HARVARD ILJ ONLINE

VOLUME 49 – MAY 28, 2008

Sacred Space and the City: Religious Buildings and Noise Pollution

Samantha Knights * Our cities exude a cacophony of sounds. Every day, city dwellers must brave the drone of traffic, the wail of sirens, and the clamor of construction, not to mention pub closing time banter, stadium noise, and the occasional fireworks display. For the most part, noise arising from emergency vehicles, building sites, or social events are considered part and parcel of the urban environment. By contrast, noise from church bells, the call to prayer from a mosque, or other religious buildings may be drowned out in decibel terms by the surrounding hubbub. However, judging by the furor over the recent decision by a mosque in Oxford, England, to obtain permission from the local council to amplify its call to prayer (azan), it appears that noise emanating from religious buildings may be viewed quite differently. The prospect of a muezzin’s call overlaying the peal of church bells in the so-called ‘city of dreaming spires’ sparked national controversy. 1 It echoed an earlier debate that emerged over an ultimately successful application by Birmingham Central Mosque to broadcast the call to prayer in the 1980s. 2 In many parts of English cities, synagogues, mosques, churches, and other religious buildings have stood in close proximity for decades, emitting a variety of

1 See Mosque’s plan to broadcast call to prayer from loudspeaker ‘will create Muslim ghetto, DAILY MAIL, Jan. 14, 2008. 2 See Richard Gale, Planning Law and Mosque Development: The Politics of Religion and Residence in Birmingham, in LAW AND ETHNIC PLURALITY: SOCIO-LEGAL PERSPECTIVES 127-44 (Prakash Shah, ed., 2007). After the planning authority initially recommended refusal, the mosque withdrew its application, then resubmitted it in 1985 (2 years later). On this occasion, the planning authority agreed to a trial period. Following a public consultation, it recommended approval of the application for calling midday and afternoon prayers.

Copyright © 2008 by the President and Fellows of Harvard College and Samantha Knights.

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related sounds. The mixed London borough of Hackney is a prime example. 3 Yet, this did not prevent a Hassidic rabbi in charge of a synagogue and Jewish school in the borough from being successfully prosecuted before a Magistrates’ Court on six counts of noise nuisance, three of which took place during Sabbath celebrations, one during the religious prayers at school, one during Passover celebrations, and one during a one-off event celebrating the induction of a new scroll (Hachnosas Sefer Torah) which event had already been authorised by the police and had police escorts for the procession. 4 The rabbi was given a conditional charge for two years and ordered to pay costs of £4000 within six months. 5 Given that such prosecutions are relatively unusual, it is worth exploring the case in a bit of detail in the context of the balance between religious freedom and the public interest in environmental protection. The rabbi appealed to the Crown Court by way of a de novo hearing, 6 arguing inter alia that (1) there was no statutory nuisance within the meaning of the Environmental Protection Act 1990, 7 (2) he had a reasonable excuse (a statutory defence under the Act), 8 and (3) the prosecution was a disproportionate interference with his rights to religious freedom, freedom of expression and freedom of association under the European Convention on Human Rights and Fundamental Freedoms (ECHR). 9 The Court heard evidence from five environmental health officers or pollution control officers employed by the local council. 10 Perhaps surprisingly, given the diverse ethnic and religious make-up of the locality, the council had no specific policy dealing with religious places of worship or school and noise nuisance. Moreover, a number of the officers were unaware of the significance of the particular dates in question in the Jewish calendar, although they accepted that noise nuisance was context specific. 11 The Crown Court quashed all six counts on the basis that the noise could not be considered a statutory nuisance under the 1990 Act. 12 With respect to the incident 3 See THE U.K. STAT. AUTH., U.K. 2001 CENSUS (2001), http://www.statistics.gov.uk/StatBase/ssdataset.asp?vlnk=8286&Pos=6&ColRank=1&Rank =176. Statistics show that of the borough’s population of 202, 824, 46.6% describe themselves as Christian, 5.3% as Jewish, 13.8% as Muslim, 1.1% as Buddhist, 0.8% as Hindu, 0.9% as Sikh, 0.6% as followers of other religions, 19% as having no religion, and 12% as not stating their religion. 4 Samantha Knights, Noise Nuisance under EPA 1990 and Article 9 ECHR: London Borough of Hackney v. Rottenberg, 3 ENVTL. LIABILITY 150, 151 (2007). 5 Id. At 150 6 See R. (on the application of Hackney LBC) v. Rottenberg, [2007] EWHC (Admin) 166, [3], [9] for details of the Crown Court hearing. 7 Environmental Protection Act, 1990, c. 43, § 79. 8 Id., § 80, ¶ 4. 9 European Convention for the Protection of Human Rights and Fundamental Freedoms, arts. 9-11, 4 Nov. 1950, 213 U.N.T.S. 222. 10 Rottenberg, supra note 6, ¶ 7. 11 Id. 12 Id. ¶ 14.

