Wednesday, 24 December 2014

Goodbye 2014

This Blog is now closing down until January 2015 and I thought I would finish with a bit of a look back on a rather depressing year.

The lowest point was undoubtedly the Supreme Court decision in  Greater Glasgow Health Board v Doogan [2014] UKSC 68  which in effect neutered the Conscientious Objection provision in the Abortion Act 1967 and in my view on very questionable legal grounds.  

The high point for me personally was the opportunity to represent Mr Thomas  Monson,  President of the Church of Jesus Christ of Latter Day Saints (the Mormon Church) who was summonsed to answer a private prosecution issued by a disafected ex Mormon Bishop, Mr Tom Philips.  The Summons was described in The Daily Telegraph as "one of the most unusual documents ever issued by a British Court"  and I would certainly agree with that.  

Before I was instructed to act I had been contacted by a reporter from the Arizona Republic Newspaper asking for my response which ended up being syndicated across the US 

Anyway I was involved with other lawyers in getting the case chucked out at the first hearing on the basis that the issues related to religious doctrine and were therefore "Non Justiciable". 

Prior to the hearing I spent some time following ex Mormon Blogs (almost as bad as ex Catholics, leave the Church but refuse to leave it alone) in order to try to understand the logic behind the case.  What became apparent was that the case was based on a fundamental failure to understand the legal and philosophical nature of religious belief. The idea behind the case was that because certain beliefs of the Mormon Church are expressed by the Church as assertions of facts then they could be examined in Court  however that ignores the reality that most religious beliefs are expressed as assertions of fact, "Christ was crucified and rose from the dead", "Mohammed was visited by the Angel Gabriel who said 'recite' (Arabic 'Quran') and the assertions of fact/belief by the Mormon Church are no different in that respect.

Interestingly the question of whether and to what extent issues relating to religious belief are Non Justiciable was considered by the Supreme Court a few months later in  Shergill v Khaira [2014] UKSC 33  which reaffirmed the principle of Non Justiability with just a little bit of tweaking.

During the year I have been paying a bit more attention to my Blog statistics in particular where visitors come from.  Most are from the UK with the US the next most common, I have visitors from France and Germany (Bienveue and Guten Tag) Vistors also come from Australia (G'day sport) and from Canada (Happy Christmas/Joyeux Noel, Hey !)

I also have visitors from Russia and Ukraine though for some reason nobody from Belarus so I wonder what I have done to upset the Belarussians.  Anyway Счастливого Рождества  and щасливого Різдва to my Slavic readers.

The mention of Ukraine and Russia of course inevitably brings up thoughts of the conflict in Eastern Ukraine and the increasing hostility between Russia and Ukraine.  I actually own a map of Europe published in 1913 and it shows what we call Ukraine named as "Little Russia" with Belarus as "White Russia" and Russia proper as "Great Russia"which is why the Tsars were called "Tsar of all the Russias".  The relationship between Ukraine and Russia is therefore an historically close one so making the conflict between them even sadder and no doubt more bitter because family disputes invariably are the bitterest.

And besides Ukraine there is the ongoing Syrian Civil War and the growth of the self styled Islamic State where frankly I doubt if any outsider truly understands what is really going on or the motivations behind all the death and destruction that is happening.

So as I said a depressing year all I can do is to wish you all well and to hope that 2015 will be a good year for you and a better year for the world.

Until then Good Night and God Bless 

Call The Midwife I want an Abortion ! - 4

In an attempt to try to derive some good from the Supreme Court decision in  Greater Glasgow Health Board v Doogan [2014] UKSC 68  the comments of Lady Hale in paras 23 and 24 are worth noting 

23: There was some discussion, at an earlier stage in these proceedings, of the relevance of the petitioners' rights under article 9 of the European Convention on Human Rights. This protects the "right to freedom of thought, conscience and religion," including the freedom "to manifest his religion or belief, in worship, teaching, practice and observance". It is our duty, under section 3(1) of the Human Rights Act 1998, to read and give effect to legislation, whenever it was passed, in a way which is compatible with the Convention rights, so far as it is possible to do so. However, the article 9 right is a qualified right, which may be subject to "such limitations as are prescribed by law and necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others". Refusing for religious reasons to perform some of the duties of a job is likely (following the decision of the European Court of Human Rights in Eweida v United Kingdom ((2013) 57 EHRR 8) to be held to be a manifestation of a religious belief. There would remain difficult questions of whether the restrictions placed by the employers upon the exercise of that right were a proportionate means of pursuing a legitimate aim. The answers would be context specific and would not necessarily point to either a wide or a narrow reading of section 4 of the 1967 Act.

