1 Available at <http://www.bl.uk/magna-carta/articles/magna-carta-english-translation>, accessed 7 July 2015. Specifically, the article protected the ‘freedom of the Church's elections’: ‘This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity.’ This was reiterated in the final peroration at article 63: ‘It is accordingly our wish and command that the English Church shall be free …’.

2 Also known as the ‘non-interference’ principle’: see R Sandberg, Law and Religion (Cambridge, 2011), pp 74–76. It does not apply to the Church of England as the established church: see M Hill, R Sandberg and N Doe, Religion and Law in the United Kingdom (second edition, Alphen aan den Rijn, 2014), p 76.

3 Blake v Associated Newspapers Limited [2003] EWHC 1960 (QB) per Eady J at para 5.

4 Sulaiman v Juffali [2001] EWHC 556 (Fam) per Munby J at para 47.

5 Hill, Sandberg and Doe, Religion and Law, p 76.

6 Psalm 143:3.

7 Proverbs 10:18, 30:10.

8 Matthew 12:36.

9 Blasphemy was long a common law and statutory offence which defied neat definition – see the Law Commission, ‘Offences against religion and public worship’, working paper 79 (1981), pp 5–6: ‘there is no one agreed definition of blasphemy and blasphemous libel’ – but it is often characterised as the defamation of religion. Prosecutions for blasphemy became increasingly rare; the last by the Crown was in 1922 and the only other prosecution before the crime was abolished by section 79 of the Criminal Justice and Immigration Act 2008 was a private prosecution in 1978. See the history of the crime in the House of Lords' judgments in Whitehouse v Lemon; Whitehouse v Gay News Ltd [1979] 2 WLR 281 HL.

10 Sandberg, Law and Religion, ch 2. Sandberg describes four phases in the historical development of religion and law: the ‘temporal–spiritual partnership’ which followed the Norman Conquest; ‘the era of discrimination and tolerance’ which resulted from the Reformation; the ‘epoch of toleration’ which followed the Glorious Revolution; and ‘the current age of positive religious freedom’ stemming from the 1998 Human Rights Act.

11 Row v Sir Thomas Clargis (1681) Raymond, Sir T 482, 83 ER 252. The court held: ‘1. That the words taken abstractively are actionable, because the Acts of Parliament of 23 Eliz. 3 Jac. and 25 Car. 2 do expose a Papist to several penalties and incapacities. 2. A fortiori, as the words have relation to the quality of the person, for a deputy lieutenant [the claimant] is an officer of great trust; … and the times alter the law when the sense of words alter; for though formerly (Papist) was not actionable, yet now 'tis grown to be a word of more reproach. It was objected farther, that to have the word Papist to bear an action would be a means to discourage prosecution of Papists. To which it was answered, that railing is no prosecution; and we must not punish the innocent, because we cannot exceed in our expressions of the innocent.’

12 Other common law jurisdictions, however, have a different culture against which to judge the imputation of a libel. In Chen Cheng v Central Christian Church [1999] 1 Sing LR 94 Sing CA, it was held that calling a church a ‘cult’ was defamatory because in Singapore the word was a pejorative one, meaning a religious group with teachings and practices that are abhorrent and harmful to society. See R Parkes et al, Gatley on Libel and Slander (twelfth edition, London, 2013), ch 2, n 213.

13 Thornton v Telegraph Media Group [2010] EWHC 1414 (QB) per Tugendhat J at para 96. There are other formulations of this test which elaborate on this basic idea.

14 Lachaux v Independent Print Limited [2015] EWHC 2242 (QB) per Warby J at para 15(50): ‘Although the word “affects” might suggest otherwise, it is not necessary to establish that the attitude of any individual person towards the claimant has in fact been adversely affected to a substantial extent, or at all. It is only necessary to prove that the meaning conveyed by the words has a tendency to cause such a consequence. The “people” envisaged for the purposes of this test are ordinary reasonable readers.’

15 On the background to the 2013 Act, see J Price and F McMahon, Blackstone's Guide to the Defamation Act 2013 (Oxford, 2013), ch 1. For the leading case on the meaning of serious harm, see Lachaux.

16 Lachaux at para 65.

17 Formerly the defences of justification, fair comment and responsible journalism. New defences include protection for the operators of websites and for peer-reviewed statements in scientific or academic journals. Extended defences include reports protected by privilege. See Price and McMahon, Blackstone's Guide, chs 3–9.

