REGINA (SB) v THE GOVERNORS OF DENBIGH HIGH SCHOOL

A difference of opinion regarding school uniform found itself thrust into judicial review, when a Muslim pupil refused to follow school policy, but insisted freedom to choose under the terms of the Convention.

However, when the claim was counter-challenged, the courts fell into conflict as to procedural requirements, and that of continued mediation between parties.

Seventeen year-old Shabina Begum commenced legal proceedings against Denbigh High School, after the Headmaster refused to let her wear a religious garment known as a ‘jilbab’ because it was not in accordance with existing school uniform policy; a policy which had been sensitively implemented through consultation with the local Muslim community several years prior to the incident.

The respondent had been aware of this policy for two years, and had worn the approved uniform during school without protest; however, when advised to go home and change or risk staying away from the school, the respondent claimed that such a refusal to let her ‘manifest’ her religious beliefs and removal from school, directly violated articles 8 (Right to respect for private and family life), 9 (Freedom of thought, conscience and religion) and 14 (Prohibition of discrimination) of the European Convention on Human Rights; and that denying her access to an education was also a breach of article 2 (Right to life) of the Convention.

After numerous solicitors failed to sway the school’s decision, and despite every effort being made on the part of the school to help bring the respondent back to her classes, receive home teaching, or move to an alternative school that would allow her to wear her jilbab, the case eventually went to court where the original judgment was found in favour of the appellants.

When subject to the Appeal Court, the residing judges reversed the decision back in favour of the respondent; after which, the school sought leave to appeal to the House of Lords.

Here, after lengthy exploration of the manner in which the Appeal Court approached the case, the House found by majority that while deprivation of the right to observe and manifest article 9 of the Convention prima facie warranted a claim for judicial review, it was equally important to note that article 9(2) gave express terms as to when an institution or local authority policy is deemed to have interfered with that right.

On this occasion, such a claim was simply untenable given the thorough attention to detail shown by the school when designing and approving the uniform worn at the time the respondent sought action; and so, for this reason (and many more besides) the appeal was upheld and the original judgment restored, while the House remained mindful of the errors shown by the lower courts throughout the trial when holding that:

“Article 9 does not require that one should be allowed to manifest one’s religion at any time and place of one’s own choosing.”

R v BLAUE

The right to manifest one’s religious beliefs, and the right to prove ‘novus actus interveniens’ within a criminal trial are equally valid, and yet when brought together, the finer points of law and natural justice must always prevail.

In spring of 1974, the victim and now deceased, was a young eighteen year-old Jehovah’s witness, who by all accounts, considered herself a devout worshipper, and one clearly unafraid of death.

While resting at home, the appellant appeared before her and demanded sexual intercourse. After refusing to comply with his demands, the appellant stabbed her four times before fleeing the property.

When found staggering in the street outside, the victim was rushed to hospital, before being diagnosed as having a punctured lung and suffering severe blood loss.

In order to perform the required surgery, the surgical registrar confirmed that she would need an immediate blood transfusion; at which point, the deceased explained that due to her religious disciplines she would be unable to receive foreign blood; and that despite knowing the potential, if not unavoidable outcome, she was unwilling to accept the help offered.

Before passing, the deceased also acknowledged such a position in writing; and so, at trial the appellant had argued that the charge of murder be reduced to manslaughter on grounds of diminished responsibility when refusing to accept the transfusion.

Relying upon R v Smith to establish the possibility that her refusal of help had caused her own death, and that such an unreasonable act had broken the chain of causation, the judge directed the jury so as to ask themselves if, by virtue of her religious confines, the deceased had in fact been the primary contributor of her own death, or that despite her painful and somewhat illogical choices, the stab wound itself had caused her to die, and that anything afterwards was merely academic.

After returning a verdict in favour of the deceased, the appellant appealed; after which, the Court of Appeal reminded them that a long established principle of common law, as was written in ‘Hale’s Pleas of the Crown’ (1800) was that:

“He who inflicted an injury which resulted in death could not excuse himself by pleading that his victim could have avoided death by taking greater care of himself…”

It was thus established and held, that that the primary cause of death was bleeding into the pleural cavity of the lung, that any decision taken after the fact was secondary to the victim’s passing; and that regardless of the role in which religion played, the deceased was entitled to express that belief as she saw fit.

It was for this fundamental reason that the appeal was dismissed and the murder charge upheld, while the Court reminded the parties that:

“It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man.”

BLACK AND MORGAN v WILKINSON

Discrimination on grounds of sexual orientation and the right to manifest one’s religious beliefs, lock horns in a case built around progressive lifestyles and the security of dogma.

Having established herself as the owner operator of a bed and breakfast, the appellant consciously took bookings on principles espoused through Christian teachings, one of which precluded the use of double rooms by those outside wedlock.

While considered a practical and measured restriction, the appellant was often found letting out such rooms to unmarried couples, largely due to the difficulty in establishing their marital status at the time of agreement.

However, the footing of this matter rested upon a homosexual couple, who having secured the room via email, and duly paying the required deposit, arrived at the property, before finding themselves denied use of the double room on grounds of their sexual relationship and unmarried status (an impossible task at the time of this hearing).

At the point of litigation, the claimants argued that the appellant had unlawfully discriminated against them under the terms of the Equality Act (Sexual Orientation) Regulations Act 2007 (SI 2007/1263), in particular regulations 3 and 4, which read:

“3.(1) For the purposes of these Regulations, a person (“A”) discriminates against another (“B”) if, on grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances).

