“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
“Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.”
The arguments in the appeal were around whether the compulsory obligation to complete a Census return with criminal sanction for failure is compatible with Article 9 in circumstances where someone refuses to complete the Census on grounds of religious belief. In the specific circumstances of Derek's case, he said that once he had found out that Lockheed Martin were involved in the Census and had read about their business in the arms trade, he felt obligated to resist the Census and that this was based on his Christian commitment to nonviolence.
The most compelling part of today's hearing was the evidence provided by Derek under the examination of his barrister, the Judge and cross-examination by the prosecution.
In his trial in the Magistrates Court, where Derek appeared without legal representation, his comments to the court (he did not give evidence under oath) referred to his unwillingness to 'get into bed with arms dealers', his Christian faith and his intention to refuse to pay any fine imposed.
Under oath today, Derek expanded on these points. He said that if he were to complete the Census, he felt he would in effect be working for this arms company and he was not prepared to do anything that would help them get money – it goes against his principles and his religion. He said he was Christian and follows the teachings of Jesus Christ, which include not to kill. Referring to Lockheed Martin, he said:
'These people make cluster bombs and other things that kill little children... They profit from other people's misery.'
Derek spoke about his commitment to nonviolence and how he felt under an obligation to refuse to involve himself with the Census, given the contract with Lockheed Martin. He didn't feel he had a choice but to refuse, even though he knew he could be prosecuted as a result.
Asked what he knew about Lockheed Martin at the time of the 2011 Census, he said that a friend had told him about their involvement in the Census in maybe February or March 2011. He knew the name Lockheed Martin in connection with 'spaceships and aeroplanes', but after his friend had pointed out their war related activities, he looked up the information on the internet and discovered what they do.
'They've been involved in every war since World War II, when they worked with the Nazis.'
Derek was examined in some detail about his faith and his commitment to nonviolence. He explained that he follows the Bible since becoming a committed Christian in 1988, joining a Pentecostal church where he is no longer a regular attender. These days he prays several times daily and sometimes attends a Christian Fellowship. In answer to a question about whether he considers himself religious, Derek commented on his disaffection with all the 'pomp and ceremony' and 'ritual' of organised religion, saying he rejected this but 'I believe in Jesus Christ and do my best to follow the Bible.' He also said 'If anyone needs help, I'll help them.'
Derek said that before he became a Christian, he believed in God but didn't know any more. At that time he had no problem with violence, but now he would walk away from it. When pressed by the judge about a definition of pacifism, he said he was committed not to hurt anyone else and if his country was invaded by a hostile force, he would be prepared to drive an ambulance for instance, but not to take up arms. The Judge pressed him further on how he might behave if he or someone close to him were threatened. Derek said he would try to stop them and would defend himself but he wouldn't kill them and would not pick up a gun. Asked how he might react if the other person had a gun, he said 'I'd be running.'
There was also some questioning about other activities that might contribute to war and killing and whether Derek objected to these, for example the element of taxation that goes for warmongering and the Judge made reference to peace tax campaigners who had withheld a proportion of their income tax on these grounds. Derek hadn't heard of them and said he would now look into the idea(!) The judge said hastily that he wasn't recommending such action. No one mentioned that in order to have the facility to withhold a proportion of your taxes, you have to have your own business (ie not be on PAYE where tax gets deducted at source). Derek said that he knows he's paying taxes for war every time he goes shopping but doesn't think he can do anything about that – he has to shop – but he did feel that he could do something by refusing to complete the Census. Derek's understanding at that time was that Lockheed Martin would lose money for uncompleted forms.
THE LEGAL ARGUMENTS
I'll try to summarise the essence of the arguments, although some of them seemed (to me) rather obscure or I missed the point being made.
In order for an appeal under Article 9 to succeed, it is necessary to show (1) the existence of a belief, (2) a manifestation of that belief, (3) that the mandatory requirement to complete the census with criminal sanctions for failure interferes with the Article 9 right and (4) that this interference cannot be justified under the ECHR.