24: The better course, therefore, is for this court to decide what that section means according to the ordinary principles of statutory construction. That will then set a limit to what an employer may lawfully require of his employees. But a state employer has also to respect his employees' Convention rights. And the Equality Act 2010 requires that any employer refrain from direct or unjustified indirect discrimination against his employees on the ground of their religion or belief. So, even if not protected by the conscience clause in section 4, the petitioners may still claim that, either under the Human Rights Act or under the Equality Act, their employers should have made reasonable adjustments to the requirements of the job in order to cater for their religious beliefs. This will, to some extent at least, depend upon issues of practicability which are much better suited to resolution in the employment tribunal proceedings (currently sisted pending the resolution of this case) than in judicial review proceedings such as these.

This does give Supreme Court approval to an argument that I have successfully used to defend pro-life medics being pressurised to assist with Abortion services even if they do not "participate" in the narrow sense in which that word has been interpreted by the Supreme Court.  In a Blog on 12 August 2011 "Abortion and the Equality Act" I discussed my use of the Equality Act with the pro-life position being put forward either as a religious or a philosophical belief ( as I have frequently mentioned in the past pro-life views are not restricted to religious believers, it is quite possible to be an Atheist and pro-life )

In an ET1 (Employment Tribunal Claim Form) drafted by myself on behalf of a pro-life employee in the NHS I relied on Article 9 and s10 as follows

"The claimant is a member of the Roman Catholic Religion.  She has both a religious and a personal philosophical belief that human life begins at conception and that Abortion is the killing of an innocent human life and is harmful both to the unborn child and to the mother of that unborn child. This is a belief which is compatible with human dignity and worthy of respect in a civilised society and as such it is protected under Article 9 of the European Convention on Human Human Rights and under section 10(1) and 10(2) of the Equality Act 2010."

The cases I have been involved in have however all been resolved without litigation and therefore it is still unclear how far the Equality Act will be effective in protecting pro-life medics and Lady Hales remarks do seem to be an encouragement to litigation which will be expensive and uncertain for all concerned.  

Personally I would have preferred the simpler and more realistic solution of the Supreme Court giving a broad reading  to the Conscientious Objection clause in s4 of the Abortion Act 1967.  However since that has not happened pro-life medics and lawyers such as myself will now have to look increasingly to the Equality Act and the Human Rights Act in order to protect conscience and avoid participation in Abortion

Wednesday, 17 December 2014

Call the Midwife I want an Abortion ! - 3

The Supreme Court has issued its decision in the case of  Greater Glasgow Health Board v Doogan [2014] UKSC 68 which was an Appeal from the decision of the Inner House of the Court of Session [2013] ScotCS CSIH_36 itself an Appeal from the earlier Outer House decision [2012] ScotCS CSOH_32.   

I have Blogged about the cases in 2012 and 2013.  In brief Ms Doogan and Ms Wood are experienced senior Midwives who worked in a supervisory capacity in the Labour Ward of their Hospital. Due to changes in Hospital routines etc Abortions began to be performed in the Labour ward and this change put the two midwives in a moral and legal dilemma that eventually led to the Supreme Court. 

They objected to Abortion on Religious Grounds (they are Roman Catholics and the Catholic position on Abortion is pretty unambiguous) and sought to rely on the Conscientious Objection clause in s4(1) Abortion Act 1967 which says.
"no person shall be under any duty whether by contract or by any statutory or other legal requirement to participate in any treatment authorised by this Act to which he has a conscientious objection"

It is worth pointing out that the conscientious objection clause is not restricted to believers in religion, a Secular Pro-Life person is entitled to rely on s4(1) just as much as a religious person. 

The problem that the two Midwives had was that the Hospital did not accept that s4(1) covered their supervisory functions but insisted that it only applied to direct involvement in the physical act of Abortion and the legal case at all Courts has revolved around the question of what "participate in any treatment" actually meant. 

The Supreme Court found against the Midwives and the Judgment was, ironically, delivered by Lady Hale.  I say "ironically" because on 13th June 2014 Lady Hale gave a speech to the Law Society of Ireland where she said 
"I am not sure that our law has yet found a reasonable accommodation of all these different strands [of religious freedom and conscientious objection]"

One thing is clear from the Doogan Judgment namely that the Supreme Court did not even try to find a "reasonable accomodation" and instead went out of its way to emasculate and limit the Conscience Clause in s4.  The Court in para 37 of its judgment accepted that the word "participate" can have a narrow or a wider meaning and then in para 38 plumped for the narrow meaning

37: The more difficult question is what is meant by "to participate in" the course of treatment in question. The employers accept that it could have a broad or a narrow meaning. On any view, it would not cover things done before the course of treatment began, such as making the booking before the first drug is administered. But a broad meaning might cover things done in connection with that treatment after it had begun, such as assigning staff to work with the patient, supervising and supporting such staff, and keeping a managerial eye on all the patients in the ward, including any undergoing a termination. A narrow meaning would restrict it to "actually taking part", that is actually performing the tasks involved in the course of treatment.

