Select Committee on Religious Offences in England and Wales First Report

CHAPTER 5: The Ecclesiastical Courts Jurisdiction Act, 1860


54.  Any consideration of legislative proposals following the publication of this report will need to deal with the Ecclesiastical Courts Jurisdiction Act 1860 (ECJA). This is said to convey a signal or message that Parliament deprecates the conduct in question. Much of this report is concerned with signals or messages which Parliament may, and may rightly, wish to convey. Neither the existing provision nor any modern reformulation of it would be likely to lead to more than a handful of criminal prosecutions. But those contemplating legislation—whether to repeal or replace existing offences—need to recognise that there are many devout people living in our country who take their religion very seriously and have a legitimate interest in seeking to preserve and protect the tenets, beliefs, rites and practices which are at the heart of their spiritual life, and to protect buildings and artefacts which are the symbols of their faith. The diversity of the United Kingdom's population now makes it imperative that, if there is to be legal protection for faiths, it must embrace all faiths. Recent census statistics tend to confound those who say that religion does not much matter at the beginning of the 21st Century, even if attendance at services has dropped. In a recent debate in the House of Lords on Church and State the point was well made that in the event of any crisis in a community it is to a religious centre that people resort.[62] The subject matter of this Chapter makes it unlikely that provision could be included for non-theistic beliefs or for those who reject religion. There remains the fervour with which Churches and, indeed, believers of all faiths, hope to protect what concerns them most. The question is whether this is achieved within the framework of the ordinary law, or whether some additional or specific protection such as the ECJA is needed for the ceremonies, sacred places and artefacts of religion

55.  There is, however, some uncertainty as to the scope of the Act. In late 2002 we obtained a figure of 1,587 non-Christian places of worship registered under the Registration of Places of Worship Act 1855[63]; but it is not clear whether all these are properly so registered or whether the figure is comprehensive of all those so entitled. It is, in any case, a moving target. In many countries there has been dispute about what is or is not a religious belief and, as an example, the Scientologists have received different treatment in different jurisdictions. The doubts are formulated in various contexts: charitable status, recognition in the prisons, relief from taxes, discrimination against members of certain "religions" in their applications for public sector employment, etc. In the UK, the law derives from Lord Denning's judgement in the Segerdal case in 1970[64]. He said that a place of religious worship has to be -

"a place of which the principal use is as a place where people come together as a congregation or assembly to do reverence to God. It need not be a God which Christians worship. It may be another God, or an unknown God, but it must be reverence to a deity. There may be exceptions. For instance, Buddhist temples are properly defined as places for meeting for religious worship."

This test (the "Segerdal" test) could cause problems for non-theistic religions if they wished to avail themselves of the protection afforded by the ECJA, though it would be for the courts to decide what additional exceptions there might be to the deity test apart from Buddhism.

56.  The European Convention on Human Rights recognises the right to freedom of religious belief in conjunction with absence of discrimination (Articles 9 and 14). Under Article 1 of the Convention, the UK is under a duty in international law to secure the rights to everyone within its territory. Of course, under the Human Rights Act 1998 Parliament can still legislate in such a way as to be incompatible with the European Convention if it wishes to do so, and has no legal or constitutional duty to amend the law to avoid incompatibility; but the UK may face criticism if the law is not conducive to the enjoyment of the rights.

57.  The question is whether this is achieved within the framework of the ordinary law, or whether some additional or specific protection such as the ECJA is needed for the ceremonies, sacred places and artefacts of religion.

Repeal without replacement

58.   In 1985 the Law Commission recommended repeal of the Act. Statistics for prosecutions under the ECJA are available, although these may have been combined with charges under other Acts and the method of collection may be unreliable. The figures given to us by the Home Office are:
YearProsecutions Convictions

The facts upon the basis of which these prosecutions were brought, except in one or two recent cases, can no longer be discovered. The penalties were fines, community service orders or conditional/absolute discharge.

59.  Many of the incidents which occur in religious buildings or in their vicinity are susceptible to prosecution under more recent statutes, provided of course that the CPS tests as to sufficiency of evidence and the public interest are satisfied. It may be useful to give some examples:

·  We have not received any evidence of acts of desecration which did not constitute some other offences.