18 A Mullis and A Scott, ‘How to know the truth: accommodating religious belief in the law of libel’ in J Richardson and F Bellanger (eds), Legal Cases, New Religious Movements, and Minority Faiths (Farnham, 2010), pp 136–141.

19 In English law, there must be specificity before a person, whether legal or natural, can bring a defamation action. On the need for sufficient reference to the claimant, see Orme v Associated Newspapers, Times 4 February 1981 per Comyn J. The judge held that an article about the Moonies was capable of referring to the leader in England of that new minority religion. In that case, the grave charges must have been capable of referring to the plaintiff if only because people might say that he must have known what went on. See H Singh, ‘Religious libel: are the courts the right place for faith disputes?’ in Richardson and Bellanger, Legal Cases, ch 9, pp 152–154; Mullis and Scott, ‘How to know the truth’, p 134, n 9. In a more extreme example, in Ortenburg v Plamondon (1914) 24 Quebec KB 69, decided under the civil law of Quebec but referring to common-law cases, the defendant, in a lecture delivered in the City of Quebec, violently assailed and abused the Jewish race, its religious doctrines and social practices, the object being to put the public of Quebec on guard against the Jews of Quebec, who numbered only 75 families in a total population of 80,000 souls. It was held that, although not assailed individually, the plaintiff, being one of the ‘restricted collectivity’ of the Jews of Quebec, was entitled to maintain an action of defamation against the defendant. See Parkes et al, Gatley on Libel and Slander, 7.9–7.10.

20 See Frank Otuo v The Watchtower Bible and Tract Society of Britain (2013, unreported but available at <https://inforrm.wordpress.com/table-of-cases-2/>, accessed 6 October 2015) per HHJ Moloney QC for an example of where the expulsion of a Jehovah's Witness member triggered a libel claim.

21 Mullis and Scott, ‘How to know the truth’, p 141.

22 See Parkes et al, Gatley on Libel and Slander, 2.40, from where the following examples are drawn. More recent examples include Sharma v Sharma [2014] EWHC 3349, which involved allegations of criminality after the defendant was replaced by the claimant on the board of a national Hindu charity.

23 Archbishop of Tuam v Robeson (1828) 5 Bing 17.

24 Payne v Beaumorris (1661) 1 Lev 248; Evans v Gwyn (1844) 5 QB 844; Gallwey v Marshall (1853) 9 Exch 294; Stow v Gardner (1843) 6 Up Can QB (OS) 512; Steltzer v Domm [1932] 2 WWR 139. For words which, if directed against another would not be defamatory may be so if directed against a clergyman, because of the nature of the calling, see Murphy v Harty 393 P 2d 206 (Or 1964).

25 Cranden v Walden (1693) 3 Lev 17.

26 Phillips v Badley (1582) cited 4 Co Rep at 19a; Drake v Drake (1652) Style 363.

27 Maidman v Jewish Publications (1960) 54 Cal 2d 643.

28 Edwards v Bell (1824) 1 Bing 403.

29 Curtis v Argus (1915) 155 NY S 813; Dr Sibthorp's Case (1628) W Jones 366.

30 Kelly v Sherlock (1866) LR 1 QB 686.

31 Maccaba v Lichtenstein [2004] EWHC 1580 (QB) Gray J at para 9. However, in another religious slander case, albeit one under a different statutory regime, the claimant's declaration that she had been expelled from her religious congregation and had been unable to join another was not actionable, absent proof of special damage: Roberts v Roberts 16 (1864) 5 B & S 384.

32 See Dod v Robinson (1648) Aleyn 63; Parkes et al, Gatley on Libel and Slander, n 417.

33 Shergill and others v Khaira and others [2014] UKSC 33.

34 [2003] EWHC 1960 (QB).

35 Khaira at para 57.

36 Ibid at para 57: ‘The problem that such defamation claims face, which will usually doom them to failure, is that they raise issues of religious opinion on which people may hold opposing views in good faith. The expression of such views without malice is likely to be protected by the defence of honest comment – what used, until Joseph v Spiller [2011] 1 AC 852, to be called fair comment.’

37 [2010] EWHC 1294 (QB), aka His Holiness Sant Bab Jeet Singh Ji Maharaj v (1) Eastern Media Group Limited (2) Hardeep Singh.

38 [2010] EWHC 3610 (QB).

