Court of Arches
Published October 8, 2007

In re St Peter and St Paul, Chingford
Before Miss Sheila Cameron, QC, Dean of the Arches, Mr Roger Kaye, QC, Chancellor and Mr Geoffrey Tattersall, QC, Chancellor Judgment August 14, 2007

In carrying out the balancing exercise necessary when considering whether to grant a faculty which would facilitate mobile telephone network coverage, it was necessary not to lose sight of the great benefits that had flowed from the introduction of the new technology when assessing the risk from evildoers.

The Arches Court of Canterbury so held in a reserved judgment, allowing an appeal by the petitioners, Quintel S4 Ltd, the Rev Tom Page, rector of St Peter and St Paul, Chingford, Mr Ted Cooke and Mr Gordon Hughes, churchwardens, against the refusal by Mr George F. Pulman, QC, Chancellor, in October 2006 in Chelmsford Consistory Court, of a faculty for the installation of a mobile phone base station and antennae in the church tower to be operated by T-Mobile for their 3G network coverage.

The chancellor had refused the faculty on the ground that some of the material to be transmitted through the antennae was not consistent with the use of the church as a place of Christian worship and that it was no part of the work or the mission of the Church to facilitate the transmission of pornography whether from the internet or privately created, whether lawful or unlawful.

Mr Stephen Turner, party opponent, in person; Mr Charles George, QC and Mr Philip Petchey for the petitioners; Mr Mark Bishop as friend of the court.

THE DEAN OF THE ARCHES, giving the judgment of the court, said that in faculty applications it was the role of chancellors to carry out a balancing exercise in order to exercise their discretion in a fair way.

It was necessary to ensure that a church was treated in a reverent and seemly manner consistent with its use as a place of worship and to that end a cautious approach had to be adopted in permitting something which might reflect adversely on the Church and any permission had to be subject to reasonable and proper safeguards.

It was important not to lose sight of the great benefits that had flowed from the introduction of new technology, such as the G3 network coverage, and it was necessary to keep a sense of balance when assessing the risk from evildoers.

Web crawlers and filtering techniques were in use to ensure that unsuitable content was not available for those under 18, and those over 18 had to prove their age in order to have the block on the mobile telephone lifted.

In addition, legislation was in place making it an offence to communicate grossly offensive or indecent, obscene or menacing information and furthermore the Internet Watch Foundation, a regulatory body that worked in partnership with government departments, had a good record of assisting law enforcement in respect of illegal sites.

Finally, a key strategy in dealing with misuse of modern technology was the education of children as to its proper use.

While the use of the church by a network provider to enhance its network would result in material being more readily available to people in the area, it did not follow that they would thereby be actively promoting pornography. The responsibility for accessing the internet and the choice of site lay with the individual.

Given the advantage to children of having good reception when communicating by mobile phone and the safeguards outlined above, the granting of a faculty with conditions would be consistent with the UK’s obligations under the UN Convention on the Rights of the Child (1989) (Cm 1976) in that article 17 required states to recognise “the important function performed by mass media and shall ensure that the child has access to information and material from a diversity of national and international sources” and should encourage “the development of appropriate guidelines for the protection of the child from information and material injurious to his or her wellbeing” bearing in mind the provisions of articles 13 (freedom of expression), 18 (parental responsibility) and 34 (to protect the child from sexual exploitation) of that Convention.

In carrying out the balancing exercise it was necessary to differentiate between children and adults. The major consideration was the risk to children who might access pornography on the internet.

It had to be acknowledged that it was not possible to eradicate every element of risk to children before introducing some new feature into modern life: see In re Emmanuel Church, Bentley ([2006] Fam 39).

However, the steps outlined above that had been taken were a reasonable and welcome public response to countering the risk to children.

As for adults, the risk was that some adults benefiting from the improved transmission in the Chingford area might use a mobile phone to access pornography which was not classed as unlawful by the criminal law.

To bar something which would be of benefit to the public generally because there was a risk that some would be able to access privately material which many Christians and others deplored, was to take an unbalanced approach.

A more balanced approach would be for Christians to work in conjunction with others at improving standards of sexual morality in society generally.

The appeal was allowed and a faculty was granted, subject to conditions, permitting the installation of a mobile telephone base station.

Solicitors: Lee Bolton & Lee, Victoria; Winckworth Sherwood, Westminster.

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