38: In my view, the narrow meaning is more likely to have been in the contemplation of Parliament when the Act was passed. The focus of section 4 is on the acts made lawful by section 1. It is unlikely that, in enacting the conscience clause, Parliament had in mind the host of ancillary, administrative and managerial tasks that might be associated with those acts. Parliament will not have had in mind the hospital managers who decide to offer an abortion service, the administrators who decide how best that service can be organised within the hospital (for example, by assigning some terminations to the Labour Ward, some to the Fetal Medicine Unit and some to the Gynaecology Ward), the caterers who provide the patients with food, and the cleaners who provide them with a safe and hygienic environment. Yet all may be said in some way to be facilitating the carrying out of the treatment involved. The managerial and supervisory tasks carried out by the Labour Ward Co-ordinators are closer to these roles than they are to the role of providing the treatment which brings about the termination of the pregnancy. "Participate" in my view means taking part in a "hands-on" capacity.

My first objection to this is that there is absolutely no factual or legal basis on for the Court to decide that the "narrow interpretation" is more likely to have been "in the contemplation of Parliament". There appears to have been no reference made to the Parliamentary Debates as is allowed by the case of Pepper v Hart [1993] AC 593 and which would have revealed that the Abortion Act was only passed because of the conscience clause in s4 and assurances that there would be no compulsion regarding participation in Abortion 

There seemed no recognition that the  job of a Labour Ward Co-ordinator required a medical qualification and was carried out by these Midwives in their capacity as qualified Midwives so the comparison Lady Hale makes with cleaners etc is simply fatuous 

More worryingly the Judgment deals with 2 issues relating to Abortion but which were not part of the issues before the Court

In para 36 Lady Hale says that the Conscience Clause provisions in s4 do not cover a Doctor who is asked to sign an authorisation form to legalise an Abortion 
"In Janaway [1989] AC 537, 572 Lord Keith pointed out that such an interpretation would not cover the doctors forming the opinions required by section 1 and signing the certificates to that effect" 
This is actually a complete misrepresentation of Lord Keiths remarks in Janaway where after discussing whether s4 applied to Doctors Certificates he said (very correctly) 
"I do not think it appropriate to express any opinion on the matter."
I rather wish Lady Hale had accepted the same degree of proper Judicial restraint in commenting on matters which were not specifically part of the issues in the case especially having regard to the fact that Doctors Organisations were not represented at the Supreme Court case and had not been forewarned that legal decisions might be made relating to them so that they could make representations if they wished.

In para 40 she says
"it is a feature of conscience clauses generally within the health care profession that the conscientious objector be under an obligation to refer the case to a professional who does not share that objection. This is a necessary corollary of the professional's duty of care towards the patient. Once she has assumed care of the patient, she needs a good reason for failing to provide that care. But when conscientious objection is the reason, another health care professional should be found who does not share the objection."
Once again this was not an issue in the case, Doctors and Nurses Organisations were not forewarned that judgments might be made on this point so that they could be represented and make representations if they wished.  Also it is reading something into an Act of Parliament which has not been put in by Parliament.  

Those two elements of the Judgment are frankly disgraceful, Lady Hale and her fellow Judges stepping completely and unjustifiably outside their legitimate role and function as Judges and making judgments on issues which are not before them and on which the persons affected have not been allowed to make any representations.  Frankly what annoys me as a lawyer is the sheer lack of professional competence in the way the Judgment is reasoned and the way in which the scope of the judgment goes quite improperly beyond the parties and issues involved.

Two final and closing points on what is a depressing evening

In para 8 Lady Hale goes into depressing detail concerning various methods of Abortion provision and says, in passing.
"Feticide is also carried out where there is a risk of the foetus being born alive following the termination"
To which I can only respond "a risk" ? So she happily accepts that the purpose of the legislation is amongst other things to ensure that babies who might be born alive are prevented from being born alive.

In para 14 she looks at the organisation of the Labour Ward where the Midwives worked
"Since 2010, there have been about 6000 births a year at the Southern General Hospital and just under 60 terminations a year in the Labour Ward."
Therefore since Abortions are just 1% of the work in this ward it would not have caused Glasgow NHS any real difficulties to have "reasonably accommodated" the conscientious objections of these Midwives.

In conclusion the case is an overall disaster for good honourable pro-life Doctors and Nurses who may well find themselves either pushed out of medicine altogether or forced to accept that they can never progress and accept supervisory medical posts 

Monday, 8 December 2014

Jehovah Witnesses and Blood Transfusions

For some strange reason the press today are covering two stories about cases that happened months ago see the Guardian &  the Telegraph  for example.

The cases both relate to Jehovah Witnesses and their well known disapproval of  Blood Transfusions.  

In NHS v Child B [2014] EWHC 3486 (Fam)(01 August 2014) Mr Justice Moylan permitted Doctors to give a Blood Transfusion to, what he described as "a very young child" against the wishes of the childs devout Jehovah Witness parents. 