·  Persons intent on opposition to a religion, or just wantonly, may cause damage to buildings or to the burial ground, tombstones or other parts of the surrounds of the church, mosque, synagogue, temple or other religious centre. Legislation on criminal damage would be broad enough to deal with such damage or any damage occasioned by forced entry (which may not be burglary, if none of the statutory intentions are present), in order to carry out some act of desecration, perhaps some aspects of the desecration itself and certainly actions such as breaking windows, daubing statues and spraying graffiti on the building itself or on tombstones.

·  In turn, Public Order legislation can be used to prosecute for interruptions to ceremonies or burials or threats or harassment of officiants. Actual assaults, threats and harassment are all existing offences. If such offences were serious enough to fall within the ECJA, modern legislation would more than match its penalties, although it would still allow them to be tried in the Magistrates' Court. Yet there are features of the venue or ceremony which, because of their solemnity and the feelings of those in attendance, could emerge as aggravating factors for the sentencing tribunal. If that is not sufficiently evident as a general proposition, sentencing guidelines could be promulgated to accompany the demise of the ECJA. A fall-back position is available in bringing an offender before a court for a breach of the peace.

60.  Other factors in concluding that the Act is no longer relevant are:

·  Not a single instance has been drawn to the Committee's attention of the use of the ECJA in relation to non-Christian places of worship, even though synagogues, gurdwaras and mosques have been targeted by desecrators.

·  In the case of Christian churches, despite considerable effort, the Committee was only able to unearth details of three convictions classified under the heading of the ECJA, and in two of them the defendants were finally convicted of a different offence. The third was the case of Mr Peter Tatchell (Chapter 3, paragraph 27 above).

·  It should not constitute a criminal offence if a sacred object is temporarily purloined and used for a secular or profane purpose and then restored undamaged, resulting in no charge of criminal damage being brought; or where religious premises are used for some improper purpose.

·  Some would say that the congregation or community offended in this way should exercise the tolerance (which witnesses say exists) among many faith communities: we presume that rituals or other means are available to purify premises, to eliminate the sacrilege or to reconsecrate a building or other artefact.

61.  These considerations lead to the view that, should new legislation on religious offences be contemplated, the opportunity should be taken to rid the Statute Book of a criminal offence which has been superseded by subsequent legislation, which is not familiar territory to all prosecutors (or indeed the public at large), and which does not appear to be of sufficient significance for any comprehensive statistics to be kept.

Retention or reformulation in modern language

62.  That the ECJA is not obsolete may be seen from the statistics which show its use in 60 prosecutions between 1997 and 2002, proportionately greater than the number of prosecutions (although not of convictions) under Part III of the Public Order Act 1986. While its jurisdiction is limited to the Magistrates' Court and the maximum penalty is 2 months' imprisonment or a £200 fine, it nevertheless seems, as a means of dealing with offensive but superficially trivial actions, to retain some utility, while depending, perhaps, upon the erudition of the prosecutor. Furthermore, it is allied to the Places of Worship Registration Act 1855, and can therefore be invoked by non-Christian places of worship that have been properly registered. The Director of Public Prosecutions said[65] that a redrafted s.2 would probably be a (albeit infrequently used) valuable offence, but also said[66] that in 32 years practice he had never seen a case brought in his presence.

63.  The relatively small number of prosecutions may be at least in part because of a lack of awareness that the Act can be invoked by all faiths, its archaic language and its unfamiliarity to prosecutors, as well as the ability to invoke other legislation instead. There remains however the possibility of some incident which, while causing serious offence to the congregation or the adherents of a faith, does not constitute one of the modern criminal offences, but is still currently susceptible to prosecution under the 1860 Act. This incident might take the form of some sacrilegious action taking place at a time when nobody was present to be insulted and in the course of which no actual damage was caused, but the impact of which affronted an entire religious community. Examples of such an affront would be the deposit, at a time when custodians and worshippers were absent, of pork in a mosque or synagogue, a dead cow in a Hindu temple, or excrement on a communion wafer in a Christian church.

