No such crime as ‘homophobia’, says judge, awarding damages to Christian market trader26 July 2018 Issued by: Christian Legal Centre
After 15 years of selling watches and mobile phone cases at his stall at Chichester market, Steve Loha had his licence revoked with immediate effect after a customer complained that he was offered an “offensive” Christian cartoon tract in May 2017.
However, in a judgment delivered on Friday 20th July in Chichester County Court, a judge has found that Mr Loha’s removal was illegal.
Supported by the Christian Legal Centre, Mr Loha sued Bray Associates, UK’s largest operator of outdoor markets, for breach of contract.
In his evidence, Mr Loha told the court how, after converting to Christianity while imprisoned in Winchester, he abandoned his lifelong career as a professional criminal and he began a new life as an honest small businessman and evangelist. But for offering an evangelical tract to a customer, he saw his business destroyed overnight.
Bray Associates shareholder and director Brian Nunan testified that an employee of their landlord – Chichester District Council – went to Mr Loha’s stall to buy a watch battery, and was “offended” by a “homophobic” tract offered to him. The Council’s Licencing Manager, Laurence Foord, telephoned Mr Nunan to express the council’s “displeasure”. Mr Nunan then “decided to summarily terminate” Mr Loha’s licence to trade at Chichester market.
In written submissions to the court, Bray Associates’ lawyer argued that by “distributing offensive homophobic material”, Mr Loha breached the Equality Act and may have also committed a criminal offence.
However, in the judgment, Deputy District Judge Mark Harvey rejected those arguments.
The judgment points out that under criminal law, “hostility based on sexual orientation” is “an aggravating factor when considering the seriousness” of a criminal offence, but “not an offence in its own right”. The judge goes on to ask rhetorically: “If the homophobic element is parasitic on a criminal offence, what is that offence?”
The judge also rejected a proposed analogy with employment law, where an employee may be “summarily dismissed” for “gross misconduct”. He points out that the law in relation to licences, such as a trader’s licence to occupy a market stall, is based on “centuries of unique and discrete legal principles”, and a complaint of ‘homophobia’ does not enable the marketplace operator to evict a trader “summarily”, without giving a reasonable notice or hearing his side of the story.
Legal experts will see the judgment as an important clarification of the law, showing that the time-honoured legal principles cannot be overridden by the need to protect ‘LGBT’ individuals from ‘offence’.
Bray Associates’ legal representatives are applying for permission to appeal the ruling.
In his evidence for the trial, Mr Loha told the court how, some 20 years ago, his conversion to Christianity made him abandon his life-long career of serious crime, and begin a new life as a market trader and evangelist. “Sadly, having been led by Jesus from my life of crime into a new life as an honest Christian small entrepreneur, I have now been treated like a criminal again – simply for being His follower and bearing witness to my faith,” he wrote in a statement.
Mr Loha, who comes from a Sikh background, told the court that his criminal career began in his teens after “a series of family tragedies brought me to despair… I then turned my energy into making money. I started transporting guns to Ireland. I was soon known as ‘the guy who can get you anything’.”
It was in Winchester prison that Mr Loha’s life was transformed:
“I was invited to attend chapel by an inmate who had witnessed my anger. On going into the chapel, I was drawn to the crucifix, Jesus on the cross. I couldn’t get the image out of my head. In my cell, I picked up a picture of Jesus and put it on my wall. It struck me that this man was innocent. I deserved to be where I was. Why did they kill Him? I really wanted to find out.”
After being released from prison, Mr Loha became involved in charity work and evangelism. Starting in 2002, he became a small trader at Chichester market, trading two days a week in watches, mobile phone cases, accessories and similar personal items. In 15 years of trading, he built a regular clientele of local customers. On occasions, Mr Loha entered brief conversations with his customers, where he shared his experience of being converted into the Christian faith from his life of crime. On occasions, he would offer a customer one of the evangelical cartoon tracts published by Chick Publications in the US.
However, Mr Loha’s small business was destroyed with one blow in May 2017, when the market manager suddenly phoned to inform him that his licence had been revoked with immediate effect because of a complaint from a “member of the public”.
Not only did that put an end to 15 years of his continuous trading at Chichester, Mr Loha told the court, but also “ruined” his business and livelihood, “based primarily on patiently building a reputation and relationships with customers”. As Bray Associates “dominates operation of most market places all over this part of England”, his business opportunities were severely restricted.
The next day, Mr Loha e-mailed the director of Bray Associates, Brian Nunan, offering an “unreserved” apology for any offence caused by the tract. “I am very sorry that it caused offence,” he wrote. “I there for wish to unreserved apologise to yourself and also with your help to apologise to the gentleman in question.
“As you will know I have been served in this market 15 years plus with no trouble and with depending elderly customers who rely on me weekly.
“I am very keen to show not only that I regret what I did but also promise yourself and person involved that it will never happen again… I would be more than happy to apologise to the individual concerned in person if need or by letter.
“Thank you for your time and hope you will consider allowing me back.”
However, Mr Nunan’s reply five days later, copied to two officials at Chichester Council, was uncompromising. “Unfortunately, I cannot change my decision,” Mr Nunan wrote, “…the literature was extremely homophobic and unacceptable. In today’s world religious oppression, fanaticism and persecution is rife. Anything that supports or encourages them must be eradicated.”
The letter concludes by saying: “my Landlords are of the same opinion”.
When the matter was later examined in Chichester County Court, Bray Associates relied on Mr Loha’s email of apology as “a tacit admission… that the distributed material was offensive”.
Supported by the Christian Legal Centre, Mr Loha took his case to court. Mr Nunan admitted in evidence that the removal of Mr Loha was in fact instigated by the market’s landlord, Chichester Council, rather than a complaint from a private customer.
As the judge observes in the ruling, “Chichester Council have allowed the Defendant company to operate and manage various markets in the city and therefore they were in a position to complain”.
Mr Nunan has testified that a council employee bought a watch battery from Mr Loha, who then gave him a cartoon tract, which he read “in detail” after returning to his workplace. “The Council employee found the leaflet to be gratuitously homophobic and was, unsurprisingly, offended by its content,” Mr Nunan continued.
“I understand the Council employee raised the matter as a complaint with his employer (in his capacity as a member of the public). I was then telephoned by Mr Laurence Foord the Licencing Manager of the Council who made plain the displeasure of both the member of the public and of the Council itself.
“I said I would investigate the matter and make a decision in the light of my findings and report back to the Council.”
However, in his ruling the judge concluded that no proper investigation in fact took place. The judge notes that Bray Associates “argues that its decision is final but that doesn’t remove a duty to act fairly and hear the both parties before reaching a final decision… I am bound to say that the Defendant didn’t even give the opportunity to hear the Claimant’s side before reaching a final decision”.
Bray Associates’ legal representatives are applying for permission to appeal the ruling.
Common sense prevails
Andrea Williams, chief executive of the Christian Legal Centre, commented:
“This decision makes a welcome change from a worrying trend we have seen in many recent judgments which sought to justify removal of Christians from their jobs and livelihoods for purely ideological reasons. In this case, however, the judge had the courage to uphold the rule of law.
“Steve gave out tracts to make known the hope of salvation in Jesus Christ for all people. Christians share this good news message in different ways, but agree that all people, everywhere, need to believe in Jesus to find eternal life.
“Steve Loha stands for some of the most precious things in humanity, honest hard-working enterprise, courageous evangelism, and genuine repentance of sin. He deserved justice, and we are very privileged to have served him in securing its triumph.”