It has been conceded by the prosecution that charges brought under the Census Act 1920 (failure to complete Census – sorry, haven't looked up exact wording) are not 'strict liability' offences, where the defendant may be found guilty purely on the act of failing to complete the form without any requirement for the prosecution to show intent or 'mens rea' (guilty mind). I wasn't clear about the relevance of this in Derek's case since it became apparent that a large part of the skeleton argument dealt with this point, yet in court the defence barrister agreed with the prosecution than mens rea had been demonstrated, rendering the strict liability argument irrelevant as far as I could see. However, it could be relevant for other cases.
Derek's barrister raised an issue over how courts should go about determining whether a religious belief exists for the purposes of an Article 9 appeal. He quoted Lord Nicholls in the case of R (Williamson) v Secretary of State for Education and Employment (2005) who at para. 22 states that any inquiry into religious belief should be limited and 'it is not for the court to embark on an inquiry into the asserted belief and judge its 'validity' by some objective standard.' It's worth reading the full paragraph. Link to ruling here:
The barrister went on to say that the other side had not contested the genuineness of Derek's belief. He argued it is genuinely held and it is an absolute right for Derek to hold such beliefs. How he acts upon that belief, however, is a qualified right.
In another Article 9 ruling, Begum v Denbigh High http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060322/begum.pdf the application failed partly because the appellant – a young woman who wished to dress according to her religious beliefs in school – had the option to attend a different school if she didn't accept the school uniform code. In Derek's case, he had no such alternative option. He objects on grounds of religion to the Census as contracted to Lockheed Martin, but there's nowhere else for him to go.
The Arrowsmith v UK ruling involves a narrow interpretation of 'manifestation of belief' in which the judges held that the distribution of leaflets (encouraging troops to pull out of Northern Ireland) was not a manifestation of pacifist beliefs. I didn't quite grasp what Derek's barrister was arguing in relation to this case, but there was a lengthy interruption by the Judge mid-flow which didn't help matters. The general thrust of Derek's barrister's argument was that a wider interpretation of 'manifestation of belief' is appropriate. Because of his religious beliefs, Derek acted under a perceived obligation to refuse to comply with the Census. It was argued that this should be seen as a 'manifestation of belief'.
The next issue to be addressed was whether there was interference with an Article 9 right and, if so, whether that interference could be justified. The judge queried whether the interference test was an objective one, concluding 'it must be, mustn't it?' The barrister blustered a bit around this point, but concluded that compelling someone to do something contrary to their belief did constitute interference. On the question of justification, the barrister quoted the case of C v UK, a case of a Quaker objecting to being compelled to pay tax that would be used for armaments. The finding had been against C and the Judge interjected that the case was unhelpful for the appellant's case. The barrister argued that the findings in C v UK did not apply in this case, that the right to raise taxes was enshrined in the European Convention, whereas the right to conduct a Census was not and the two were not comparable.
He went on to make a case that allowing the C v UK case to succeed would have 'opened the floodgates' for tax refusers (I think he said that this was an element of the Judge's reasoning in C but not sure about this), whereas there was no such danger in Derek's case. This seemed to me to be an exceptionally flawed argument, especially in a human rights case. It amounts to 'You can let Derek win because it won't have much effect, but it was good that the case of C failed because if it had succeeded, loads of people would have refused to pay their taxes.' Maybe if C had succeeded, it would have forced governments to look more carefully at the proportion of taxes they spend on armaments... Also, in Derek's case, the implications of success are in fact quite large, as explained in this article: http://www.guardian.co.uk/uk/2012/may/26/census-act-judicial-review
Part of the C ruling was about the supposed 'neutrality' of tax collection. Derek's barrister argued that a Census with Lockheed Martin in the picture could not be considered neutral.
The barrister concluded that compulsion coupled with criminal sanction represents a disproportionate and unnecessary interference. The Judge then interjected, referring to a previous census case of X v UK, concerning interference with privacy and family life. The case was not settled in X's favour, finding that the Census was in accordance with the law and necessary and that census information is treated with care and confidentiality (I think this latter was a reference to the ruling and not the Judge expressing his opinion). [Although no evidence was brought in this case, there are many concerns around Lockheed Martin's involvement and confidentiality. See Census Refuser John Marjoram's point on confidentiality here: http://indymedia.org.uk/en/2012/05/496093.html].