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during school hours, this was of short duration and not something that the Court regarded as triggering criminal liability. 13 As regards the Induction of the Scroll, this was considered “a matter of great religious significance which is accompanied, as the appellant readily accepts, by a great deal of noise with amplified music from a lorry on the street, a procession guided by the police, and a welcome within the synagogue, which we have little doubt is a fairly noisy, but fairly short, welcome. . . . this was a one-off matter which did not properly trigger the sanctions in the Environmental Protection Act.” 14 The other four occasions all arose during the practice of regular offices of the synagogue. While the noise was clearly enough to penetrate walls, the justices were not satisfied that the criminal standard had been met, and the intrusion sufficient to cause a “nuisance rather than an irritation”. 15 Although forming no part of the judgment on the critical issue, the evidence before the Court was that a Jewish school had operated at the premises since at least 1982, there was a far larger synagogue over the road which was not the subject of complaint, and there was a single complainant, a Muslim neighbor who had lived next door since 1983 and had made no complaints at all for a period between 1991 and 2004. 16 The result of the case plainly made considerable sense in the light of the specific facts. The finding of no statutory nuisance obviated the need for the Court to wade into the more murky waters of balancing religious freedom, on the one hand, and the public interest in environmental protection, on the other, under the ECHR. However, the Court did conclude that were they wrong to reject the evidence of the officers, the freedom of religion concerns stated in Article 9 of the ECHR did not amount to a bar to prosecution. 17 Not content with a judgment seemingly based upon facts, the council appealed by way of case stated to the Divisional Court on the basis that the Crown Court was not entitled to reject the evidence of experienced environmental health officers as to what constituted noise nuisance. 18 The Divisional Court disposed of the appeal in a short judgment following clear authority in R v Stockwell 19 , to effect that a court is not bound to accept uncritically the evidence given by a witness, even an expert witness. Although the Divisional Court did not need to consider the issue under Article 9 ECHR, it confirmed per curiam that if a religious service is conducted such that a court finds it a statutory nuisance, the fact that the disturbance was created in the course of religious worship is unlikely to amount to a reasonable excuse or to render a prosecution disproportionate under Article 9 of the Convention. 20 Given that Article 9 is a qualified right, 21 this finding is perhaps unsurprising. However, an interesting Id. Id. 15 Id. 16 See Knights, supra note 4, at 151. 17 Rottenberg, supra note 6, ¶ 9. 18 Id. ¶ 15. 19 Id. ¶ 20 (citing Stockwell, [1993] 97 Cr. App R(S). 260). 20 Id. ¶ 23. 21See ECHR, supra note 9, art. 9(2) (“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 13 14

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contrast may still be drawn between the case of a synagogue or mosque and that of Church of England bells. If the ringing complained of was demanded by the ecclesiastical law which forms part of the laws of England (and which would therefore give rise to a statutory defense in so far as it were not possible to carry out the religious obligation in a manner which did not cause a nuisance), 22 this potentially could give rise to discrimination challenges. Although the clamor over amplification of the call to prayer from the Oxford mosque reveals the extent of controversy over such cases, there has been precious little litigation in the UK in this area. Moreover, were such a case to be brought before the courts (either by way of a prosecution or under the tort of public or private nuisance) it would indirectly raise an interesting question of the relationship between religion, noise pollution, and the public space. It is interesting in this regard to compare the robust approach taken by the Supreme Court of India, with its constitutional respect for equal treatment of all religions under the Constitution, as opposed to England, with its established Church of England. The courts in India have considered the issue of amplified music from religious buildings on a number of occasions. The Indian Supreme Court in Church of God (Full Gospel) in India v KRR Majestic Colony Welfare Association, 23 considered a case involving a complaint on behalf of local residents that the use of loud speakers and musical instruments in the appellant’s prayer hall caused excessive noise contrary to the Environment (Protection) Act 1986. The High Court had directed the police to ensure that the Church turned their music down. On appeal, the Church claimed that its members right to practice religion was being infringed. The Supreme Court noted that (1) the right to practice religion is not absolute and is subject to limitations of ‘public order, morality or health’; (2) in a civilised society, religious activities disturbing the peace of others cannot be justified (noting that no religion prescribes or preaches that prayers must be performed through voice amplifiers or by beating drums) and that there is no religious right to breach the permissible limits of the 1986 Act; and (3) even if the noise pollution in certain cities may already exceed those limits, this is not a sufficient ground for permitting others to increase the noise. 24 However, the Indian Supreme Court went further in terms of judicial activism in the more recent case of In Re Noise Pollution Restricting Use of Loudspeakers and High

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.”) 22 See Soltau v. De Held (1851) 2 Sim. (NS) 133, 144-51, 160-61. Although doubt was cast upon the tolling of bells constituting a public nuisance, VC Kindersley was clear that it could constitute a private nuisance at common law, at least with regard to the bell-tolling of a Roman Catholic chapel, as opposed to that of parish churches recognized by the ecclesisastical laws of England. See also the discussion of the issue in Thomas Watkin, A Happy Noise to Hear? Church Bells and the Law of Nuisance, 4 ECCLESIASTICAL L.J. 545 (1996) ; Thomas Watkin, Oh, Noisy Bells, be Dumb: Church Bells, Statutory Nuisance and Ecclesiastical Duties, J. OF PLAN. & ENV. L. 1097 (Dec. 1995). 23 (2000) 7 SCC 282. 24 Id. ¶¶ 12-13.