In para 5 the Judge noted
"It is the unanimous view of the clinical team that the best practice treatment of B is skin grafting and that there is a significant risk that he will require a blood transfusion during this procedure."

and in para 10
"the consultant expresses the opinion that, in the event of a skin graft taking place without the ability to give a blood transfusion, there is a risk of death."

The Judge summed up his decision in para 18
My decision must be determined by my assessment of what is in B's best interests because my paramount consideration is B's welfare. In reaching my decision, based on balancing all the factors bearing on the issue of B's welfare, I must weigh in that balance the wishes, opinions and views of B's parents. They alone have parental responsibility. But, as Ward LJ said in In re A (Children)(Conjoined Twins: Surgical Separation) [2001] Fam 147, although I must give "very great respect" to the parents' wishes, they are "subordinate to welfare".

This decision therefore was predictable because the Court was having to take a decision on behalf of a child who could not make his own informed decision

By contrast in Newcastle Upon Tyne Hospitals Foundation Trust v LM [2014] EWCOP 454 (26 February 2014) Mr Justice Peter Jackson refused to allow Doctors to administer a Blood Transfusion to a  "gravely ill 63-year-old female Jehovah's Witness." known as LM, in para 11 he noted 

"On 12 February, LM was seen by two doctors in the gastroenterology team. She told them that she was adamant that she would not want treatment with any blood products. They felt that she had full capacity to make this decision with an awareness of the consequences.".  

Following this condition of LM deteriorated so that she could not communicated. The Hospital was concerned as to whether she could be given a Blood Transfusion which might help her or whether to respect her wishes and see her die.  

The Judge decided para 21
"I am satisfied that LM understood the nature, purpose and effects of the proposed treatment, including that refusal of a blood transfusion might have fatal consequences."

and on that basis the Judge ruled that a Blood Transfusion should not be given and subsequently LM died.

Neither case creates any new law or sets out any new principle.  The question in both cases was the same namely is the person needing the Transfusion in any position to make a decision refusing the treatment.  In the case of a child the answer was No so the Court made the decision but in the case of the adult the answer was yes so their decision was respected.  

Friday, 5 December 2014

The Unborn Child and its Legal Rights

In my Blog posting on 11 November I mentioned the case before the Court of Appeal concerning a child (CP) born with Fetal Alcohol Syndrome who is in local authority care. This is not directly a Religion Law case but since Abortion and the rights of the Unborn Child are of  concern to many religious believers it is appropriate to cover it here.

In the case of CP (A Child) v First-Tier Tribunal (Criminal Injuries Compensation) [2014] EWCA Civ 1554 the Local Authority brought the claim on behalf of CP in order to claim claim Criminal Injuries Compensation for her.  To succeed they first had to establish that CP's mother had committed a criminal offence contrary to s23 Offences Against the Person Act 1861. 

23 Maliciously administering poison, &c. so as to endanger life or inflict grievous bodily harm.
Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty

There did not have to be a Criminal prosecution of the mother in order for there to be a Criminal Injuries Compensation claim but in order for an award to be made the Criminal Injuries Compensation Authority (CICA) had to be satisfied that a crime had been committed

The claim for Criminal Injuries Compensation had been dismissed by the Upper Tribunal in CICA v FTT and CP (CIC) [2013] UKUT 638 (AAC) and was also dismissed by the Court of Appeal.  The core question for the Court was whether CP was in law "any other person" at the time the "poison or other destructive or noxious thing" ie was "administered" to her.  It was agreed that CP's  mother had drunk a grossly excessive amount of Alcohol during her pregnancy and it was this alcohol that had caused CP's disabilities however was CP a "person" before she was born. Sadly but perhaps predictably the Court of Appeal said No. 

Counsel for CP relied heavily on the House of Lords case of Attorney General's Reference (No 3 of 1994) [1998] A.C. 245  which involved a defendant who stabbed a woman in the stomach, knowing her to be pregnant. Shortly afterwards she went into labour and gave birth to a grossly premature child, who survived for only 121 days.  The House of Lords held that a foetus was an unique organism and at that stage was neither a distinct person nor an adjunct of the mother and therefore there could not be a conviction for murder however there was sufficient for a conviction for manslaughter.

It was argued on behalf of CP that since the House of Lords had decided that the foetus becomes a person when it is born and had decided that manslaughter was a continuing act running from the moment of the attack on the mother to the death of the child after birth, there was no good reason why the criminal law should not equally protect a foetus from conduct resulting from deliberate acts causing foreseeable harm and which resulted in grievous bodily harm evident after birth.

For the CICA it was argued that the Upper Tribunal had reached the right decision in para 16 of its decision where it said:

16: If CP was not a person whilst her mother was engaging in the relevant actions, then she was not another person for the purposes of s23 and as a matter of law her mother could not have committed a criminal offence contrary to s23 in relation to her unborn child.