39 For a brief exposition of the Sikh community in the UK, see Singh, ‘Religious libel’, p 157. Singh himself was a defendant (along with his publisher, the Sikh Times) in the libel case of Baba Jeet v Singh, when he was sued by the Third Holy Saint. He explains the background to the religious dispute at pp 158–165.

40 The background facts are set out in the Court of Appeal judgment, Shergill v Khaira [2012] EWCA Civ 983 at paras 28–36 per Mummery LJ, and in Khaira at paras 2–11.

41 Khaira v Shergill [2013] EWHC 4162 (Ch) per HHJ Cooke at paras 22–25, emphasis added.

42 See Shergill v Khaira [2012] EWCA Civ 983 per Mummery LJ at paras 51–56. As the headnote put it, ‘it was not simply a question of the meaning of the word “successor”, but whether [the Third Holy Saint] fitted that description’.

43 [1982] AC 888, in which the House of Lords considered a claim for slander whose true goal was to obtain a decision of the English court about the boundary between the territory of three Gulf states, which affected the parties' off-shore drilling rights.

44 Shergill v Khaira [2012] EWCA Civ 983 per Mummery LJ at para 15, quoting Lord Wilberforce in Buttes Gas at 938 B–C.

45 See ibid at paras 16, 59, 70–71.

46 Ibid at paras 72–73.

47 Khaira at para 40.

48 Non-justiciability was juxtaposed to other matters, such as state immunity, the act of state doctrine and unenforceability of foreign penal, revenue or public laws, which are ‘generally questions of territorial limits of the competence’ of English courts or the competence that the courts recognise in foreign courts: ibid at para 41.

49 Ibid at para 42. See also Prebble v Television New Zealand [1995] 1 AC 321 and Hamilton v Al-Fayed [2001] 1 AC 395.

50 Khaira at para 43; see also Lord Bingham quote from R (Gentle) v Prime Minister [2008] 1 AC 1356.

51 Khaira at para 44.

52 Ibid at para 45.

53 Ibid at paras 46–48.

54 Although today statutory provisions may ‘provide a means of avoiding the judicial determination of a religious dispute’ in both jurisdictions: ibid at para 56. Hill, Sandberg and Doe, in Religion and Law in the United Kingdom, p 78, distinguish between courts intervening where there is a financial interest (the ‘Forbes v Eden principle’ (1867) LR 1 Sc & Div 568) and where the disposal and administration of property is at stake.

55 Khaira at paras 49–52, including consideration of the leading case of General Assembly of the Free Church of Scotland v Overtoun [1904] AC 515.

56 Khaira at paras 54–55.

57 Ibid at para 53. On the incompetence of courts in assessing the truth or validity of religious belief, see Gilmour v Coats [1949] AC 426 per Lord Reid; Lord Nicholls in R v Secretary of State for Education ex parte Williamson [2005] UKHL 15 at para 22.

58 R v Chief Rabbi of The United Hebrew Congregations of Great Britain and The Commonwealth ex parte Wachmann [1992] 1 WLR 1036 at 1042.

59 Khaira at para 58.

60 Wachmann at 1042–1043.

61 Ibid at 1043.

62 The reasoning in Wachmann has been described as ‘suspect on several counts, not least since the test for judicial review is the present of “public” functions not “governmental”’ (Hill, Sandberg and Doe, Religion and Law in the United Kingdom, p 79).

63 See above, n 34.

64 Blake at paras 1–10.

65 Ibid at para 11.

66 Ibid at paras 12–13.

67 Ibid at para 17.

68 Ibid at para 24.

69 Ibid at para 25.

70 Ibid at para 27.

71 Ibid at paras 28–30.

72 Ibid at para 31.

73 Ibid at paras 35 and 38.

74 Ibid at para 33.

75 Khaira at para 59.

76 Baba Jeet at para 8.

77 Purewal at paras 1–8.

78 Baba Jeet per Eady J at para 41 following the reasoning in Blake. The Third Holy Saint successfully obtained permission to appeal but a substantive appeal was not heard as he failed to pay security for costs: His Holiness Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group and Anr [2011] EWCA Civ 139.

79 Baba Jeet per Gray J at para 35.

80 Otuo v The Watch Tower Bible and Tract Society of Britain, claim no HQ 13 D 03755 at paras 20–21. A copy of the judgment is available at <https://inforrm.files.wordpress.com/2013/12/otuo-v-watchtower-bible-and-tract-society.pdf>, accessed 14 October 2015.

