Select Committee on Religious Offences in England and Wales First Report

CHAPTER 3: The Law as it Stands

common law offences


18.  Blasphemy (and blasphemous libel) is a common law offence with an unlimited penalty. The content of the current law is obscure, but in Appendix 3 we endeavour to set it out in detail. In 1981 the Law Commission observed that it was "hardly an exaggeration to say that whether or not a publication is a blasphemous libel can only be judged ex post facto".[20] In 1985 it recommended its repeal.[21]

19.  Two elements of the law are clear. First, the offence is one of strict liability. That is to say, intent to commit an act of blasphemy is irrelevant; all that matters is whether the accused did in fact publish the material that is the subject of prosecution. Secondly, the offence protects only the Church of England. It was clear to us from the correspondence we received, however, that the law is perceived by many to have a much wider and more general application.

20.  No blasphemy case has been prosecuted in England and Wales since the passage of the Human Rights Act 1998 (incorporating elements of the European Convention on Human Rights), but it is a reasonable speculation that as a consequence of that legislation any prosecution for blasphemy today—even one which met all the known criteria—would be likely to fail or, if a conviction were secured, would probably be overturned on appeal (if not by the House of Lords then by the European Court of Human Rights) on grounds either of discrimination, of denial of the right to freedom of expression, or of the absence of certainty. Such an outcome would, in effect, constitute the demise of the law of blasphemy.

Other Common Law Offences

21.  The Religious Offences Bill proposed the repeal of "any distinct offence of disturbing a service" and "any religious offence of striking a person in a church or churchyard". These proposals replicate the wording in the draft Bill proposed by the Law Commission in its 1985 report (p3.4), which also summarises the offences as follows: "The precise breadth of the common law is difficult to gauge. There are very broad statements in Hawkins' Pleas of the Crown to the effect that 'all irreverent behaviour' in churches and churchyards has been regarded as criminal. More specifically there is authority, by no means strong, for the propositions that it is an offence at common law - (a) to disturb a priest of the established Church in the performance of divine worship, and also, it seems, to disturb Methodists and Dissenters when engaged in their "decent and quiet devotions"; and (b) to strike any person in a church or churchyard". The Law Commission recommended the repeal of these offences, which have "not been used at all in modern times, and have been entirely superseded by statutory offences".


The Criminal Libel Act 1819

22.  The Religious Offences Bill proposed the repeal of references to blasphemous libel in Section 1 of the Criminal Libel Act 1819. This law covers both publications that are a seditious libel and those that are a blasphemous libel. In the case of blasphemous libel, where material is judged to be a blasphemous libel "tending…to excite his Majesty's subjects to attempt the alteration of any matter in the Church…by law established, otherwise than by lawful means", the court making that judgement can order the seizure of that material. Since it applies only to publications that are likely to lead to an attack on the position of the Church of England, this part of the Act is probably in conflict with the provisions of the Human Rights Act 1998. In their supplementary evidence, the Home Office have said that the Act itself should not be repealed, because of the need to retain the provisions for seditious libel. They have also advised that if the law of blasphemy were itself repealed, the references to blasphemous libel would fall away[22]. The provision does not appear to have been used in modern times.

The Law of Libel Amendment Act 1888

23.  Section 3 of the Law of Libel Amendment Act was repealed by section 16 and Schedule 2 of the Defamation Act 1996. Section 4 of the Law of Libel Amendments Act 1888 was repealed, in relation to blasphemous libel, by sections 17(2) and 18(3) of the Defamation Act 1952.

The Cemeteries Clauses Act 1847

24.  Section 59 of the Cemeteries Clauses Act 1847 makes it an offence to "play at any game or sport, or discharge firearms, save at a military funeral" in a cemetery or to "wilfully and unlawfully disturb any persons assembled in the cemetery for the purpose of burying any body" or to "commit any nuisance within" a cemetery. This provision, however, now only applies to privately run cemeteries. Cemeteries run by local authorities are governed by the Local Authorities' Cemeteries Order 1977. Section 18 of this creates an analogous offence to section 59 of the 1847 Act. These offences are similar in effect to those created under section 2 of the Ecclesiastical Courts Jurisdiction Act 1860 (see below). However, there is one significant difference between these measures. Section 2 might be regarded by some as being objectionable because it specially protects religious as opposed to non-religious sites, but this argument does not extend to either the 1847 Act or the 1977 Order. Although most burials or cremations are religious in character the law neither requires that they be religious in a particular manner nor that they be religious at all. Thus the protection inherent in these offences is extended to all cremations and burials whatever their form. The 1977 Order should therefore allow for repeal of the 1847 Act.

The Ecclesiastical Courts Jurisdiction Act 1860 ("ECJA")

25.  Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860 forbids "riotous, violent or indecent behaviour in any Cathedral Church, Parish or District Church or Chapel of the Church of England…, or in any Chapel of any Religious Denomination or … in any Place of Religious Worship duly certified" under the Registered Places of Worship Act 1855, "whether during the celebration of divine service or at any other time". Section 2 also makes it an offence to "molest, let, disturb, vex, or trouble, or by any other unlawful means disquiet or misuse any Preacher duly authorised to preach therein, or any Clergyman in Holy Orders ministering or celebrating any Sacrament, or any Divine Service, Rite, or Office, in any Cathedral, Church, or Chapel, or in any Churchyard or Burial Ground".

