Law and Religion Scholars Network
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Case Database 2003
This list includes significant judgments delivered in 2003.
United Kingdom
PCC OF ASTON CANTLOW & WILMCOTE WITH BILLESLEY, WARWICKSHIRE v WALLBANK & ANOR [2003] UKHL 37 (26 June 2003): the respondents, as lay rectors of the parish church, were liable to pay for chancel repairs under the Chancel Repairs Act 1932: the liability was not an unlawful interference with their personal property contrary to Article 1 of the First Protocol ECHR (peaceful enjoyment of his possessions), nor was a parochial church council a public authority for the purposes of the Human Rights Act 1998: WALLBANK & ANOR v PCC OF ASTON CANTLOW & WILMCOTE WITH BILLESLEY, WARWICKSHIRE [2001] EWCA Civ 713 (17 May 2001) reversed.
BLAKE v ASSOCIATED NEWSPAPERS LTD [2003] EWHC 1960 (QB): where the claimant had been consecrated a bishop in the ‘Province for Open Episcopal Ministry’ and contended that two articles in the Daily Mail impugning his status were defamatory, Gray J stayed the action on the grounds that, were it to proceed, the court would be drawn into ‘substantive doctrinal questions including the canon law of the catholic apostolic churches [and] questions of ecclesiastic procedure’ which were not justiciable. (para 33).
BELLINGER v BELLINGER [2003] UKHL 21 (10 April 2003): a post-operative male-to-female transsexual appealed against a decision that she was not validly married to her husband by virtue of the fact that at law she was still treated as a man: though their Lordships refused to make a declaration that the marriage was valid at its inception and was subsisting, they declared section 11(c) of the Matrimonial Causes Act 1973 incompatible with Articles 8 (private and family life) and 12 (marriage) ECHR in so far as it made no provision for the recognition of gender reassignment.
R v BRITISH BROADCASTING CORPORATION e p PROLIFE ALLIANCE [2003] UKHL 23 (10 April 2003): the BBC’s refusal to broadcast images of mutilated foetuses in a Party Election Broadcast (PEB) by the Prolife Alliance (which had fielded sufficient candidates in the 2001 General Election to qualify for a PEB in Wales) was upheld by the House of Lords (L Scott of Foscote dissenting): notwithstanding the rules governing PEBs, broadcasters were obliged to conform with standards of taste and decency: PROLIFE ALLIANCE v BRITISH BROADCASTING CORPORATION [2002] EWCA Civ 297 (14th March,2002) reversed: (2003) 150 L&J 83-87).
SEPET & ANOR v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2003] UKHL 15 (20 March 2003): there was no binding rule in international law that recognised an inalienable right to conscientious objection to military service such as would give rise to a good case for refugee status if an applicant for asylum were likely to be returned to a country where a conscientious objection would not be respected: (2003) 151 L&J 180-181.
SACRED HANDS SPIRITUAL CENTRE, RE [2003] Ch Commn (9 March): the Commissioners reconsidered the application for registration of the Centre (a Spiritualist church whose previous application in 2001 had been rejected) and having considered the evidence and a supporting submission by the Spiritualists’ National Union concluded that the applicant would be established for exclusively charitable purposes and could therefore be registered: since Sacred Hands met the criteria of belief in a Supreme Being, worship of that Being and the advancement of religion, the necessary public benefit would be shown ‘unless there were reason to consider that Spiritualism was not for the public benefit’ – and the Commissioners saw no evidence to conclude that there was any such reason.
Europe
PALAU-MARTINEZ v FRANCE [2003] ECtHR (No. 64927/01) (16 December 2003): the Cour d’Appel decided that the children of divorced parents should live with their father, noting that their mother was a Jehovah’s Witness, that the Witnesses’ rules for the upbringing of children were ‘open to criticism mainly on account of their strictness and intolerance and the obligation on children to proselytise’ and concluding that it was ‘in the children’s interests to avoid the constraints and prohibitions imposed by a religion whose structure resembles that of a sect’: this was held to violate Article 8 ECHR (private and family life) since it was disproportionate as between the means employed and the legitimate aim pursued: no separate issue arose under Articles 6 (fair hearing) or 9 (thought, conscience and religion).
KARNER v AUSTRIA [2003] ECtHR (No. 40016/98) (24 July 2003): (by six votes to one, Grabenwarter J dissenting), the refusal by the Austrian Supreme Court to recognise the applicant's right to succeed to a tenancy after the death of his same-sex companion amounted to discrimination on the ground of his sexual orientation in breach of Article 14 ECHR (discrimination) taken with Article 8 (private and family life): ‘In cases in which the margin of appreciation afforded to member States is narrow, as the position where there is a difference in treatment based on sex or sexual orientation, the principle of proportionality does not merely require that the measure chosen is in principle suited for realising the aim sought. It must also be shown that it was necessary to exclude persons living in a homosexual relationship from the scope of [the relevant tenancy legislation] in order to achieve that aim’.
MURPHY v IRELAND [2003] ECtHR (No. 44179/98) (10 July 2003): the refusal of the Independent Radio and Television Commission, pursuant to s 10(3) of the Radio and Television Act 1988, to permit the broadcasting of an advertisement submitted be the Irish Faith Centre to a local commercial radio station did not contravene Article 9 (thought, conscience and religion) or 10 (expression) ECHR: in the case of Article 10 there were ‘relevant and sufficient’ reasons justifying the interference.
REFAH PARTISI & ORS v TURKEY [2003] ECtHR GC 87 (Nos. 41340/98, 41342/98, 41343/98) (13 February 2003): the dissolution in 1998 of Refah Partisi (the Welfare Party) by the Turkish Constitutional Court, on the ground that it had become a ‘centre of activities contrary to the principle of secularism’ contrary to Law no. 2820 on the regulation of political parties, had not violated Article 11 ECHR (peaceful assembly and association): for earlier proceedings see REFAH PARTISI & ORS v TURKEY [2001] ECtHR 495 Nos. 41340/98, 41342/98, 41343/98) (31 July 2001).
LARSN Case Database
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