64.  Section 2 of the Act encompasses riotous, violent or indecent behaviour (in its meaning of improper or irreverent), during the celebration of divine service or at any other time. This problem will not beset some faiths and, plainly, has no relevance to those who believe in no faith at all. As for those it does affect, it has been drawn to our attention by National Churchwatch[67] that places of worship, except for those belonging to the Church of England, are not public places during any service. So a person entering such a place does so on a deemed licence; this can be withdrawn and somebody in authority can call the police. There are some churches and cathedrals which have prepared leaflets printing the text of s. 2 of the ECJA. This attempts to dissuade those who eat or smoke in the church; and others who come in improperly dressed. It could deal with youths skateboarding around the church or tourists who refuse to abide by church rules. Whether a similar leaflet quoting s. 4A of the Public Order Act[68] would be equally useful has not yet been put to the test.

65.  The replacement of the ECJA in a modern form, perhaps as one ingredient in a new Bill, would demonstrate that Parliament does indeed care about religious beliefs and recognises that worshippers open their doors to all-comers in order that they may participate in, or at least observe, these religious ceremonies. It would recognise, most importantly, that religious ceremonies are hallowed, the source of spiritual sustenance and emblems of community coherence. The buildings, artefacts and surroundings are imbued with a similar significance. These are aspects of the freedom of thought, conscience and religion which, in their own right, deserve protection by law against desecration and mindless, or mindful, abuse. If Parliament is to turn its mind to religious hatred, it must not fail at the same time to think about a corresponding measure to include offences dealt with under the 1860 Act, and thereby demonstrate its recognition of and support for the sincere and profound religious convictions of many people of many faiths.

66.  On the narrow point about creating an offence of those sacrilegious actions which do not fall within the scope of other modern offences, there is little room for argument that any such restrictions would be permitted under Articles 9 or 10 of the European Convention on Human Rights.

67.  Such an updated offence would not be difficult to devise and would fill any perceived gaps in the law should prosecutors see fit to pursue some offensive conduct. The Committee's researches are not the right source for drafting a new law, but one possible model could come from the Fijian Penal Code. This was closely based on Lord Macaulay's Indian Penal Code. In Chapter XVI of the Fijian Code ("Offences against religion") there are four misdemeanour offences: damaging, destroying or defiling a place of worship (s.145); disturbing a religious assembly (s.146); trespass to burial places (s.147); and writing or uttering words with intent to wound religious feelings (s.148). As with the Indian Code, the offences in Fiji are not limited to protection of the Christian religion. For example, s.145 reads (in full): "Any person who destroys, damages or defiles any place of worship or any object which is held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, is guilty of a misdemeanour".

68.  It would be possible to build upon the first three, at least, of the Fijian formulations. But whatever the precise form, it would be the opportunity to reinforce the sense of importance accorded to revered ceremonies and objects, and to restate Parliament's firm view that it supports matters of faith. It would also emphasise the ratification of Article 9 of the European Convention and Article 18 of the International Covenant on Civil and Political Rights (ICCPR), and would reflect the Church of England's report in 1988, drawn up by the committee chaired by the then Bishop of London, which spoke of the need to protect all faiths. Legislation on these lines would have to be accompanied by an identification process which may well not accord exactly with either the Registration of Places of Worship 1855 Act's or the Charity Commissioners' demarcation lines. There could in consequence be litigation to establish the principles and boundaries, but this ought to be ephemeral: Lord Denning's judgement in Segerdal has now lasted for over 30 years.

62   HL Hansard 22 May 2002 Cols 785 & 792 Back

63   Office of National Statistics, Marriage series FM2 No 28, table 3.42 Back

64   R v. Registrar General, ex p. Segerdal [1970] 2 QB 697 at p 707 Back

65   Volume II, Q631 at page 220 Back

66   Volume II, Q636 at page 221 Back

67   Volume III, page 63 Back

68   This section makes it an offence (which can arise out of a single incident) if -"with intent to cause a person harassment, alarm or distress, a person - uses threatening, abusive or insulting words or behaviour, or disorderly behaviour; or displays any writing, sign or other visible representation which is threatening, abusive or insulting; thereby causing that or another person harassment, alarm or distress." Back

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