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. 

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
and

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

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 !". 

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."

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

UPDATE  SAME DAY

Coincidences coincidences !!.  Shortly after I had published the above regarding Confession in the US the excellent Frank Cranmer put up a post 

Oz Anglicans reject seal of confessional

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.

MCCULLEN v. COAKLEY - Rights of Pro-lIfe Protestors

In the case of McCullen v. Coakley 26 June 2014 USSC the US Supreme Court had to grapple with the contentious issue of the rights of Pro-life counsellors and protestors in the vicinity of Abortion Clinics.

Massachusetts had passed a law which made it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any “reproductive health care facility,” defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” The Act exempted from this prohibition employees or agents of such facility acting within the scope of their employment.”

The Court held that this law was a breach of the free speech rights set out in the 1st Amendment to the US Constitution and a part of the judgment is worth repeating since it goes to the heart of the concept of free speech a concept that so many agree with in theory but disagree with in practice when it comes to the expression of views with which they disagree

"It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out. In light of the First Amendment’s purpose “to pre­serve an uninhibited marketplace of ideas in which truth will ultimately prevail,” FCC v. League of Women Voters of Cal., 468 U. S. 364, 377 (1984) (internal quotation marks omitted), this aspect of traditional public fora is a virtue, not a vice"

Hobby Lobby US Supreme Court Case

The US Supreme Court in a close 5 - 4 judgement has decided that a "for-profit", ie commercial, business can still claim to religious protection for the beliefs of its, relatively small, group of owners.

Burwell, Secretary of Health and Human Services v. Hobby Lobby Stores INC  30 June 2014 USSC involved companies which were commercial but which nevertheless were run by a small number of individuals with specific religious beliefs which they attempted to put into practice in the running of their business.  As the judgement explains

Hobby Lobby’s statement of purpose commits the Greens [ie the owners] to “[h]onoring the Lord in all [they] do by operating the company in a manner consistent with Biblical principles.” App. in No. 13–354, pp. 134–135 (complaint).Each family member has signed a pledge to run the businesses in accordance with the family’s religious beliefs and to use the family assets to support Christian ministries. 723 F. 3d, at 1122. In accordance with those commitments, Hobby Lobby and Mardel stores close on Sundays,even though the Greens calculate that they lose millions in sales annually by doing so. Id., at 1122; App. in No. 13– 354, at 136–137. The businesses refuse to engage in profitable transactions that facilitate or promote alcohol use;they contribute profits to Christian missionaries and ministries; and they buy hundreds of full-page newspaper ads inviting people to “know Jesus as Lord and Savior.”

As a business Hobby Lobby was required by the Patient Protection and Affordable Care Act to provide Health Insurance provisions for their employees which they did not object to indeed they had been providing Health Insurance even before it became compulsory.  However the owners [the Green Family] did object to paying for 4 specific types of Contraceptives which, in effect acted as Abortifacients by preventing embryo implantation after fertilisation.  The owners of the business objected to paying for this Abortion procedure which went against their religious beliefs.  

The US Supreme Court is to be congratulated in that it properly understood and articulated the fundamental issue in the case namely, whether the law has the right to compel and individual to be moral complicit in an immoral act, which is a question issue that the British Courts have consistently failed to acknowledge let alone understand

"The belief of the Greens ..... implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another."

The main argument in the case revolved around the Religious Freedom Restoration Act of 1993 rather than the 1st Amendment to the US Constitution.  The Act states that 

“Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”

The main argument of the Secretary of Health revolved around whether a "for profit" corporation could claim to be involved in the "exercise of religion".  In the judgment of the US Supreme Court such a corporation was entitled to the protection of claiming to exercise religion depending on the facts ie it is very unlikely that most for-profit corporations could claim protection under the Act but in cases of "closely held" corporations such as Hobby Lobby then the 1993 Act did apply.

Though the case has been widely proclaimed in the US it is a very specific case on very specific, and unusual facts and a very specific Act of Congress rather than the US Constitution so it is possible that it will have limited   influence on jurisprudence internationally.  However as already said at least the US Supreme Court has addressed the issue of moral complicity up front so that might encourage UK courts to do the same.

The issue was addressed to some extent by the Inner House of the Court of Session in Doogan v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH_36  where the Court quoted with approval a South African case Christian Education SA v Minister of Education (2001) 9 BHRC53 where the Constitutional Court of South Africa said


"believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law. "

In this respect it is perhaps interesting that Lady Hale, Justice of the UK Supreme Court, emphasised the importance of issues of conscience in a speech on 13 June 2014 when she cast doubt on the validity of the Supreme Court decision Bull  v Hall [2013] UKSC 73 which involved Christian B&B owners attempting to operate their B&B on Christian principles so perhaps the Hobby Lobby case will have some influence as a pointer that Courts should be reluctant to force anyone to act contrary to their conscience in business as well as elsewhere in life