81 Ibid at para 2.

82 Ibid at paras 7 and 12.

83 Ibid at para 14.

84 Ibid at para 23.

85 Ibid at paras 24–25. Mr Otuo's libel case was later dismissed on grounds of limitation ([2015] EWHC 509 (QB)) but he is still pursuing a slander case in relation to the matter: [2015] EWHC 1839 (QB). The alleged slander, one of fraud, has yet to have a hearing on meaning but both sides appear, at para 3, to define it in ‘specifically religious terms'. It remains to be seen whether the more usual, natural and ordinary sense of the word will be the basis of meaning pleaded at trial.

86 Blake at para 36. See also para 31, where the defendant averred that Otto-Preminger-Institut v Austria, App no 13470/87 (ECtHR, 20 September 1994) and s 12(4) of the 1998 Human Rights Act supported the proposition that ‘if the right of the newspaper to deploy material in support of the defences of justification and fair comment were to be circumscribed by the court, its right to freedom of expression under Article 10 [ECHR] might be infringed’. Section 12(4) obliges the court to pay ‘particular regard’ to the ‘importance of the Convention right to freedom of expression’ and, inter alia, to the benefit of any defendant respondent, the extent of publication and whether publication was in the public interest.

87 See Overtoun at paras 45 and 53.

88 Mullis and Scott, ‘How to know the truth’, p 144.

89 Khaira at para 57.

90 Otuo at para 25.

91 F Cranmer, ‘Is religious doctrine justiciable? Up to a point, yes: Shergill v Khaira’, Law & Religion UK, 11 June 2014, <http://www.lawandreligionuk.com/2014/06/11/is-religious-doctrine-justiciable-up-to-a-point-yes-khaira-v-shergill/>, accessed 15 July 2015.

92 N Addison, ‘Shergill v Khaira: when can religious doctrine be justiciable?’, Religion Law Blog, 12 June 2014, <http://religionlaw.blogspot.co.uk/2014/06/shergil-v-khaira-when-can-religious.html>, accessed 1 July 2015.

93 J Rivers, The Law of Organized Religions: between establishment and secularism (Oxford, 2010), p 73. This is in contrast to the ‘modern doctrine’, which holds that courts should ‘not even resolve disputed questions of religious doctrine and government as matters of fact’. It is ‘thus a form of blindness to social reality and the expectations of the parties. It leads to a curious instability in the law’, between denial of a remedy to the claimant on the one hand and the search for a wholly non-religious basis for legal decision-making on the other. See also Rivers' preference for the secular approach to Blake: ‘One can easily distinguish between claims which are simply true or false (eg that a person does or does not hold a certain position in a certain religious organization) and claims which depend on a theological judgment’ (p 145).

94 R v Registrar General of Births, Death and Marriages ex parte Hodkin [2013] UKSC 77, reversing the principle of the Court of Appeal in R v Registrar General, ex parte Segerdal [1970] 2 QB 697.

95 H Singh, ‘A leap of faith: the rise of religious libel cases’, Inforrm's Blog, 11 March 2015, <https://inforrm.wordpress.com/2015/03/11/a-leap-of-faith-the-rise-of-religious-libel-cases-hardeep-singh/>, accessed 15 July 2015: ‘Reports on those alleged to be involved with Islamic extremism and charismatic [new religious movement] leaders, along with the increased use of social media, provide ample opportunity for the issuing of further defamation writs. Religious practitioners with deep pockets want to manage reputations just like everyone else. They should also expect to be held accountable for their transgressions.’

96 Thomas Phillips v Thomas Monson [2014] Westminster Magistrates Ct (20 March 2014) per District Judge Riddle: ‘It is obvious that this proposed prosecution attacks the doctrine and beliefs of the Mormon Church, and is aimed at those beliefs rather than any wrong-doing of Mr Monson personally. The purpose is to use criminal proceedings to expose the false (it is said) facts on which the church is based. It is inevitable that the prosecution would never reach a jury, even if Mr Monson chooses to attend. To convict, a jury would need to be sure that the religious teachings of the Mormon Church are untrue or misleading. That proposition is at the heart of the case. No judge in a secular court in England and Wales would allow that issue to be put to a jury. It is non-justiciable.’ <http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Judgments/thomas-phillips-v-thomas-monson.pdf>, accessed 15 July 2015.

97 Singh, ‘Religious libel’, pp 153–154.