Sunday, May 06, 2007

Voluntary Religion in England & Wales

Voluntary religious rules & structures:

  • Davies v Presbyterian Church of Wales [1986] 1 WLR 323:

    D, a minister, asserts that he had been employed by the church under a contract service and alleged he had been unfairly dismissed.
    Held: HL agreed with CA and decided it was not a contract of employment. However, it was possible for a person carrying out spiritual duties to be under a contract of employment NOT in the present case though. Reasons were b/c D's duties were dictated by his conscience not by a contract.

Charity law and reform:

  • Barralet v A-G. [1980]:

    Involved the issue of whether a secular association, which dealt with exposing superficial beleifs and discuss ethics/morality, is considered be a religious charity.
    Held: Religion was concerned with man's relationship with God, ethics with man's relationship with man. "the main element of religion were belief in and worship of God..." Not a religious charity.

Court's willingness to intervene (remedies in contract, trust and tort):

  • Forbes v Eden (1867)
    A court of law will not interfere with the rules of a voluntary addociation unless to protect some civil right or interest which is said to be infringed by their operation.

  • Davies v Presbyterian Church of Wales (mentioned above).

  • Blake v Associated Newspapers [2003] EWHC 1960:
    Blake was made a bishop. Daily Newspaper claimed he was "sham/pretend bishop". He sued DM for Defamation. Court decided that the only way is to find out if he was really a bishop. Court declined to decide on that issue though.

Court's willingness to intervene (employment remedies):

  • Percy v Church of Scotland of National Mission [2006]:

    D was a female minister who was accused of sexual irregularities which she might have done. She resigned but claims she only did so b/c of fear of disciplinary punishment.

    Usually the obligations between church and minister is not a legally-binding relationship. But not always without any legal effect.

    Held: she was under a contract to do specific things highlighted in the terms and conditions therefore she was under a contract to execute work

    "The nature of the mutual obligations [of church and minister], their breadth and looseness, and the circumstances in which they were undertaken, point away from a legally-binding relationship. But this principle... cannot be carried into arrangements which on their face are to be expected to give rise to legally-binding obligations... It is time to recognise that employment arrangements between a church and its ministers should not lightly be taken as intended to have no legal effect."

Court's willingness to intervene (public law remedies):

  • R v Chief Rabbi ex p. Wachmann [1992]:

    W was a Rabbi in a jewish congregation which was associated with a bigger jewish association. He was having sexual intercourse with anumber of the girls working with him in the synagogue. Was dismissed after being exposed.

    Held: Judicial review not available for him. If he wants to fight decision he must do so in the realm of civil contract law.

Saturday, May 05, 2007

Intellectual Property Copyright Overview...

Requires Originality:

  • Literary
  • Dramatic
  • Musical
  • Artistic

Literary Works (excluding databases and computer programs):

  • University of London Press v Tutorial Press [1916]:

    Student stole examinations paper and copied questions then returned papers. Argued there were no copyright in the papers.
    Held: Papers set by examiners were "literary works" under CA 1911.

  • Anacon v Environmental Research [1994]:

    An electrical circuit diagram can be put in a list of connections.
    Held: Like a foreign language. It is a literary work.


Dramatic Works (e.g. scripted plays):

  • *Norowzian v Arks (No.2) CA [2000]:

    N produced film called 'Joy'. Used film technique 'jump cutting'.
    D, Arks, produced a film called "Anticipation" which was used as an adverting by Guinness.
    N claimed infringement of "Joy", which he maintained was a dramatic work.

    HELD:
    Trial judge held "Joy" was not a dramatic work for purposes of CDPA 1988.
    Court of Appeal disagreed, held it was a dramatic work. "Joy" was a dramatic work b/c it was capable of being performed before an audience.
    Features of "Joy" such as its rhythm, pace and movement, use of 'jump-cutting' were not themselves subject to copyright protection.
    After expert choreographer gave evidence that there had been no copying of a substantial part of Joy NO INFRINGEMENT.

  • Green v Broadcasting Corp of New Zealand:

    P creator of a T.V. show in the U.K. entitled "opportunity knocks". The show was a talent contest. Claimed copyright on scripts and Dramatic format of the show.

    Held: Dramatic format of a television show had to have some certainty in its subject matter to be entitled to copyright protected. Also D used idea and not expression of idea.


Musical Works (S.3(1) CDPA 1988):

  • Includes arrangements, re-arrangements, orchestration etc.

  • Hyperion Records v Dr Sawkins [2005]:

    Sawkins wrote new performing editions of some of Lalande's famous baroque musical compositions. He added figured bass and also corrected some notes.

    Although 'Musical Work' is not defined in the CDPA 1988, it cannot be restricted only to actual notes.

    Held: in favour of Sawkins. Justification = songs could not be played without his work on them.


CDPA 1988 S 3(2) and (3):

  • "Need for recording of Literary, Dramatic, and Musical Works."
  • Electronic recording suffices.
  • What if someone other than author records it?