The Court of Appeal took the same approach  

40:Thus in the case of a foetus, it was legitimate to find a chain of causation extending from the initial insult to the foetus which triggered its premature birth through to the point of death some time after birth, by which stage the child had undoubtedly achieved legal personality. A close examination of the language used by Lords Mustill and Hope shows clearly firstly that it has to be seen in the context of homicide, and secondly that it was used in the context of a foetus which suffered injury and which subsequently died after birth. It was common ground that violence done to a foetus resulting in a still birth could not found criminal liability. In cases where the child is born alive, the actus reus cannot crystallise until the time of death.

41: I consider that the situation is rather different in relation to the s23 offence. If the foetus is not another person at the time of the administration of the noxious substance then the offence cannot be complete at that point. The situation is distinct from the crime of manslaughter which requires death in order to complete the crime.

The Court also took into account the fact that in section 1 of the Congenital Disabilities (Civil Liability) Act 1976 Parliament had specifically legislated that a Mother could not be sued for damage caused to her child by actions of the Mother during pregnancy and concluded  

66: The law would be incoherent if a child were unable to claim compensation from her mother for breach of a duty of care owed during pregnancy, but the mother was criminally liable for causing the harm which gave rise to damage and a right to compensation under the 1995 Act.

On the basis of the law as it stands I can understand the decision and I respect the fact that the Court of Appeal made it clear that it was open to Parliament to legislate for the unborn child to have legal rights in this situation but it was not the task of the Courts to do so.

As someone who was involved as an Intervenor in this case solely in response to the the, completely unnecessary, decision by BPAS to become an Intervenor I am sorry to read that BPAS are trumpeting the decision as some sort of victory for Womens Autonomy.  At the end of the day we have a Child severely injured by the actions of her mother and a child who will probably require care and help for the rest of her life.  There is no victory in this case and there are no winners  

Friday, 28 November 2014

Equality Guidance published by Catholic Bishops

A new guidance document 

Applying Equality Law in Practice: Guidance for Catholics and Catholic Organisations

has been published by the Christian Responsibility and Citizenship Department of the Catholic Bishops’ Conference of England and Wales.

The Bishops Conference says that the new Guidance 

"Will help Catholics gain a deeper understanding of this area of law and remove any misconceptions caused by its perceived complexity. It is important to note that the guide is not intended as a replacement for specialist legal advice.

The guide makes clear that if any issue arises that might lead to liability under equality law, it is strongly recommended that reader consults a solicitor or legal advisor."

About the guide, Archbishop Peter Smith, chairman of the Christian Responsibility and Citizenship Department said

"The aim of this guide is to offer some clear practical guidance on a complex area of law. It is not a substitute for taking professional legal advice but it aims to raise awareness on what the law allows and to enable potential problems to be anticipated and averted.

"There is both scope and sometimes a need for Catholics to make use of the new law’s provisions which can protect religious freedom."

Whilst the Guidance is, of course, primarily aimed at the needs of Catholics and Catholic organisations it should be of interest to any Religious Organisation looking to understand what their legal rights are

Tuesday, 18 November 2014

Freedom of Speech and Oxford University Students

Back in 2012 I wrote a blog about Students at University College London trying to dictate how the subject of Abortion should be handled in University debates and trying in effect to prevent pro-life groups having any platform.

 Sadly the same intolerant views have surfaced in Oxford University where Christ Church College has caved into intimidation and have cancelled a debate on "Abortion Culture" organised by Oxford Students for Life who had arranged for there to be 2 speakers 1 for and 1 against but even that degree of balance was not enough for the pro-abortion crowd who were pretty blatant about the intimidation and disruption they planned

“We thought we should go and say hi! Bring your friends, and if you want take along some non-destructive but oh so disruptive instruments to help demonstrate to the anti-choicers just what we think of their ‘debate’.”

This particular Face Book page has now, for some reason, been removed but I saw it myself before it was removed and can testify to the words used.  It was headed with the words "What the f*** is an abortion culture ?" using the full "F" word.  Frankly I have represented crack head yobs who could express themselves more elegantly than those "students" at what is supposed to be one of the leading Universities in the world

Anyway the actions of the members of the threatening disruptive group could constitute a criminal offence of Harassment under s1A Protection from Harassment Act 1997 as applied by s7(3A) of the same Act.  In addition the College, and Oxford University as a whole, has a legal duty under s43 Education (No 2) Act 1986 to 

"“ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers”

and both the college and the University appear to have failed in their legal as well as their moral responsibilities.  Freedom of speech is precious and without freedom of speech no other freedoms are safe.  It should never be forgotten that in Nazi Germany it was idealistic students who were the first ones to throw books into the flames.  Those students who succeeded in stopping this debate probably consider themselves to be radical left wingers but the reality is that they are fascists who need to be faced up to and defeated.  

UPDATE  19 November 

In researching this subject and trying to make sense of some of the jargon on the oppositions Facebook page I discovered that I am a "Cisgendered Binary person without a Uterus" otherwise known as a Male (and they say Lawyers overcomplicate !)