26.  Evidence to the Committee indicated that this offence is still in occasional use. According to statistics made available by the Home Office, there were 60 prosecutions under this Act in the six years 1997-2002, with 21 convictions. These figures need to be seen in the perspective of the totality of crimes against places of worship. According to "National Churchwatch" there were 6,829 such incidents in 12 (of 42) police areas in the year ending April 2002, 186 of them violent crimes (including 2 murders) and 2,866 incidents of criminal damage (most of the remainder were thefts or burglaries)[23]. The Crown Prosecution Service has been unable to provide any details of the 60 ECJA cases, but in his evidence to the Committee the Director of Public Prosecutions said that: "We use it sufficiently often or have used it in the past for it obviously to be the right offence to use and a redrafted Section 2 would probably be a (albeit infrequently used) valuable offence"[24].

27.  The Law Society of Scotland has indicated that in Scotland, to which the offence does not extend, the common law offence of breach of the peace provides all necessary protection[25]. It is clear from the figures provided above that, as a proportion of the totality of crimes against places of worship, those prosecuted under the ECJA form a very small minority. From the information we have been able to ascertain about two cases brought in 2001, it is also apparent that some cases originally coded as ECJA result in convictions under some other statute. The assumption is that those of the remainder that are followed up are prosecuted under more general public order legislation. However, the Home Office, in supplementary evidence sent to the Committee[26], said that it believed the 1860 Act did cover situations not covered by other offences although they found it "difficult to cite any specific examples". One example may be the well-documented case of the prosecution of Mr Peter Tatchell, under the ECJA, in 1998. He was found guilty under the ECJA of indecent behaviour ("indecent" being used not in the sense of intending to corrupt or deprave but in the context of the Act's reference to "riotous, violent or indecent behaviour"). In his written submission[27] Mr Tatchell says it took the police six weeks to frame the charge against him. There may have been other incidents or actions liable to or which actually caused offence in or around places of worship but which were not susceptible to prosecution under other legislation. The fact that prosecutions are triable by a magistrate only may also make its deployment attractive to the prosecuting authorities.

The Offences Against The Persons Act 1861

28.  Section 36 of the Offences Against the Persons Act 1861 makes it an offence to, amongst other things, use "threats or force, obstruct or prevent or endeavour to obstruct or prevent, any clergyman or other minister in or from celebrating divine service or otherwise officiating in any church, chapel, meeting house, or other place of divine worship". There is ample authority for the proposition that the phrase "divine worship" extends beyond the services conducted by the Church of England and, given the Segerdal test noted in para 55 in relation to the 1860 Act, it may probably be argued that the phrase extends to all theistic, including probably polytheistic, religions. However the phrase seems to exclude from the protection of the Act both non-theistic religions where there is no worship of the divine and also religions, such as the Religious Society of Friends, that do have divine worship but do not have persons who are, or who are analogous to, clergymen or ministers. The exclusion of non-theistic religions may be problematic following the implementation of the Human Rights Act 1998. Granting special protection to clergymen and ministers but not to those, such as people attending a Quaker meeting, who are engaged in ministering without being formally designated as ministers, may not be acceptable under the 1998 Act.

The Burial Laws Amendment Act 1880

29.  Section 7 of the Burial Laws Amendment Act 1880 falls into two parts. First the section makes it an offence to indulge in "riotous, violent, or indecent behaviour" at any burial under the Act. The section also makes it an offence to obstruct a burial. This part of the section applies specifically to both religious and non-religious burials. The second part of the section makes it an offence to "bring into contempt or obloquy the Christian religion, or the belief or worship of any church or denomination of Christians, or the members or any minister of any such church or denomination, or any other person". The meaning of the final phrase in this part of the section, "any other person", is somewhat obscure and might be interpreted to mean that it is an offence to bring into contempt or obloquy any person at a burial. However, leaving aside this argument, which does not seem to have been the subject of debate within the courts, the main import of this part of the section seems to be to create an offence that provides specific protection for the Christian faith. There are thus potential objections to the section under the provisions of the Human Rights Act 1998.

30.  From this point onwards the report will reflect different possible approaches to the three main issues. On these the members of the Committee were not unanimous in their views; in any case we all agreed that, on matters of this complexity and controversy, recommendations by a Select Committee of the House would be unlikely to carry such weight as to oust further discussion and that it must be for Parliament as a whole to make the choices. We thus set out options for the next stage in the debate.

20   "Offences Against Religion and Public Worship" (Law Commission Working Paper No. 79, 1981) para. 6.1. Back

21   "Offences against Religion and Public Worship" (Report: LAW COM. No. 145) para 2.57 Back

22   Volume II, pages 24 and 31 Back

23   Volume III pages 63-66 Back

24   Volume II, Q631 on page 220 Back

25   Volume III, page 52 Back

26   Volume II, on page 28 Back

27   Volume III, page 73 Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003