    Walter v Lane [1900]:
    Verbatim speech made. Journalist made notes of it. Then wrote an article from the notes he made.
    Held: Journalist owns copyright on the article constructing most of the speech and person who made the speech cannot stop him from publishing it as it is made from his notes.



Artistic Works (S4 CDPA 1988):

  • S 4(1):
    "Includes Graphic works, photographs, sculptures or collages irrespective of artistic quality."
  • Graphic works are extensively defined in S 4(2).
  • Hi-Tech Autoparts Ltd v Towergate Two Ltd [2002]:

    Metal plates used to make rubber mats were held to be engraving.

  • S 4(2) "Sculptures":
  • Wham-O v Lincoln [1985]:
    Mould for a Frisbee was held to be a sculpture.
  • J & S Davis (holdings) Ltd v Wright Health Group Ltd:
    Model for dental impression trays are not sculptures.
  • Metic v Maughan [1997]:
    Industrial processes cannot result in a sculpture. No accurate definition of sculptures exists but court suggests a workable definition could be "a three-dimensional work made by an artists hand."

Artistic Craftsmanship (Must have artistic quality!):

  • Hensher v Restawhile (HL) [1976]:
    HL held: for a work to be of artistic craftsmanship it must have some artistic quality.


    Contrast with...
  • Merlet v Mothercare plc [1986]:
    A baby cape was held not to be a work of artistic craftsmanship.

    Justification = the baby cape is a work of craftsmanship only not artistic craftsmanship b/c there was no aesthetic appeal it was purely a functional design.

Works Requiring a (mechanical) act of creation:

  • Film - S 5B CDPA 1988
  • Norowzian v Arks (No1) [1988]: Mentioned above.
  • Film Copyright protects the actual signal on which the film is recorded on.
  • The soundtrack in a film can also be protected as a sound recording.

  • Sound Recording - S 5A

  • Broadcasts - S6:
  • Internet 'webcasts' are only protected by broadcasts if they are broadcasted live and people cannot stream it whenever they want.

  • Published Editions (typographical arrangements) - S.8:
  • The Newspaper Licensing Agency Ltd v Marks & Spencer PLC [2001]:

    It was suggested that the skill and labour used in the creation of typographical arrangements can only be expressed in nothing less than a page.

  • Copies in Copies?
  • Sound recordings, films, published editions could not be proteced by copyright if it is a copy of an earlier (recording/film/edition). Authority CDPA relevant sections mentioned on each category above.








Friday, May 04, 2007

Functions of Criminal Law and The Principle of Legality

Relationship between morality and law:

  • Devlin - Criminal Law should enforce central core of morality.

  • Mills - immorality alone is insufficient.

Sources of Criminal Law:

  • Two primary sources: common law and legislation.

The Principle of Legality:

  • 'No one shall be guilty of any penal offence on account of any act or omission which did not constitute a penal offence at the time when it was commited. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.' Universal Declaration of Human Rights.

  • No retrospective legislation.


Principle of Legality and Common Law:

  • Shaw v DPP [1962]:
    D's published a "ladies directory" containing contact details of prostitutes.
    They were convicted of conspiracy to corrupt public morals contrary to the Obscene Publications Act 1956.

  • Ratio of Shaw v DPP:
    (a) The courts, as 'moral guardians', can make law!
    OR
    (b) The courts can look at previous authorities, 'find law' and apply it to new circumstances.

  • Knuller v DPP [1973]:
    D's published a magazine with advertisements for homosexual contacts.
    Convicted of conspiracy to corrupt public morals and conspiracy to outrage public decency.

Common Law Abolition of the Marital Exemption to Rape:

  • R v R [1992]:
    D attempted to have sexual intercourse with his estranged wife without her consent.
    HL held: The marital rape exemption was no longer justified because of the changed status of women in marriage.

  • CR v The United Kingdom [1996]:
    Euopean Court of Human Rights: CR convicted of attempted rape of his wife.

    "ECHR Article 7 cannot ... outlaw the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent witht he essence of the offence and could reasonably be foreseen."

Reform: Codification and the Law Commission:

  • Law Commission (1989) 'The Report and Draft Criminal Code Bill for England and Wales' Law Com No. 177:

    Too vast. Hard to enact.
  • Law Commission (1993) 'Legislating the Criminal Code: Offences Against the Person and General Principles' Law Com No 218:

    Legislating ideas most in need for reform.
  • Law Commission Consultation Paper (2006) 'A New Homicide Act for England and Wales?' LCCP 177:

    Also deals with general principles of criminal law.


Thursday, May 03, 2007

Voluntary Religion and the Courts

Examples of disputes:

  • is a member 'in good standing'?
  • Has a rite been correctly administered? Is a marriage religiously valid?
  • should an office-bearer be removed?