4. (1) It is unlawful for a person (“A”) concerned with the provision to the public or a section of the public of goods, facilities or services to discriminate against a person (“B”) who seeks to obtain or to use those goods, facilities or services”

Equality Act (Sexual Orientation) Regulations Act 2007

While the appellant countered that she had refused the claimants use of the room under regulation 6, which reads:

“6.-(1) Regulation 4 does not apply to anything done by a person as a participant in arrangements under which he (for reward or not) takes into his home, and treats as if they were members of his family, children, elderly persons, or persons requiring a special degree of care and attention.”

Equality Act (Sexual Orientation) Regulations Act 2007

Further arguing that her business fell outside the scope of a boarding house, as expressed in regulation 4(2)(b) of the same statutory instrument.

During the first hearing, the court refused to uphold her claim and found her liable for sexual discrimination on grounds of sexual orientation, whereupon the defendant argued her case in the Court of Appeal.

Here, the facts were given greater consideration, including various articles of the European Convention on Human Rights (ECHR). With regard to exemption from regulation 4(b), the Court observed that in Otter v Norman the House of Lords had ruled that:

“[T]he provision of breakfast by itself, with the implicit inclusion of the ancillary services involved in preparing it and the provision of crockery and cutlery with which to eat it, amounted to “board” within the meaning of section 7(1) [of the Rent Act 1977].”

OTTER v NORMAN

However, with careful observation of regulation 6(1), it was noted by the Court that the claimants were anything but members of her family, children, elderly persons of those requiring special degree of care and attention.

The appellant also relied upon Preddy v Bull for her contention that her refusal of the respondents occupation was one based upon an objection to sexual behaviour, and not orientation; yet, the parties involved were in a civil partnership, which distinguished it from the immediate case.

Turning instead to proportionality for justification, the appellant relied upon articles 8 (Right to respect and private family life) and 9 (Freedom of thought, conscience and religion) of the ECHR for her right to exclusion, while the respondents relied upon articles 8 and 14 (Prohibition of discrimination) to uphold their right to occupation.

It was then noted that while article 9(1) provides for religious manifestation, article 9(2) also provides that restrictions apply when preserving the rights of others, which on this occasion worked against the appellant, as she was by all accounts, running a commercial enterprise, and which under a Government paper titled “Getting Equal: Proposals to outlaw sexual orientation discrimination in the provision of goods and services, Government Response to Consultation” it was outlined on page 13 that:

“The Government contends that where businesses are open to the public on a commercial basis, they have to accept the public as it is constituted.”

While it was also stressed in Eweida and others v United Kingdom that:

“Even where the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a ‘manifestation’ of the belief.”

EWEIDA AND OTHERS v United Kingdom

And so despite any freedom to manifest one’s religious beliefs when operating a licensed business to paying customers, indirect discrimination through the application of a policy denying equal rights to those in homosexual relationships amounted to a uniform ruling of direct discrimination on grounds of sexual orientation, while the appeal court held that:

“[D]irect discrimination cannot be justified, whereas indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim.”

AHMAD v UNITED KINGDOM

While paving the way for a number of similar ‘religious obligations’ versus ‘convention rights’ cases, this protracted legal discourse reveals a number of indiscretions, that in many respects, served to influence legislative and educational policy in the United Kingdom, and illustrate how laws evolve through the integration of cultural norms and progressive state cohabitation.

After working as a supply teacher within the mainstream schools arena for a considerable number of years, the Islamic applicant took issue with the government, upon grounds that his need (or at least doctrinal requirement) to attend a mosque on Friday afternoons was being denied by statute; and that subsequent operational policy created the violation of a number of constitutional rights afforded to all citizens of the United Kingdom.

Citing article 9(1) of the ECHR (freedom of thought, conscience and religion) and article 14 (prohibition of discrimination), the applicant protested that section 30 of the Education Act 1994 stood in immediate conflict with his need to manifest his religious beliefs every Friday between the hours of 1.30pm to 2.15pm.

Having been employed by a number of London Borough schools prior to his decision to resign rather than reduce his working hours, the applicant had been given verbal allowances by one school, and shown strict opposition by another, which bore an inconsistent position of unwillingness to accommodate a religious need, which until recently, had never been expressed nor discussed at the time of his original appointment.

When it was submitted that the repeated failure of a Muslim man to attend a mosque (subject to relative distances) would likely result in a beheading in a country such as Saudi Arabia, the applicant expected that the same principles would apply under  domestic jurisdiction, and that those grounds, along with previous (albeit unofficial) allowances were sufficient enough to warrant time taken from his contractual duties, despite any inconvenience to teaching  staff, pupils or the school as a whole.

After failing to find those arguments upheld in the domestic courts, the matter wound up before the European Commission for Human Rights, where it was unanimously decided that the terms of the Convention were constructed in such as fashion as to allow interpretation and consideration of all religions and beliefs, not just those of the applicant.

However, when willingly accepting a position of employment that brings with it a set of express and implied terms, the accepting individual takes ownership of how that agreement might impinge upon their religious requirements or obligations of faith, and must therefore act accordingly; hence, the Commission dismissed the application, while holding that:

“[E]ven a person at liberty may, in the exercise of his freedom to manifest his religion, have to take into account his particular professional or contractual position.”

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