direct nexus between her refusal to take a COVID vaccine and her faith as to constitute a protected characteristic under the Equality Act. Note here

Moher v Moher [2022] Southwark Crown Ct (unreported): Alan Moher pleaded guilty to a charge of controlling and coercive behaviour between January 2016 and January 2021 at a private prosecution brought by his ex-wife after he had refused to grant her a Get alongside their civil divorce. He was sentenced to 18 months imprisonment.

And last but not least, one from a consistory court…

Re the Rustat Memorial, Jesus College, Cambridge [2022] ECC Ely 2: Tobias Rustat (1607/8-1694), an alumnus and major benefactor of the College, had also been an investor in the Company of Royal Adventurers Trading into Africa and in its successor, the Royal African Company, of which he had been a director. In 2020, the College’s Legacy of Slavery Working Party had recommended that the memorial be moved from the Chapel, a Grade I listed building, to an educational, permanent exhibition space within the College, and the College applied for a faculty to remove it and relocate it in a secular space. Historic England had advised that the monument, from the workshop of Grinling Gibbons, was both of significance in its own right and in the context of the Chapel as a whole, and that its removal and relocation would harm both its own significance and that of the Chapel.

The application was refused. HHJ Hodge Dep Ch concluded that its removal and relocation would result in harm to the significance of the Chapel as a building of special architectural or historic interest. Though the memorial was only introduced in 1694, it had been created to be displayed in the Chapel and had been there for almost 330 years. Further, he was not satisfied that its removal was necessary to enable the Chapel to play its proper role in providing a credible Christian ministry and witness to the College community, or for it to act as a focus for secular activities and events in the wider life of the College. Nor was he satisfied that the public benefits of removing it, in terms of pastoral well-being, worship and mission, would substantially outweigh the harm that would result to the significance of a Grade I listed building. Relocating it to an exhibition space where it could be contextualised was not necessarily the only or the most appropriate means of “addressing any difficulties to which the continued presence of the Rustat memorial in the College Chapel is said to give rise” [126].

The College decided not to appeal: notes here, here, and here.

AND A HAPPY NEW YEAR TO ALL OUR READERS