An "Interesting" in the sense of "Completely Self Centred arrogant" article in The Independent  by one of the protesters who got the talk cancelled 

However not all is Doom and Gloom the Twitter Feed of a certain Will Neaverson (who seems to be an Officer at Christ Church) states (Nov 16)  "I'm proposing a motion to request my college not grant permission for Oxford Students for Life to host a 'debate' on abortion. Updates soon." which would normally have upset me until I noticed that he describes his current status as "Researching for North Korea thesis".  

which made me laugh out loud. An Oxford student studying North Korea who wants to close down democratic debate in Oxford, you simply couldn't make it up.  He is obviously a very good student of his subject. 

Tuesday, 11 November 2014

Abortion Back in the Legal Spotlight

Abortion is back in Court in 2 cases at present.

The Supreme Court is hearing an Appeal by Glasgow NHS against the decision of the Court of Session recognising the right to conscientious objection of Midwives laid down in  Doogan & Anor v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH_36  

I discussed this case in this Blog at

Call the Midwife - I want an Abortion !        7  MARCH 2012

Call the Midwife I want an Abortion ! - 2    24  APRIL 2013

so I shall await the Supreme Court decision with interest and in the hope that it will confirm the clear and well reasoned decision of the Court of Session in April 2013

At the other end of the Courts structure a Doctor has been summonsed to appear at Manchester Magistrates Court in response to a private prosecution relating to alleged Abortions offered because of the Gender of the Unborn Child.  It is argued by the prosecutor that Gender Selection Abortion is illegal under the terms of the Abortion Act 1967

I covered this issue in my Blog post "Is Sex Selective Abortion Illegal ?  8 September 2013" when I came to the reluctant conclusion that Sex Selective Abortion, though morally repugnant, was not illegal.  I therefore do not expect the private prosecution to succeed however I wish the prosecutors well and will be delighted if I am proved wrong and the Abortionist in question is convicted.

Finally on a Non Abortion , but linked, issue the Court of Appeal are currently considering whether Fetal Alcohol Syndrome in a child caused by the grossly excessive drinking of his mother during her pregnancy could be a crime under s23 Offences Against the Person Act 1861. 

23 Maliciously administering poison, &c. so as to endanger life or inflict grievous bodily harm.
Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty 

The issue in the case does not involve an actual prosecution but relates to an attempt to obtain some financial compensation for the severely injured child involved.  Since the Mother has no money the claim was pursued under the Criminal Injuries Compensation scheme which is why it was necessary to argue that the conduct was a crime.  As a practicing criminal lawyer, I do not believe that this case will lead to pregnant women being prosecuted over their drinking or other habits it will I think be seen by the Court of Appeal that the criminal law is being used as a "peg" for a civil claim. 

That said though I am very sympathetic to the Child in the case I think there may be real problems in establishing that the mother, however excessive her drinking, was acting either unlawfully or maliciously and that problem was what caused the case to be lost in the Upper Tribunal in CICA v FTT and CP (CIC) [2013] UKUT 638 (AAC).  We shall just have to wait and see what the Court of Appeal decides.

Incidentally I was slightly involved in the case wearing my Thomas More Legal Centre hat.  The Abortion provider BPAS and the organisation Birthrights applied to become Intervenors in the case in order to argue for the complete bodily autonomy of the woman so I became involved acting for the Pro-Life Alliance in arguing as Intervenor for the equal rights and dignity of the unborn child

It may well be that the Court of Appeal will ignore both interventions and concentrate instead on the wording of the 1861 Act and the details of the Criminal Injuries scheme but I am glad to have had some small part in ensuring that the arguments of BPAS were countered and the Court was reminded that unborn children are human and entitled to respect and dignity

Monday, 10 November 2014

Oh Liberty, what crimes are committed in thy name

This is a somewhat personal and possibly off subject posting but it is a subject I feel strongly about and, what the heck, this is my Blog so I can decide what goes in it.

Some weeks ago in the “Catholic Times”  there was an article by a Catholic Priest called Monsignor Basil Loftus who writes a weekly column called “Vatican Counsel” where he frequently expresses bizarre and heretical views on Religion and History.  I try to avoid his articles as much as possible but occasionally I do read him which is an experience a bit like prodding a toothache just to confirm it is still hurting.

Anyway a few weeks ago he wrote an article in the Catholic Times where he finished with the words that he looked forward to a

"a Franciscan revolution to eclipse in drama and extent the French Revolution" 

(The reference to a “Franciscan revolution” is a reference to Pope Francis, Mgr Loftus having appointed himself as chief prophet and interpreter of the frequently off the cuff comments of Pope Francis. For myself when considering the (often opaque) comments attributed to Pope Francis I bear in mind that they usually come via unofficial English translations of remarks made in Italian by a native Spanish speaker with a strong Argentinian accent)

Anyway what sparked my anger with Mgr Loftus was not his remarks about his imaginary Franciscan revolution but rather his extraordinary praise for the French Revolution , not the first time he has praised this destructive murderous event in world history.  I therefore wrote a letter which said 

“  Even by his own standards the suggestion by Mgr Basil Loftus (19 October) that he looks forward to "a Franciscan revolution to eclipse in drama and extent the French Revolution" is bizarre.