Remedies sought:

  • Private law (contract and trust).
  • Public law (judicial review)
  • Private law (tort)
  • Family law (marriage validity)
  • Employment law (unfair dismissal, discrimination)

Contract and trust

  • leading case:

    Forbes v Eden (1867):
    "Save for the due disposal and administration of property, there is no authority in the Courts either of England or Scotland to take cognizance of the rules of a voluntary society entered into merely for the regulation of its own affairs." per Lord Cranworth

  • Internal rules affecing material interests:

    Davis v Presbyterian Church of Wales (1986):
    D was appointed as a minister in Church of Wales. Co W was accused of unfairly dismissing him.
    "The law imposes on the Church a duty to administer its property in accordance with the provisions of the book of rules." per Lord Templeman.

  • A Marriage case:

    Lindo v Belisario (1795):
    Sir William Scott was forced to look at jewish law ot determine whether or not it was a valid marriage. Held: it was not a valid jewish marriage.
    N.B. Under Marriage Act 1966 all except Jews and Quakers were required to get married the same way as Christians.

Public law remedies:

  • Leading case:

    R v Chief Rabbi ex p. Wachmann (1992):
    W was a Rabbi appointed by jewish congregation which was associated with a bigger jewish association. He was having sexual intercourse with a number of girls working with him in the Synagogue.
    Judicial review not available in this case. If he wants to fight his dismissal he must do it with civil contract law.

    "Th court must inevitably be wary of entering so self-evidently sensitive an area, straying across the well-recognised divide betweenchurch and state." per Simon Brown J

  • Cases following Wachmann:

    R v Imam of Bury Park Mosque ex p. Sulaiman [1994]
    R v London Beth Din ex p. Bloom [1998]
    R v Provincial Court of the Church in Wales ex p. Williams (1998)
    In all of these cases, Wachmann was cited with approval.

    But contrast; R v Rabbinical Commission ex p. Cohen (1987; licencing of shochetim under Slaughterhouses Act 1974 Sch. 1) If it involves government statutes then government will act!

  • Criticism of Wachmann:

    (a) Suggests principled 'church/state' divide
    (b) Wrong to assume courts never rule on Jewish law [Lindo v Belisario]

  • Suggestions for change:

    Scottish Judicial Review-equivalent may extend to decisions of religious or sports bodies - if they act irregularly, oppressively or unfairly.

    HRA 1998 may assist? unlikely on cases so far.

  • A defamation case:

    Blake v Associated Newspapers Ltd. (2003):
    Blake was made a bishop. Daily Mail newspaper accused him of being a "sham/pretend bishop". He sued DM for defamation. Court decided hat the only way is to find out if he was really a bishop. The court was not able to define bishop.

Employment law:


  • An employee has the right not to be unfairly dismissed by his employer. Employment Rights Act 1996, s.94(1)
  • In this Act 'contract of employment' means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing. S. 230(2)
  • [It is unlawful for an employer to discriminate against a woman in relation to... dismissal] Sex discrimination Act 1975, s.6(2)
  • 'Employment' means employment under a contract of service or of apprenticeship or a contract personally to execte any work or labour. S.82(1)

Is a minister of religion employed?


  • By God?
  • Contradicting views:

    Rogers v Booth [1973]: "no intention to confer on one another enforceable rights and obligations?" per Sir Wilfred Greene MR.

    Scottish Insurance Commissioners v Curch of Scotland [1914]: "I think that the position of an assistant minister in these Churches is not that of a person who undertakes work defined by contract but of a person who holds an ecclesiastical office, and who performs the duties of that office subject to the control and direction of any particular master." per Lord Kinnear.

  • Further argument: agreement to contract out of courts' protection and submit exclusively to hierarchical jurisdiction? - but is it a free decision and does the law permit contracting-out?

  • A minister is not bound by a contract of service.

    President of the Methodist Conference v Parfitt [1983]
    "I have no hesitation in concluding that the relationship between a church and a minister is not apt [absent clear contrary intention] to be regulated by a contract of service." per Dillon LJ

  • But the relationship between a church and minister is a contract nonetheless.

    Daviesv Presbyterian Church of Wales [1986] (again!)
    "The law imposes on the Church a duty to administer its property in accordance with the provisions of the book of rules." per Lord Templeman

  • A contract to execute work.

    If 'office' is given a broad meaning, holding an office and being an employee are not inconsistent.

    Percy v C of S Board of National Mission [2005]:
    P was a female minister who was accused of sexual irregularities that she might have done. She resigned but claims she did so b/c of her fear of disciplinary behaviour.

    "The nature of the mutual obligations [of church and minister], their breadth and looseness, and the circumstances in which they were undertaken, point away from a legally-binding relationship. But this principle... cannot be carried into arrangements which on their face are to be expected to give rise to legally-binding obligations... It is time to recognise that employment arrangements between a church and its ministers should not lightly be taken as intended to have no legal effect."