The Judge asked 'How do you distinguish this case from X?' The barrister answered that the Census in 2011 is no longer necessary with the evidence for this appearing to rest on things Francis Maude MP has said about it and an assertion that so much data is now collected about the public on various existing databases, we don't need a Census. In the Judge's view, 2009 was the crucial date, as this was the point that the decision to go ahead with the 2011 Census was taken.
Other cases mentioned were Donoghue v Stevenson, although the latter may only have been referred to by the judge as an example of an old case that is still relevant today rather than directly relevant in this case after Derek's barrister argued that X was a 20 year old case and in need of review.
There was a question from the Judge about whether the appellants considered that removal of Lockheed Martin from the equation would have rendered the requirement to complete the Census form a reasonable interference with Article 9 rights. There was also some reference to Lockheed Martin UK, the wholly owned subsidiary of Lockheed Martin US paying taxes in the UK. I'm not sure of the relevance of this point, but the barrister had no idea how much they paid in UK tax and went on to end his submissions there after a brief summary.
Part 2 to follow. I'll post it as an addition to this article.
e-mail: noconcensus [at] yahoo.co.uk
The hearing continued with the prosecution barrister outlining his response to the appeal case.
He said that the prosecution was satisfied that the defendant held a religious belief and that he refused to complete the form because of the connection between the form and Lockheed Martin arms manufacturers.
He contested whether the act was a manifestation of Derek's belief, stating that Strasbourg jurisprudence does not protect every act motivated or inspired by religious belief and that it envisages manifestation as observation and practice of religion in the ordinary sense.
The Judge referred to the Article 9 definition of manifestation as including worship, teaching, practice and observance and suggested that Derek's act would probably come under the 'observance' heading. The barrister maintained that it was a 'very fine distinction' but that his view was that simple refusal to complete the form is 'one step too far' to be manifestation, claiming 'you are not expounding these beliefs to anybody just by failing to fill in the form' which seemed to neglect the point that Derek had in fact expounded his beliefs both to the census enforcement officers and later in public in the Magistrates Court and now here in the Crown Court. It was also clear during his evidence that he had discussed the matter with friends and in any case, the wording is 'manifestation of belief' which does not necessarily mean 'expounding these beliefs' to another.
The barrister explained that the respondent's case also relied on C v UK, as already discussed and he also used the – in my view – completely ridiculous argument about the risk of 'opening the floodgates' to support a narrow interpretation of manifestation of belief.
In response to the other side's use of the Williamson case, he said that the facts were quite different, whereupon the Judge interjected with a reference to Judge Walker's comments in that case, that if a court decides that someone holds a sincere opinion and acts in a way which just about scrapes over the thresholds of religious belief and manifestation (by giving the claimant benefit of the doubt), then this has to be taken into account in reaching a decision on the second part of the test – about interference and justification. The barrister responded that Derek's beliefs were not being contested, the question was more over manifestation – 'we query that'.
The Judge commented on the fact that the skeleton argument, which was not written by the barrister representing Derek at the hearing, 'hardly homes in on the real issue – Mr Shields' religious/quasi-religious views.' The barrister agreed but said that the Crown had anticipated that issue. I was quite shocked at the Judge's use of 'quasi-religious' here. The Crown's barrister had just said that Derek's religious beliefs were not being questioned. Derek's evidence had made it clear that he meets the definition suggested by the Judge as having 'a set of beliefs based on a belief in God', that he follows the Bible, but has issues with organised religion, seeing pomp and ceremony and churchgoing ritual as problematic (this is hardly unusual), that he engages in prayer and tries to live his life according to these beliefs. Earlier, Derek had been asked by the judge why he had not sworn an oath on the Bible, and Derek had responded with a direct quote from Matthew, quoting Chapter and Verse. In these circumstances, it is hard to see the above comment by the Judge as impartial, rather it appeared to me to be paving the way for a ruling against Derek based on him having 'just scraped over' both the religious beliefs and manifestation thresholds.