The French Revolution was the cause of the death of thousands judicially murdered in the reign of terror. The Carmelites of Compiegne were guillotined simply for being Nuns and they are merely the best known of the thousands of Catholic Priests, Nuns and believers who were also sent to the guillotine solely for the crime of being practising Catholics.

Besides the reign of terror the Revolution led to massacres in the Vendee and other regions of France and plunged Europe into thirty years of war and destruction stretching from Madrid to Moscow. Is that seriously the "drama and extent" Mgr Loftus wishes on the Church and the world ?

If Citizen Loftus wishes to praise the French Revolution as a model to be followed then he has of course got the liberty to do so but it is a desecration of the memory of the numerous Catholic victims of that revolution for such praise to be uttered by someone who claims the title of Catholic Priest. “

I hoped that the letter would be published and having made my point I assumed that Mgr Loftus would then go on as before like most writers of articles who accept a degree of criticism as part and parcel of their job and are pleased to at least know that someone is reading them.  For Mgr Loftus however such a “normal” response is not enough and in an expression of hypersensitivity verging on paranoia he actually wrote a letter himself which was published in the papers letters column as if having 800 words published each week wasn't enough.  In his letter he said

“ Yes, the violence of the few did degenerate into the madness of the many, but the French Revolution inspired a continent-wide socio-political revolution of which both Church and State still feel the beneficial effects and, no less importantly, are still building upon.

It is also necessary to recognise that the violence against elements of Catholicism was to no small extent occasioned by the manner in which the institutional Church had identified itself with an oppressive regime which denied basic human dignity to that vast majority of humankind, which had neither civil nor ecclesial rights.

Today, for virtually the first time, Pope Francis is making it possible for voice of every baptised man and woman to be heard in the Church.

This would not have been possible without the progressive effects which the French Revolution inspired. The analogy is quite justifiable.

The puerile attempt at personal vituperation is particularly demeaning in your correspondent as a professional gentleman.

Not only is it lamentable in itself, but it also devalues the otherwise positive contribution which the letter affords as a springboard for further clarification which I am happy to make. “

Well I have a number of points to make but if Mgr Lofus really feels that I was engaging in “personal vituperation” in my letter then frankly he needs to get out more.  As most normal people would have realised when I called him “Citizen Loftus” it was a tongue in cheek reference to the fact that during the French Revolution the titles “citizen” and “citizeness” were compulsory and indeed during that era Mgr Loftus would have been Guillotined for using the title “Monsignor”. 

However I doubt if that would have happened in his case since Mgr Loftus is not the stuff of which martyrs are made. Having read a number of his articles I am quite sure that he would have been eager to swear to the “Civil Constitution of the Clergy” which in effect nationalised the French Church and made it and its beliefs subservient to the French state.  He also I suspect would have been quite happy to participate in the worship of the “Cult of Reason” or the Robespierre  inspired “Cult of the Supreme Being”.  I am quite certain he would not have joined the thousands who were maintained their faith and were sent to the Guillotine for the crime of being believing Catholics. 

For a Catholic priest such as Mgr Loftus to praise the French Revolution for its supposed beneficial effects is a form of Holocaust Denial akin to a Rabbi saying “at least Hitler built good Autobahns” 

The reality is that the French Revolution did not help in the human search for freedom quite the contrary it led to a murderous tyranny 100 times worse that the Government which it replaced and in the form of the Revolutionary Tribunal  the Law of Suspects  and the Law of 22 Prairial   it established the legal and institutional blueprint for many other dictatorships in particular that of Lenin and Stalin both of whom were admirers of the Reign of Terror and who followed its example.  The French Revolution and its evils put back democratic progress and liberalisation throughout Europe.

In any event to argue, as Mgr Loftus does, that mass murder is justified for the greater good is an historically illiterate and morally repellent argument especially coming from a priest who is supposed to preach the Gospel according to Jesus Christ, not the Gospel according to Robespierre and Stalin

Or, as Marie Roland  put it on her way to the Guillotine 
" Oh Liberty, what crimes are committed in thy name !". 

Thursday, 10 July 2014

Sharia :Law in India

A fascinating case before the Supreme Court of India which deals with a question which is also debated in the UK namely the role and status of Sharia Tribunals

In the case of  Madan v India SCIndia 7 Jul7 2014 an application was made for a declaration that the activities of Shariah tribunals were unlawful and that the various bodies sponsoring them should be disbanded.