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Volume Producing Sound Systems. 25 The facts of the case are striking, triggered as it was by the rape of a 13-year-old girl whose cries for help went unheard due to loud music coming from loudspeakers used for religious performances and devotional songs. Later that day, she set herself alight and died from her injuries. 26 An engineer filed a public interest petition calling for more rigorous enforcement of the relevant regulatory laws. 27 In a separate case, which was joined to the proceedings before the Supreme Court, an NGO aimed at preventing environmental and sound pollution challenged an amendment to the rules where the state government was empowered to permit the use of loudspeakers or public address systems during night hours (i.e. between 10 pm and 12 midnight) 28 on or during cultural or religious occasions for a limited period not exceeding 15 days. Prior to the hearing, the Court passed a number of interim orders including onces relating to the use of firecrackers. Several firecracker companies intervened, arguing that the industry would face serious difficulty, even partial closure, on account of the directions issued by the Court. 29 In granting the applications and enforcing the complete ban on bursting, soundemitting firecrackers between 10:00 pm and 6:00 am, the Supreme Court noted that Article 21 of the Constitution guaranteeing life and personal liberty encompasses a right to live in peace, comfort and quiet, and that Article 19(1)(a) guaranteeing the right to freedom of speech and expression could not be used to defeat this fundamental right. 30 It also described at some length the perils of noise pollution in India, that the executive had shown a lack of will to implement the laws (including the lack of proper equipment for measuring noise levels), and the limitations of the laws themselves. 31 It noted that the specific problem in relation to firecrackers applied more to developed jurisdictions due to the density of the population and frequency of celebrations. 32 As regards freedom of religion, the Supreme Court stated that the restriction did not breach anybody’s right to such freedom noting that Diwali is mainly associated with pooja and not with firecrackers, that no religious text prescribes firecrackers and it is considered a festival of lights and not noises. 33 Finally, the Court in a characteristically prescriptive mode set out various means by which the problem of noise pollution was to be curtailed. The cases are essentially all highly fact and context specific. The point is not so much that different church state models lead to different approaches but that the different contexts do. In fact, the Supreme Court of India in In re Noise Pollution undertook a relatively lengthy comparative analysis of the legislation prevailing in other jurisdictions but ultimately concluded that the problems associated with noise (2005) 5 SCC 733. Id. ¶ 2. 27 Id. 28 Otherwise the rules prevented the use of loudspeakers or PA systems between 10:00 pm and 6:00 am. 29 See Case Note, THE COMMONWEALTH LAWYER, Aug. 2007, at 18-19. 30 Church of God, supra note 23, ¶¶ 9-10 (citing INDIA CONST. arts. 21, 19, § 1, cl. a.) 31 Id. ¶ 129. 32 Id. ¶157. 33 Id. ¶161. 25 26

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prevalent in India were quite distinct from that of more developed states and necessitated an India-focused approach. 34 Although the higher courts in the UK have not yet considered the Article 9 ECHR issue in the context of noise pollution in any detail, as a qualified right, it is in principle no bar to a court making a finding of statutory nuisance as the Divisional Court noted in Rottenberg. While understandably there is considerable sensitivity to the needs of religious communities to perform public acts of worship, an equally proportionate balance has to be struck between the rights of all interested parties. This being the case, if the noise reaches the level of what is considered to be statutory nuisance in light of all the circumstances, including the character of the surrounding neighbourhood, the fact that the noise emanates from a religious building is not likely to tip the scales the other way. That is not to say that there will not be scope for challenging a prosecution on the basis that there is no statutory nuisance within the meaning of the 1990 Act (as the case of Rottenberg shows), however. An interesting argument that might be developed is one of less favourable treatment of nonestablished religions in the UK, given that their forms of worship are not expressly protected by statutory enactment, as is the case of the Church of England. 35 As regards a direct challenge from a final decision in the UK to the Strasbourg based European Court of Human Rights, it is unlikely that the ECHR would second guess the balance struck by the domestic courts in such a case involving both religious freedom issues and environmental/planning law issues, areas which have both been accorded a significant margin of appreciation. 36 But watch this space for further noise.

The author is a member of Matrix Chambers and an executive member of the Bar Human Rights Committee.

*

Suggested Citation: Samantha Knights, Sacred Space and the City: Religious Buildings and Noise Pollution, 49 HARV. INT’L L.J. ONLINE 50 (2008), http://www.harvardilj.org/online/137.

Id. ¶¶ 63-97, 129. See, e.g., Canon B11 of Morning and Evening Prayer in Parish Churches, enacted by the General Synod of the Church of England acting under the Church of England (Worship and Doctrine), Measure 1974. The Canon provides for Morning and Evening Prayer to be said or sung in every parish church at least on all Sundays and other principal feast days and also on Ash Wednesday and Good Friday. It also provides for warning of common prayers and litany being given to the people by the “tolling of the bell”. 36 See SAMANTHA KNIGHTS, FREEDOM OF RELIGION, MINORITIES, AND THE LAW 55-56, 194-48 (2007). 34 35