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Published online by Cambridge University Press: 31 July 2008
The past year or so has seen a number of incidents where a public service has been disrupted by a group of people seeking to make a point through the attendant publicity. An example occurred in February 1995 when the gay rights group ‘Outrage’ disrupted the enthronement of the Bishop of Guildford. Such an incident inevitably gives rise to questions of law, and this article intends to survey very briefly the law which is particularly applicable in cases where there are disturbances in places of worship. Of course, both the general law concerning public order and the common law relating to breach of the peace also apply as much within churches as without. However, much is written about them elsewhere.
1 The Right Reverend John Gladwin was enthroned as eighth Bishop of Guildford on Sunday 18th February 1995. The protesters from ‘Outrage’ stopped the Episcopal Procession before the Bishop reached the West Door to take possession of his Cathedral Church. A further disruption took place during the enthronement itself when members of the group rushed onto the chancel steps waving posters and shouting. See The Guiltlford Diocesan Herald. No. 84. February 1995.
2 (1824) 2 Add 141.
3 Hutchins v. Denziloe (1792) 1 Hag Con 181. per Sir William Scott, and also Palmer v. Roffey (1824) 2 Add 141 at 144.
4 5 & 6 Edw. VI c.4. repealed by the Ecclesiastical Jurisdiction Measure 1963. s.87. Sch.5. see Williams v. Glenister (1824) 2 B & C 699 at 702 per Abbott. C.J.
5 1 Mar. Sess. 2 c.3. repealed by the Criminal Law Act 1967. s. 13. Sch.4. Pt. 1.
6 23 & 24 Vict. c.32. The Ecclesiastical Courts therefore still retain jurisdiction over clerics for the commonlaw offence of Brawling, even though the clergy are also bound by the 1860 Act: Vallancey v. Fletcher [1897] 1 QB 265.
7 18 & 19 Vict. c.81.
8 Strangely, unlike the clergyman in holy orders, the preacher is protected even when not ministering etc.: see Cope v. Barber (1872) LR 7 CP 393 at 401 per Willes J.
9 This part of the section covers the celebration of any sacrament outside a church etc., as the expression ‘divine service’ includes sacraments: see Matthews v. King [1934] 1 KB 505, [1933] All ER Rep 942.
10 The original maximum fine of £5 was increased to £20 by the Criminal Justice Act 1967, s.92(l),(9), Sch.3, Pt. 1, and is now level 1 on the standard scale (currently £200) by virtue of the Criminal Justice Act 1982, ss. 38, 46 and Orders made thereunder.
11 1860 Act, s. 3, as amended by the Police and Criminal Evidence Act. 1984, Sch.7.
12 1860 Act, s.4, as amended by the Summary Jurisdiction Act 1884 (47 & 48 Vict. c.43). s.4, and the Courts Act 1971, s.56(2), Sch.9, Pt. 1.
13 In that, it succeeded, and behaviour which is ‘indecent’ under this Act remains also an offence under the general ecclesiastical law: Giri v. Fillingham [1901] P 176 at 183 per Kempe Ch., and Newbery v. Goodwin 1 Phillim. 282 at 283 per Sir John Nicholl, Dean.
14 Abrahams v. Cavey [1968] 1 QB 479 at 485E. DC, per Lord Parker C.J. (C.A.). See also ‘Ad Ostium Ecclesiae’ (1950) 114 JPJ 498Google Scholar. Indeed, it is only in modern cases that such an argument has been advanced.
15 Which expression includes riotous, violent and indecent behaviour.
16 Newbery v. Goodwin (1811) 1 Phillim, 282 at 283.Google Scholar
17 E.g. Jones v. Catterall (1902) 18 TLR 367 per Alverstone C.J.
18 Taylor v. Morley (1837) 1 Curt 470 at 483. otherwise ‘… any indecent or indecorous language might be used with impunity.’
19 R. v. Farrant [1973] Crim.L.R. 240.
20 Hutchins v. Denziloe (1792) 1 Hag Con 181, per Lord Stoweli ‘that may be chiding or brawfing in the church, which would not be so in the vestry’; Taylor v. Morley (1837) 1 Curt 470 at 483 (Archdeacon's Visitation); Worth v. Terrington (1845) 13 M & W 781 at 795.
21 Which was not. however, repealed at that time.
22 The 1553 Act was more explicit: ‘…lycensed allowed or aucthorised to preache, by the Quenes Highnes, or by any archebishoppe or bishoppe of this realme, or by any other lawfull ordinarie, or by any of the universities of Oxforde and Cambridge, or otherwise lawfully aucthorised or chardged by reason of his or their cure benefice or other sp[irit]uall promotion or charge. …’
23 Glasgow College v. Attorney-General (1848) 1 HL Cas 800 at 823. This marked a change from the 1553 Act. which was drafted mainly in terms of offices ‘…person vicar parishe preist or curate, or any law-full preist…’ (which did restrict it to the Church of England) rather than holy orders in general.
24 Cope v. Barber (1872) LR 7 CP 393 (D.C.), where the churchwardens were charged with molesting a clergyman. Willes. J. draws the distinction at p.401. Presumably, therefore, if they had been charged with molesting a person authorised to preach, as Mr Cope appears to have been, they would have been convicted.
25 24 & 25 Vict. c. 100.
26 Magistrates Courts Act 1980, s. 17, Sch.1, para.5.
27 Six months on summary conviction.
28 50 Edw. III, c.5 (Quest of Clergy Act 1376), rep. Ecclesiastical Jurisdiction Measure 1963, s.87, Sch.5; and 1 Ric. II, c. 15 (Quest of Clergy Act 1377), rep. Offences Against the Person Act 1828 (9 Geo. IV, c.31), s.1
29 9 Geo. IV, c.31, rep. Criminal Statutes Repeal Act 1861 (24 & 25 Vict, c.95), s.1.
30 Palmer v. Roffey (1824) 2 Add 141 at 145, 147.
31 Giri v. Fillingham [1901] P 176Google Scholar, Asher v. Calcraft (1887) 18 QBD 607.
32 SirScott, William, Ch. in Cox v. Goodday (1811) 2 Hag Con 138 at 141.Google Scholar
33 Canons of the Church of England, Canon.E1, para.4 and Canon.E2, para.3. See also Canon.B9, para.2 (duty to give reverent attention in the time of divine service). See also 1603 Canons: 90, 18.
34 E.g., by forcibly removing the hat of an offender who refused to do so: Haw v. Planner (1666) 1 Wms Saund 10; 1 Sid 301; 2 Keb 124. The latter report also suggests it was lawful to chastise boys playing in the churchyard. See Hawkins, , Pleus of the Crown, (8th Edn.) ch.28, s.29.Google Scholar
35 See Williams v. Glenisler (1824) 2 B & C 699 at 702, but the right of detention is only until the service has ended, and then to take the person before a justice of the peace.
36 Williams v. Glenister (1842) 2 B & C 699 at 702.
37 Hutchins v. Denziloe and Loveland (1792) 1 Hag Con 170 at 174.
38 Glever v. Hynde (1673) 1 Mod Rep 168 (approved in Burton v. Henson (1842) 10 M.& W. 105 at 108). Counsel for the defendant cited the example of Christ in the Temple as a precedent! Even the minister may do so, but such a situation is best avoided: Cox v. Goodday (1810) 2 Hag Con 138 at 141. See also Phillimore, p.740 and Gibson, p.304. For an injunction under the 1860 Act, see Saffron Walden Parochial Church Council v. Walker 12 Oct. 1995 (unreported).
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