As is usual in these cases the Judge was provided with what he described as "the galore of obnoxious Fatwas " with some pretty appalling examples being quoted.  The basis of the case was said to be that the 
"All India Muslim Personal Law Board ... is striving for the establishment of parallel Muslim judicial system in India. According to the petitioner, adjudication of disputes is essentially the function of sovereign State, which can never be abdicated or parted with"

The Judge accepted that Sharia Tribunals existed and were issuing Fatwas but disagreed that they therefore constituted a parallel Muslim judicial system. He said that a Fatwa 

"has no legal sanction and can not be enforced by any legal process either by the Dar-ul-Qaza issuing that or the person concerned or for that matter anybody. The person or the body concerned may ignore it and it will not be necessary for anybody to challenge it before any court of law. It can simply be ignored. In case any person or body tries to impose it, their act would be illegal. Therefore, the grievance of the petitioner that Dar-ul-Qazas and Nizam-e-Qaza are running a parallel judicial system is misconceived."

However the Judge did not give a blank cheque to Sharia Tribunals to do as they wish.  He was concerned by one particular case where a wife who had allegedly been raped by her father in law then had a Fatwa issued dissolving her marriage.  The Fatwa had not been applied for by either the wife or her husband but by a journalist and the Judge did condemn the issuing of a Fatwa in such circumstances

"Issuance of Fatwa on rights, status and obligation of individual Muslim, in our opinion, would not be permissible, unless asked for by the person concerned or in case of incapacity, by the person interested. Fatwas touching upon the rights of an individual at the instance of rank strangers may cause irreparable damage and therefore, would be absolutely uncalled for. It shall be in violation of basic human rights. It cannot be used to punish innocent. No religion including Islam punishes the innocent. Religion cannot be allowed to be merciless to the victim. Faith cannot be used as dehumanising force.

no Dar-ul-Qazas or for that matter, any body or institution by any name, shall give verdict or issue Fatwa touching upon the rights, status and obligation, of an individual unless such an individual has asked for it."

Wednesday, 9 July 2014

I Confess ! - Seal of the Confessional in Louisiana

The  recent case of George Charlett Deceased No. 2013-C-2879 before the Louisiana Supreme Court has aroused concern amongst Catholic Clergy that it could be the first round in a battle to restrict the seal of the confessional

In the case the plaintiff, a child, alleges she was sexually touched by George Charlett a parishioner, not  a clergyman, at her local Church.  She alleges that she told her Parish Priest what was going on but he in effect did nothing.  The estate of George Charlett was being sued and also the Diocese for the alleged negligent actions of the Priest in not reporting the allegations to the authorities.  It is implied that she told the Priest whilst in confession though that specific point is a little unclear from the sparse facts in the Supreme Court judgment.

What is clear is that the Diocese of Baton Rouge tried to have the evidence of what was said in the Confessional excluded from the Girls evidence and that is the question that the Supreme Court was considering.  They, not surprisingly, decided that even though the law in Louisiana did recognise that conversations in the Confessional could attract privilege all that meant was that someone could not, in general, be forced to give evidence of what was said in the Confessional but that is very different to saying that someone can be prevented from giving evidence of what was said in the Confessional if they themselves wish to do so.  

The Code of Canon Law of the Catholic Church is very strict about the inviolability of the seal of the confessional 

Can.  983 §1. The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.

Can.  984 §1. A confessor is prohibited completely from using knowledge acquired from confession to the detriment of the penitent even when any danger of revelation is excluded.

and so to that extent I can see the reason why the Diocese was concerned since if what the girl is saying is untrue the Priest is not allowed to say so or to give evidence about what was really said in the confessional.  This is the dilemma that famously faced Montgomery Clift in the  Alfred Hitchcock movie "I Confess"

NB: One area of confusion if you read the judgment and Catholic Canon Law is that in the judgment the phrase "the confessor" is used to refer to the girl ie the person who is making the confession whilst in Canon Law "the confessor" refers to the Priest ie the person hearing the confession.

I doubt if the case will be appealed to the US Supreme Court since it is still in its preliminary stages and no evidence has been heard yet.  As the Louisiana Supreme Court judgment noted 

Whether this particular priest owed this particular duty to the plaintiffs in this particular factual context is a mixed question of law and fact..............there exists material issues of fact concerning whether the communications between the child and the priest were confessions per se and whether the priest obtained knowledge outside the confessional that would trigger his duty to report. 

In other words preventing the evidence being heard was, at this stage, premature.  That said the issue of the "secrecy of the Confessional" and how it applies in situations where the law requires suspicions/knowledge of child abuse to be reported is likely to become an increasing issue in various jurisdictions over the next decade


Coincidences coincidences !!.  Shortly after I had published the above regarding Confession in the US the excellent Frank Cranmer put up a post 
which is well worth reading.  I agree with Franks conclusion
It seems likely, therefore, that the seal of the confessional will come under further scrutiny in the UK.