Derek Shields was found guilty of failing to complete the 2011 Census at Liverpool Magistrates court in January. 
http://www.indymedia.org.uk/en/2012/01/491235.html. He explained to the magistrates that he had refused to comply because of Lockheed Martin's involvement in the Census ('I'm not getting into bed with an arms dealer') and his Christian faith. Today, the Crown Court upheld that conviction for reasons that have yet to be given. An application by the prosecution (respondents) for £1,300 in costs was refused. No costs were awarded against Derek. Derek has made it clear that he does not intend to pay the fine imposed by the Magistrates Court.
http://www.indymedia.org.uk/en/2012/01/491235.html. He explained to the magistrates that he had refused to comply because of Lockheed Martin's involvement in the Census ('I'm not getting into bed with an arms dealer') and his Christian faith. Today, the Crown Court upheld that conviction for reasons that have yet to be given. An application by the prosecution (respondents) for £1,300 in costs was refused. No costs were awarded against Derek. Derek has made it clear that he does not intend to pay the fine imposed by the Magistrates Court.
Derek's appeal was heard today at Liverpool Crown Court. The appeal was based on alleged incompatibility of the Census Act 1920 with Article 9 of the European Convention on Human Rights. As there are still Census cases in progress around the country, I thought it was worth having a go at a fairly detailed report of today's proceedings. I haven't quite finished it, so this is Part 1.
ARTICLE 9
“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.
DEREK'S EVIDENCE
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:
http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd050224/will-1.htm
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.
ARTICLE 9
“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.
DEREK'S EVIDENCE
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:
http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd050224/will-1.htm 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:
Comments
Display the following 5 comments