The court broke for lunch, resuming at 2pm for the respondent to address the issues of interference and justification. The barrister repeated that the census is a neutral request for information that does not distinguish between anybody. The Judge said that it was not the same, insofar as someone paying taxes knew for certain that some of the money paid would inevitably go towards arms whereas Derek was not in a position to prove that some of the money paid by way of the Census contract has gone to arms manufacturers. This seemed a strange line of reasoning to me, given that Lockheed Martin UK is a wholly owned subsidiary of Lockheed Martin US, which is the world's largest arms manufacturer. The Judge went on to analyse Derek's position as 'Lockheed Martin were involved. Therefore he wanted nothing to do with it.'
In relation to the argument that Derek could have demonstrated his objection to Lockheed Martin through the democratic process, the Judge pointed out that by the time Derek became aware of LM's involvement, it was too late for that, but that many people had opposed the proposed contract before it was awarded.
The Crown's barrister continued with an argument about the social utility of the Census and made a further reference to the C v UK case: 'C is about raising taxes; this is about spending taxes – billions of pounds.' [Other Census refusers have contested this analysis, notably Deborah Glass Woodin here: http://indymedia.org.uk/en/2012/05/496222.html].
The barrister invited the court to maintain the comparison with the C case and to rely on the X case too. He concluded that although there has been considerable debate about the Census, it 'went ahead with legitimate aims in mind.' He also said that to have compulsion behind it is essential to ensuring people return their forms. The Judge asked for the barrister to pass up a copy of the Census form. He leafed through it, waved it in the air and said that if all the questions in this bulky document were optional, the government wouldn't be able to collect the information as many people wouldn't bother returning it.
REPLY FROM DEFENCE/APPELLANT
The defence barrister didn't say much in response, just pointed out again that Derek had no other recourse in that moment, no other way to manifest his conscience than to refuse to comply. He also said that that compulsion coupled with criminal sanction was not justifiable and asked – Is it necessary interference?
Judge Nigel Gilmour QC conferred for a few seconds with the two lay magistrates alongside him, then announced that they had all 'discussed our views over lunch and we have not heard anything in the last 10 minutes to alter the decision we made before. This appeal is unsuccessful and is dismissed. Given the importance of this case, I deem it prudent to reserve the reasons for the decision. As soon as possible I will have reasons in writing and these will be distributed to the parties. I don't understand Mr Shields to be appealing against the sentence.'
The importance of the case referred to other Census cases that might be affected by it.
Derek's barrister confirmed that it was the conviction that was being appealed, not the sentence imposed (although Derek has made it clear he will not pay the fine).
The prosecution asked for £1,300 in costs.
The court then rose so the prosecution could explain to the defence how the figure had been reached. I left the court at this point.
When Derek came out a few minutes later, he said that on the basis of his means, no costs were being awarded against him.
So that was that.
Having sat through this case and typed up these notes, it seems to me that there are a number of arguments that weren't explored and could be used either to appeal to a higher court in this case or that would be relevant to other people's cases (each of which will obviously differ as to the facts).
Derek will consider the possibility of further appeal once the written reasons have been produced.
e-mail: noconcensus [at] yahoo.co.uk
It was my Mention Hearing today. I got the train to Liverpool and arrived at Dale Street to be met with the big gates closed over and a message board stating that the court was closed and you had to then get yourself to Victoria Magistrates court. Arrived there to be told that my case had been moved to the Crown Court. I informed them that as I was disabled, it was unacceptable for them to expect me to walk across town to the crown court and I was going to sit down whilst they informed the crown court of what I said. They came back half an hour later with a slip of paper informing me that my hearing was now adjourned for 3 weeks (5 July) and I was free to go home!! The 2nd issue I had, was that Victoria magistrates court has no disabled access. There was a young, severely disabled child and a woman in a wheelchair who had struggled to gain access. I was told there is a "ramp somewhere." Really?? So what is the gradient for people walking on such a ramp, where is the handrail for people with mobility problems to hold on to? What a day!!!